Respondents Brief — John Doe 7, et al., Petitioners v. Chiquita Brands International, Inc.

Supreme Court briefAug 6, 2021

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No. 20-1599

IN THE

Supreme Court of the United States

————

JOHN DOE 7, JANE DOE 7, JUANA DOE 11,

MINOR DOE 11A, SEVEN SURVIVING CHILDREN OF

JOSE LOPEZ 339, AND JUANA PEREZ 43A,

Petitioners,

CHIQUITA BRANDS INTERNATIONAL, INC.,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

————

BRIEF IN OPPOSITION

————

FRANK A. DANTE

MELISSA F. MURPHY

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, PA 19103

(215) 569-5645

dante@blankrome.com

mfmurphy@blankrome.com

MICHAEL L. CIOFFI

Counsel of Record

THOMAS H. STEWART

BLANK ROME LLP

201 East Fifth Street

1700 PNC Center

Cincinnati, OH 45202

(513) 362-8701

cioffi@blankrome.com

stewart@blankrome.com

Counsel for Respondent

August 6, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

The question presented by the proceedings below

is whether the Eleventh Circuit erred in holding

that the district court did not abuse its discretion by

placing the burden of proof on the party opposing

modification of a stipulated protective order when

that party did not—as a matter of fact—show good

cause for the protections at the time the order was

first entered.

(i)

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme Court Rule 29.6, Respondent

Chiquita Brands International, Inc. (“Chiquita”) hereby states that it is a wholly-owned subsidiary of

Chiquita US Corporation. No publicly held company

owns 10% or more of Chiquita’s stock.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF AUTHORITIES ................................

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

REASONS TO DENY THE WRIT ......................

I. For Decades, Federal Courts Have Uniformly Applied the Same Burden of Proof

Standard Applied by the Eleventh

Circuit........................................................

II. Petitioners Attempt to Manufacture a

Circuit Split by Mischaracterizing the

Eleventh Circuit’s Decision ......................

III. There Is No Three-Way Circuit Split .......

IV. There Is No Frequently Recurring and

Important Issue in Civil Litigation Presented in the Petition Because the Legal

Standard and Analysis for Modifying a

Protective Order Is Well Developed,

Understood and Applied Uniformly by

the Federal Courts ....................................

V. Petitioners Forfeited Their Reliance

Argument ..................................................

VI. Even if the Court Were to Consider Petitioners’ Reliance Argument, It Should Be

Rejected .....................................................

CONCLUSION ....................................................

(iii)

TABLE OF AUTHORITIES

CASES

Page(s)

American Tel. & Tel Co. v. Grady,

594 F.2d 594 (7th Cir. 1978) ...................

Arkansas Game & Fish Comm’n v.

United States,

568 U.S. 23 (2012) ..................................... 29-30

Bayer AG v. Barr Lab.,

162 F.R.D. 456 (S.D.N.Y. 1995) .......... 15, 26, 28

Chicago Tribune Co. v. Bridgestone/

Firestone, Inc.

263 F.3d 1304 (11th Cir. 2001) ..... 14, 16, 28, 29

Cutter v. Wilkinson,

544 U.S. 709 (2005) ...................................

DePuy Synthes Prods., Inc. v.

Veterinary Ortho. Implants, Inc.,

990 F.3d 1364 (Fed. Cir. 2021) .................

Escobar v. Holder,

657 F.3d 537 (7th Cir. 2011) .....................

Factory Mut. Ins. Co. v.

Insteel Industries, Inc.,

212 F.R.D. 301 (M.D.N.C. 2002)...............

Gambale v. Deutsche Bank AG,

377 F.3d 133 (2d Cir. 2004) .....................passim

Geller v. Branic Int’l Realty Corp.,

212 F.3d 734 (2d Cir. 2000) ................ 21, 22, 23

Gulf Oil Co. v. Bernard,

452 U.S. 89 (1981) .....................................

TABLE OF AUTHORITIES—Continued

Page(s)

H.D. Media Co. v. United States

Dept. of Justice (In re: National

Prescription Opiate Litig.),

927 F.3d 919 (6th Cir. 2019) .......... 15, 19, 28, 29

H.L. Hayden Co. v. Siemens Med. Sys. Inc.,

106 F.R.D. 551 (S.D.N.Y. 1985) ...............passim

Heraeus Kulzer, GMBH v. Biomet, Inc.,

881 F.3d 550 (7th Cir. 2018) .......... 20, 21, 27-28

In re “Agent Orange” Prod. Liab. Litig.,

821 F.2d 139 (2d Cir. 1987) ...................... 30-31

In re Avandia Mktg., Sales Pracs. &

Prod. Liab. Litig.,

924 F.3d 662 (3d Cir. 2019) ......................

In re Enron Corp. Sec., Derivative,

& ERISA Litig.,

2009 WL 3247432

(S.D. Tex. Sept. 29, 2009) .........................

In re Methyl Tertiary Butyl Ether

(MTBE) Prods. Liab. Litig.,

60 F. Supp. 3d 399 (S.D.N.Y. 2014)..........

In re Violation of Rule 28(d),

635 F.3d 1352 (Fed. Cir. 2011) .................

Intel Corp. v. Advanced Micro Devices, Inc.,

542 U.S. 241 (2004) ...................................

Izumi Seimitsu Kogyo Kabushiki

Kaisha v. United States Phillips Corp.,

510 U.S. 27 (1993) ..................................

TABLE OF AUTHORITIES—Continued

Page(s)

Kiobel by Samkalden v. Cravath,

Swaine & Moore LLP,

895 F.3d 238 (2d Cir. 2018) ......................

Lugosch v. Pyramid Co.,

435 F.3d 110 (2d Cir. 2006) ......................

Martindell v. International Telephone &

Telegraph Corp.,

594 F.2d 291 (2d Cir. 1979) ...................... 23, 24

Nielsen Co. (U.S.), LLC v. Success Sys.,

112 F. Supp. 3d 83 (S.D.N.Y. 2015)..........

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) .....................................

Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir. 1994) .................. 26, 27, 30

Phillips ex rel. Estates of Byrd v.

General Motors Corp.,

307 F.3d 1206 (9th Cir. 2002) ................... 15, 19

Procter & Gamble Co. v. Bankers Tr. Co.,

78 F.3d 219 (6th Cir. 1996) .......................

SEC v. TheStreet.com,

273 F.3d 222 (2d Cir. 2001) ................ 24, 25, 31

Sinaltrainal v. Coca-Cola Co.,

256 F. Supp. 2d 1345 (S.D. Fla. 2003) .....

Thigpen v. Roberts,

468 U.S. 27 (1984) .....................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Aetna Inc.,

No. 1:16-CV-1494 (JDB), 2016 WL

8738422 (D.D.C. Sept. 22, 2016) ..............

United States v. Homeward

Residential, Inc.,

No. 4:12-CV-461, 2016 WL

279543 (E.D. Tex. Jan. 22, 2016) .............

United States v. Jones,

565 U.S. 400 (2012) ...................................

Yee v. City of Escondido,

503 U.S. 519 (1992) ...................................

STATUTES AND REGULATIONS

21 U.S.C. § 848 .............................................

28 U.S.C. § 1782 ........................................... 20, 25

28 U.S.C. § 1782(a) .......................................

International Emergency Economic Powers

Act, 50 U.S.C. § 1705(b) ............................

