Cynthia S. Littlejohn v. Bic Corporation Bic Societe, S.A. John Doe(s), Component Manufacturer(s) John Doe(s), Distributor(s) And/or Wholesaler(s) John Doe, Retailer Levi Strauss & Co. And John Doe(s), Clothing Manufacturer(s), Distributor(s), Wholesaler(s), And/or Retailer(s) Philadelphia Newspaper, Inc., Intervenor. Appeal of Bic Corporation
Docket: 87-1666
Court: Court of Appeals for the Third Circuit; August 1, 1988; Federal Appellate Court
The case involves an appeal by BIC Corporation regarding access to judicial records following a products liability suit initiated by Cynthia Littlejohn, who claimed injury from a defective BIC lighter. Philadelphia News, Inc. (PNI) intervened to gain access to trial exhibits that BIC argued were confidential corporate documents covered by a protective order (PO) prohibiting their disclosure. BIC also sought contempt charges against Littlejohn's attorney, Mel D. Kardos, for not returning these confidential documents. The district court allowed PNI access to certain documents, refused to hold Kardos in contempt, and denied BIC's request to expand the record. The appeal raises issues about the common law right of public access to judicial records, particularly in the context of materials initially protected under confidentiality agreements. The appellate court affirmed some decisions, reversed others, and remanded for further proceedings. The protective order established strict guidelines for the use and disclosure of BIC's confidential information, emphasizing that such materials were to be used solely for trial preparation and returned post-trial.
Confidential materials obtained under the protective order (PO) were to be sealed by the court clerk, accessible only to the court and the parties' counsel unless otherwise ordered. Violating the PO constituted contempt of court. The district court bifurcated Littlejohn's trial into liability and damages phases. During the liability trial, Littlejohn introduced confidential BIC corporate documents, specifically a 1983 lighter audit (P-38) and consumer complaint memoranda (P-39), which her expert witnesses relied upon. The district court admitted all of Littlejohn's exhibits into evidence without objection from BIC. The jury found BIC liable, leading to a settlement prior to the damages trial.
Post-settlement, BIC's attempt to seal the record was rejected, and the case was dismissed under local procedural rules. Disputes regarding BIC's confidential documents arose after the settlement, particularly when the Philadelphia Inquirer sought access to trial records. PNI intervened after BIC withheld evidence designated as confidential under the PO. BIC requested the return of documents from plaintiff's attorney, Kardos, who argued he was entitled to keep copies of admitted exhibits and transcripts as they were part of the judicial record and not subject to the PO anymore. BIC's initial contempt petition against Kardos was denied, but it later renewed this petition for enforcement of the PO.
Kardos submitted the disputed documents under seal for court review. A September 1987 hearing resulted in the court allowing PNI to access the judicial record, which included the admitted documents, and denying BIC's contempt petition. In a subsequent order, the court declared the disputed documents part of the public record. BIC's motion for reconsideration was denied, leading to the current appeal concerning the disputes involving PNI and Kardos.
PNI's motions for intervention and access were grounded in the public's common law right to access judicial proceedings and records, a right that is well-established and recognized in case law such as Publicker Industries, Inc. v. Cohen and Nixon v. Warner Communications. This right extends beyond mere attendance at court proceedings to include the right to inspect and copy judicial records, which is rooted in historical precedent and societal benefits. Public access is crucial for fostering public confidence in the judicial system, enhancing the integrity of testimonies, and preventing injustices. However, this right is not absolute; courts maintain supervisory authority over their records and may restrict access to prevent misuse. The common law presumption of access must be balanced against reasons for denial, such as protecting sensitive business information. BIC's challenges to the district court's orders focus on claims that the contested documents were not admitted into evidence, were protected by a confidentiality order, and that any access right lapsed when the court returned the exhibits. The court has previously affirmed a strong presumption favoring public access to materials introduced at trial. BIC contests the district court's determination that certain documents were admitted into evidence, but the factual findings of the district court will stand unless clearly erroneous.
At the close of the plaintiff's case, plaintiff's counsel, Kardos, requested the admission of all exhibits into evidence, suggesting that only a few photographs needed to be sent to the jury. The court indicated that the photographs should be prepared for the jury. BIC's trial counsel, Foster, objected to the admission of shoes and trousers on the grounds of lack of identification, but the court admitted them into the record, noting they would not be sent to the jury. BIC argued this exchange confirmed the admission of the shoes and trousers, but the overall context revealed that the plaintiff requested all exhibits to be admitted and that BIC's counsel did not object to the documentary exhibits. Consequently, exhibits P-38 and P-39, which were pre-identified and referenced during the trial, were affirmed as admitted. However, exhibit P-37 was not specifically mentioned at trial, leading to the conclusion that it was improperly admitted.
