# Appendix — Liggett Group, Inc. v. Public Citizen

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 488 U.S. 1030

## Text

[Mi Neinne
Supreme Court, U.S.
: y FILED
QQ eo 90eF
GOS ey”) | NOV 16 1988
No. 88- :
. SPANIOL, JR,
3 CLERK

IN THE

Supreme Court of the United States

OctTosBer TERM, 1988

ccartaiieematiniie tensa

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO.., INC..

Petitioners.

Sal ak
PUBLIC CITIZEN,
THE AMERICAN CANCER SOCIETY,
THE AMERICAN HEART ASSOCIATION.
THE AMERICAN LUNG ASSOCIATION and
THE AMERICAN PUBLIC HEALTH ASSOCIATION.

Respondents.

APPENDIX TO THE PETITION
FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

DoNnaALD J. COHN
(Counsel of Record)
WEBSTER & SHEFFIELD
237 Park Avenue
Of Counsel: New York, New York 10017
LAWRENCE D. Gerzoc (212) 808-6000

JostaH S. Murray, III
Liccett Group INc.

300 North Duke Street
Durham, North Carolina 27702
(919) 683-9000

(Additional Counsel Listed on Inside Cover)

Of Counsel:
JosEPH J. LEGHORN

SAMUEL ADAMS

WARNER & STACKPOLE

75 State Street

Boston. Massachusetts 02109
(617) 951-9000

Attorneys for Petitioners

TABLE OF CONTENTS

Opinions Page
Opinion of the Court of Appeals, dated

September 28, 1988 (858 F.2d 775)........... A-]
Opinion of the Court of Appeals, dated August

25, 1987 (825 F.2d 620)..................... B-]
Judgments

Judgment of the District Court, dated October 7,
WE ee holier a as ae en LCT ee eee. C-]

Orders

Order of the Court of Appeals, dated April 11,
SIE rare ae apn Bea sg asd fe a ae D-1

Handwritten Order of the District Court
accompanying Motion of Public Citizen et al.
to Order Filing and to Modify Protective
Order, dated January 28, 1988............... E-]

Handwritten Order of the District Court
accompanying Motion of Public Citizen et al.
to Order Parties to Maintain Discovery
Materials, dated December 28, 1987.......... F-]

Handwritten Order of the District Court
accompanying Defendants’ Motion for Entry of
Judgment, dated October 6, 1987 ............ G-]

Handwritten Order of the District Court
accompanying Plaintiffs’ Motion for
Reconsideration, dated August 12, 1985....... H-1

Handwritten Order of the District Court
accompanying Proposed Intervenor’s Motion for
Reconsideration, dated August 12, 1985....... I-]

Page

Handwritten Order of the District Court
accompanying The Wall Street Journal's
Motion for Leave to Intervene, dated July 19,
i Oe J-l

Handwritten Order of the District Court
accompanying Plaintiffs’ Motion for
Clarification or Modification, dated July 16,
|| |, PP K-]

Handwritten Order of the District Court
accompanying Defendants’ Motion to Require

Compliance with Protective Order, dated July
IG, 1965... 22.44.55 mere errs L-]

Order of the District Court, dated February 25,
i: PS M-1

Handwritten Order of the District Court

accompanying Defendants’ Request for a

Protective Order, dated February 25, 1985 .... N-1
Other Materials

Transcript of Hearing before the District Court.
January 2%, 1068.......1..... ee O-]

A-1]

Opinion of the Court of Appeals,
dated September 28, 1988

PUBLIC CITIZEN, AMERICAN CANCER SOCIETY.
AMERICAN HEART ASSOCIATION,
AMERICAN LUNG ASSOCIATION and
AMERICAN PUBLIC HEALTH ASSOCIATION,

Plaintiffs-Appellees,
— V. —

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.

Defendants-Appellants.

No. 88-1195

United States Court of Appeals,
First Circuit
Decided September 28, 1988

Before: BOWNES and BREYER, Circuit Judges,
and CAFFREY,* Senior District Judge

BOWNES, Circuit Judge:

Liggett Group, Inc., and Liggett & Myers Tobacco Co. (collect-
ively “Liggett”) appeal an order of the district court modifying an
earlier protective order covering discovery materials produced by

Of the District of Massachusetts, sitting by designation.

A-2

Liggett. Request for the modification came from a group of
public health organizations represented by Public Citizen
Litigation Group (“Public Citizen”)! Liggett contends that Public
Citizen lacked standing to request modification, both because

it failed to obtain status as an intervening party under Rule 24
of the Federal Rules of Civil Procedure and because it had no
substantive right of access to the materials in question, and that
it failed to establish adequate circumstances justifying the
modification. We affirm in part but modify the district court's
order.

I. BACKGROUND

A. Initial Proceedings

On August 26, 1980, Joseph C. Palmer died of lung cancer
after having smoked cigarettes made by Liggett for a number
of years. Three years later, Palmer’s wife and mother filed a
diversity action against Liggett in United States District Court
for the District of Massachusetts. The Palmers asserted various
state law claims against Liggett based on Liggett’s allegedly in-
adequate warnings about the health risks of smoking.

Discovery began in 1984 and, during the course of discovery,
three protective orders were entered by the district court. The
first two orders, dated January 17, 1984, and January 25, 1985,
pertained to the confidentiality of the plaintiffs’ medical records.
They are not at issue here. It is the third protective order, pro-
viding broad protection for documents produced by Liggett,
which is the center of the current controversy.

This protective order grew out of plaintiffs’ January 22, 1985
deposition subpoena directed to the custodian of documents at
Arthur D. Little, Inc. (“Little”). Little is a private consulting
firm that performed research work for Liggett in the early 1950's.

' The organizations are American Cancer Society, American Heart Associa-
tion. American Lung Association and American Public Health Association.

A-3

Pursuant to the subpoena and by agreement of the parties, plain-
tiffs’ counsel were permitted to inspect eighteen boxes of
documents at Little's offices on January 30-31, 1985. Counsel
began copying documents on February 1, 1985. On February
5, Liggett moved for a protective order under Rule 26(c) bar-
ring any nonlitigatory use of the Little documents and of all
future discovery in the action. In support of its request, Liggett
asserted that plaintiffs’ discovery requests encompassed massive
numbers of documents and that it would be “physically impossi-
ble for [Liggett] to designate individually each document con-
taining confidentia! or secret information.”

The plaintiffs opposed the protective order on the ground,
among others, that Liggett had waived its claims to confiden-
tiality by previously allowing counsel to review and copy the
Little documents. The district court granted Liggett’s motion
and signed the protective order on February 25, 1985.

The order as approved had two components. The first is a
blanket provision mandating that “[a]ll information produced.
or exchanged in the course of this civil action or any appeal aris-
ing therefrom . . . shall be used solely for purposes of this case.”
The second provides heightened protection for any materials
explicitly designated by a party as “confidential.” With regard
to both categories of materials, the protective order provides
that “[w]ithin forty-five days after the final adjudication or set-
tlement of all claims in this case, counsel for the parties either
shall return all documents produced, if so requested by the pro-
ducing party, or shall destroy all such documents. All copies of
all documents, and all information and notes derived from them.
also shall be destroyed.”

Subject to the restrictions of the protective order, plaintiffs’
counsel copied approximately 1200 documents (one box full)
from the eighteen boxes of Little documents to which the plain-
tiffs had access. None of these documents were ever designated
by Liggett as confidential. The documents have remained in the
possession of plaintiffs’ counsel since that time.

On June 7, 1985, the Wall Street Journal wrote a letter to the
district court expressing interest in seeing the Little

A-4

documents and seeking advice on how best to proceed in ob-
taining a modification of the protective order. One week later,
plaintiffs’ counsel filed a “Notice of Intent to Disseminate [the
Little] Documents” to the Wall Street Journal. In support of their
proposed action, plaintiffs cited Liggett’s failure to designate
any documents as confidential and to articulate any reason why
release of the documents would harm Liggett. Plaintiffs also
pointed out that many of the documents had been marked as
exhibits for trial and thus would be made public eventually
anyway. Liggett opposed the plaintiffs’ proposed action, argu-
ing that the protective order was still in full force, and, on June
28, 1985, filed its own “Motion to Require Compliance With
Protective Order.”

In response, plaintiffs filed a motion for clarification or
modification of the February 25 protective order. Plaintiffs
argued that the order should be read as applying only to
documents designated as confidential, because otherwise it
would extend protection to information whether or not it
qualified as confidential under the federal rules. At this point,
the Wall Street Journal also sought leave to intervene in the ac-
tion and filed its own request for clarification or modification.
On July 16, 1985, the district court refused to modify the pro-
tective order and allowed Liggett’s motion to compel com-
pliance. It noted: “The dissemination of this material will not
aid in the fair trial of this case. The trial is public and the Wall
Street Journal is, of course, able to attend the trial.” Plaintiffs’
and the Wall Street Journal’s motions were denied.

One week later, the Wall Street Journal moved for reconsidera-
tion of the district court order. The Journal’s motion was based
primarily on the decision in Cipollone v. Liggett Group, Inc.,
106 F.R.D. 573 (D.N.J. 1985), handed down the day after the
order to compel compliance was issued in this case. Like the
Palmers’ case, Cipollone involved state law claims that inade-
quate warnings by Liggett had caused the death of a Liggett
cigarette smoker. In the cited decision in Cipollone, Judge
Sarokin had substantially modified a protective order, previously
approved by a magistrate, which was “identical” to the February
25, 1985 protective order in this case. Id. at 579. Judge Sarokin

A-5

found that the provision extending blanket protection to
documents not designated as confidential “overstep| ped] the
bounds permitted by Rule 26(c)” and he accordingly modified
the order to extend only to confidential information. Id. at 584.
Although acknowledging that its analysis diverged from Judge
Sarokin’s, the district court in this case denied the motion to
reconsider. It noted: “Motion denied, without prejudice to
renew. The Sarokin opinion is now under appeal. This motion
should be renewed following a ruling by the Third Circuit Court
of Appeals.”

In April of 1986, Liggett moved to dismiss certain of plain-
tiffs’ claims on the ground that they were preempted under the
Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331
et seq. The district court denied the motion but certified the
question pursuant to 28 U.S.C. § 1292(b), to this court, which
reversed. Palmer v. Liggett Group, Inc., 825 F.2d 620 (Ast Cir.
1987). We held that in passing the Act, Congress had struck a
“carefully drawn balance between the purposes of warning the
public of the hazards of cigarette smoking and protecting the
interests of the national economy” and that permitting the in-
terposition of state actions into the area would excessively disrupt
the congressional scheme. Id. at 626 (quoting Cipollone v. Lig-
gett Group, Inc., 789 F.2d 181, 187 (3d Cir. 1986), cert. denied,
107 S. Ct. 907 (1987)). The Palmers’ state law claims were thus
preempted.

In light of our opinion, Liggett moved in the district court
to have the Palmers’ complaint dismissed and judgment entered

* The Third Circuit eventually issued a writ of mandamus, noting errors in
Judge Sarokin’s analysis, and remanded for reconsideration. Cipollone v. Lig-
gett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). On remand, Judge Sarokin
modified his analysis with respect to documents designated as confidential,
but nonetheless found that Liggett had failed to establish good cause for pro-
tection under Rule 26(c). Judge Sarokin also stuck by his original order strik-
ing down the blanket protection for undesignated documents. Cipollone \
Liggett Group, Inc., 113 F.R.D. 86 (D.N.J. 1986). The Third Circuit subse-
quently denied Liggett’s petition for mandamus concerning that decision, and
the Supreme Court denied a Liggett petition for certiorari on December 7.
1987. Cipollone v. Liggett Group, Inc., 822 F.2d 335 (3d Cir.), cert. denied.
108 S. Ct. 487 (1987).

A-6

for Liggett. Over the plaintiffs’ objections, the district court
granted the motion and entered judgment for Liggett on Oc-
tober 6, 1987. No appeal was taken.

B. Public Citizen’s Motion for Access to Discovery Materials

On December 28, 1987, Public Citizen filed two motions in
district court. In its first motion, Public Citizen sought in-
terlocutory relief: an order mandating that the parties main-
tain and not destroy or return discovery materials in the Palmer
case pending resolution of its second motion. This first motion
was allowed by the district court the same day. The second mo-
tion sought a modification of the February 25, 1985 protective
order such that all discovery materials could be freely
disseminated, except for those documents in which Liggett had
“good cause” for continued confidentiality. It also requested that
the district court order the parties to file all discovery materials
in court. The broad relief requested by Public Citizen seemingly
applied to materials produced both by Liggett and the plain-
tiffs, but, in argument, Public Citizen made clear that it sought
access only to the Little documents produced by Liggett.

Public Citizen based its access claim on Rules 5(d) and 26(c)
of the Federal Rules of Civil Procedure. Rule 5(d) provides:

All papers after the complaint required to be served
upon a party shall be filed with the court either before
service or within a reasonable time thereafter, but the
court may on motion of a party or on its own initiative
order that depositions upon oral examination and in-
terrogatories, requests for documents, requests for ad-
mission, and answers and responses thereto not be filed
unless on order of the court or for use in the
proceeding.