31 C.F.R. § 594.204 ......................................

RULES

Fed. R. Civ. P. 24 ..........................................

Fed. R. Civ. P. 26 .......................................... 16, 27

Fed. R. Civ. P. 26(c) .....................................passim

Fed. R. Evid. 702 ..........................................

Sup. Ct. R. 10 ................................................

Sup. Ct. R. 14.1(a) .................................... 4, 19, 20

viii

TABLE OF AUTHORITIES—Continued

COURT FILINGS

Page(s)

In re: Chiquita Brands Int’l, Inc. Alien Tort

Statute and Shareholder Derivative Litig.,

08-md-01916:

Doc. 2253 (S.D. Fla. Jan. 30, 2019) .......... 10, 11

Doc. 2277 (S.D. Fla. Feb. 13, 2019) ..........

Doc. 2282-34 (S.D. Fla. Feb. 15, 2019) .....

Doc. 2343-33 (S.D. Fla. Mar. 15, 2019) ....

Doc. 2343-36 (S.D. Fla. Mar. 15, 2019) ....

Doc. 2346-1 (S.D. Fla. Mar. 16, 2019) ......

Doc. 2346-3 (S.D. Fla. Mar. 16, 2019) ......

Doc. 2551 (S.D. Fla. Sept. 5, 2019) ..... 6, 7, 9, 10

In re: Chiquita Brands Int’l, Inc. Alien Tort

Statute and Shareholder Derivative Litig.,

19-11494:

Corrected Appellants’ Brief (11th Cir.

June 25, 2019) ...........................................

Reply Brief (11th Cir. July 18, 2019) .......

OTHER AUTHORITIES

Federal Judicial Center, Manual for Complex

Litigation (4th ed. 2004) ...........................

INTRODUCTION

Petitioners’ narrative in the Question Presented

mischaracterizes the record in the lower courts and

misstates what the Court would need to decide in

this appeal. Amici rely on the same mischaracterization and misstatement. The district court and Eleventh Circuit decided two separate and distinct issues.

The first issue was whether Petitioners could continue

to proceed under pseudonym after the close of discovery. The district court held they could not and the

Eleventh Circuit affirmed, finding that the district

court did not abuse its discretion “when it held that

the pseudonymous appellants failed to show that their

privacy rights outweigh the presumption of judicial

openness.” Pet. App. 16a. Petitioners expressly concede that they “do not challenge that ruling here.”

Pet. 13 n.5. Petitioners have not sought a writ on this

issue and have waived their ability to do so.1

The second issue was whether the district court—

when weighing Respondent’s motion to modify a stipulated protective order—abused its discretion by placing the burden on Petitioners to show good cause for

continuing to protect certain “private facts,” keeping

them out of the judicial record and hidden from the

public, when Petitioners had not shown good cause in

the first instance for such protection. The Eleventh

Petitioners attempt to distort the issues by claiming that the

protective order “also protects the use of pseudonyms” and therefore “is the primary safeguard at issue.” Pet. 13 n.5. Not so. As

the Eleventh Circuit succinctly ruled: “Nowhere in the protective

order did the district court grant the pseudonymous appellants

leave to proceed anonymously. As the district court recognized in

a later order, it never considered the propriety of pseudonyms

until Chiquita moved to preclude the use of pseudonyms.” Pet.

App. 15a.

Circuit held that there was no abuse of discretion

because “the record shows that neither party ever

disputed, challenged, or litigated the protective order’s

restrictions on the appellants in any way. Thus, in

order to be entitled to the continued protection of

‘private facts,’ the burden plainly fell on the appellants

to establish ‘good cause.’” Pet. App. 22a. The Eleventh

Circuit and the district court found that Petitioners

failed to show good cause to conceal their private

facts for the same reasons that they were not entitled

to continue proceeding under pseudonyms: “in neither

instance did the appellants establish a sufficient

nexus between the claimed threats and the disclosure

of their identities; the proffered facts were neither

specific nor concrete, and the appellants gave no other

justification for their private fact protections.” Id.

In challenging the Eleventh Circuit’s decision on

the second issue, Petitioners cast their Question

Presented as an issue of law—who bears the burden of

proof on a motion to modify a protective order. It is,

instead, a fact-bound question as to what was or

was not disputed, challenged or litigated in the trial

court at the time the protective order was entered

and subsequently on Respondent’s motion to modify.

Peeling back the form of Petitioners’ Question Presented, it becomes clear that Petitioners at best complain only of unfavorable factual findings, not a misapplication or misstatement of a rule of law.

Petitioners manufacture two reasons for a writ. The

first is that the Eleventh Circuit’s decision “deepened

a three-way circuit split” over which party bears the

burden of proof to modify a stipulated protective order

entered under Rule 26(c) of the Federal Rules of

Civil Procedure. The second is a hyperbolic appeal to

emotion—that the Eleventh Circuit put “the lives of

the Petitioners and thousands of similarly situated

Plaintiffs in these consolidated cases at risk.” Pet. 4.

The Petition should be denied because both reasons

are devoid of merit.

First, there is no circuit split. The decision by a

unanimous panel of the Eleventh Circuit, a decision

in which en banc review was denied, unanimously, is

in accord with the decisions of the other circuits.

Indeed, as the Eleventh Circuit articulated, the decision is premised on a fundamental tenet of our system

of justice: “A lawsuit is a public event. Parties who

ask a court to resolve a dispute must typically walk

in the public eye.” Pet. App. 4a. It is axiomatic that

a party who seeks to withhold information from the

public record must show good cause. Fed. R. Civ. P.

26(c). No court has held otherwise.

Here, Petitioners never made that showing—

neither in the first instance when the protective order

was entered before discovery commenced, nor when

Respondent moved to modify it at the close of discovery, as summary judgment briefing began.

When a party opposing modification of a protective

order never established good cause for withholding

information from the public in the first place, that

party bears the burden to establish good cause in

order to defeat modification and continue the secrecy.

There is no “three-way circuit conflict” over this factbound issue. The Eleventh Circuit’s decision is a common sense, straightforward principle of law. The converse would be antithetical: even though a party did

not show—as a matter of fact—good cause when the

protective order was first entered, it can nevertheless

keep information secret and out of the public record

without showing good cause when the protective

order is later challenged.