Regarding the protective order (PO), BIC contended that PNI should not access confidential documents because BIC relied on the PO's confidentiality promise when releasing them. BIC argued the district court erred by allowing PNI access without considering BIC's reliance or requiring PNI to demonstrate a compelling need. However, the court found that BIC waived any confidentiality rights by not raising the issue during the trial, as the plaintiff indicated her intention to use confidential documents and discussed them without objection from BIC. After settlement, BIC attempted to seal the record, but the court denied this request.
The release of information in open court is regarded as a publication, waiving any rights to restrict future use if no efforts are made to limit its disclosure. References to confidential documents in open court may suffice as sufficient publication, even if the entire report was not read aloud. BIC's failure to object to the admission of documents, without sealing the record, resulted in a waiver of confidentiality under the protective order (PO). Despite the PO, the documents became judicial records. A unique issue arose when PNI filed a motion for access after the underlying litigation was settled and the documents returned to BIC. The district court ruled that the withdrawal of exhibits by counsel did not eliminate their status as public records and noted that documents submitted under seal for an ancillary contempt petition were restored to the public record. BIC contended that the exhibits lost their judicial record status upon return after case closure, but custody change alone does not determine the nature of judicial records. Under Federal Rules of Appellate Procedure, trial exhibits remain part of the record on appeal even if withdrawn. In this case, the litigation was formally closed and the parties settled, with no appeal. PNI, a non-party, filed for intervention and access to the trial record and exhibits nearly five months later, raising the question of whether the disputed exhibits retained their status as judicial records at that time.
The right of access to judicial records remains under-defined, with no directly applicable case law identified. Access is based on historical experience and social utility, which dictates that the judicial record must address these factors. The judicial system acknowledges both temporal and substantive limits on record content. Under Local Rule 39, the District Court Clerk retains custody of evidence exhibits, categorized as "auxiliary case records," which must be retrieved by the producing party within sixty days post-dismissal or final judgment, or within ninety days after an appellate mandate, or they will be deemed abandoned and destroyed. A federal statute, 28 U.S.C. Sec. 457, permits the disposal of obsolete court papers with court approval.
When PNI sought access, the case was settled, no appeal was pending, and the contested exhibits had already been returned, meaning they were no longer part of the judicial record subject to public access. The principles of First Amendment and common law access suggest that public access enhances trust in the judicial process and understanding of its fairness, which were fulfilled during the trial. After the case's closure, these access purposes are not deemed necessary. Additionally, the burden of maintaining numerous exhibits in light of increasing litigation complexity is deemed unreasonable for courts to handle indefinitely.
Absent allegations of fraud or extraordinary circumstances, trial exhibits returned to their owner after case termination and properly subject to destruction are no longer judicial records under the district court's supervisory authority. The First Amendment and common law do not grant the district court the power to compel litigants to return such exhibits for third-party inspection. The trial court erred in granting PNI access to exhibits P-38 and P-39, as they were no longer part of the judicial record, but PNI retains access to items still considered part of the record, like deposition testimony read at trial.
The document also addresses a contempt petition against Kardos, the plaintiff's attorney, for not returning confidential documents as required by a protective order (PO). BIC alleged Kardos may have distributed confidential documents, while Kardos contended he was not required to return materials no longer subject to the PO and that evidence of distribution was insufficient. The court denied BIC's contempt petition, which BIC sought to reconsider and expand the record to investigate Kardos' actions; these requests were also denied. The appeal reviews the contempt denial under an abuse of discretion standard, requiring clear and convincing evidence of a violation of the court order. Kardos was obligated to return all documents per the protective order, emphasizing the importance of compliance with discovery orders. However, the court did not abuse its discretion in denying the petition for contempt, considering both the public right of access to documents and Kardos' obligations under the PO.
The determination of public access to judicial records in the Littlejohn case requires balancing the presumption of access against interests favoring secrecy. The district court concluded that the defendant, BIC, failed to demonstrate that secrecy outweighed the presumption of public access. It found that denying access served no significant public interest and that BIC did not specify how disclosure would cause serious harm to its interests. Notably, the evidence did not contain trade secrets, and BIC's concerns about disclosing product-related issues did not supersede the public's interest in consumer safety information.
BIC argued that certain portions of the judicial record contained trade secrets or confidential business information, but the court rejected these claims, determining that the documents in question did not qualify as trade secrets. An affidavit submitted by BIC lacked specificity in asserting that the contested exhibits contained trade secret information. While BIC maintained that the disclosure could harm its commercial standing, the court noted that mere confidentiality does not afford the same protections as trade secrets, especially once the information has been used in court.