Rule 26(c) provides in pertinent part:

Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the
court . . . may make any order which justice requires
to protect a party or person from annoyance, embar-
rassment, oppression, or undue burden or expense, in-
cluding one or more of the following: (1) that the

A-7

discovery not be had; (2) that the discovery may be
had only on specified terms and conditions, including
a designation of the time or place; (3) that the
discovery may be had only by a method of discovery
other than that selected by the party seeking discovery;
(4) that certain matters not be inquired into or that
the scope of discovery be limited to certain matters;
(5) that discovery be conducted with no one present
except persons designated by the court: (6) that a
desposition after being sealed be opened only by order
of the court; (7) that a trade secret or other confiden-
tial research, development, or commercial informa-
tion not be disclosed or be disclosed only in a
designated way; (8) that the parties simultaneously
file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court.

Rule 5(d), Public Citizen argued, creates a presumption that
all discovery materials will be available to the public because
they will be filed in court. Moreover, under Rule 26(c), public
access can be cut off through a protective order only upon the
showing of “good cause.” Especially in light of the district court’s
dismissal of the Palmers’ claims in this case, Public Citizen
asserted that good cause for the February 25, 1985 protective
order no longer existed. Thus, it said. the order should be
modified and Rule 5(d) filing of discovery materials ordered.

Public Citizen did not make a formal motion to intervene in
the case pursuant to Rule 24. Rather, it sought to proceed in-
formally under Rule 16(g) of the Local Rules of the United States
District Court for the District of Massachusetts. Local Rule 16(g)
is based on Rule 5(d) of the Federal Rules, but it actually reverses
in part the filing presumption of Rule 5(d), by providing that
discovery materials ordinarily are not to be filed in court “unless
so ordered by the court or for use in the proceeding.” Essential-
ly, Rule 16(g) codifies the local practice of district courts always
ordering — as Rule 5(d) permits — that discovery materials other-
wise subject to the Rule 5(d) filing requirement not be filed pur-
suant to Rule 5(d) unless the court asks that they be filed. To

A-8

facilitate this scheme, Rule 16)g) provides that parties and non-
parties may request that filing be ordered:

If for any reason a party or concerned citizen believes
that any [discovery documents subject to the Rule 5(d)
filing requirement] should be filed, an ex parte request
may be made that such document be filed, stating the
reasons therefor. The court may also order filing sua
sponte.

Believing that Rule 16(g) thus obviated the need for obtaining
formal intervenor status in order to request filing, Public Citizen
sought relief as a nonparty. In the event the district court thought
intervention necessary, however, Public Citizen did ask to be
granted intervenor status and argued that intervention had been
routinely granted in the past when nonparties sought access to
judicial records.

Liggett opposed the motion on a number of grounds. It
claimed first that Public Citizen could participate only as a Rule
24 intervenor and that the time for requesting intervention had
passed. For this reason, Liggett said, Public Citizen lacked stand-
ing. Liggett also disputed Public Citizen's interpretation of Rule
5(d), maintaining that it created no general right of public ac-
cess to discovery materials. Finally, Liggett argued that even
if Public Citizen had standing to seek public access, there had
been no showing of compelling need for a modification.

The district court held a hearing on January 28, 1988, with
counsel for Liggett, Public Citizen and the plaintiffs present.’
The court began by considering whether it still had jurisdic-
tion over the matter, in light of its previous order of dismissal
and judgment for Liggett on the merits. It found that jurisdic-
tion did exist, because the outstanding protective order presented
a live controversy extending past the dismissal of the underlying

* Although the plaintiffs had not filed a formal response to Public Citizen’s
request, the plaintiffs vigorously supported Public Citizen’s efforts at the hear-
ing. As they had previously, plaintiffs said that they were interested in
disseminating to the public the Little documents in their possession,

A-9

claims. The court also agreed with Public Citizen that there is
a right of public access to discovery materials under the federal
rules, a right that was especially strong in this case because of
the important public health concerns surrounding the documents
in question. Moreover, the court said, Liggett had failed to
establish any compelling need for continuing the protective
order. The court accordingly ordered that the eighteen boxes
of Little documents to which the plaintiffs had access, along
with the documents already in the plaintiffs’ possession, be filed
in court and made available to the public.‘

The district court issued a stay pending appeal and this appeal
followed.

Il. THE DISTRICT COURT’S POWER

We begin our analysis, as did the district court, by examin-
ing the court’s jurisdiction, or power, to issue discovery-related
orders after the court dismissed the underlying claims and
entered a judgment on the merits. In so doing, we think it is
important to distinguish between two separate and distinct
aspects of the district court’s January 28, 1988 order which is
under review: the modification of the protective order and the
order that the parties file the discovery materials in court.

Under Local Rule 16(g), the parties to this case were, as par-
ties to cases in the District of Massachusetts generally are, ex-
cused from filing discovery materials in court. The effect of this
nonfiling was to deny the public the right it would otherwise
have had to inspect freely the discovery materials in this case,

* Unsure whether Liggett actually had designated any discovery materials as
confidential under the February 25, 1985 protective order, Public Citizen had,
in its motion for modification, suggested that documents which Liggett main-
tained were confidential might be exempted from filing, subject to in camera
review by the district court to insure that they were indeed confidential. At
the hearing, however, it was brought out by plaintiffs that no designations
had been made, and Public Citizen apparently abandoned its suggestion for
document-by-document review of the materials. In any event, the district court
ruled that Liggett’s time for designating documents as confidential had passed
and that only documents containing trade secrets would be exempt from the
court’s filing order.

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because the materials were not kept in any publicly accessible
location. Certainly the public has no right to demand access
to discovery materials which are solely in the hands of private
party litigants. Rule 16(g) does not in any way limit the use or
dissemination of discovery materials by parties. Indeed, the
Supreme Court has noted that parties have general first amend-
ment freedoms with regard to information gained through
discovery and that, absent a valid court order to the contrary,
they are entitled to disseminate the information as they see fit.
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 31-36 (1984);
see also Okhahoma Hospital Ass’n v. Okhlahoma Publishing Co.,
748 F.2d 1421, 1424 (10th Cir. 1984), cert. denied, 473 U.S. 905
(1985). In this case, the only thing limiting the parties’ rights
to disseminate discovery materials was the protective order of
February 25, 1985, which barred nonlitigatory use of the Little
documents.

Prior to the entry of that order the situation was this: the par-
ties were not required to release publicly the discovery materials
by filing them, but they were free to disseminate them if they
chose to do so. Cf. Oklahoma Hospital Ass’n, 748 F.2d at 1424
(“While it may be conceded that parties to litigation have a con-
stitutionally protected right to disseminate information gained
by them through the discovery process absent a valid protec-
tive order, it does not follow that they can be compelled to
disseminate such information”) (citing Seattle Times, 467 US.
20). The same situation would have again existed on January
28, 1988, if the district court had modified or vacated the pro-
tective order, but not ordered filing under Rule 5(d). Instead,
however, in response to Public Citizen’s request, the district court
both modified the protective order by virtually eliminating it,
see note 4 supra, and ordered filing, without much distinguishing
between these two aspects of its order. Because we believe that
the two aspects raise separate legal issues and concerns, we con-
sider them individually.

With respect to the filing aspect of the court’s order, we believe
that by the time the district court acted on January 28, 1988,
it lacked the power to impose such new requirements on the

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parties. Accordingly, we vacate that part of the district court’s
order.

Our reasoning is simple. The district court’s judgment of Oc-
tober 6, 1987, was a final dismissal on the merits, concluding
the litigation between the Palmers and Liggett. It left no substan-
tive issue unresolved and it contained no provisions for equitable
relief that would have required ongoing supervision by the
district court. Under these circumstances, we think that the court
simply lacked power to impose any new, affirmative re-
quirements on the parties relating to discovery. See Cooper v.
R.J. Reynolds Tobacco Co., 256 F.2d 464, 466-67 (1st Cir.) (once
a district court dismisses a complaint and enters judgment, it
lacks the power to grant a motion to amend the complaint), cert.
denied, 358 U.S. 875 (1958); Bailey v. Proctor, 166 F.2d 392, 395
(1st Cir. 1948) (a district court’s jurisdiction to modify its own
order exists “as long as no final order has been issued”); see also
Littlejohn v. BIC Corp., 851 F.2d 673, __ (3d Cir. 1988)
(“[A]bsent allegations of fraud or other extraordinary cir-
cumstances, trial exhibits that were restored to their owner after
a case has been completely terminated and which were properly
subject to destruction by the clerk of court are no longer judicial
records within the ‘supervisory power’ of the district court”).

To be sure, a district court has limited power to undo or alter
a judgment after the judgment has been entered. Within strict
time constraints, a court may amend a judgment under Rule
59. Courts may also correct clerical mistakes, Fed. R. Civ. P.
60(a), and even, for good reason, grant a party relief from judg-
ment. Fed. R. Civ. P. 60(b). But no such relief was requested
or granted here. The district court assumed, as did the parties,
that the October 6, 1987 judgment was valid and final.

It is important to note that the purpose of discovery is to
enable parties to an action to obtain material “which is rele-
vant to the subject matter in the pending action,” a purpose that
obviously can no longer be served once a case has been dismissed.
Indeed, once a case has been dismissed and rights to appeal have
lapsed, parties are under no obligation, legal or practical, even
to preserve discovery materials they have obtained. In this

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case, for instance, both the plaintiffs and Liggett were free to
destroy all the Little documents in their possession long before
Public Citizen filed its motion, rendering any Rule 5(d) filing
order meaningless.* Thus, although the district court had the
power under Rule 5(d) to order filing of discovery materials dur-
ing the pendency of the action, we hold that the court’s power
did not extend to postjudgment action.

Turning next to the district court’s modification of the pro-
tective order, we think that an entirely different analysis ap-
plies. Unlike the filing order of January 28, 1988, the protec-
tive order was entered on February 25, 1985, long before the
dismissal and judgment and at a time when the court clearly
had the power to supervise and issue orders concerning
discovery.® Moreover, the protective order, by its own terms, ex-
tended until forty-five days after the “final adjudication or set-
tlement” of the Palmers’ claims.’ During the pendency of the
protective order, including times after judgment, the order acted
as an injunction, setting forth strict limitations on the parties’
use of discovery materials.

In support of this “injunction,” the district court necessarily
had the power to enforce the order, at any point while the order
was in effect, including periods after judgment. As was
demonstrated by the court’s order to compel compliance in the
face of plaintiffs’ expressed intention to provide the Little
documents to the Wall Street Journal, violation of the protec-
tive order during its lifetime would have exposed the parties to

* Counsel for Public Citizen conceded at oral argument that the parties could
have destroyed the discovery materials prior to Public Citizen’s motion without
violating the protective order or any other legal requirement and that, in that
case, Public Citizen would have been out of luck in seeking access.

* On this appeal, no one has contended that the February 25, 1985 protective
order was not a valid protective order at the time it was entered. We have
assumed, without deciding, that it was indeed valid.

’ The Palmers’ claims were not “finally adjudicated” until] November 23, 1987,
when the period for petitioning for certiorari review of this court’s preemp-
tion decision expired. See discussion infra at 26. Public Citizen’s motion of
December 28, 1987, was thus made during the allotted forty-five day period,
while the protective order was stil] in effect.

A-13

contempt liability. Correlative with this power to enforce, the
district court necessarily also retained power to modify the pro-
tective order in light of changed circumstances. The Supreme
Court established long ago that even an injunction entered by
consent of the parties— and this protective order was entered
over the objections of the plaintiffs—is always modifiable.

Power to modify the decree was reserved by its very
terms, and so from the beginning went hand in hand
with its restraints. If the reservation had been omit-
ted, power there still would be by force of principles
inherent in the jurisdiction of chancery. A continu-
ing decree of injunction directed to events to come is
subject always to adaptation as events may shape the
need. . . . [A] court does not abdicate its power to
revoke or modify its mandate if satisfied that what
it has been doing has been turned through changed
circumstances into an instrument of wrong.

United States v. Swift & Co., 286 U.S. 106, 114-15 (1932); see
also Coalition of Black Leadership v. Cianci, 570 F.2d 12, 14
(Ist Cir. 1978) (“There is little dispute that a sufficient change
in circumstances is a meritorious reason for a court to modify
an injunction or consent decree.”); Theriault v. Smith, 519 F.2d
809, 810 (1st Cir. 1975); Food Fair Stores, Inc. v. Food Fair, Inc..
177 F.2d 177, 186 (Ist Cir. 1949). “When dealing with its
equitable powers, a court possesses the intrinsic power to adapt
the injunction to meet the needs of a ‘new day.” Transgo, Inc.
v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1030 (9th Cir.
1985), cert. denied, 474 U.S. 1059 (1986).

Consistent with this well-established rule, we think that the
district court in this case had the inherent power to modify its
February 25, 1985 protective order for so long as the order was
in effect. We note that the courts and commentators seem
unanimous in finding such an inherent power to modify
discovery-related protective orders, even after judgment, when
circumstances justify. E.g., Ex Parte Uppercu, 239 U.S. 435, 440
(1915); FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982):
Krause v. Rhodes, 671 F.2d 212 (6th Cir.), cert. denied, 459 U.S.