The Eleventh Circuit’s decision is not in conflict

with the decisions of the Second, Seventh or Third

Circuits cited by Petitioners, cases easily reconciled

by their facts and circumstances. Indeed, given the

record facts of the case—fact-finding affirmed by the

Eleventh Circuit and not challenged by Petitioners—

the decision below is logical, unremarkable and consistent with decisions from courts throughout the

country when there is no showing of good cause in

the first instance. Petitioners do not challenge the

Eleventh Circuit’s rulings, grounded in the factual

record, that Petitioners had not shown good cause

when the protective order was entered and did not

meet that burden when Respondent challenged the

need for the protective order’s sweeping prohibitions.2

Petitioners’ second argument that the Eleventh

Circuit “put the lives of Petitioners and thousands of

similarly situated plaintiffs in these consolidated cases

at risk” is entirely unfounded. Pet. 4. This argument

Petitioners’ misstatement of the Question Presented as one

of law rather than fact violates the Court’s rules and case law. To

raise an error in the fact-finding below, a petition must raise

the question in a straightforward manner in the Question Presented. Sup. Ct. R. 14.1(a). Here, that question would be whether

the Eleventh Circuit erred when finding, under an abuse of

discretion standard, that “[t]he district court’s interpretation of

its own order was entirely reasonable” in finding no good cause

shown given the facts in the record. Petitioners’ dilemma, of

course, was that if they followed the rules and raised this

question properly, their petition would be uncertworthy from the

get-go under Rule 10: “A petition for a writ of certiorari is rarely

granted when the asserted error consists of erroneous fact findings or the misapplication of a properly stated rule of law.” This

Petition should likewise be denied.

is also incendiary and insulting to the courts below. In

affirming the district court, the Eleventh Circuit held:

The district court engaged in balancing sufficient to satisfy Rule 26(c), as it weighed the

appellants’ safety interests against Chiquita’s

interests in administrative feasibility. Further, when we review the entire record,

including the protective order and the district

court’s order dissolving part of it, there can

be no question that the court’s order was

drawn with precision, effectively reviewed

less onerous alternatives, and precisely

delimited the duration of the order.

Indeed, the trial court found that the evidence

presented by the appellants supported only “a

vague fear [of] retaliation or bias against

‘human right[s] defenders’ . . . but [did] not

explain how their role in this lawsuit . . .

would implicate the same interests as those

triggered by ‘human right[s] defenders’ in

present-day Colombia.” The appellants’ “generalized subjective assertions of fear” were

simply not “the kind of risk of physical or

other injury” required to treat them differently than other plaintiffs.

Pet. App. 23a-24a. The district court’s fact-finding

regarding potential harm or danger faced by the Petitioners, as affirmed by the Eleventh Circuit, is not

before the Court for review because Petitioners did

not present this question. Sup. Ct. R. 14.1(a). Thus,

even if the Court were inclined to engage in the

intense fact-finding done by the district court and then

reviewed and unanimously affirmed by the Eleventh

Circuit, it could not do so. Yet if the Court did weigh

all the facts in the record it would come to the same

conclusion as the district court and the unanimous

panel of the Circuit Court.

The courts below carefully and extensively documented in the record that—as a matter of fact—the

Petitioners did not present specific evidence that their

lives were in danger as a result of their role as litigants

asserting claims against Chiquita. Petitioners do not

challenge these factual findings in their Question

Presented. Their hyperbole is merely that, unsupported by evidence in the record.

STATEMENT OF THE CASE

1. Petitioners’ lawsuit has audaciously pushed

the limits of an accommodating federal judiciary.

Under the cloak of anonymity, Petitioners have made

incendiary allegations that Respondent and its executives abetted the murder or disappearance of their

family members. After 15 years of publicly degrading

Respondent, Petitioners had no evidence to support

their sensational allegations and summary judgment

has now been entered in favor of Respondent.

2. On September 5, 2019, the district court granted

summary judgment in a detailed 73-page opinion.

See 08-md-01916 Doc. 2551 (S.D. Fla. Sept. 5, 2019).

Summary judgment for the Respondent was not

surprising given the underlying facts of this case. That

decision is currently on appeal to the Eleventh Circuit.

3. As the district court noted, Petitioners are

“family members of Colombian nationals who were

killed in separate attacks in the Uraba or Magdalena

regions of Colombia between 1997 and 2004, at the

pitch of a prolonged civil war which displaced hun-

dreds of thousands of Colombian civilians from their

homes and claimed the lives of thousands.” See id.

at 1. The horrendous violence, death and destruction

of Colombia’s prolonged civil war is well documented

in federal court jurisprudence and the undisputed

facts of this case. See Escobar v. Holder, 657 F.3d

537, 540 (7th Cir. 2011) (“The battle that rages [in

Colombia] has many different actors: the government’s security troops, paramilitary groups, revolutionary guerrilla groups, and drug traffickers.”);

Sinaltrainal v. Coca-Cola Co., 256 F. Supp. 2d 1345,

1348 (S.D. Fla. 2003) (“The events giving rise to these

claims occurred against a backdrop of civil war that

has plagued Colombia with violence and terror for over

forty years. The civil unrest involves so-called leftwing guerrilla groups, right-wing paramilitary units,

and the Colombian government, including its military

and police forces.”).

4. At the time Petitioners’ family members were

killed, it was “complete chaos” in Colombia, a country

ravaged by internal political and criminal warfare.

See 08-md-01916 Doc. 2346-3, 99:5-17 (S.D. Fla. Mar.

16, 2019). As one former AUC commander testified,

guerrilla groups and paramilitary groups—all narcoterrorists—waged war against each other, the

Colombian government, civilians, and businesses that

operated in Colombia, causing violence and terror

to reign over the country. Id. A former brigadier general in the Colombian Army testified that the “narcoterrorists of FARC [Fuerzas Armadas Revolucionarias

de Colombia] and the narco-terrorists of ELN [Ejército

de Liberación Nacional], and the narco-terrorists

of the paramilitary [AUC, Autodefensas Unidas de

Colombia]” attacked each other and the Colombian

military attacked all three “because there was no ideology there. The ideology was cocaine. There was no

left or right ideologies. They’re bandits, terrorists,

drug dealers. We needed to attack them.” See 08-md01916 Doc. 2282-34, 15:6-18 (S.D. Fla. Feb. 15, 2019).

5. Petitioners’ decedents were killed in this horrible drug-fueled war in Colombia. After more than 15

years of litigation, the production and review of millions of pages of documents, more than one hundred

depositions, and thousands of motions and other

filings, Petitioners cannot identify even a single perpetrator in the death of any decedent. The record

contains no police reports or any other documents that

identify even one perpetrator who killed Petitioners’

decedents. The record contains no evidence as to why,

with whom, or at whose behest, if anyone’s, the

unknown perpetrators acted.

6. In the trial court, Petitioners speculated that

the unknown perpetrators were members of one of

the warring factions known as the AUC. But Petitioners have never sued the AUC or any of its members,

nor could they without knowing the identities of the

actual perpetrators. Instead, Petitioners relied on a

sweeping theory of secondary liability to ask the district court to transfer the liability of these unknown

perpetrators to an American company which operated

in Colombia at the time, Respondent Chiquita.

7. Like thousands of other businesses and individuals in Colombia during the prolonged war between

narco-terrorists fighting each other and the government, Chiquita itself was a victim of extortion by the

narco-terrorist AUC. The second in command of the

AUC, Salvatore Mancuso,3 for instance, testified that

Mancuso was deposed in the United States Penitentiary,

Atlanta where he served a 15-year sentence as a drug kingpin

pursuant to 21 U.S.C. § 848.

if any person or business failed to pay the extortion,

they would face enormous consequence, including violence to people and property. See 08-md-01916 Doc.

2343-36, 43:1-7 (S.D. Fla. Mar. 15, 2019).

8. Another AUC commander, Otoniél Hoyos Perez,

testified that the AUC used violence and threats of

violence to force businesses to pay the AUC. See id. at

2343-33, 50:19-23.

