Chicago Tribune Co. v. Bridgestone/firestone, Inc.: "good Cause" Wins the Battle, but Will Protective Orders Survive the Product Liability War? - Sheila J. Baran

• Publication year: 2002

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Chicago Tribune Co. v. Bridgestone/Firestone, Inc. "Good Cause" Wins the Battle, But Will Protective Orders Survive the Product Liability War?

In Chicago Tribune Co. v. Bridgestone/Firestone, Inc.,¹ the United States Court of Appeals for the Eleventh Circuit held a party only needs to meet a "good cause" balancing of the interest standard in civil litigation when requesting discovery documents to remain shielded from public view under a protective order authorized by Rule 26(c) of the Federal Rules of Civil Procedure.² The court rejected the need for a party to show a more demanding compelling interest standard when that party wants to shield discovery material potentially hiding serious health and safety issues from the public.³ This decision protected the efficiency of the discovery process. If the court had found that a compelling interest standard applied, instead of the good cause balancing standard, it would have created resistance to providing discovery documents and required more intervention by the court on a document-by-document basis.

I. Factual Background

Prior to the national coverage of the Bridgestone/Firestone ("Firestone") tire defects in the fall of 2000, a college football player died from injuries sustained in a rollover automobile accident. In April 1998 his parents, the Van Ettens, filed suit in the Southern District of Georgia, claiming Firestone's negligent design and manufacture of the tires on their son's Ford Explorer was the proximate cause of his death. Early in the case, on August 12, 1998, the parties consented to an "umbrella" protective order.⁴ This stipulated order alleviated the time consuming and inefficient process of the court ruling individually on each document. It also postponed the need for Firestone to show there was "good cause" to protect the documents under Rule 26(c) of the Federal Rules of Civil Procedure.⁵ Firestone would only need to show "good cause" if the confidential designation was challenged.⁶

The protective order allowed Firestone to designate materials produced during discovery as confidential.⁷ The order not only protected documents during pretrial discovery, but also contained provisions that "confidential. . . material had to be sealed when filed with the Court in connection with a pleading, motion, or other filing."⁸ Pursuant to this protective order, Firestone sought to protect various documents disclosed during discovery. Several of these protected documents were later filed with the court by the Van Ettens, some in connection with summary judgment motions dealing with the merits of the case and others in connection with motions to compel discovery.⁹ These filed documents remained sealed pursuant to the protective order.¹⁰ The Van Etten case never went to a jury, because the parties settled the case under confidential terms in November 1999. The stipulated protective order remained in effect even after the case was settled.¹¹

In August 2000 Firestone recalled more than six million tires that were installed on Ford Explorers and other sport utility vehicles. Reports showed a defect in the tires caused the tread to separate from the tire. This defect was linked to numerous auto accidents and deaths, creating a media frenzy for several months. Because of public health and safety concerns, interest in the Van Etten case and others like it grew. The media suspected that Firestone knew about the defect long before the recall and long before many injuries and deaths. Four national news organizations, the Chicago Tribune, The Washington Post, CBS Broadcasting, and the Los Angeles Times (collectively the "Press"), requested the District Court for the Southern District of Georgia to unseal the protected records of the Van Etten case.¹²

Firestone agreed to unseal many of the requested documents; however, it objected to the disclosure of the following: (1) four exhibits attached to the Van Ettens's motion to compel discovery; (2) four pages of the Van Ettens's motion to compel discovery; (3) two depositions of Firestone's in-house expert and continuous improvement supervisor, as well as four exhibits attached to those depositions, submitted by the Van Ettens in response to Firestone's motion for summary judgment; (4) two pages of the Van Ettens's response to Firestone's motion for summary judgment on the issues of punitive damages and seat belt safety; and (5) four pages and one attached exhibit of the Van Ettens's response to Firestone's motion for summary judgment on the issues of tire defect and negligence. Firestone claimed these particular documents contained trade secrets. In response to this objection, the Press filed a motion before the district court to open the remaining sealed records.¹³