A-14

823 (1982); United States v. GAF Corp., 596 F. 2d 10, 16 (2d
Cir. 1979); American Telephone ¢&> Telegraph Co. v. Grady, 594
F.2d 594, 596-97 (7th Cir. 1978), cert. denied, 440 U.S. 97]
(1979); Olympic Refining Co. v. Carter, 332 F.2d 260, 265-66
(9th Cir.), cert. denied, 379 US. 900 (1964); Marcus, Myth and
Reality in Protective Order Litigation, 69 Cornell L. Rev. 1, 41-53
(1983); Note, Nonparty Access to Discovery Materials in the
Federal Courts, 94 Harv. L. Rey. 1085, 1091-96 (1981).

In sum, although the court lacked power to impose new
discovery-related obligations after dismissing the case on the
merits, we find that, because the protective order was still in
effect, the district court had the power to make postjudgment
modifications to the protective order in light of changed cir-
cumstances. Accordingly, we move on to consider the propriety
of the modification actually ordered.

III. STATUS OF THE NONPARTY MOVANTS

As previously noted, Public Citizen did not secure Rule 24
intervenor status in this case, but rather sought to participate
informally under Local Rule 16(g) as a nonparty movant.* In
the district court, Liggett maintained that intervention was
necessary and now, on appeal, challenges the district court’s

* Local Rule 16(g) is quoted supra at 9-10. Rule 24 provides in relevant part:

(a) Intervention of Right. Upon timely application anyone shall
be permitted to intervene in an action: (1) when a statute of the
United States confers an unconditional right to intervene: or (2)
when the applicant claims an interest relating to the property or
transaction which is the subject of the action and the applicant
is so situated that the disposition of the action may as a practical
matter impair or impede the applicant’s ability to protect that
interest, unless the applicant's interest is adequately represented
by the parties. —

(b) Permissive Intervention. Upon timely application anyone
may be permitted to intervene in an action: (1) when a statute
of the United States confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the main action have
a question of law or factincommon. . . . In exercising its discre-
tion the court shall consider whether the intervention will undu-
ly delay or prejudice the adjudication of the rights of the original
parties.

(footnote continued)

A-15

modification order on the ground that Public Citizen lacked stan-
ding because it was not granted intervenor status. Liggett also
claims that Public Citizen was ineligible for Rule 24 intervention
in any event because its motion was untimely. We find Liggett’s
procedural arguments unavailing.

The question of whether nonparty movants may obtain relief
in a civil case appears to be one of first impression in this court.
Prior third-party challenges to court closures and protective orders
have involved either parties who did obtain formal intervenor
status, Anderson v. Cryovac, Inc., 805 F.2d 1, 3-4 (Ist Cir. 1986);
In re San Juan Star Co., 662 F.2d 108, 112 (lst Cir. 1981), or
criminal cases where intervention is not available. E.g., In re Globe
Newspaper Co., 729 F.2d 47, 50 n.2 (Ist Cir. 1984); see also Press
Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (third-party
claim of access to criminal proceeding); Globe Newspaper Co.
v. Superior Court, 457 U.S. 596 (1982) (same). We think this fact
is significant in and of itself, for it demonstrates that, where in-
tervention is available (i.e. civil cases), it is an effective mechanism
for third-party claims of access to information generated through
judicial proceedings. Like this case, both Anderson and San Juan
Star involved challenges to protective orders covering discovery
materials and, in each case, Rule 24 provided a workable means
for mounting the challenge. Public Citizen has pointed to no cir-
cumstances in this case which made formal intervention impossi-
ble or impracticable.

Relying on the language of Rule 24, the Fifth Circuit has
previously held that intervention is “the procedurally correct course”
for third-party challenges to protective orders. In re Beef Industry
Antitrust Litigation, 589 F.2d 786, 789 (5th Cir. 1979) (emphasis
added). We agree. Rule 24(c) provides that “[a] person desiring
to intervene shall serve a motion to intervene upon the parties as
provided in Rule 5. The motion shall state the grounds therefor
and shall be accompanied by a pleading setting forth the claim
or defense for which intervention is sought.” Fed. R. Civ. P. 24(c)

(c) Procedure. A person desiring to intervene shall serve a motion
to intervene upon the parties as provided in Rule 5. The motion shall
state the grounds therefor and shall be accompanied by a pleading
setting forth the claim or defense for which intervention is sought.

,

A-16

(emphasis added). The language of the rule is mandatory, not
permissive, and the rule sets forth reasonable procedural re-
quirements to insure that claims for intervention are handled
in an orderly fashion. Especially in view of the failure to show
that compliance with the rule would be unduly onerous or in-
effectual, we are not willing to create a special category of non-
Rule 24 intervention for third parties who wish to challenge pro-
tective orders through informal motion. Public Citizen should
have been granted Rule 24 intervenor status before the district
court acted on its motion for access to the discovery materials.

We do not, however, view this error as fatal to Public Citizen’s
claim. We tind two factors persuasive. First, although Public
Citizen sought to proceed in the first instance without Rule 24
intervention, it did request, in the alternative, that it be granted
intervenor status if the district court thought that intervention
was necessary. Second, the district court did afford relief to
Public Citizen as if it were a proper party to the case, thus im-
plicitly granting it intervenor status. Under similar cir-
cumstances, other federal courts have been quite lenient in per-
mitting participation by parties who failed to comply strictly
with Rule 24. In Beef Industry Antitrust Litigation, 589 F.2d
at 788-89, the Fifth Circuit, while setting down a prospective
Rule 24 intervention requirement, was willing to overlook a
failure to comply with Rule 24 in a discovery access case in light
of “the fact that the district court's acts might be considered
equivalent to authorizing intervention.” The Third and Eighth
Circuits have also overlooked a lack of formal compliance when
the district court afforded relief to a nonparty and thus implicitly
granted it intervenor status. United States v. Criden, 675 F.2d
590, 552 n.2 (3d Cir. 1982); Roach v. Churchman, 457 F 2d 1101,
1104 (8th Cir. 1972): see also Ex Parte Uppercu, 239 U.S. 435,
441 (1915) (a pre-federal rules case) (third-party assertion of right
of access to discovery materials “requires no particular formali-
ty”). We think that a similar approach is appropriate here.

It is clear from the proceedings below that the district court
considered Public Citizen to have a legitimate interest in seeking

A-17

modification of the protective order. We have no doubt that,
had the district court thought Rule 24 intervention necessary,
it would have treated Public Citizen’s motion as a request for
intervention and granted it. That being so, no purpose would
now be served if this court were to dismiss the appeal and send
this case back to the district court for the rote procedural step
of approving intervention. After a substantial delay, the case
would still return to us in a similar posture for resolution of the
substantive issue underlying this dispute. For purposes of this
appeal, then, we will treat Public Citizen as having requested
and been granted status as a Rule 24 intervenor. A caveat is,
however, in order: “[W]e reiterate that a formal motion for in-
tervention should have been filed pursuant to Rule 24(c). Future
litigants should not attempt to use this opinion to circumvent
the clear requirements of the rule.” Beef Industry Antitrust
Litigation, 589 F.2d at 789.

We turn next to Liggett’s contention that, even if Public
Citizen is treated as having requested intervention, its motion
to modify was untimely as a matter of law because it was filed
on December 28, 1987, twelve weeks after the judgment on the
merits in this case and after the time for appeal from that judg-
ment had expired. We begin our analysis with two fundamen-
tal principles. First, although Rule 24 requires that an applica-
tion for intervention be “timely,” the rule itself sets down no
bright line standard for determining what constitutes timeliness.
It has thus been held that “timeliness is to be determined from
all the circumstances.” NAACP v. New York, 413 U.S. 345, 366
(1973); see also Culbreath v. Dukakis, 630 F.2d 15, 20 (1st Cir.
1980). Second, timeliness determinations under Rule 24 are
vested in the sound discretion of the district court. NAACP, 413
U.S. at 366. Here, the court found that Public Citizen’s motion
was timely, and we can overturn that ruling only if an abuse
of discretion is demonstrated. See id.; Garrity v. Gallen, 697
F.2d 452, 455 (Ist Cir. 1983).

It is also important to note that postjudgment intervention
is not altogether rare. Numerous courts have allowed third par-
ties to intervene in cases directly analogous to this one, many
involving delays measured in years rather than weeks. E.g.,

A-18

Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985)
(third party permitted to intervene after judicially-approved set-
tlement in order to challenge a seal on court documents); FDIC
v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982) (third party per-
mitted to intervene and challenge a stipulated confidentiality
order two years after a judicially-approved settlement); Olym-
pic Refining Co. v. Carter, 332 F.2d 260 (9th Cir.) (third party
permitted to challenge a protective order three years after the
underlying litigation had terminated), cert. denied, 379 U.S.
900 (1964); Mokhiber v. Davis, 537 A.2d 1100, 1104-06 (D.C.
1988) (third party permitted to intervene four years after a
judicially-approved consent decree in order to challenge a pro-
tective order); cf. United Airlines, Inc. v. McDonald, 432 U.S.
385 (1977) (permitting postjudgment intervention for purposes
of appeal).

Adopting the analysis of the Fifth Circuit in Stallworth v.
Monsanto Co., 558 F.2d 257 (5th Cir. 1977), this court in
Culbreath v. Dukakis set down a four-part test for determining
whether a motion to intervene is timely under the totality of
the circumstances.* 630 F.2d at 20-24. Applying the same stan-
dard to this case, we find no abuse of discretion in the district
court’s treatment of Public Citizen’s motion as timely.

The first Culbreath factor to be considered is the length of
time that Public Citizen knew or reasonably should have known
of its interest in this case before it petitioned to intervene. 630
F.2d at 20. Analysis of this factor is somewhat complicated here.
On the one hand, it is clear that Public Citizen knew of the
underlying litigation in this case, and therefore implicitly knew
of the protective order, long before judgment was entered in
the district court. Public Citizen concedes as much and, in fact,
Public Citizen represented the same organizations involved in
this appeal as amici in the earlier appeal to this court on the

* In Culbreath, we upheld the district court’s denial of intervention on
timeliness grounds, but the facts there — attempted intervention on the merits
four years after the litigation began and two months prior to submission of
a consent decree — are far different from those in the present case. We thus
refer to Culbreath not for its holding per se, but for the timeliness test it
established.

A-19

issue of federal preemption. On the other hand, it is now well-
established that it is not the simple fact of knowing that a litiga-
tion exists that triggers the obligation to file a timely applica-
tion for intervention. Rather, the appropriate inquiry is when
the intervenor became aware that its interest in the case would
no longer be adequately protected by the parties. United
Airlines, 432 U.S. at 394; Legal Aid Society v. Dunlop, 618 F.2d
48, 50 (9th Cir. 1980); Stallworth, 558 F.2d at 264. By this stan-
dard, we have no trouble concluding that Public Citizen moved
reasonably promptly.

To begin with, the very same request for modification of the
protective order put forth by Public Citizen after judgment had
been made by plaintiffs and the Wall Street Journal in 1985.
In turning down those requests, the district court cited two fac-
tors: first, that many of the discovery documents in question
presumably would be introduced at trial and made public at
that time; and, second, that the very issue of the propriety of
this protective order was being litigated in the Cipollone case
in the Third Circuit, making it appropriate for the court to wait
until after the Third Circuit litigation was resolved to decide
the protective order issue in this case. Certainly, then, Public
Citizen cannot be said to have been untimely for failing to act
prior to the resolution of the issues underlying the court’s two
concerns.

With respect to the first factor, the possibility of trial could
not be ruled out prior to October 6, 1987, when the district court
dismissed the claims and entered judgment. Moreover, even that
judgment did not finally resolve the matter, for the plaintiffs
had until November 5, 1987, to appeal the judgment, and the
time for plaintiffs to petition for certiorari review of this court’s
preemption decision (upon which the dismissal was based) did
not expire until November 23, 1987. Counting back from the
December 28, 1987 filing date of its motion, Public Citizen’s
delay was, therefore, eight weeks or four weeks depending on
which of these latter dates is used. If we refer to the second factor
cited by the court —the Cipollone litigation — Public Citizen’s
delay is only three weeks, for, as we indicated in note 2 supra,
the protective order aspect of the Cipollone case was not resolved

A-20

until December 7, 1987. In the context of this case, which had
been proceeding for well over four years, we do not think that
this delay, on the order of weeks, was material.

The second Culbreath factor to be considered is the prejudice
to existing parties due to Public Citizen’s delay in intervening.
630 F.2d at 21. This factor encompasses the basic fairness notion
that intervention should not work a “last minute disruption of
painstaking work by the parties and the court.” Id. at 22. For
purposes of this factor, therefore, it is necessary to ask why a
would-be intervenor seeks to participate, for if the desired in-
tervention relates to an ancillary issue and will not disrupt the
resolution of the underlying merits, untimely intervention is
much less likely to prejudice the parties. Here, of course, Public
Citizen’s motion pertains to a particularly discrete and ancillary
issue, as demonstrated by the fact that the merits of the case
have been already concluded and are no longer subject to review.
Because Public Citizen sought to litigate only the issue of the
protective order, and not to reopen the merits, we find that its
delayed intervention caused little prejudice to the existing par-
‘ies in this case.