9. Contrary to Petitioners’ assertions in their

Statement of the Case, Chiquita did not plead guilty

to illegally financing the AUC. Rather, Chiquita

entered into a plea agreement in the United States

District Court for the District of Columbia as to a

single-count violation of the International Emergency

Economic Powers Act (“IEEPA”), 50 U.S.C. § 1705(b)

and 31 C.F.R. § 594.204, for engaging in transactions

with the AUC, a Specially Designated Global Terrorist (“SDGT”) organization, without a license. In the

factual proffer supporting the plea agreement, the

Government acknowledged that the payments by

Chiquita were the result of extortion by the AUC. The

Government agreed that the following fact would be

proven “beyond a reasonable doubt”: “Castaño [AUC

top leader] sent an unspoken but clear message that

failure to make the payments could result in physical

harm to Banadex [Chiquita’s Colombian subsidiary]

personnel and property.” 08-md-01916 Doc. 2346-1,

at ¶ 21.

10. Given the facts of the case, the district court

granted summary judgment in favor of Respondent

because Petitioners’ proffered documentary evidence

“constitute[d] inadmissible hearsay, and even if accepted for its substantive content, it d[id] not support

the inferences urged by Plaintiffs.” 08-md-01916 Doc.

2551 at 71.

The district court found that:

The proffered circumstantial evidence, standing alone, is too speculative to support a

reasonable inference that the AUC more

likely than not was responsible for the death

of each bellwether victim, and would be

insufficient to withstand a directed verdict

at trial. The proffered expert testimony on

the “likelihood” of AUC involvement in each

death, based on geographical and temporal

overlays, does not qualify for admission under

Fed. R. Evid. 702 because it does not involve

the application of reliable methodologies or

principles. Id.

11. With respect to the use of pseudonyms and

the need to shield certain private information under

the protective order, Petitioners’ hyperbole that

the “Eleventh Circuit put lives at risk” is devoid of

evidentiary support in the record and launched only to

inflame and incite the Court into granting certiorari.

12. At the close of discovery and on the basis of a

full record, Respondent moved to preclude the use of

pseudonyms and to modify the protective order to lift

protections of certain private facts, in connection with

then-upcoming summary judgment and trial proceedings. Respondent did so on a discovery record that

clearly proved these protections were not warranted,

but rather part of Petitioners’ 15-year strategy of

making incendiary allegations and wounding the

reputation of the Respondent and its executives with

no evidence, only speculation, innuendo and rumor.

Indeed, many of the pseudonymous plaintiffs testified

at deposition that they had never been harmed or

even threatened because of their involvement in this

litigation. See 08-md-01916 Doc. 2253 at 7-10 (S.D.

Fla. Jan. 30, 2019). Many of them testified that they

were not even aware that their claims were being

prosecuted under pseudonym. Id.

13. In addition to eliminating the administrative

burden, cost and confusion created by the need to

file heavily redacted documents and parallel unredacted documents under seal, Respondent filed its

motion to protect the constitutionally-based principle

of openness in judicial proceedings. Also, Respondent

filed its motion in order to allow the public access to

the judicial record as it would soon be developed on

summary judgment and at trial with nothing hidden

but everything open for public scrutiny. Id. These

principles are important, especially given the history

of this case, because anonymity imbues the Petitioners’ unfounded claims with a tremendous aura of

seriousness, merit and credibility. Without enforcement of these principles, Petitioners could continue

their campaign to ruin the reputation of the Respondent and its officers shrouded in a cloak, invisible from

public access and scrutiny.

14. Petitioners’ rhetoric is the opposite of what is

in the record, facts they do not challenge in their

Question Presented. They do not raise as an error for

the Court to reverse the following findings by the

Eleventh Circuit:

To start, the district court had ample comparator evidence to support its ruling. For over

a decade, hundreds of plaintiffs have litigated

this case under their true names, and yet

nothing in the record suggests that they have

faced paramilitary retaliation.

. . . Lacking specific evidence, the pseudonymous appellants cite general evidence show-

ing that those who oppose paramilitary

groups or paramilitary-affiliated entities face

risks of paramilitary violence. But this evidence does not compel the conclusion that the

MDL plaintiffs face those risks.

. . . Indeed, the trial court found that the

evidence presented by the appellants supported only “a vague fear [of] retaliation or

bias against ‘human right[s] defenders’ . . .

but [did] not explain how their role in this

lawsuit . . . would implicate the same interests as those triggered by ‘human right[s]

defenders’ in present-day Colombia.” The

appellants’ “generalized, subjective assertions of fear” were simply not “the kind of

risk of physical or other injury” required to

treat them differently than other plaintiffs.

Much the same analysis was applicable in

determining “good cause” under Rule 26(c).

See Gulf Oil Co. v. Bernard, 452 U.S. 89, 102

n.16 (1981) (“To establish ‘good cause’ for a

protective order under Federal Rule of Civil

Procedure 26(c), the courts have insisted on

a particular and specific demonstration of

fact, as distinguished from stereotyped and

conclusory statements.” (quotation omitted

and alterations adopted)). And without a distinct concrete harm justifying good cause,

the appellants were no more entitled to protection from disclosure of their identities

than they were to file pleadings under pseudonyms. Pet. App. 16a-24a.

15. Petitioners had ample opportunity in the district court to prove that they were in danger as a

result of choosing to be plaintiffs in a lawsuit in the

courts of the United States. The record clearly establishes that they did not do so. Neither the district

court nor the Eleventh Circuit is to blame for

Petitioners’ lack of evidence.

REASONS TO DENY THE WRIT

I. For Decades, Federal Courts Have Uniformly Applied the Same Burden of Proof

Standard Applied by the Eleventh Circuit.

Petitioners assert that there is “chaos” in this area

of the law related to modifying protective orders. In

support of this proposition they cite but one 36-yearold district court case, H.L. Hayden Co. v. Siemens

Med. Sys. Inc., 106 F.R.D. 551, 552 (S.D.N.Y. 1985),

and on this authority exaggerate further: “that inconsistency and unpredictability has endured for decades

now, with no end in sight.” Pet. 6.

Yet the district court in Hayden articulates the law

“in this area” of protective order modification exactly

the same way as did the Eleventh Circuit below.

Far from “chaos,” this area of the law has remained

the same, has been clear and has been readily discernable by both courts and litigants for nearly four

decades.

Specifically, the district court in Hayden described

the burden of proof for modification of protective

orders as follows:

Despite the language of Rule 26(c), which

requires a party advocating non-disclosure to

show good cause for a protective order, an

order or agreement requiring confidentiality

may occasionally be made without the requisite showing of good cause . . . The courts have

required the party or parties opposing modi-

fication of such orders and agreements [i.e.,

those entered without a showing of good

cause] to bear the burden of establishing the

need for continued protection. . . . However, if

the issuance of a protective order was supported by a showing of good cause, the burden

of persuasion is typically placed on the party

seeking modification.