BIC's assertion that disclosure would negatively impact its business and stock value was deemed insufficient to overcome the presumption of openness, which serves to protect public interests, including the prevention of misleading investments. The district court evaluated the relevant factors and appropriately weighed public access against BIC's interests, ultimately finding that public access was justified.
Kardos, who retained copies of the admitted evidence, argued he was exercising his right to access, while BIC claimed he had forfeited this right by agreeing to a protective order. The court upheld the denial of BIC's contempt petition, noting ambiguity regarding the application of the protective order to evidence that had not been sealed. Thus, the public retains a right to access the judicial record in this case.
BIC references the case Kehm v. Proctor & Gamble Mfg. Co., where an attorney was held in civil contempt for distributing documents protected by a court order without permission. The court determined that the loss of confidentiality was not a valid defense against the contempt charge. However, the current case differs because the protective order did not specifically cover deposition testimony or exhibits admitted during the trial. The court observed that BIC had effectively waived its confidentiality rights for materials included in the trial record. As such, the district court did not err in declining to impose civil contempt sanctions against Kardos for retaining deposition testimony and trial exhibits. However, Kardos did keep exhibit P-37, which was not admitted into evidence, prompting a remand for consideration of whether this retention constituted contempt.
BIC's request to expand the record for further discovery was denied, which the court reviewed for abuse of discretion. The court found BIC's claims unmeritorious due to a lack of diligence and the waiving of rights under the protective order. The district court’s decision granting PNI access to the judicial record is affirmed, but the order regarding exhibits P-37, P-38, and P-39 is reversed. The denial of BIC's contempt petition against Kardos is upheld, except for the aspect concerning exhibit P-37, which is remanded for further evaluation. The refusal to allow BIC to conduct additional discovery is also affirmed, with each party bearing its own costs.
In dissent, Circuit Judge Scirica argues against denying PNI's public right to access trial exhibits, citing a longstanding precedent affirming the public's right to examine judicial records as essential in a democratic society.
The rule governing access to judicial proceedings is grounded in two primary principles: it ensures the public's right to observe and engage with the judicial process, thereby enhancing public debate, and it fosters understanding and perceived fairness within the judicial system. While this right is not absolute, a "strong presumption" in favor of access exists, requiring any party wishing to deny access to prove a significant overriding interest that is narrowly tailored to serve that interest. In this case, PNI sought access to evidence from a public trial, while BIC argued that the confidentiality of its records should prevail, claiming that the exhibits ceased to be public records once returned to counsel under local court rules.
The district judge utilized the Criden test and affirmed the right of access, concluding that the exhibits retained their public record status despite their return post-trial. The judge balanced competing interests and determined that providing access would not cause inconvenience. The existence of a local rule allowing the return or destruction of exhibits within sixty days does not negate the common law presumption of access to records presented in public judicial proceedings. It is a well-established principle that no statute should be interpreted to alter common law unless explicitly stated, and similarly, a local court rule cannot override this strong presumption.
Although PNI missed the opportunity to obtain access due to the brief time lapse beyond the sixty-day limit, its pursuit of the trial exhibits was deemed essential for effective reporting on significant public issues. The text emphasizes that public interest in judicial proceedings may not align with administrative convenience and that heightened scrutiny can surface long after a trial concludes, suggesting the importance of maintaining access to judicial records for ongoing public discourse.
The decision mandates that members of the public must assert their rights to access court records within two months, or risk losing them permanently, which contradicts the intent of public access. While acknowledging that unlimited retention of court records can burden parties and courts, the situation at hand does not present such burdens since the contested exhibits are still in existence and have not been destroyed. The district court should evaluate the burden of access requests, considering timing and practicality, but a local rule about the return or destruction of exhibits should not dictate access rights. Judicial records are presumed open to public examination unless there are improper purposes.
The text discusses a protective order (PO) regarding confidential information, which did not provide the plaintiff a means to challenge designations made by BIC, the defendant. There is a clarification about the misidentification of a document as exhibit P-36 instead of P-39, and it notes PNI's previous motion for access was denied without prejudice. Additionally, it mentions BIC's contempt petition against Kardos, and the district court's resolution of related access and contempt motions through multiple orders. BIC did not contest PNI's motion for intervention, and although intervention is typically tied to an ongoing action, third parties may seek access post-termination via complaint or order to show cause. However, previous case law suggests that intervention may still be appropriate for access to records even after case resolution.