The analysis of the District of Columbia Court of Appeals
n the recent case of Mokhiber v. Davis, 537 A.2d 1100 (D.C.
1988), is particularly relevant on this point. In Mokhiber, an
nvestigative journalist petitioned to intervene in a civil case in
der to gain access to discovery materials and related court
ilings, which had been placed under a protective order. Judg-
nent in the case had been issued four years previously pursuant
O a stipulation of settlement. Like Public Citizen in this case,
he journalist in Mokhiber sought to modify the protective order
0 facilitate public access. Although the court eventually denied
n substantive grounds the request for modification as to some
f the discovery materials, it rejected the notion that interven-
ion four years after settlement was untimely given the “special
ature of the right” asserted.

[O]}rdinary principles applicable to intervention do
not work well here. The filing of a motion to intervene
is simply recognized as an appropriate means of

A-2]

raising assertions of public rights of access to infor-
mation regarding matters in litigation. “Intervention
of this type may properly be termed de bene esse, to
wit, action that is provisional in nature and for the
limited purpose of permitting the intervenor to file
a motion to be considered separately, requesting that
access to proceedings or other matters be granted.”
Commonwealth v. Fenstermaker, 530 A.2d 414, 416
n.l (Pa. 1987).

[T]o the extent [a right of access] exists, it exists to-
day for the records of cases decided a hundred years
ago as surely as is does for lawsuits now in the early
stages of motions litigation. The fact that a suit has
gone to judgment does not in any sense militate against
the public's right to Prosecute a substantiated right
to see the records of a particular case. Moreover, ac-
cess to court records does not involve relitigation of
the underlying dispute, so the rationale behind requir-
ing extraordinary circumstances for postjudgment in-
tervention does not as a rule apply to access claims.”

[T]he prejudice the parties would suffer from post-
judgment access to court documents should not deter-
mine the timeliness of the intervention-to assert [a]
right of access. Instead. assuming an intervenor does
assert a legitimate, presumptive right to open the court
record of a particular dispute, the potential burden
or inequity to the parties should affect not the right
to intervene but, rather, the court’s evaluation of the
merits of the applicant’s motion to lift the protective
order — that is, the court’s judgment as to whether,
under the circumstances, the balance of equities favor-
ing sealing overrides any presumptive right of access.

_sstesncnsientiisesesesnnnees
It is for precisely this reason that Liggett’s citation to Burney v. City of
awtucket, 728 F.2d 547 (Ist Cir. 1984), is misplaced. In Burney, we set down

hard and fast rule that intervention on the merits “is never timely . . . if

A-22

Id. at 1105-06. We find this analysis compelling and reject the
notion that prejudice to the parties in this action would be
grounds for denying intervention by Public Citizen.

The third and fourth Culbreath factors to be considered are
t. . prejudice that would be suffered by Public Citizen if it were
not allowed to intervene and the existence of extraordinary cir-
cumstances militating for or against intervention. 630 F.2d at
22, 24. Given our treatment of the first two factors, we need
not dwell overlong on these considerations. It is sufficient to note
that Public Citizen has asserted, on behalf of the public, a right
to have the protective order modified such that the discovery
materials may be publicly disseminated, and that, prior to Public
Citizen's action, this interest was not being pursued by any of
the parties to the case” If Public Citizen’s motion is found to
be untimely, future intervention attempts will almost certainly
also be found to be untimely, and the public’s right of access
will go untested. As the district court found, there is a strong
public interest in the documents at issue, which concern an im-
portant public health issue.

Having thus concluded that Public Citizen can be considered
as a proper Rule 24 intervening party, we believe it has stan-
ding to pursue the public access claim here at issue. Courts, in-
cluding this one, routinely have found that third parties have
standing to assert their claim of access to documents in a judicial
proceeding. E.g., In re Alexander Grant & Co. Litigation, 820
F.2d 352, 354 (11th Cir. 1987); Anderson v. Cryovac, Inc., 805
F.2d 1 (1st Cir. 1986); In re Globe Newspaper Co., 729 F.2d 47,
50 n.2 (Ist Cir. 1984); In re San Juan Star Co., 662 F.2d 108 (1st
Cir. 1981); see also cases cited supra at 17, 23”

" Although the plaintiffs did seek permission to disseminate the discovery
materials at an earlier stage of the litigation and continue to support Public
Citizen's claim, they took no steps on their own to have the protective order
modified after judgment.

* We have uncovered only one access case where standing was found lacking,
but that case is clearly distinguishable. Oklahoma Hospital Ass'n v. Oklahoma
Publishing Co., 748 F.2d 1421 (10th Cir. 1984), cert. denied, 473 U.S. 905 (1985),

(footnote continued)

A-23

IV. A RIGHT OF PUBLIC ACCESS TO DISCOVERY?

In assessing the claimed right of access in this case, it is helpful
to begin by noting what is not being claimed. Unlike many prior
litigants in this court and others,” Public Citizen has not claimed
that it has—independent of the federal rules— a general com-
mon law or first amendment right to inspect the discovery
materials. Such a claim has been largely foreclosed by the
Supreme Court’s decision in Seattle Times Co. v. Rhinehart, 467
U.S. 20 (1984), which must serve as the background for any
claimed right of access to discovery materials.

In Seattle Times, members of a religious group sued the Seattle
Times in state court for defamation and invasion of privacy. As
part of its defense of that case, the Seattle Times sought to
discover information regarding membership in and donations
to the religious group during the previous five years. When the
group resisted, the trial court compelled production, but entered
a protective order under the state analog of Federal Rule 26(c)
prohibiting the Seattle Times from disseminating or using the
information in any way except as necessary to prepare and try
its case. The Seattle Times then challenged the protective order
as a prior restraint on speech in violation of the first amendment.

involved a protective order entered by stipulation covering documents solely
in the hands of the parties. The court found that a third party lacked stan-
ding to attack the protective order because, even if the protective order were
modified, the parties in possession of the documents would not, and could
not be compelled to, disseminate the documents to the third party. Id. at
1424-25. Here, however, far from agreeing to the protective order, the plain-
tiffs to this action have opposed the protective order at every stage. Moreover,
the plaintiffs have indicated clearly that they will disseminate the documents
if permitted to do so. Because obtaining a modification of the protective order
will, as a practical matter, guarantee Public Citizen access to documents in
the plaintiffs’ possession, Public Citizen has standing to seek the modification.

See, e.g., In re Alexander Grant & Co. Litigation, 820 F.2d 352, 354-55 (11th
Cir. 1987); Anderson v. Cryovac, Inc., 805 F.2d 1 (Ist Cir. 1986); In re San
Juan Star Co., 662 F.2d 108 (lst Cir. 1981); In re Halkin, 598 F.2d 176 (D.C.
Cir. 1979); Mokhiber v. Davis, 537 A.2d 1100, 1109 (D.C. 1988) (coilecting

cases).

A-24

The Supreme Court rejected the Seattle Times’s claim and
also rejected the suggestion that review of a protective order re-
quires any heightened scrutiny under the first amendment.
Although acknowledging that litigants do have limited first
amendment rights concerning information obtained through
discovery, the Court focused on the fact that discovery is “a mat-
ter of legislative grace” and that litigants gain access to discovery
materials “only by virtue of the trial court’s discovery processes.”
Id. at 31-32. Moreover, the Court said, protective orders “fur-
the[r] a substantial government interest unrelated to the sup-
pression of expression.” Jd. at 34. Thus, where “a protective order
is entered on a showing of good cause as required by Rule 26(c),
is limited to the context of pretrial discovery, and does not restrict
the dissemination of the information if gained from other
sources, it does not offend the first amendment.” Id. at 37.

As we said in Anderson v. Cryovac, Inc., 805 F.2d 1, 6-7 (Ist
Cir. 1986), the Seattle Times decision has not completely
eliminated the first amendment as a relevant consideration in
reviewing protective orders. Seattle Times has, however,
established that first amendment scrutiny of protective orders
“must be made within the framework of Rule 26(c)’s require-
ment of good cause.” Anderson, 805 F.2d at 7.

It is, therefore, very significant that Public Citizen has not
asserted a common law or first amendment right of access in-
dependent of the federal rules. Rather, Public Citizen has based
its claim on the federal rules, asserting that, under Rules 5(d)
andf 26(c), the public has a presumptive right of access to
discovery materials unless good cause for confidentiality is
shown, and that no good cause exists here. Nothing in Seattle
Times or Anderson precludes such a claim. Discovery is “a matter
of legislative grace,” 467 U.S. at 32, but Public Citizen asks for
no more than compliance with the legislative scheme embodied
in the federal rules.

In seeking to defeat Public Citizen's claim, Liggett and amici
Product Liability Advisory Council, Inc., and Motor Vehicle
Manufacturers Association of the United States. Inc., have
pointed to some expansive language in Seattle Times, Ander-
son and similar cases to bolster their claim that the public should

A-25

not be afforded access to discovery materials. See, e.g., Seattle
Times, 467 U.S. at 33 (“pretrial depositions and interrogatories
are not public components of a civil trial”); Mokhiber, 537 A.2d
at 1110 (“there exists no common law tradition of access to
discovery materials as such”). Liggett and amici have used these
statements to launch broad-based “policy” arguments to the ef-
fect that litigants have legitimate privacy interests in discovery
materials and that permitting public access would undermine
these privacy interests and excessively disrupt the litigation pro-
cess. We acknowledge that our own Anderson opinion seemingly
lends some support to this contention. 805 F.2d at 12 (permit-
ting public access to discovery might actually make the civil
discovery process “more complicated and burdensome than it
already is”); see also Marcus, Myth and Reality in Protective
Order Litigation, 69 Cornell L. Rev. 1 (1983) (generally criticiz-
ing claimed rights of public access to discovery).

We think, however, that these arguments and authorities are
misplaced here. All of the cases upon which Liggett and amici
rely are cases where the claimed right of access was based not
on the federal rules, but on the common law or the first amend-
ment. They are cases where, in essence, litigants put forth com-
mon law and constitutional arguments in an effort to trump
application of the federal rules standard for protective orders.
In rejecting such arguments and adhering to the federal rules
standard, courts sensibly have noted that a contrary result would
lead to thwarting the interests of privacy and litigative efficiency
which are embodied in the federal rules. But nothing in those
opinions purported to elevate privacy and efficiency as factors
to be considered over and above compliance with the federal
rules. Rather, the point of the cases was that, because of privacy
and efficiency concerns, the federal rules should be followed.

Thus, when in Anderson we noted that “[t]here was no tradi-
tion of public access to depositions before [passage of the federal
rules in] 1938,” we went on to say that now, under Rule 5(d),
courts may require public filing of discovery requests and
responses. 805 F.2d at 12. Likewise, in Alexander Grant & Co.
Litigation, the Eleventh Circuit recognized that, on the one
hand, “private litigants have protectable privacy interests in con-
fidential information disclosed through discovery,” but it added

A-26

that the means for protecting that privacy interest is Rule 26(c),
not judicial fiat. 820 F.2d at 355.

Liggett and amici would have us turn these cases on their
heads by holding that privacy and litigative efficiency concerns
ought to work independently of the federal rules, actually
limiting a district court’s ability to deny protection under Rule
26(c), even when no good cause is shown. We are not willing
to do so. This case involves a claim of access to discovery
materials under the federal rules and we believe that the merits
of the claim must be judged by the text of the rules and the ap-
plicable cases interpreting the rules. The rules themselves seek
to accommodate concerns of privacy and litigative efficiency,
and we find no reason for imposing additional judge-made con-
straints on the district court’s control of discovery. Accordingly,
we turn to consideration of the relevant federal rules.

Centrally at issue is Rule 26(c), which permits a district court
to issue protective orders covering discovery materials upon a
showing of good cause:

Upon motion by a party or by the person from
whom discovery is sought, and for good cause shown,
the court . . . may make any order which justice re-
quires to protect a party or person from annoyance,
embarrassment, oppression or undue burden or
expense... .

As the Second Circuit has noted,

A plain reading of the language of Rule 26(c)
demonstrates that the party seeking a protective order
has the burden of showing that good cause exists for
issuance of that order. It is equally apparent that the
obverse also is true, i.e., if good cause is not shown,
the discovery materials in question should not receive
judicial protection and therefore would be open to the
public for inspection. . . . Any other conclusion ef-
fectively would negate the good cause requirement of
Rule 26(c): Unless the public has a presumptive right
of access to discovery materials, the party seeking to

A-27

protect the materials would have no need for a judicial
order since the public would not be allowed to ex-
amine the materials in any event.

In re Agent Orange Product Liability Litigation, 821 F.2d 139,
145-46 (2d Cir.), cert. denied, 108 S. Ct. 289, 344 (1987), affg
104 F.R.D. 559, 567 (E.D.N.Y. 1986). Rule 26(c)’s good cause
requirement means that, “[a]s a general proposition, pretrial
discovery must take place in the public unless compelling reasons
exist for denying the public access to the proceedings.” American
Telephone & Telegraph Co. v. Grady, 594 F.2d 594, 596 (7th
Cir. 1978), cert. denied, 440 U.S. 971 (1979); accord, Wilk v.
American Medical Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980);
In re Coordinated Pretrial Proceedings in Petroleum Products
Antitrust Litigation, 101 F.R.D. 34, 38-41 (C.D. Cal. 1984); Note,
Nonparty Access to Discovery Materials in the Federal Courts,
94 Harv. L. Rev. 1085, 1085-86 (1981). Rule 26(c) thus lends sup-
port to the right of access claimed by Public Citizen and found
by the district court below.