H.L. Hayden Co., 106 F.R.D. at 554. The Eleventh

Circuit articulated the burden exactly the same way:

We begin with a review of the law. Federal

Rule of Civil Procedure 26(c) allows a court to

issue a protective order upon a finding of

good cause. See Fed. R. Civ. P. 26(c) (“The

court may, for good cause, issue [a protective

order].”). The plain text of the rule suggests

that a district court must find good cause to

issue a protective order. See id. But as we’ve

recognized, district courts often issue stipulated protective orders without finding good

cause. See Chi. Tribune Co. v. Bridgestone/

Firestone, Inc. 263 F.3d 1304, 1307 (11th

Cir. 2001) (per curiam). . . . In Chicago

Tribune . . . we recognized that the party

seeking continued protection from the stipulated order (i.e., the party opposing the modification) had never established good cause

for the protection in the first place. . . . For

this reason, we placed the burden of establishing good cause in the first instance on

the party seeking the protection . . . When

faced with a motion to modify to [sic] a stipulated protective order, the party seeking the

stipulated order’s protection must satisfy

Rule 26(c)’s good cause standard. The bur-

den differs, though, when a court enters a

disputed protective order after finding good

cause. . . . once a party has established good

cause under Rule 26(c), the party moving to

modify the protective order bears the burden

to establish good cause for the modification.

Pet. App. 19a-21a (emphasis and alterations in original). Petitioners cite no case in the 36 years between

Hayden and the Eleventh Circuit’s decision that

holds differently. There are, however, many cases in

accord, all holding that if good cause was not shown

for the original protective order, the burden of showing good cause is on the party seeking continued

confidentiality protection. See H.D. Media Co. v.

United States Dept. of Justice (In re: National

Prescription Opiate Litig.), 927 F.3d 919, 931 (6th Cir.

2019); Phillips ex rel. Estates of Byrd v. General Motors

Corp., 307 F.3d 1206, 1211 n.1 (9th Cir. 2002); Bayer

AG v. Barr Lab., 162 F.R.D. 456, 463-64 (S.D.N.Y.

1995); Factory Mut. Ins. Co. v. Insteel Industries, Inc.,

212 F.R.D. 301, 303 (M.D.N.C. 2002). United States v.

Homeward Residential, Inc., No. 4:12-CV-461, 2016

WL 279543, at *4 (E.D. Tex. Jan. 22, 2016) (citing In

re Enron Corp. Sec., Derivative, & ERISA Litig., 2009

WL 3247432, at *3 (S.D. Tex. Sept. 29, 2009)).

II. Petitioners Attempt to Manufacture a

Circuit Split by Mischaracterizing the

Eleventh Circuit’s Decision.

Petitioners assert that the Eleventh Circuit made

an “assumption” that the stipulated order was entered

without a showing of good cause, and argue that “it

makes no sense to assume that because an order was

stipulated, its good cause is suspect.” Pet. 30. The

Eleventh Circuit assumed nothing. What it did was

thoroughly examine the factual record, correctly apply

the abuse of discretion standard and find that no good

cause was shown by the Petitioners in the district

court, in the first instance.

As the Eleventh Circuit explained in Chicago

Tribune, it is not unusual for district courts to initially

issue stipulated protective orders without finding

good cause, deferring that finding to a later point

in the litigation. See Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1307-08

(11th Cir. 2001). This practice in the district courts

is not a violation of Fed. R. Civ. P. 26, but rather a

practical rule or method of convenience that “replaces

the need to litigate the claim to protection document

by document, and postpones the necessary showing

of ‘good cause’ required for entry of a protective

order until the confidential designation is challenged.”

Id. at 1307. This practical rule is hardly new or

controversial and has been used by district courts

for decades in order to preserve judicial and party

resources by making the pretrial phase of cases,

especially in complicated MDL matters, more efficient.

See H.L. Hayden Co., 106 F.R.D. at 554. Indeed, the

protective order entered by the district court here

employed this practical rule, providing that any

party could challenge the designation of “any material” as confidential and apply to the Court for a

determination. If such application were made, the

“producing party” seeking to maintain confidentiality protections “bears the burden of establishing

that the designation is proper.” Pet. App. 48a-49a

(Paragraph 8 of the Protective Order).

The Amici law professors do not seem to appreciate

this practical rule and how it operates to streamline

pretrial litigation. Contrary to what the professors

argue, the Eleventh Circuit does not “disregard” Rule

26(c)’s good cause requirement, but merely recognizes

that in some cases that determination is postponed to

a later point in the litigation.

Nor does the Eleventh Circuit “except any kind

of protective order from the ‘good cause’ requirement.”

See Brief for Civil Procedure Law Professors as

Amici Curiae Supporting Petitioners at 3. Just the

opposite is true. The Eleventh Circuit held that the

good cause requirement of Rule 26(c) must always be

met, and always met in the first instance by the party

seeking to keep information private and out of the

public judicial record. If this burden is met at the

time the protective order is first entered, which is

usually the case with disputed or contested protective

orders, then the Eleventh Circuit correctly states that

“once a party has established good cause under Rule

26(c), the party moving to modify the protective

order bears the burden to establish good cause for

modification.” Pet. App. 21a. On the other hand, if the

facts in the record show that this burden was not

met at the time the protective order was initially

entered, which is often the case with stipulated protective orders, then the Eleventh Circuit also correctly

states that the converse is true and “the burden of

establishing good cause in the first instance is placed

on the party opposing the modification,” given that it

had not previously shown good cause. Pet. App. 20a.

The Petitioners and professors mischaracterize

the foundation of the Eleventh Circuit’s decision. The

Eleventh Circuit made a fact-bound determination

that there was no showing of good cause at the time

the protective order was initially entered. The burden,

therefore, remained with the Petitioners. This deci-

sion is not only logical and correct, it is consistent with

the holding of every court that has found, as a matter

of fact, that there was no showing of good cause in

the first instance.

The Petitioners and professors, in their zeal to criticize, fail to acknowledge that the Eleventh Circuit’s

position regarding timing of the good cause determination in some cases is identical to that in the Federal

Judicial Center’s Manual for Complex Litigation (4th

ed. 2004), §11.432, which the professors cite with

approval:

When the volume of potentially protected

materials is large, an umbrella order will

expedite production, reduce costs, and avoid

the burden on the court of documentby-document adjudication. Umbrella orders

provide that all assertedly confidential material disclosed (and appropriately identified,

usually by stamp) is presumptively protected

unless challenged. Such orders typically are

made without a particularized showing to

support the claim for protection, but such

a showing must be made whenever a claim

under an order is challenged.

One principle the professors do not and cannot dispute is that whenever the good cause determination

is made, the party seeking protection must, in the

first instance, establish good cause to rebut the constitutionally embedded principle of openness of judicial

proceedings in order to keep information secret and

out of the public scrutiny.

Only a false conflict is presented by Petitioners.

There is no dispute in the federal courts that if the

facts of a case establish that there was no showing of

good cause in the first instance, the burden is on the

party seeking the continued protection; but if the facts

of a case show that good cause was shown for the

protective order in the first instance, then the burden

is on the party seeking to modify it.

III. There Is No Three-Way Circuit Split.

All circuit courts that have addressed this

issue agree with the Eleventh Circuit. In H.D. Media

Co. v. United States Dept. of Justice, the Sixth Circuit

held that when a district court enters a stipulated

protective order without making a finding of good

cause, then upon the filing of a motion to modify, the

burden of demonstrating good cause remains with the

party seeking protection. 927 F.3d at 931. The Sixth

Circuit relied on a decision by the Ninth Circuit in

Phillips, 307 F.3d at 1211 n.1 (“The burden of proof

will remain with the party seeking protection when

the protective order was a stipulated order and no

party had made a ‘good cause’ showing.”).

