UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 1FALL 1984
NOTE
Clear Standards for Discovery Protective Orders: A Missed Opportunity in Rhinehart v. Seattle Times Co.
I. Introduction
The Washington State Supreme Court faced the conflict in values between liberal discovery rules and the first amendment for the first time in Rhinehart v. Seattle Times Co.(fn1) The appeal by the Seattle Times raised the issue of whether protective orders restricting the dissemination of discovery materials violate free speech interests and constitutional guarantees of public access to judicial proceedings.(fn2) The Washington Supreme Court's response failed to create meaningful policy guidelines for future cases. The majority, concurring, and dissenting opinions each suggested a different way to analyze protective orders. The majority refused to recognize first amendment interests in pretrial discovery orders, but phrased its refusal so ambiguously that the status of first amendment interests in protective orders was left uncertain.
The United States Supreme Court partially resolved the confusion when it considered the validity of the Rhinehart protective order on appeal. The Court affirmed the state supreme court, but disagreed wjth the state court's rationale in one important respect. The Court did find limited first amendment interests affected by the protective order request.(fn3) Despite its acknowledgment of first amendment interests, the Supreme Court joined the Washington court in declining to formulate a clearly defined balancing test for trial courts to use in issuing protective orders,(fn4) and thus failed to ensure that limitations on first amendment freedoms would be no greater than necessary to prevent abuses of pretrial discovery.
This Comment examines the Rhinehart litigation and suggests balancing guidelines that the courts, in particular the Washington Supreme Court,(fn5) could have proposed as standards. Several federal circuit courts have developed clear balancing criteria for trial courts to use in issuing protective orders.(fn6) Washington courts had not considered the scope of first amendment interests in discovery before Rhinehart, but they had issued balancing standards for protecting such interests in the context of other judicial proceedings.(fn7) The Rhinehart court could have produced clearer guidelines for evaluating protective orders by carefully considering the relevant federal cases as well as the free speech(fn8) and open judicial proceedings(fn9) provisions of the Washington State Constitution, and the state's Public Disclosure Act.(fn10)
Both state and federal cases are relevant to the Rhinehart decision because discovery proceedings in Washington are governed by Superior Court Civil Rule 26 (CR 26), which is based on rule 26 of the Federal Rules of Civil Procedure.(fn11) CR 26 contains the central provisions governing the scope of discovery.(fn12) CR 26(c) authorizes superior courts to restrict a litigant's broad rights to information during discovery.(fn13) The rule also provides that upon "good cause shown," a court may make "any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense."(fn14) However, protective orders, originally intended as remedies for abuse, may be abuses in their own right. Some commentators claim that the good cause standard is too easily met, and that it allows unnecessary restrictions on the dissemination of discovery information.(fn15)
The Seattle Times challenged the good cause standard in Rhinehart. The Times charged that CR 26(c) unconstitutionally infringed on its first amendment rights by permitting a court, upon a mere showing of good cause, to limit the use to which the press could put pretrial discovery information.(fn16) The Washington Supreme Court did not wholeheartedly endorse the good cause standard, but it did reject the Times' first amendment arguments. The Rhinehart majority concluded that interests in privacy and judicial administration override competing constitutional concerns when a protective order is at issue.(fn17)
The Washington State Supreme Court has previously balanced the interests of privacy and effective judicial administration against those of free speech and public access in the context of judicial proceedings,(fn18) and the court missed a significant opportunity to expand and apply this balancing test in Rhinehart. The United States Supreme Court similarly declined to create a balancing test to ensure the full protection of first amendment interests during pretrial discovery. A need remains for a general standard to ensure that first amendment interests in disseminating discovery information are identified and protected when a protective order is requested.
II. Rhinehart u. Seattle Times Co.: An Overview
Rhinehart v. Seattle Times Co. developed from charges of defamation and invasion of privacy filed by Keith Rhinehart against the Seattle Times and the Walla Walla Union-Bulletin.(fn19) Both newspapers had published several articles about Rhinehart and the Aquarian Foundation, a religious sect founded and led by Rhinehart. After Rhinehart sued on behalf of himself and the foundation, the defendants conducted discovery regarding the plaintiffs' financial affairs, membership, and donors. The plaintiffs supplied some financial materials, but refused to divulge other information in an attempt to forestall unwanted publicity.(fn20)
The defendants sought and were granted an order compelling discovery, and the plaintiffs obtained a protective order restricting the use of the acquired information.(fn21) The protective order stated that "information gained by a defendant through the discovery process may not be published by any of the defendants or made available to any news media for publication or dissemination."(fn22) The newspapers attacked the protective order on the ground that it denied them freedom of the press and freedom of speech guaranteed by the first amendment of the United States Constitution and by article I, section 5 of the Washington Constitution. The trial court's memorandum opinion stated that the plaintiffs had reasonable grounds for requesting and receiving a protective order.(fn23) The trial court feared a "chilling" effect on a party's willingness to sue if such orders could not be issued.(fn24) The judge found access to the courts to be as important as freedom of the press "because it is through the courts that our fundamental freedoms are protected and enforced."(fn25)
A majority of the supreme court upheld the protective order and concluded, contrary to the trend in the federal circuits, that the good cause standard provided a sufficient framework within which to evaluate a CR 26(c) protective order.(fn26) Most of Justice Rosellini's opinion, however, was devoted to demonstrating that the order could meet the heavy burden of justification required of a prior restraint.(fn27) The majority never expressly concluded that meeting the good cause standard alone was sufficient to validate a protective order. Justice Dolliver's concurrence addressed the majority's uncertainty, declaring that the court "should state categorically that discovery under the standards of CR 26(c) and the protective orders of the court in this case do not require a First Amendment analysis."(fn28) Such a categorical statement would enable the court to avoid "the morass of rather tendentious First Amendment commentary" afflicting federal court decisions regarding 26(c) orders.(fn29)
The dissenting opinion suggested clarification of Rhinehart in the opposite direction, faulting the majority for exempting discovery from first amendment scrutiny.(fn30) Though courts were split regarding the proper balancing standard to apply,(fn31) Justice Utter stated that competing concerns could be evaluated if several factors were weighed: the extent of the first amendment interest enjoined by the order; the harm threatened by failing to issue a protective order; the status of the parties seeking an order and against whom the order is sought; and the court's specific concerns in issuing protective orders.(fn32)
Justice Utter criticized the Rhinehart order because the order was issued without consideration of first amendment interests and because it was overly broad.(fn33) According to Justice Utter, the trial court's concern about a hypothetical chilling effect meant that the rationale for the order lacked important specifics.(fn34) The trial court also failed to state what discovery information was restrained or for how long the restraint would last.(fn35) The dissent did not conclude that issuance of the order was in error, but urged a remand so that the trial judge could undertake a balancing test. "A specific harm has not been identified by the trial court, First Amendment interests are given no recognition, and the order does not reflect the narrowness which derives from a concern for such interests."(fn36) Justice Utter therefore attempted to fill the void he saw created by the majority opinion:By failing to apply in earnest the traditionally stringent standards of prior restraint, the majority both dilutes the future value of the doctrine in a proper context and neglects the primary duty of the court in this case: establishing the appropriate standard by which trial courts may issue protective orders without violating...