We agree with the Second Circuit. It is implicit in Rule 26(c)’s
“good cause” requirement that ordinarily (in the absence of good
cause) a party receiving discovery materials might make them
public. In this instance, Public Citizen wished to relieve the
plaintiff of the burden of an order that prevented it from mak-
ing public previously obtained discovery materials. Given the
fact that Public Citizen directly benefitted from modification
of that order, and for the reasons previously pointed out, we
conclude that it had standing to intervene in the case and to
ask the court to modify its pre-existing protective order.

V. STANDARD FOR MODIFYING PROTECTIVE ORDERS

Although it is conceded that the governing standard for en-
try of a Rule 26(c) protective order is good cause, Liggett asserts
that a different standard ought to apply when a court considers
modifying an existing protective order. Liggett argues that
parties to a protective order have legitimate reliance interests
in its continued validity and finality. Citing to a Second Cir-
cuit opinion, Liggett claims that an existing protective order

A-28

can be modified only on a showing of “extraordinary cir-
cumstance or compelling need.” Martindell v. International
Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir. 1979); see
also Palmieri v. New York, 779 F. 2d 861 (2d Cir. 1985). Not
surprisingly, Liggett finds that no extraordinary circumstances
are present here.

We think that Liggett’s argument must be rejected. Even ac-
cepting that an extraordinary circumstances standard applies,
we do not think that the district court erred in modifying the
protective order. Control of pretial discovery, including the en-
try or modification of a protective order, is a matter falling
peculiarly within the discretion of the district court. Agent
Orange, 821 F.2d at 147: Krause v. Rhodes, 671 F.2d 212, 219
(6th Cir.), cert. denied, 459 U.S. 823 (1982); Wilk v. American
Medical Ass’n, 635 F.2d 1295, 1299 (7th Cir. 1980); 8 C. Wright
& A. Miller, Federal Practice & Procedure § 2036, at 268 (1970).
Here, the district court found that the dismissal on the merits
constituted a significant change in circumstances warranting
modification of the protective order. Under the circumstances,
we cannot say that the court abused its discretion.

To begin with, the protective order modified by the district
court was a blanket protective order, that is, it was an order
extending broad protection to all documents produced by Lig-
gett, without a showing of good cause for confidentiality as to
any individual documents. Although such blanket protective
orders may be useful in expediting the flow of pretrial discovery
materials, they are by nature overinclusive and are, therefore,
peculiarly subject to later modification. See Manual for Com-
plex Litigation, Second § 21.431, at 53 & n.60 (1985); In re Coor-
dinated Pretrial Proceedings in Petroleum Products Antitrust
Litigation, 101 F.R.D. 34, 40-44 (C.D. Cal. 1984). Moreover,
as the district court made clear in rejecting pretrial attempts
to modify the protective order, the point of this protective order
was to promote a fair trial, not to guarantee Liggett perpetual
secrecy. See supra at 5 (“The dissemination of this material wil]
not aid in the fair trial of this case. The trial is public and the
Wall Street Journal is, of course, able to attend the trial.”). The
dismissal of the case on the merits eliminated the possibility of

A-29

trial and was, therefore, a significant change in circumstances
calling into question the necessity of the protective order. Under
similar circumstances, the Second Circuit — the very court that
crafted it — found that the extraordinary circumstances test was
met. Agent Orange, 82] F.2d at 147-48 (upholding the district
court’s modification of a blanket protective order in light of a
settlement of the underlying dispute).

It is argued that a protective order of this sort may lead a
party to be more forthcoming in discovery. A protective order
may induce a party, for example, to permit an opponent to go
through its files, taking relevant material. The party would not
insist upon screening the materials first because it would not
fear that irrelevant or confidential material, protected by the
order, would be made public. Insofar as a rationale of this sort
underlay the original protective order, it would seem unfair later
to remove that order’s protection.

We do not accept this argument as controlling here, however,
for one simple reason. As far as we can tell from this record,
the particular documents that Public Citizen seeks are not
documents that were irrelevant to the litigation nor do they con-
tain trade secrets or other specially confidential material. In-
sofar as it applies to the documents they seek, the protective order
did not rest upon the rationale just mentioned. Rather, the court
initially protected those documents for a very different reason:
namely, the court, believing that the documents would become
public in any event during trial, wished to conduct that trial
free of the pretrial publicity that might follow premature release
of the documents. Liggett, of course, remained free, in respect
to any particular document, to argue to the district court that
the document in question either was irrelevant to the discovery
request or should remain protected as a confidential document
for some special reason (such as “trade secrets”) that would have
prevented its having been made public at trial.

Moreover, we are not convinced that the extraordinary cir-
cumstances standard proffered by Liggett is applicable here in
any event. For one thing, the Martindell case principally relied
upon by Liggett is clearly distinguishable, having been based
on policy concerns not applicable here. Martindell involved an

A-30

attempt by the United States government as prosecutor to short
cut its normal investigative procedures by obtaining sealed
depositions in a shareholder derivative suit to which it was not
a party. Pointing out the reliance interests of witnesses who
testified pursuant to the protective order without invoking their
fifth amendment right against self-incrimination, the Second
Circuit refused to modify the protective order. 594 F.2d at
294-97; see also Palmieri, 779 F.2d at 863-66 (applying Mar-
tindell standard and denying a request by New York State to
intervene in a private antitrust action to access sealed
documents). “[W]hat was critical to Martindell _. . was the fact

that ‘the party seeking access ... was the federal government,
which ... had at its disposal special investigatory powers not
available to private litigants. ...’” Palmieri, 779 F.2d at 866

(quoting Wilk, 635 F.2d at 1299-1300). This case, of course, does
not involve government intervention and so, even according to
the Second Circuit, the justification for the extraordinary cir-
cumstances test is not present.

Outside the area of government intervention, courts have ap-
plied much more lenient standards for modification. See e.g.,
Wilk, 635 F.2d at 1300 (holding that the court’s prior invocation
of the extraordinary circumstances test “was an unfortunate choice
of words”); Tavoulareas v. Washington Post Co., 737 F.2d 1170,
1172 (D.C. Cir. 1984) (suggesting that the good cause standard
of Rule 26(c) governs modifications of protective orders). While
we need not decide the matter definitively, we reject the “extraor-
dinary circumstances” standard. In a case such as this, where
the party seeking modification has pointed to some relevant
change in the circumstances under which the protective order
was entered, we think that a standard less restrictive than “ex-
traordinary circumstances” is appropriate. We need not define
how “less restrictive” the standard should be because we find that
under these facts the district court had the legal power to modify
its prior protective order: the reasons underlying the initial pro-
mulgation of the order in respect to the particular documents
sought no longer exist; and the district court made a reasoned
determination that public interest considerations favored allow-
ing counsel to make those particular documents public.

A-31

VI. CONCLUSION

The district court’s order is affirmed with respect to the
modification of the protective order, but reversed with respect
to the requirement that the parties file discovery materials in
court. The parties are, therefore, free to disseminate discovery
materials, but they are not obligated to make them publicly
available by filing them in court.

So erdered.

B-1
Opinion of the Court of Appeals,
dated August 25, 1987
ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER and
DAPHNE S. PALMER,
Plaintiffs-Appellees,

— Y, —

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CoO., INC.,

Defendants-Appellants.

No. 86-1525

United States Court of Appeals,
First Circuit
Decided August 25, 1987

Before: BOWNES, Circuit Judge, BROWN,” Senior
Circuit Judge, and TORRUELLA, Circuit
Judge

BROWN, Senior Circuit Judge:

This interlocutory appeal presents one highly disputed issue:
whether the Federal Cigarette Labeling and Advertising Act,
15 U.S.C. § 1331 et seq. (the Act), preempts the Palmers’ smok-
ing and health related claims that challenge either the adequacy

* Of the Fifth Circuit, sitting by designation.

B-2

of the federal warning on cigarette packages or the propriety
of Liggett’s advertising and promotion of cigarettes. In deference
to the congressional declaration that (i) cigarettes be labeled
uniformly and (ii) a balance be struck between the priority given
to tobacco commerce and to our national health policy, we hold
that the Act does preempt the Palmers’ state law claims, and
reverse the decision of the District Court.

A Saga of Cigarette Smoking

Because the certified issue before us is on appeal from a mo-
tion to dismiss, we are limited to viewing the facts of the case
only as alleged in the pleadings, interrogatory answers, and pre-
trial submissions of the parties.

Joseph C. Palmer died on August 26, 1980, at the age of 49,
allegedly from lung cancer. The Palmers allege that Palmer
smoked between three and four packs of Liggett’s cigarettes per
day until his death.

On August 19, 1983, Ann M. Palmer, individually and as ad-
ministrator of the estate of her late husband, and her mother-
in-law, Daphne S. Palmer, filed this diversity action in the
District Court. In their amended complaint, the Palmers con-
tended that liability should be imposed on Liggett because of
its failure to warn adeauately of the health consequences of
cigarette smoking. The Palmers asserted causes of action for com-
mon law negligence, breach of warranty under Mass. Gen. Laws
c. 106 § 2-314 et seq., and violations of the Massachusetts Con-
sumer Protection Act, Mass. Gen. Laws c. 93A. At bottom, the
Palmers complained that Liggett negligently gave inadequate
warnings about the dangers of cigarette smoking and that this
negligence proximately caused Palmer’s death.

In response, Liggett filed a motion to dismiss all inadequate
warning claims on the ground that they were preempted by the
Act. After a thorough review of the record, Judge Mazzone
denied Liggett’s motion to dismiss. The court concluded that
“Congress [could not have] meant, by its silence on the issue
of common law claim preemption, to do away with all means

lee

B-3

of obtaining compensation for those hurt by inadequate cigarette
warnings in advertising.” Palmer v. Liggett Group, Inc., 633
F. Supp. 1171, 1173 (D. Mass. 1986). The District Court also relied
heavily on the analysis contained in Judge Sarokin’s opinion in
the District Court decision of Cipollone v. Liggett Group, Inc.,
593 F. Supp. 1146 (D.N.J. 1984), since reversed, 789 F.2d 18]
(3d Cir. 1986), cert. denied, ___ U.S. ___, 107 S. Ct. 907, 93
L.Ed.2d 857 (1987).

Because Judge Mazzone found the preemption issue to involve
“a controlling question of law,” 28 U.S.C. § 1292(b), he certified
sua sponte this issue for interlocutory appeal, which we have ac-
cepted. Upon application by Liggett to this court, the proceedings
below have been stayed while this limited appeal comes to us.

The Act

The District Court, the defendants, and the plaintiffs agree
that the issue of the Act’s preemptive force controls the disposi-
tion of virtually the entire case. If the Labeling Act is found
to preempt state law actions, either expressly or impliedly, the
Palmers lose. If Congress did not intend for the Act to be so
preemptive, Liggett loses the appeal. The line thus drawn, we
proceed now to a discussion of how Congress constructed the
Labeling Act.

In 1964, the Surgeon General released the now famous “Smok-
ing and Health: Report of the Advisory Committee to the
Surgeon General.” That initial report was one of the first of-
ficial, scientifically approved statements linking cigarette smok-
ing to lung cancer, bronchitis, and emphysema. The public
response was immediate and vocal; clearly, some form of govern-
mental action was imminent.

In a rush to protect and inform its citizens, several states pro-
posed and adopted mandatory warning labels for cigarette
packages to be sold in their individual states! Given the

' For example, the New York state legislature adopted the following label in
June 1965: “WARNING: Excessive Use Is Dangerous To Health.” Laws of New
York 1965, Ch. 470.

B-4

potential maze of conflicting state regulations, Congress stepped
in in 1965 to set up a uniform, nationally consistent system of
warning labels for cigarettes. F urther, it did so with the express
intention of striking a balance between its concern for the na-
tional health policy of smoking education and its protection of
the trade and commerce aspects of the tobacco industry.”

After much internal and external debate, with classic con-
frontations between North and South, rural and urban states,
together with vigorous lobbying by all forms of interested groups
and businesses, the members of Congress negotiated a hard-
fought compromise with the passage of the Federal Cigarette
Labeling and Advertising Act, Pub. L. No. 89-92, 79 Stat. 282
(1965), codified as amended by the Public Health Cigarette
Smoking Act of 1969, Pub. L. No. 91-222, 84 Stat. 87 (1970)
at 15 U.S.C. §§ 133] et seq. In 1984, Congress further amended
the Act by the Comprehensive Smoking Education Act, Pub. L.
No. 98-474, 98 Stat. 2200 (1984).°

This case, like so many we are called on to decide, turns on
a question of statutory construction and interpretation. It is by
definition a frustrating task, for if the law’s meaning is truly
“plain” enough or its effect clear-cut enough, there is no need
for us to pronounce what we discern its meaning or effect to
be. In cases such as this one, however, we must marshal sup-
port from the ready arsenal of the canons of statutory construc-
tion to declare soberly the deconstructed meaning of the omis-
sion by Congress of a Savings clause, “because Congress knew
how to provide a savings clause when it wanted to.” We are ex-
pected to “discover” the true congressional intent of the phrase
“No requirement shall be imposed under State law.” yet we are
limited to contradictory, even self-serving language from the
statute's legislative history to discern that intent.