The cases Petitioners cite from the Seventh and

Second Circuits do not conflict with the Eleventh

Circuit’s decision. First and foremost, none of the

cases involve the central fact found by the district

court and affirmed by the Eleventh Circuit upon

review of the record: a protective order issued without

an initial showing of good cause. This finding by

the Eleventh Circuit is dispositive of the Petition.

Furthermore, it was not raised by Petitioners in

the questions presented as an error for the Court to

review. It is, therefore, waived and not properly before

the Court. See Sup. Ct. R. 14.1(a); Izumi Seimitsu

Kogyo Kabushiki Kaisha v. United States Phillips

Corp., 510 U.S. 27, 34 (1993) (“Our faithful application of Rule 14.1(a) thus helps ensure that we are

not tempted to engage in ill-considered decisions of

questions not presented in the petition.”); Yee v. City

of Escondido, 503 U.S. 519, 536 (1992) (“Rule 14.1(a)

forces the parties to focus on the questions the

Court has viewed as particularly important, thus enabling us to make efficient use of our resources.”).

Although the foregoing disposes of the Petition, there

are several other reasons why none of the cases

cited by Petitioners present a circuit conflict.

The Seventh Circuit’s decision in Heraeus Kulzer,

GMBH v. Biomet, Inc., 881 F.3d 550 (7th Cir. 2018),

actually undermines Petitioners’ position. In Heraeus

Kulzer, good cause was shown by the defendant for

entry of the original protective order. Id. at 555. The

Seventh Circuit’s holding, therefore, that plaintiff—as

the party moving to modify a protective order entered

for good cause should bear the burden of proof (see id.

at 567)—is entirely consistent with the Eleventh

Circuit’s decision below.

Moreover, Heraeus Kulzer was an action under 28

U.S.C. § 1782, a statute which allows a party to file

suit in a district court to obtain discovery for use in a

foreign investigation, lawsuit or open legal proceedings. Heraeus Kulzer, GMBH, 881 F.3d at 554. There,

the plaintiff initiated the § 1782 action to obtain

discovery from the defendant to use in the plaintiff’s

misappropriation of trade secrets lawsuit against the

defendant in Germany. Id. at 555. Actions under

§ 1782, of course, are unique and involve considerations in shaping discovery not present in this case.

Those considerations focus on “§ 1782(a)’s objective to

assist foreign tribunals in obtaining relevant information that the tribunals may find useful . . . .” See

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S.

241, 262 (2004). As Heraeus Kulzer demonstrates, in

§ 1782(a) actions courts must weigh a number of

complicated factors like whether the terms of a

protective order, or its modification, will delay a

foreign investigation or impede the enforcement of

a foreign judgment. See Heraeus Kulzer, GMBH, 881

F.3d at 566-68.

Petitioners also cite a case decided forty years

earlier, American Tel. & Tel Co. v. Grady, 594 F.2d

594 (7th Cir. 1978). That case is easily distinguishable because it involved the United States Government

as a nonparty intervenor seeking discovery documents

to commence a Sherman Act lawsuit against AT&T in

another jurisdiction. See id. at 595. Given the unique

implications of providing access to the Government

to commence a separate proceeding against a party,

the Seventh Circuit placed the burden on the government to establish “exceptional circumstances” to intervene and modify the protective order. See id. at 597.

Moreover, unlike here, there was no finding by either

the trial court or the Seventh Circuit that the original

protective order had been entered without a showing

of good cause. See id.

The Second Circuit cases Petitioners cite also fail

to show a conflict. In Geller v. Branic Int’l Realty

Corp., 212 F.3d 734 (2d Cir. 2000), there was no

motion to modify a protective order. Rather, Geller

involved a motion to implement the full terms of a

settlement agreement that contained a provision for

the sealing of the entire case file, which the Court had

previously ordered. See id. at 735-37. Upon discovering that the district court had sealed only the settlement agreement, but not the entire case file, a party

asked the district court to implement the sealing

provision related to the entire case file. Id. at 736. As

the Second Circuit explained, a district court has

specific responsibilities when approving a settlement

agreement that includes a confidentiality order, in

that it is required to “carefully scrutinize” the terms

before endorsing it. See id. at 738. Because the

settlement agreement imposed an “obligation” on the

district court (i.e. sealing the entire case file) and the

court agreed to do so by “so ordering” the settlement

agreement, the court was thereby bound to abide by

its obligation. See id. at 737 (“In many cases, a

stipulated settlement will contemplate actions that

are not within the power of the litigants to perform,

but rather lie within the power of the district court

ordering the settlement. When a district court ‘so

orders’ a settlement containing such provisions, it is,

with some limited exceptions, obliged to perform.”).

Here, the temporary, pretrial protective order governing discovery between the parties did not impose

obligations on the district court to seal judicial documents after discovery or permit the Petitioners to

indefinitely shield their identities in the proceedings.

See Pet. App. 36a-56a. Thus, there is no applicable

rule to be drawn from Geller.

Four years later, the Second Circuit ruled that notwithstanding a stipulated pretrial protective order, a

district court did not abuse its discretion when it sua

sponte unsealed judicial documents in connection with

summary judgment filings. Gambale v. Deutsche Bank

AG, 377 F.3d 133, 142 (2d Cir. 2004). As the Second

Circuit explained: “The public has a common law

presumptive right of access to judicial documents . . .

and likely a constitutional one as well.” Id. at 140

(citations omitted). Accordingly, “[a] district court

that concludes that there is a public right of access to

judicial documents thus acts within its jurisdiction

when it modifies or vacates a protective order to allow

that access[.]” Id. at 142. The Second Circuit therefore

ruled that the burden was on the party seeking to

withhold the information from the public record to

establish “that there was a continuing compelling

reason to require that the documents remain under

seal.” See id.

Petitioners also cite Geller citing Martindell v.

International Telephone & Telegraph Corp., 594 F.2d

291, 296 (2d Cir. 1979) for the proposition that:

“Absent a showing of improvidence in the grant of a

Rule 26(c) protective order or some extraordinary

circumstance or compelling need . . . a witness should

be entitled to rely on the enforceability of a protective

order . . .” Pet. 16. Like Geller, Martindell is a case

where good cause was shown in the first instance.

Courts often use the phrase “improvidence in the

grant of a Rule 26(c) protective order” to indicate

whether it was or was not entered for good cause. See,

e.g., Martindell, 594 F.2d at 296. The factual record

below is the opposite: no good cause was shown in

the first instance. Furthermore, Martindell involved

the placement of a higher burden on a non-party

intervenor, the Government, seeking to use the information in a subsequent prosecution, and therefore

is further inapposite. See id. at 292. There, the Government, as a nonparty, sought access to deposition

transcripts of witnesses who were the subject of a

separate criminal investigation. Id. Those transcripts

and related documents had been sealed pursuant to

a stipulation of confidentiality “so ordered” by the

district court. Id. at 293. The Government sought the

deposition transcripts for criminal investigation of the

deponents arguing that “it would be unable to secure

statements from the witnesses because they would

claim their Fifth Amendment rights in any investigative interviews by the Government.” Id. The district

court denied the Government’s request because “the

requested turnover would raise constitutional issues.”