The district court, relying heavily on two Eleventh Circuit cases, Wilson v. American Motors Corp.,^u and Brown v. Advantage Engineering, Inc.,¹⁶ ordered the remaining records unsealed.¹⁶ The court declared, "'[A]bsent some exceptional circumstances, trials are public proceedings.' There is a 'strong common law presumption in favor of public access' to records filed with the Court in conjunction with any case, civil or criminal."¹⁷ The court interpreted Wilson and Brown to hold that once documents are "filed with the court for its judicial consideration,"¹⁸ the protective order is subject to heightened scrutiny and must be "necessitated by a compelling interest."¹⁹ Quoting Wilson, the court reasoned,

[L]itigants do not have the right to agree to seal what were public records. The district court must keep in mind the rights of a third party—the public. If the public is to appreciate fully the often significant events at issue in public litigation and the workings of the legal system.²⁰

The court found that Firestone failed to show a compelling interest in sealing the documents; as a result, the court ordered the documents be released to the public.²¹

Finding the district court adopted an erroneous legal standard by applying heightened scrutiny, the Eleventh Circuit vacated the district court's order and remanded with instructions.²² The court of appeals held the Rule 26(c) good cause balancing of the interest standard applies in civil cases when the confidentiality of discovery material sealed under a protective order is challenged.²³ Once the protective order is challenged, the party seeking confidentiality must prove there is good cause for the documents to remain sealed. If good cause is shown, the district court must balance the public's interest in obtaining access against the defendant's interest in keeping the information confidential.²⁴ The court of appeals found the district court erred under the first step of the rule, because the district court did not evaluate whether there was "good cause" to keep the documents sealed²⁵ and also failed to complete the balancing of the interests step.²⁶ The district court did not make any factual findings supporting its conclusion that the safety and health of the public were sufficiently impacted by the information in the sealed documents.²⁷ These findings would have been necessary to trump Firestone's interest in keeping the information confidential.²⁸ Therefore, the case was vacated and remanded to the district court to consider these issues.²⁹

II. Legal Background

Prior to the adoption of the Federal Rules of Civil Procedure in 1938 ("Rules"), the discovery system limited the scope of information that could be gathered to information admissible at trial.³⁰ In 1938 the Rules expanded the scope of discovery to any information that could conceivably help in the preparation of the case.³¹ The objectives of the discovery process expansion were to ease preparation for trial, to avoid surprise at trial, and to encourage the resolution of cases on their merits. The objective was not to expand the public's access to information. This expansion, giving an unlimited right of discovery, drastically increased the amount of information generated in cases and created a new problem. With less restriction on discovery, opposing parties had access to information traditionally protected as private and confidential.³²

The original rules provided some protection for these privacy interests.³³ One form of protection, which was the foundation of the current Rule 26(c), was the protective orders allowed under Rule 30(b), giving protection to parties and deponents with regard to their depositions.³⁴ The relevant part of the original Rule 30(b) states:

[F]or good cause shown [the court can order] . . . that after being sealed the deposition shall be opened only by order of the court, or that secret processes, developments, or research need not be disclosed, or that the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court; or the court may make any other order which justice requires to protect that party or witness from annoyance, embarrassment, or oppression.³⁵

Because protective orders limit the use of materials produced during discovery, they facilitate discovery with little judicial involvement.³⁶ For example, businesses would normally resist producing documents containing trade secrets requiring court intervention, but a protective order sealing the documents removes the concern about losing a competitive advantage.³⁷ Therefore, a business is less likely to resist providing the requested documents because its trade secrets will be protected from the public.³⁸

Since 1938 the legislature has continually amended the Rules "to maintain a balance among a litigant's ability to compel production of information, the court's capacity to protect confidentiality and prevent misuse of information, and the court's ability to prevent abuse of the procedural system."³⁹ The first comprehensive review of the discovery process occurred in 1970.⁴⁰ Due to the increasing number of complex and protracted cases, the legislature recognized the need to...