* At the time the Act was originally adopted, tobacco ranked third in
agricultural export products, fifth among all cash crops, and supported some
750,000 farming families. See 1] Cong. Rec. 13,950, 13,898 (1965) (remarks
of Sens. Ervin and Bass).

’ The amendments enacted in 1984 took effect after Joseph Palmer's death,
and therefore are not relevant in this case.

B-5

Nevertheless, that is the task assigned to us, and having
acknowledged the inherently unsatisfying nature of it, we come
now to the actual words of the law. In some ways, the Act is
more straightforward in declaring its intent and effect than are
many other analogous regulatory schemes. The Act contains
three sections that address the preemption issue raised here. First
is § 1331, the Act’s declaration of policy and purpose.

It is the policy of the Congress, and the purpose of
this chapter, to establish a comprehensive Federal pro-
gram to deal with cigarette labeling and advertising
with respect to any relationship between smoking and
health, whereby —

(1) The public may be adequately informed that
cigarette smoking may be hazardous to health by
inclusion of a warning to that effect on each
package of cigarettes; and

(2) commerce and the national economy may be (A)
protected to the maximum extent consistent with
this declared policy and (B) not impeded by
diverse, nonuniform, and confusing cigarette
labeling and advertising regulations with respect
to any relationship between smoking and health.

15 U.S.C. § 1331.4

Second, § 1333 prescribes the exact label of warning to be
placed on each package of cigarettes.’ The language imposing
this mandatory warning is as follows:

* Subparagraph (1) of § 1331 was amended in 1984 to read:
(1) the public may be adequately informed about any adverse
health effects of cigarette smoking by inclusion of warning notices
on each package of cigarettes and in each advertisement of
cigarettes; and ...

15 U.S.C. § 1331(1) (West Supp. 1987).

* The very fact that Congress mandated the precise wording required in a
label, rather than merely establishing the “minimum requirements” standard

(footnote continued)

B-6

It shall be unlawful for any person to manufacture,
import, or package for sale or distribution within the
United States any cigarettes the package of which fails
to bear the following statement: “Warning: The
Surgeon General Has Determined That Cigarette
Smoking Is Dangerous to Your Health.” Such state-
ment shall be located in a cunspicuous place on every
cigarette package and shall appear in conspicuous and
legible type in contrast by typography, layout, or color
with other printed matter on the package.

15 U.S.C. § 1333.°

often found in labeling acts distinguishes the Act from cases relied upon by
the court and the Palmers as persuasive authority. See, e.g., Ferebee v. Chevron
Chemical Co., 736 F.2d 1529 (D.C. Cir.) (involving FIFRA minimum label-
ing standards), cert. denied, 469 U.S. 1062, 105 S. Ct. 545, 83 L.Ed.2d 432
(1984), and discussion infra at note 13.

* When Congress originally enacted the Act in 1965, and when the link to
the hazards of smoking was less firmly established, the warning was a more
moderate statement: “Caution: Cigarette Smoking May Be Hazardous to Your
Health.” Pub. L. No. 89-92, § 4, 79 Stat. 282, 283 (1965).

In 1984, Congress extensively revised the labeling requirements that were
in force under the 1969 amendments. Although the 1969, not 1984, warnings
are controlling in this case, the Palmers have relied upon the most recent
amendments as evidence of the inadequacy of the prior warnings. For infor-
mation purposes, we set them out below:

[1] SURGEON GENERALS WARNING: Smoking Causes Lung
Cancer, Heart Disease, Emphysema, And May Complicate
Pregnancy.

[2] SURGEON GENERALS WARNING: Quitting Smoking Now
Greatly Reduces Serious Risks to Your Health.

[3] SURGEON GENERALS WARNING: Smoking By Pregnant
Women May Result in Fetal Injury, Premature Birth, and Low
Birth Weight.

[4] SURGEON GENERALS WARNING: Cigarette Smoke Con-
tains Carbon Monoxide.

15 U.S.C. § 1333(a)(1) (West Supp. 1987).

B-7

Finally, § 1334 sets out the section most relevant to our
preemption analysis — the preemption section:

(a) No statement relating to smoking and health,
other than the statement required by section 1333
of this title, shall be required on any cigarette
package.

(b) No requirement or prohibition based on smoking
and health shall be imposed under State law with
respect to the advertising or promotion of any
cigarettes the packages of which are labeled in
conformity with the provisions of this chapter.

15 U.S.C. § 1334.’

The remainder of the Act includes sections that prohibit radio
and television advertising (§ 1335), require manufacturers to
report cigarette ingredients to the Secretary of the Department
of Health and Human Services (§ 1335a), and require the HHS
Secretary to report to Congress annually about developments
in “the current information in the health consequences of smok-
ing” (§ 1337). Further, § 1337 also requires the Federal Trade
Commission to report to Congress regarding its opinions on the
effectiveness of cigarette labeling and the impact of advertis-
ing and marketing, along with any recommendations the FTC
may desire to make. Sections 1338 and 1339 confer jurisdiction
on the District Courts to enjoin violations of the Act, and pro-
vide for criminal penalties of not more than $10,000.

The Preeminence of Preemption

Having set out the relevant portions of the Act. we now con-
sider the preemptive force that it brings to bear on the Palmers’
state-based tort claim.

’ Section 1334(b) of the original 1965 Act read as follows:
No statement relating to smoking and health shall be required
in the advertising of any cigarettes the packages of which are
labeled in conformity with the provisions of this Act.

Se

B-8

The different forms of preemption are usually summarized
by neat citations to familiar Supreme Court authority. Although
we are somewhat wary that these ready citations list, but do
not describe, and catalog, but do not define, any real distinc-
tions among the various types of preemption, we nevertheless
offer the following recitation from the Court in Louisiana Public
Service Comm'n v. Federal Communications Comm'n, 476
U.S. ___, 106 S. Ct. 1890, 90 L.Ed.2d 369 (1986).

The Supremacy Clause of Article VI of the Constitu-
tion provides Congress with the power to pre-empt
state law. Pre-emption occurs when Congress, in
enacting a federal statute, expresses a clear intent to
pre-empt state law, Jones v. Rath Packing Co., 430
U.S. 519, 97 S. Ct. 1305, 51 L.Ed.2d 604 (1977), when
there is outright or actual conflict between federal and
state law, e.g., Free v. Bland, 369 U.S. 663, 82 S. Ct.
1089, 8 L.Ed.2d 180 (1962), where compliance with
both federal and state law is in effect physically im-
possible, Florida Lime & Avocado Growers, Inc. v.
Paul, 373 U.S. 132, 83 S. Ct. 1210, 10 L.Ed.2d 1082
(1963), where there is implicit in federal law a bar-
rier to state regulation, Shaw v. Delta Air Lines, Inc.,
463 U.S. 85, 103 S. Ct. 2890, 77 L.Ed.2d 490 (1983),
where Congress has legislated comprehensively, thus
occupying an entire field of regulation and leaving
no room for the States to supplement federal law, Rice
v. Santa Fe Elevator Corp., 331 U.S. 218, 67 S. Ct.
1146, 91 L.Ed. 1447 (1947), or where the state law
stands as an obstacle to the accomplishment and ex-
ecution of the full objectives of Congress. Hines v.
Davidowitz, 312 U.S. 52, 61 S. Ct. 399, 85 L.Ed. 581
(1941).

* * +

The critical question in any pre-emption analysis is
always whether Congress intended that federal regula-

tion supersede state law.

476 U.S. at

, 106 S. Ct. at 1898-99, 90 L.Ed.2d at 381-82.

B-9

The District Court Opinion

In its thoughtful and detailed scrutiny of this case, the District
Court considered at length the reasoning in the three major opin-
ions rendered to date in these cigarette products liability cases
— the two Cipollone decisions, 593 F. Supp. 1146 (D.N.J. 1984)
(Sarokin, J.), revd, 789 F.2d 181 (3d Cir. 1986) (Hunter, J.), cert.
denied, __ U.S. _, 107 S. Ct. 907, 93 L.Ed.2d 857 (1987), and
Roysdon v. R.J. Reynolds Tobacco Co., 623 F. Supp. 1189 (E.D.
Tenn. 1985). The Third Circuit and Roysdon courts held that
the Act preempted state law tort claims, while the District Court
in Cipollone held the claims were not preempted.

After reviewing the basic approaches to preemption analysis,
the District Court considered and rejected the argument that
either express or any of the forms of implied preemption were
present in this case. We reverse and hold that the Act impliedly
preempts the Palmers’ claim.

Judge Mazzone first discussed express preemption. Because
that type of preemption has been so strictly construed in the
past, and because of the strong presumption against preemp-
tion, Maryland v. Louisiana, 451 U.S. 725, 746, 101 S. Ct. 2114,
2128, 68 L.Ed.2d 576, 595 (1981), it is unnecessary to disturb
the court’s conclusion that there is no express preemption pre-
sent. Because we have no hesitation in determining that the Act
impliedly preempts (under whatever rubric) the Palmers’ claim,
we need not overturn the District Court’s view that the preemp-
tion section of the Act does not explicitly enough preempt state-
based claims to be “expressly ” preemptive.

The parties have focused their express preemption arguments
on vigorous debates over the significance of the fact that there
is neither a clause explicitly preempting state claims’ nor a “sav-
ings clause” expressly preserving them.® Rather than wade into

” See, e.g., Copyright Act of 1976, 17 U.S.C. § 301(a); Employee Retirement
Income Security Act of 1974, 29 U.S.C. § 1144(a) & (c)(1); Domestic Housing
and International Recovery and Financial Stability Act, 12 U.S.C.
§§ 1715z-17(d), 1715z-18(e).

* See, e.g., Copyright Act of 1976, 17 U.S.C. § 301(b); Occupational Safety
and Health Act of 1970, 29 U.S.C. § 653(b)(4).

B-10

the bog of doublespeaking legislative history to divine congres-
sional intent from words not used, we simply acknowledge that
the preemption section reads “no requirement . . . shall be im-
posed under State law,” not “State-based tort claims are hereby
preempted.”

The opinion next discusses the subtypes of implied preemp-
tion. Although the District Court broke down implied preemp-
tion into four categories — occupation of the field, conflict, im-
possibility, and frustration of purpose, we do not find such labels
necessarily helpful, and certainly do not deem them deter-
minative in ascertaining preemption. Rather, the gist of preemp-
tion is whether Congress (expressly) did or (impliedly) meant
to displace state law or state law concepts in enacting the federal
law. Thus, instead of attempting to fit the Act into some pre-
cast mold of “impossibility” or “frustration,” we look to the ef-
fect the Palmers’ suit will" have on the federal scheme set up
by Congress. If the state law disturbs too much the congressional-
ly declared scheme — whether denominated as “occupying the
field” or “actually conflicting with federal law” — it will be
displaced through the force of preemption.

In this case, Congress has eased our task of figuring out its
intent by including both a statement of purpose and a preemp-
tion section. Because the language of the Act is straightforward
and unambiguous, we need not resort to legislative history to
determine congressional intent. “Reliance on legislative history
in divining the intent of Congress is, as has often been observ-
ed, a step to be taken cautiously.” See American Tobacco Co.
v. Patterson, 456 U.S. 63, 75, 102 S. Ct. 1534, 1540, 71 L.Ed.2d
748, 759 (1982); New England Power Co. v. New Hampshire,

As part of its express preemption discussion, the court held that compen-
satory damages could not act as extra-statutory “regulation,” so as to be ex-
pressly preempted. We need not decide whether such damages constitute ex-
press or implied preemption. Rather, as we discuss infra at 18-19, we simply
note here that, contrary to the District Court’s conclusion, we do view com-
pensatory damages as potentially regulatory in nature.

" The harm of the state law on the federal scheme should be actual, not poten-
tial. See Rice v. Norman Williams Co., 458 U.S. 654, 659, 102 S. Ct. 3294,
3298, 73 L.Ed.2d 1042, 1049-50 (1982).

B-11

455 U.S. 331, 342, 102 S. Ct. 1096, 1102, 71 L.Ed.2d 188, 197
(1982); Piper v. Chris-Craft Industries, 430 U.S. 1, 26, 97 S. Ct.
926, 941, 51 L.Ed.2d 124, 143 (1977).

In adopting the Act, Congress explicitly announced a two-
pronged purpose. It plainly sought to inform the public that
“cigarette smoking may be hazardous to health by inclusion of
a warning to that effect.” The educational purpose, however,
was tempered by a consideration that “commerce and the na-
tional economy .. . [be] protected to the maximum extent con-
sistent with this declared policy.” Further, commerce was to be
unimpeded by “diverse, nonuniform and confusing cigarette
labeling” regulations. 15 U.S.C. § 1331(1) & (2). Stated different-
ly, in drafting the Act, Congress had two policies — health pro-
tection (through education) and trade protection — to imple-
ment, but only one purpose: to strike a fair, effective balance
between these two competing interests. The result is an Act that
“represents a carefully drawn balance between the purposes of
warning the public of the hazards of cigarette smoking and pro-

tecting the interests of national economy.” Cipollone, 789 F.2d
at 187.