Id. The Second Circuit affirmed requiring the Government as a nonparty intervenor to show “some extraordinary circumstances” to modify a protective order

because “the Government as an investigator has

awesome powers which render unnecessary its exploitation of the fruits of private litigation.” See id. at 296.

(quotations omitted).

SEC v. TheStreet.com, 273 F.3d 222 (2d Cir. 2001)

does not present a conflict. There, the district court

held a hearing to determine good cause for entry of

the protective order and specifically ruled that good

cause had been shown when the order was entered. Id.

at 227. Additionally, the party seeking access to the

materials was a non-party intervenor, a media company. Id. at 224. Intervenors generally carry the

burden under Federal Rule of Civil Procedure 24 to

show a sufficient interest in the litigation they seek

to access. See Fed. R. Civ. P. 24. Furthermore, given

that modification was sought by the media, the Second

Circuit affirmed the district court’s decision to allow

access by applying a balancing test between the

privacy rights of the litigants and the interest of the

media and public, concluding that the media had a

relevant interest in the depositions because they

pertained to the interaction of the SEC and the NYSE

and that interest outweighed possible reputational

harm to the litigants. TheStreet.com, 273 F.3d at 234.4

The court also declined to apply the Martindell presumption

against access to discovery materials because it found that there

could be no reasonable reliance on the protective order under the

circumstances of the case. Id. at 233. For the reasons discussed

infra at Sections IV and V, the Petitioners here have waived any

reliance argument, nor could they be deemed to have reasonably

relied on a temporary pretrial order with an express modification

The other Second Circuit cases cited at pages 16 and

17 of the Petition arise under many different facts

and circumstances than those before the Eleventh

Circuit, yet are consistent with the decision below

because the protective orders in those cases were

entered for good cause. Or, conversely, there is no

finding by the courts in those cases that the protective

order was entered without good cause. For example,

Petitioners also cite Kiobel by Samkalden v. Cravath,

Swaine & Moore LLP, 895 F.3d 238, 240 (2d Cir. 2018),

but that case is easily distinguishable because it

involved a § 1782 action brought by the plaintiff

seeking discovery materials from the law firm that

had previously represented Shell, so that plaintiff

could file a second lawsuit in the Netherlands against

Shell. Id. at 247 (“The decision to alter the confidentiality order without Shell’s participation, and

without considering the costs of disclosure to Shell,

makes this case exceptional, and mandates reversal

. . . If foreign clients have reason to fear disclosing all

pertinent documents to U.S. counsel, the likely results

are bad legal advice to the client, and harm to our

system of litigation.”).

Petitioners’ reliance on a Magistrate Judge’s decision in Nielsen Co. (U.S.), LLC v. Success Sys., fares

no better, as it was also an attempt by a party to

modify a protective order to use protected information

“for purposes beyond the present litigation,” a second

lawsuit. 112 F. Supp. 3d 83, 120-22 (S.D.N.Y. 2015).

provision. See, e.g., Gambale, 377 F.3d at 142 n.7 (“[P]rotective

orders that are on their face temporary or limited may not justify

reliance by the parties. Indeed, in such circumstances reliance

may be unreasonable.”) (quoting TheStreet.com, 273 F.3d at 23031).

The last two cases cited in Section I(A) of the

Petition further contradict Petitioners’ assertion of a

circuit split. Those cases articulate the same burden

of proof as the Eleventh Circuit. See In re Methyl

Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., 60 F.

Supp. 3d 399, 404 n.32 (S.D.N.Y. 2014) (“[I]f the

issuance of a protective order was supported by a

showing of good cause, the burden of persuasion is

typically placed on the party seeking modification.”

(quoting H.L. Hayden Co., 106 F.R.D. at 554) (emphasis added) (alteration in original)); Bayer AG, 162

F.R.D. at 464 (“The Court agrees with Hayden v.

Siemens that: If good cause was not shown when a

protective order was initially issued, then the party

seeking to maintain the order should bear the burden

of establishing the need for continued protection.

However, if the protective order was supported by

a showing of good cause, the burden should be on

the party seeking modification.” (emphasis removed)

(citation omitted) (internal quotation marks omitted)).

With respect to the Third Circuit, Petitioners similarly mischaracterize Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir. 1994). Pansy is not evidence of

a circuit conflict because it is entirely consistent with

the Eleventh Circuit’s decision. The Third Circuit in

Pansy meticulously examined the record and found

that the order of confidentiality was “improvidently

granted,” and remanded the case for further proceedings. Id. at 792. In doing so it explained that when

there is no legitimate or providently granted confidentiality order, then the movant shall have access,

but “when that is not the case [i.e., when a protective

order has been entered for good cause], the court

should require the party seeking modification to show

why the secrecy interests deserve less protection than

they did when the order was granted.” Id. at 790.

Additionally, the Pansy court noted that the document at issue did not implicate the presumption of

judicial openness. See id. at 780-81 (“We have previously recognized a right of access to judicial proceedings and judicial records, and this right of access is

‘beyond dispute.’” (citation omitted)).

The law in the Third Circuit evolved further in

In re Avandia Mktg., Sales Pracs. & Prod. Liab. Litig.,

924 F.3d 662 (3d Cir. 2019). There, the Third Circuit

held that where judicial records in summary judgment

briefing were at issue, the district court was required

to place the burden on the party seeking continued

sealing. See id. at 669. This is so because “the common

law right of access begins with a thumb on the scale in

favor of openness—the strong presumption of public

access.” Id. at 676. Thus, “[c]onsideration of the public’s right of access must be the starting point, not just

one of multiple factors. The scale is tipped at the

outset in favor of access.” Id. The court also held that

under a Rule 26 analysis, “[o]nce sealing is challenged, the proponent of sealing must make a particularized showing of the need for continued secrecy if

the documents are to remain under seal.” Id. at 675

n.10.

Far from the Third Circuit being in conflict with the

Eleventh Circuit, the common law right of public

access doctrine provides a separate and distinct

rationale supporting the soundness of the decisions

below.5 See also Heraeus Kulzer, GMBH, 881 F.3d at

Although the decisions in the courts below were not expressly

grounded in the common law right of public access doctrine, the

dispute arose from Respondent’s request to modify the protective

order so that the confidential information at issue could be

publicly revealed in summary judgment proceedings and at trial.

The Court has discretion to “affirm on any ground that the law

567; Gambale, 377 F.3d at 142; DePuy Synthes Prods.,

Inc. v. Veterinary Ortho. Implants, Inc., 990 F.3d 1364,

1370 (Fed. Cir. 2021) (citing In re Violation of Rule

28(d), 635 F.3d 1352, 1358 (Fed. Cir. 2011) (“[T]he

district court ‘cannot abdicate its responsibility . . . to

determine whether filings should be made available to

the public’ simply because the parties agree to [a]

protective order.” (quoting Procter & Gamble Co. v.

Bankers Tr. Co., 78 F.3d 219, 222 (6th Cir. 1996)))).

IV. There Is No Frequently Recurring and

Important Issue in Civil Litigation Presented in the Petition Because the Legal

Standard and Analysis for Modifying

a Protective Order Is Well Developed,

Understood and Applied Uniformly by the

Federal Courts.