PNI attempted to intervene in Littlejohn's personal injury case after its settlement and dismissal, potentially improperly. However, due to a lack of challenge from BIC, the district court's intervention order will not be reviewed. PNI claims a right to access certain documents under common law and First Amendment doctrines, but most contentions can be resolved without addressing constitutional issues. BIC initially disputed PNI's access to deposition testimony but later conceded this right. BIC argues that the district court mismanaged the balance between disclosure and confidentiality, but this will not be addressed in relation to PNI's access claims. The conclusions drawn are based on common law rather than First Amendment considerations.
BIC's counsel may not have raised valid objections to the admission of some exhibits, but public access is not contingent upon proper evidence admission. Dr. Geremiah, a plaintiff's expert, relied on specific exhibits, which were discussed in court, contrary to BIC's assertion that only portions read aloud were admitted. PNI also claims witnesses referred to exhibit P-37, but there was no specific mention or identification of this exhibit, rendering it insufficient for public record status. General references to documents do not establish P-37 as part of the evidence or public record.
Documents referenced during a hearing may become part of the public record even if not admitted into evidence. The First Amendment right of access does not imply that documents not specifically mentioned or admitted at trial are automatically accessible to the public. The district court determined that a protective order (PO) did not explicitly cover the trial, and BIC's interpretation of the PO as granting unilateral control over public access to documents was legally questionable. The PO allowed BIC to designate documents as confidential without limitation, but the court had not independently verified the necessity of such confidentiality as required by Federal Rule of Civil Procedure 26(c).
BIC’s argument for maintaining confidentiality of certain documents was based solely on relevance. The terms of the PO indicated that documents would remain confidential unless ordered otherwise by the court, and the admission of trial exhibits without sealing constituted such an order, negating BIC's reliance on confidentiality. The handling of documents, including their return to BIC’s counsel after being offered into evidence, raised questions regarding the definition of the judicial record, which is a legal matter. BIC cited prior cases, but the court expressed skepticism about the applicability of those precedents, particularly concerning access to materials returned to their owner.
The products liability suit was dismissed on October 6, 1986. PNI requested access to the judicial record first on March 12, 1987, and again on July 29, 1987. There is a conflict in local rules: Local Rule 23 allows for the modification of a dismissal order within ninety days, while Local Rule 39 allows the destruction of exhibits from settled cases within sixty days post-dismissal. This raises concerns about the timing of exhibit destruction relative to the ninety-day period. PNI's request was made after this period had expired. Additionally, issues arise when trial exhibits include endangered species, as maintaining such exhibits indefinitely poses practical challenges.
BIC contested PNI's access to specific exhibits (P-37, P-38, and P-39) only. PNI claimed the district court had supervisory authority over the documents due to their submission under seal during contempt proceedings involving Kardos; however, this argument was deemed invalid since PNI did not intervene for access. The court dismissed both access and contempt issues in a single ruling without specific findings on Kardos's actions, implying he did not violate the protective order (PO) regarding the return of documents.
The PO required the return of all relevant documents to the defendant's counsel at the conclusion of proceedings, with violations punishable as contempt. It specified that all confidential information related to discovery must be maintained under seal and accessible only to the court and counsel until further notice. The court incorrectly concluded that PNI had access rights to the contested exhibits that were no longer under the court's control, while the public access issue was intertwined with the contempt matter, as Kardos retained copies of relevant materials during their judicial record status. BIC argued against a presumption of access to the exhibits, stating that since the jury did not rely on them for its decision, access should be limited to materials that informed judicial decisions.
The distinction between materials used in judicial decisions and those obtained through discovery is critical for assessing the presumption of public access to evidence. Relevant case law, including Tavoulareas v. Washington Post Co. and In re "Agent Orange" Product Liability Litigation, indicates that a presumption of public access to trial evidence exists without necessitating a case-by-case analysis. BIC's assertion that documents related to its quality control procedures are proprietary and confidential is noted; these documents do not reveal the specific content of those procedures. BIC's claim that releasing these documents would harm its competitive standing is deemed unfounded. Following the conclusion of litigation, there was an inquiry for access to deposition testimony and trial exhibits, to which the court responded that authorization for release was unnecessary, suggesting these materials might not be bound by confidentiality restrictions. BIC's lack of diligence in pursuing discovery related to a contempt motion against Kardos, including a delay in suggesting further discovery until months later, is highlighted. Although BIC claimed ignorance of potential document dissemination until September 1987, it referenced a prior article indicating access to internal memos as early as April 1987. Furthermore, BIC's evidence did not substantiate claims that Kardos improperly shared confidential materials.