It is these policies, and more importantly, the balance fixed
between them that is our focus. The language of § 1331 even
measures the relative weight of the policies: the federal warn-
ing should protect commerce “to the maximum extent” consis-
tent with its health policy. Thus, we consider now the effect
of the introduction of a state tort claim into this congressional-
ly calibrated system. As discussed earlier, Congress ran a hard-
fought, bitterly partisan battle in striking the compromise that
became the Act. It is inconceivable that Congress intended to
have that carefully wrought balance of national interests
superseded by the views of a single state, indeed, perhaps of a
single jury in a single state. Contrary to the District Court’s view,
we therefore hold that a suit for damages on a common law
theory of inadequate warning — if the warning given complies
with the Act — disrupts excessively the balance of purpose set
by Congress, and is thus preempted.

To permit the interposition of state common law actions into
a well-defined area of federal regulation would abrogate utterly

B-12

the established scheme of health protection as tempered by trade
protection. The Supremacy Clause of the Constitution, as en-
forced through the doctrine of preemption, prohibits this.

The Remaining Contentions

Having held that the Act impliedly preempts the Palmers’ suit
because it disturbs the federally calibrated balance of national
interests, we briefly address other issues discussed by the District
Court or raised by the Palmers on appeal.

First, the Palmers argue, and the District Court agreed, that
to prohibit such state-based tort suits would effectively — and
wrongly — leave plaintiffs like the Palmers without any remedy
for their injuries. Relying on Justice White's statement in
Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct. 615,
78 L.Ed.2d 443 (1984) that, “it is difficult to believe that Con-
gress would, without comment, remove all means of judicial
recourse for those injured by illegal conduct,” 464 U.S. at 251,
104 S. Ct. at 623, 78 L.Ed.2d at 454, the Palmers argue that
allowing the Act to preempt traditional state tort compensation,
an area traditionally left to the states for regulation, is an im-
permissible overreading of the Act.

We reject this argument for several reasons. First, cigarette
smoking, at least initially, is a voluntary activity. In the cases
relied on by the Palmers in which state remedies were not
preempted, the victims had little or no choice in their participa-
tion in the regulated fields. See, e.g., Silkwood (nuclear energy
development); United Construction Workers v. LaBurnum Con-
struction Corp., 347 U.S. 656, 74 S. Ct. 833, 98 L.Ed. 1025 (1959)
(employment). Second, the Supreme Court has often left par-
ties without a remedy by finding state common law preemp-
ted. See Chicago ¢- NW Transp. Co. v. Kalo Brick & Tile Co.,
450 U.S. 311, 101 S. Ct. 1124, 67 L.Ed.2d 258 (1981) (finding
that the Interstate Commerce Act preempts state common law
action for damages against a regulated railroad); Farmers Union
v. WDAY, 360 U.S. 525, 79 S. Ct. 1302, 3 L.Ed.2d 1407 (1959)
(finding that the Federal Communications Act preempts state
libel claim against a radio station). There is no constitutional
requirement that a federal law cutting off state remedies “either

B-13

duplicate the recovery at common law or provide a reasonable
substitute remedy.” Duke Power Co. v. Carolina Envtl. Study
Group, Inc., 438 U.S. 59, 88, 98 S. Ct. 2620, 2638, 57 L.Ed.2d
595, 620 (1978).

The Palmers also contend, and the District Court agreed, that
“the effect of compensatory awards on defendants’ behavior is
indirect and not regulatory in nature.” We reject this
characterization.

The preemption clause of the Act expressly prohibits “state
law,” not merely “statutory law” from imposing any “require-
ment or prohibition” different from the Act’s warning label. 15
U.S.C. § 1334. If a manufacturer’s warning that complies with
the Act is found inadequate under a state tort theory, the
damages awarded and verdict rendered against it can be view-
ed as state regulation: the decision effectively compels the
manufacturer to alter its warning to conform to different state
law requirements as “promulgated” by a jury’s findings

More than that, the practicalities of modern litigation would
inevitably involve conflict between the congressionally ordain-
ed warning and the common law label argued for by the plain-
tiffs. A trial court would not merely submit the question of
whether the warning was adequate. Evidence pro and con would
have to be offered, including specific examples of what sort of
warning reasonably was called for, how it was to be given, and
the like. Following the close of evidence, the trial court would
have to submit the issue to the jury. In a federal court — as is
this case — the judge, either under a general charge or one on
special interrogatories under F. R. Civ. P. 49(a), would have to
submit the question of warning with precision. This would be
necessary so that a reviewing court could determine whether
or not the warning fixed by the jury conflicted with the statutory
warning. This challenge to the federal warning label's sufficiency
— and the confusion it would engender — surely contravenes
the Act’s policy of uniform labeling.

The District Court held that an award of damages “would
have only an indirect effect on defendant’s labeling and advertis-
ing practices.” 633 F. Supp. at 1177. The Palmers disingenuously

B-14

maintain that any monetary damages awarded would not com-
pel a manufacturer to change its label for, after all, “the choice
of how to react is left to the manufacturer.” This “choice of reac-
tion”seems akin to the free choice of coming up for air after be-
ing underwater. Once a jury has found a label inadequate under
state law, and the manufacturer liable for damages for negligent-
ly employing it, it is unthinkable that any manufacturer would
not immediately take steps to minimize its exposure to continued
liability. The most obvious change it can take, of course, is to
change its label. Effecting such a change in the manufacturer’s
behavior and imposing such additional warning requirements
is the very action preempted by § 1334 of the Act. Indeed, it
arrogates to a single jury the regulatory power explicitly denied
to all fifty states’ legislative ‘sodies.

Further, the Supreme Court itself has long acknowledged this
power.

[Regulation can be as effectively exerted through an
award of damages as through some form of preven-
tive relief. The obligation to pay compensation can
be, indeed is designed to be, a potent method of
governing conduct and controlling policy.

San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247,
79 S. Ct. 773, 780, 3 L.Ed.2d 775, 784 (1959). Thus, the
regulatory effect of the Palmers’ claim is direct, and must be
preempted by the Act.

In addition, given the substantial differences in subject mat-
ter, we dismiss as unpersuasive the analogies made by the Palmers
and the District Court to the Silkwood case. The District Court
evidently believed that Garmon’s reasoning had been discredited
by the Supreme Court’s decision in Silkwood — even though
nothing in Silkwood even remotely suggests that Garmon has
been qualified or overruled, and even though the Court in
Silkwood stated that federal law will “preempt the recovery of
damages based on state law” whenever “imposition of a state
standard in a damages action would frustrate the objectives of
the federal law.” 464 U.S. at 256, 104 S. Ct. at 626, 78 L.Ed.2d
at 457-58.

B-15

First, the District Court did not even mention the fact that
the Atomic Energy Act of 1954, 42 U.S.C. § 2011] et seq., at issue
in Silkwood, contains no preemption provision whatever.
Moreover, while the Atomic Energy Act has been read by the
Supreme Court by implication to confer exclusive federal
jurisdiction to regulate issues of nuclear safety, the Act also ex-
pressly reserves significant authority to the states.”

In contrast, the “comprehensive Federal program” established
by the Act contains a sweeping preemption provision, and con-
spicuously fails to provide any role for the states in the area of
cigarette labeling and advertising. Further, the enactment and
legislative history of the Atomic Energy Act, as amended by the
Price-Anderson Act, Pub. L. No, 85-256, 71 Stat. 576, make clear
Congress’ explicit judgment that state common law damage ac-
tions for injuries caused by nuclear operations should be per-
mitted to continue. See Silkwood, 464 U.S. at 251-56, 104 S.
Ct. at 623-25, 78 L.Ed.2d at 454-57. For that reason, it was
the starting place in Silkwood, and common ground among all
the parties (as well as among all the Justices of the Supreme
Court), that state common law damage actions were not
preempted; the only issue was the much more refined question
of whether punitive damages (as opposed to compensatory
damages) were preempted. The Court’s 5-4 decision — that
punitive damages were not preempted — was based on the
unremarkable conclusion that such damages are part and parcel
of the “traditional state tort law” that Congress had decided
to preserve within the AEA’s regulatory scheme. Id. at 255, 104
S. Ct. at 625, 78 L.Ed.2d at 457.

Silkwood thus took for granted the answer to the issue that
is the central controversy here. It therefore sheds no light at all
on the fundamental question in this case — whether state

2 See, e.g., 42 U.S.C. § 2018 (AEA does not affect state authority with respect
to generation, sale, or transmission of electric power through use of federally-
licensed nuclear facilities); 42 U.S.C. § 202l(b) (federal-state agreements
authorized so that states may assume regulatory authority over certain nuclear
materials); 42 U.S.C. § 202l(k) (section does not affect state authority to
regulate activities for purposes other than protection against radiation hazards)

B-16

common law damage actions based on alleged failure to pro-
vide adequate warnings are permissible in the first instance.”

The Last Puff

Accordingly, having dismissed the Palmers’ arguments against
preemption as meritless, and having determined the effects of
state tort liability to be seriously disruptive to the congressionally
calibrated balance of national interests, we hold the Palmers’
state-based claim of inadequate warning to be preempted by
the Act. The decision of the District Court must be reversed and
remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

° The only preemption case cited by the District Court was Ferebee v. Chevron
Chemical Co., 736 F.2d 1529 (D.C. Cir.), cert. denied, 469 U.S. 1062, 105 S.
Ct. 545, 83 L.Ed.2d 432 (1984), in which the Court-of Appeals held that
Maryland tort claims were not preempted by the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. FIFRA, which applies
to some 40,000 different herbicide and pesticide formulations, imposes an en-
tirely different type of regulatory scheme from that established under the Act.
See 16 Env’t Rep. (BNA) 9 (May 3, 1985). Under FIFRA, each manufacturer
drafts a warning label for each product for EPA approval. Thus, two manufac-
turers of the same regulated product may use different labels of their own
choosing, provided only that they obtain prior EPA approval. Further, the
statute in Ferebee permits “states to impose more stringent constraints on the
use of EPA-approved pesticides than those imposed by the EPA,” indicating
that Congress was indifferent to regulation of these products through state
tort law. Ferebee, 736 F.2d at 1541. In contrast, the Act explicitly (i) applies
to cigarettes only; (ii) mandates the precise language of the label; and (iii)
prohibits any state from regulating any aspect of cigarette warnings. The
analogy to Ferebee must fail

C-]

Judgment of the District Court,
dated October 7, 1987

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER and
DAPHNE S. PALMER,

Plaintiffs.
V,

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC..

Defendants.

Civil Action No. 83-2445-MA

JUDGMENT
MAZZONE, D.].

In accordance with the Court’s allowance of the defendants’
motion for entry of judgment on October 6, 1987 in the above
entitled action, it is hereby ORDERED

Judgment for the defendants.
Complaint dismissed.

By the Court,

October 7. 1987 s/ Helen M. Costello
Deputy Clerk

D-1

Order of the Court of Appeals,
dated April 11, 1988

ANN M. PALMER, as Adruinistratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs-Appellees,

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC

*s

Defendants-Appellants

No. 88-1195

United States Court of Appeals,
First Circuit

ORDER OF COURT
Entered: April 11, 1988

Upon consideration of “appellants’ Motion To Substitute Real
Parties In Interest As Appellees” and without opposition,

It is ordered that the motion be granted and the case caption
be reformed so that the appellees are Public Citizen, Et Al.
appellees.

By the Court:

/s/ Francis P. Scigliano

Clerk.

F-1

Handwritten Order of the District Court accompanying
Motion of Public Citizen et al. to Order Filing
and to Modify Protective Order, dated January 28, 1985

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs.

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.,

Defendants.

Civil Action No. 83-2445-MA

MOTION OF PUBLIC CITIZEN, AMERICAN CANCER
SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN
LUNG ASSOCIATION, AND AMERICAN PUBLIC HEALTH
ASSOCIATION TO ORDER FILING OF DISCOVERY
MATERIALS AND TO MODIFY PROTECTIVE ORDER

Public Citizen, the American Cancer Society, the American
Heart Association, the American Lung Association, and the
American Public Health Association (the “movants”) respectively
move the Court to enter an order directing the parties to file
all materials obtained in discovery with the Clerk and to modify
the protective order entered by this Court on 25 February 1985
in order to permit greater public access to these materials. The
memorandum of law accompanying this motion explains more

E-2

fully the reasons for seeking this relief, which is authorized
specifically under Rule 16(g) of the Rules of this Court.

Respectfully submitted,

s/ Carolyn Grace

Carolyn Grace

Shapiro & Grace
79 Milk Street
Boston, Mass. 02109
(617) 451-2155

s/ Cornish F. Hitchcock

Cornish F. Hitchcock
Alan B. Morrison

Public Citizen Litigation Group
2000 P Street, N.W., Suite 700
Washington, D.C. 20036

(202) 785-3704

Attorneys for Public Citizen et al.
December 1987

MOTION ALLOWED, for reasons stated at hearing.

/s/ A. David Mazzone

US.D.J.
1/28/88

F-]

Handwritten Order of the District Court accompanying
Motion of Public Citizen et al. to Order Parties
to Maintain Discovery Materials, dated December 28, 1987

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs,
a V. —

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.,

Defendants.