As is clear from the foregoing discussion of nearly

40 years of federal jurisprudence, when considering

the standard for modifying a protective order, federal

courts begin as a first step by examining the nature of

the protective order—was it or was it not entered upon

a finding of good cause. See United States v. Aetna Inc.,

No. 1:16-CV-1494 (JDB), 2016 WL 8738422, at *9

(D.D.C. Sept. 22, 2016) (“The first factor is whether

‘good cause’ was shown for the original protective

order’ . . . If so, ‘the burden is on the party seeking

modification to show good cause for modification.’”

(Bayer AG, 162 F.R.D. at 462) (emphasis added)); H.L.

Hayden Co., 106 F.R.D. at 554; Chicago Tribune Co.,

263 F.3d at 1307-08; H.D. Media, 927 F.3d at 931. If

good cause was shown for the original protective order,

the burden is on the party seeking modification, but if

and the record permit and that will not expand the relief granted

below.” Thigpen v. Roberts, 468 U.S. 27, 30 (1984).

good cause was not shown, then the burden is on the

party seeking continued confidentiality protection.

The determination of whether good cause was

shown in the first instance is intensely fact-driven.

Chicago Tribune, 263 F.3d at 1315 (“[W]hether good

cause exists for a protective order is a factual matter

to be decided by the nature and character of the

information in question, this determination, supported by findings of fact, must be conducted upon

remand.”); H.D. Media Co., 927 F.3d at 939-40 (“We

remand for the district court to reconsider each

pleading filed under seal or with redactions and to

make a specific determination as to the necessity of

nondisclosure in each instance.”).

Once the court determines who bears the burden of

demonstrating good cause, federal courts then turn to

a balancing test to weigh the need for confidentiality

versus the need for disclosure. The good cause

balancing test is also well understood and implicates

several considerations not relevant here, like the status of the party seeking modification and its reasons

for doing so weighed against the need for further

secrecy, all in the context of the constitutionallybased presumption in favor of openness in judicial

proceedings.

V. Petitioners Forfeited Their Reliance

Argument.

In OBB Personenverkehr AG v. Sachs, 577 U.S. 27,

37 (2015), the Court held that an argument never

presented to any lower court is forfeited. See also

United States v. Jones, 565 U.S. 400, 413 (2012) (“The

Government did not raise it below, and therefore the

D.C. Circuit did not address it . . . we consider the

argument forfeited.”); Arkansas Game & Fish Comm’n

v. United States, 568 U.S. 23, 37-38 (2012) (“[M]indful

that we are a court of review, not of first view.” (citing

Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)

(alteration in original))). As a review of Petitioners’

briefs in the district court and Eleventh Circuit clearly

shows, their reliance argument was never presented

to either court. There is neither a section nor even a

sentence in any of Petitioners’ briefs below that raise

the reliance argument. Petitioners’ briefs below can

be found at 08-md-01916 Doc. 2277 (S.D. Fla. Feb. 13,

2019)(Response in Opposition); Corrected Appellants’

Brief, 19-11494 (11th Cir. June 25, 2019); and Appellants’ Reply Brief, 19-11494 (11th Cir. July 18, 2019).

VI. Even if the Court Were to Consider Petitioners’ Reliance Argument, It Should Be

Rejected.

The Eleventh Circuit found that the protective

order was entered without a showing of good cause.

Petitioners do not challenge this fact-bound decision

as a question for the Court to consider. Review of

whatever error they believe was committed by the

appellate court in making this finding has been

waived.

The fact that no good cause was shown completely

undermines Petitioners’ reliance argument. Protective orders that are granted with no showing of

good cause do not justify reliance by a party. Pansy,

25 F.3d. at 792. In Agent Orange, the Second Circuit

affirmed the lower court’s modification of a protective

order, holding that appellant’s reliance argument

was unavailing because “they never have been

required to demonstrate good cause for shielding any

document from public view . . . the district court

properly entered the orders initially as temporary

measures, and properly lifted them thereafter.” In re

“Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 14748 (2d Cir. 1987).

Petitioners’ reliance argument should also be

rejected because a party cannot justifiably rely on

temporary protective orders that are applicable

only to the pretrial stages of the litigation and subject

to reconsideration upon commencement of trial to

provide permanent protection. See TheStreet.com,

273 F.3d. at 231 (holding there could be no justifiable

reliance on protective orders that are temporary or

limited); see also Gambale, 377 F.3d at 142 n.7 (finding

that a party could not have reasonably relied on a

sealing order that was explicitly temporary).

The Protective Order entered by the district court

below applied to “pretrial discovery” only and expressly

did “not prevent the parties from introducing or using

Confidential or Highly Confidential Information into

evidence at trial, subject to any pretrial order issued

by” the district court. Pet. App. 43a, ¶ 3(b). The

protective order further provided that: “The procedures for the use of designated CONFIDENTIAL or

HIGHLY CONFIDENTIAL documents, materials, or

information in any filing, during any hearing or during

the trial of this matter will be determined by the

parties and the Court in advance of the filing, hearing

or trial.” Id. at 55a-56a, ¶ 18.

The protective order also provided for “modification”

of its terms: “If any party finds that any term of this

Order impedes its ability to prepare or present its

case or is otherwise objectionable, that party may

apply to the Court for modification of and relief from

any of the terms of this Order.” Id. at 51a, ¶ 13.

This plain language undermines and discredits

Petitioners’ reliance argument that: “If Petitioners

had known that the protective order provided very

little enduring protection, they may well have made

different choices.” Pet. 29. It did, in fact, provide very

little enduring protection.

Other provisions in the protective order undermine

Petitioners’ reliance argument. A party may not reasonably rely on continued confidentiality under a protective order which permits anyone at any time, including non-parties, to object. In Lugosch v. Pyramid Co.,

435 F.3d 110, 126 (2d Cir. 2006), the court stated:

In fact, the confidentiality order specifically

contemplates that relief from the provisions

of the order may be sought at any time: “This

Confidentiality Order shall not prevent anyone from applying to the Court for relief

therefrom.” Given this provision, it is difficult

to see how the defendants can reasonably

argue that they produced documents in reliance on the fact that the documents would

always be kept secret.

The protective order entered by the district court

here contains almost identical language: “Nothing in

this Order prevents non-parties from submitting

objections to the Court.” Pet. App. 51a, ¶ 14. The

protective order further provided that any party could

challenge the designation “of any material,” and if

such application were made, the “producing party”

seeking to maintain confidentiality protections “bears

the burden of establishing that the designation is

proper.” Id. at 48a-49a, ¶ (8(b)).

Given these provisions of the protective order,

Petitioners’ reliance argument has no merit and

should be rejected.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

FRANK A. DANTE

MELISSA F. MURPHY

BLANK ROME LLP

One Logan Square

130 N. 18th Street

Philadelphia, PA 19103

(215) 569-5645

dante@blankrome.com

mfmurphy@blankrome.com

MICHAEL L. CIOFFI

Counsel of Record

THOMAS H. STEWART

BLANK ROME LLP

201 East Fifth Street

1700 PNC Center

Cincinnati, OH 45202

(513) 362-8701

cioffi@blankrome.com

stewart@blankrome.com

Counsel for Respondent

August 6, 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.