Civil Action No. 83-2445-MA

MOTION OF PUBLIC CITIZEN, AMERICAN CANCER
SOCIETY, AMERICAN HEART ASSOCIATION, AMERICAN
LUNG ASSOCIATION, AND AMERICAN PUBLIC HEALTH
ASSOCIATION TO ORDER PARTIES TO MAINTAIN AND
NOT TO DESTROY OR RETURN DISCOVERY MATERIALS

Public Citizen, the American Cancer Society, the American
Heart Association, the American Lung Association, and the
American Public Health Association (the “movants”) respectively
move the Court to enter an order directing the parties to main-
tain intact and not to destroy or return to opposing counsel the
discovery materials in this case. As explained in the attached
memorandum, this relief is sought because counsel for the par-
ties must destroy or return these materials within 45 days from
the conclusion of this litigation under the terms of a protective
order entered by this Court on 25 February 1985, and the
deadline is rapidly approaching.

F-2

Movants seek this relief on an expedited and ex parte basis
under Local Rule 16(g), which allows a party or non-party seek-
ing to litigate issues about the filing and public availability of
discovery materials to do so by seeking an ex parte order. Movants
make this motion in order to preserve the status quo pending
this Court’s resolution of a separate motion that they are filing
today which asks the Court to direct that these discovery ma-
terials be filed with the Clerk and that the protective order be
modified to permit public access to many of these documents.

Movants will be irreparably injured absent such interim relief,
since the parties may destroy the records, thus rendering this
issue moot. By contrast, granting this motion will cause no in-
jury to the parties, since it requires only that they “do nothing”
with the documents while movants’ other motion is litigated to
conclusion. Moreover, the importance of the issues in this case
with respect to public health and safety also requires granting
the requested relief.

We note that granting this motion will allow the parties ade-
quate time to respond to movants’ other motion, which focuses
on modification of the underlying protective order. Granting
this motion will allow that issue to be litigated and decided by
this Court in an orderly way, and we submit that for this reason
also, the interim relief sought in this motion should be allowed.

Movants are making this motion on an ex parte basis, as con-
templated by Local Rule 16(g), and we note that the Supreme
Court has decided the merits of similar.non-party motions for
access to court records or proceedings, e.g., Press-Enterprise Co.
v. Superior Court, 106 S. Ct. 2735 (1986); Globe Newspaper
Co. v. Superior Court, 457 U.S. 596 (1982), as did the Second
Circuit in a recent case raising these same issues, In re “Agent
Orange” Product Liability Litigation, 821 F.2d 139, cert. denied,
108 S. Ct. (1987). Movants thus submit that intervention
is not a prerequisite here, but they would ask the Court to grant
them intervenor status if the Court should conclude otherwise,
and we note that intervention appears to have been routinely
granted in these situatiors in this circuit. E.g., Anderson v.
Cryovac, Inc., 805 F.2d 1 (ist Cir. 1986); In re Globe Newspaper

F-3

Co., 729 F.2d 47, 50 (Ist Cir. 1984); In re San Juan Star Co.,
662 F.2d 108, 113 (Ist Cir. 1981). Movants appeared as amici
curiae in the court of appeals, and their interest is set forth in
their motion to appear there, a copy of which is attached. That
they meet the other requirements for intervention will be
demonstrated in the memoranda they are filing today.

Accordingly, for these reasons and those set forth in the ac-
companying memorandum, movants respectfully ask the Court
to preserve the status quo by ordering the parties to maintain
intact and not to destroy any discovery materials while this issue
is being litigated. For the convenience of the Court, a proposed
form of order is attached.

Respectfully submitted,

/s/ Carolyn Grace

Carolyn Grace

Shapiro & Grace
79 Milk Street
Boston, Mass. 02109
(617) 451-2155

/s/ Cornish F. Hitchcock

Cornish F. Hitchcock
Alan B. Morrison

Public Citizen Litigation Group
2000 P Street, N.W., Suite 700
Washington, D.C. 20036

(202) 785-3704

Attorneys for Public Citizen et al.
December 1987
MOTION ALLOWED.

/s/ A. David Mazzone

US.D.J.
12/28/87

G-1

Handwritten Order of the District Court accompanying
Defendants’ Motion for Entry of Judgment,
dated October 6, 1987

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs,
— V. am»

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.,

Defendants.

Civil Action No. 83-2445-MA

MOTION AND MEMORANDA FOR ENTRY OF
JUDGMENT IN FAVOR OF LIGGETT GROUP INC.
AND LIGGETT & MYERS TOBACCO CO., INC.

Defendants Liggett Group Inc. and Liggett & Myers Tobacco
Co., Inc. (“Liggett”), pursuant to the Mandate of the Court of
Appeals for the First Circuit, move for an order dismissing the
Complaint of Plaintiffs Ann Palmer, individually and as admi-
nistratrix of the Estate of Joseph C. Palmer, and Daphne S. Palmer
(“the Palmers”) and entering a judgment in Liggett’s favor.

On August 25, 1987, the Court of Appeals for the First Cir-
cuit reversed this Court’s prior ruling concerning the preemp-

tive effect of the Federal Cigarette Labeling and Advertising
Act, 15 U.S.C. §§1331-1341. The First Circuit stated:

This interlocutory appeal presents one highly disputed
issue: whether the Federal Cigarette Labeling and
Advertising Act, 15 U.S.C. §1331 et seq. (the Act),
preempts the Palmers’ smoking and health related
claims that challenge either the adequacy of the

G-2

eat

federal warning on cigarette packages or the propriety
of Liggett’s advertising and promotion of cigarettes. |
In deference to the congressional declaration that (i)
cigarettes be labeled uniformly and (ii) a balance be |
struck between the priority given to tobacco commerce

and to our national health policy, we hold that the

Act does preempt the Palmers’ state law claims, and

reverse the decision of the District Court.

The District Court, the defendants and the plaintiffs

agree that the issue of the Act’s preemptive force con-

trols the disposition of virtually the entire case. If the

Labeling Act is found to preempt state law actions,

either expressly or impliedly, the Palmers lose. If Con-

gress did not intend for the Act to be so preemptive,

Liggett loses the appeal.

Palmer v. Liggett Group Inc., Docket No. 86-1525 (Ist Cir.
August 25, 1987) Slip op., at 2, 5.

Each of the Palmers’ claims challenges either the adequacy
of the federally mandated warning or the propriety of Liggett's
promotion of cigarettes and is therefore preempted. Liggett
therefore requests an order which dismisses the Palmers’ com-
plaint and the entry of judgment in Liggett’s favor.

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., IN 7

By their attorneys,

/s/Joseph J. Leghorn

Samuel Adams

Joseph J. Leghorn
Deborah K. Blum
WARNER & STACKPOLE
28 State Street

Boston, MA 02109

(617) 725-1400

MOTION ALLOWED.
/s/ A. David Mazzone

US.D.J.
10/6/87

H-1

Handwritten Order of the District Court accompanying
Plaintiffs’ Motion for Reconsideration,
dated August 12, 1985

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Paimer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs,
—_—V—

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.,

Defendants.

Civil Action No. 83-2445-MA

PLAINTIFF'S MOTION FOR RECONSIDERATION
OF THIS COURT'S DENIAL OF PLAINTIFF'S
MOTION FOR CLARIFICATION OF THE
PROTECTIVE ORDER ISSUED FEBRUARY 25, 1985

PLEASE TAKE NOTICE that the Plaintiffs hereby move this
Honorable Court that it reconsider its order denying the Plain-
tiffs Motion for Clarification, or in the Alternative Modifica-
tion of the Protective Order Issued February 25, 1985. The Plain-
tiffs respectfully request that this Court modify the protective
order entered in this case by striking paragraph 2 of said order
and limiting the application of the order to those documents
that are prospectively designated confidential by the Defendants.

AS GROUNDS IN SUPPORT THEREOF, the Plaintiffs state
that at the time this matter was submitted to this Court, the
Plaintiffs were unaware that a protective order similar to the
one submitted by the Defendants in this case and which the
Defendants had submitted to the District Court for the District
of New Jersey in Rose D. Cipollone, et. al. v. Liggett Group,
et. al., No. 83-2864 was under consideration in that Court. In

H-2

an opinion and order dated July 17, 1985 (Exhibit “A” & “B”),
District Judge Sarokin ruled that so much of the New Jersey
Order prohibiting the public availability of non-confidential
materials was both overly broad and inconsistent with the First
Amendment to the Constitution of the United States.

1 ee eR nll

The Plaintiffs submit that this Court may desire to reconsider
its ruling to the extent this Court relied upon the Defendants’
representation in its submissions that two other Courts “ . . [had]
also issued essentially identical orders in cases in which claims
are made against companies in the cigarette industry.” (Defend-
ants’ Motion 47). While the Defendants included in their cita-
tion to the Cipollone case the fact that an appeal to District
Judge Sarokin was pending, they did not indicate that an opin-
ion was imminent. Had the Plaintiffs been aware that an opin-
ion on this very issue was about to be released, they would have
requested that this Court defer it’s [sic] ruling until the opinion
was released.*

The Plaintiffs recognize that the order of the New Jersey
Federal Court is not controlling here. However, to the extent
that this Court gave any weight to the fact that other courts
had ruled in Defendants’ favor, such deference is no longer ap-
propriate. Moreover, in view of the fact that the non-confidential
documents at issue here are now available to the public and will
be disseminated to the media, there is not rational justification
for the continued protection of this material by this Court.

* As it were [sic], this Court entered its ruling on July 16, 1985 and Judge
Sarokin released his ruling on July 17, 1985.

_ i

H-3

Accordingly, Plaintiffs respectfully request that this Court
allow the Plaintiffs’ Motion for Reconsideration and enter a pro-
tective order in the forin entered in Cipollone, et. al., v. Lig-
gett Group, Inc., et. al., supra.

By their attorneys,

NIX & POTTERS

/s/Robert S. Potters

Robert S. Potters

Nix & Potters

Sixty State Street

Boston, Massachusetts 02109
(617) 227-0101

DATED: July 23, 1985

MOTION DENIED, WITHOUT PREJUDICE TO RENEW.
The Sarokin opinion [sic] is now under appeal. This motion
should be renewed following a ruling by the Third Circuit Court
of Appeals.

/s/ A. David Mazzone
U.S.D.]J.
8/12/85

———e

I-]

Handwritten Order of the District Court
accompanying Proposed Intervenor’s Motion for
Reconsideration, dated August 12, 1985

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANN M. PALMER, as Administratrix of the Estate of
Joseph C. Palmer, and ANN M. PALMER
and DAPHNE S. PALMER,

Plaintiffs,
—YvV, am»

LIGGETT GROUP INC. and
LIGGETT & MYERS TOBACCO CO., INC.,

Defendants.

Civil Action No. 83-2445-MA

(Oral Argument Requested)

MOTION FOR RECONSIDERATION OF PROPOSED
INTERVENOR,_THE WALL STREET JOURNAL

The Wall Street Journal, by its publisher, Dow Jones & Com-
pany, Inc. (hereinafter “The Wall Street Journal”) respectfully
moves for reconsideration of the Court’s Orders dated July 16
and July 19, 1985, by which the Court (1) denied The Wall Street
Journal’s Motion For Leave To Intervene On Limited Issue Of
Plaintiffs’ Motion for Clarification Or Modification Of Protec-
tive Order; (2) denied Plaintiffs’ Motion For Clarification Or
Modification Of Protective Order; and (3) allowed Defendants’
Motion To Require Compliance With Protective Order. The
grounds for this motion are as follows:

ee

[-2

1. Subsequent to the Court’s action on the above-described
motions, The Wall Street Journal received notice and a copy
of the Order and accompanying Opinion of the Honorable H.
Lee Sarokin, United States District Judge for the District of New
Jersey, filed on July 17, 1985, in the matter of Cipollone, et al.,
v. Liggett Group Inc., et al.., Civ. No. 83-2864. (Copies of Order
and Opinion attached hereto.)

Judge Sarokin’s Order and 29-page Opinion are submitted
not only because they represent the most thorough analysis to
date of the precise issues raised by the motions for which recon-
sideration is sought, but also because defendants have cited the
now-vacated New Jersey protective order in support of the pro-
tective order at issue here. Defendants’ Memorandum of Law
In Support of Their Motion to Require Compliance with Pro-
tective Order, footnote at pp. 3-4; Appendix To Defendants’ Mo-
tion To Require Compliance With Protective order, Ex. H.

In his Opinion, Judge Sarokin analyzed the impact of the
Supreme Court's decision in Seattle Times Co. v. Rhinehart,
104 S. Ct. 2199 (1984) on a protective order for all purposes iden-
tical to the one entered at defendants’ behest in this action. Judge
Sarokin concluded that:

In Seattle Times, the Court held the first amendment
clearly to be implicated, in light of the great degree
of public interest in plaintiff Rhinehart, the leader
of a religious group known as the Aquarian Founda-
ae tion. Much greater is the public interest in this case,
involving claims of liability against cigarette com-
panies for failure to warn and other theories.

Sarokin Opinion at 14. Judge Sarokin observed that the Supreme
Court itself has cited its decision in Seattle Times for the pro-
position that restrictions on such protected speech must “be no
greater than necessary to protect the public interest.” Jd. at 17
(citing Way

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0449%3A2. Public record. Not legal advice.