# Appendix — Liggett Group, Inc. v. Cipollone > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0961%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 976 ## Text . -_ oe t No. 87- S > Court, U.S eo e pupre Ne VOUT, U.dy ara = an ae OD ost 2% Bel Supreme Court of t the Mited sae eed | Ocroser TERM, 1987 Mane = — NIOL, JR, LIGGETT GROUP INC., PHILIP MORRIS INCORPORATED, and LORILLARD, INC., Petitioners, vs. ANTONIO CIPOLLONE, Individually and as Executor of the Estate of Rose D. Cipollone, Respondent. LIGGETT GROUP INC., LORILLARD, INC., R. J. REYNOLDS TOBACCO CoO., PHILIP MORRIS INCORPORATED, and THE TOBACCO INSTITUTE, Petitioners, vs. SUSAN HAINES, as Administratrix ad Prosequendum and Executrix of the Estate of Peter F. Rossi, Respondent. APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT DonaLp J. COHN (Counsel of Record) WEBSTER & SHEFFIELD 237 Park Avenue New York, New York 10017 (212) 808-6000 Attorneys for Petitioners (Additional Counsel Listed on Inside Cover) Of Counsel: ARNOLD & PORTER 1200 New Hampshire Avenue, N.W. Washington, D.C. 20036 (202) 872-6700 CovINGTON & BURLING 1201 Pennsylvania Avenue, N.W. P.O. Box 7566 Washington, D.C. 20044 (202) 662-6000 Jones, Day, Reavis & PoGuE 1700 Huntington Building Cleveland, Ohio 44115 (216) 348-3939 SHOOK, Harpy & BACON 1101 Walnut Kansas City, Missouri 64106 (816) 474-6550 TABLE OF CONTENTS Opinions Opinion of the Court of Appeals, dated June 8, og kL Opinion of the District Court, dated November ek ee eee Opinion of the Court of Appeals, dated March ee Re Bk Opinion of the District Court, dated July 17, Ri Ae Orders Order of the Court of Appeals, dated July 9, 1987 Order of the Court of Appeals, dated June 8, SU aie eon iy tak pn 2 Ea Ey gh a cS rhea uae kh cn AE en kw ime 8 igh oar rs bye eke ae REESE hh wets Writ of Mandamus issued by the Court of Appeals, dated March 12, 1986 .............. Order of the District Court, dated July 17, 1985 . Order of the District Court, dated March 25, RRS SUR oe gop ee ra ger RS CaN a ee ar eSB SEGA ASE tee ire Sls gL AS a Order of the District Court, dated May 1, 1984 .. Page C-1 D-1 E-] F-1 G-1 L-1l M-1 Page Other Materials Oral Argument before the Third Circuit in Cipollone v. Liggett Group Inc., Liggett Group Inc. v. Honorable H. Lee Sarokin, and Haines v. Liggett Group Inc., dated September 26, SOOE ook c fan's ea nto taken eee N-1 Handwritten Order of the District Court in Palmer v. Liggett Group accompanying the Wall Street Journal’s Motion for Reconsideration of Proposed Intervenor, dated August 12, 1985 .... 2. cee ccc ene eereesccess O-1 Handwritten Order of the District Court in Palmer v. Liggett Group accompanying Defendants’ Motion to Require Compliance with Protective Order, dated July 16, 1985 .... P-1 Order of the District Court in Palmer v. Liggett Group Inc., dated February 25, 1985......... Q-1 Order of the District Court in Barnes v. R. J. Reynolds Tobacco Company, et. als., dated Novena 37, BOBS. . < ccs0n0005 cesdesanee en R-1 A-1 Opinion of the Court of Appeals dated June 8, 1987 ANTONIO CIPOLLONE, Individually and as the Executor of the Estate of Rose D. Cipollone, Plaintiff-Respondent, a | LIGGETT GROUP INC., PHILIP MORRIS INCORPORATED, and LOEW’S THEATRES, INC., Defendants-Petitioners. SUSAN HAINES, as Administratrix ad Prosequendum and Executrix of the Estate of Peter F. Rossi, Plaintiff-Respondent, — We _— LIGGETT GROUP INC., LOEW’S THEATRES, INC., R.J. REYNOLDS TOBACCO CO., PHILIP MORRIS INCORPORATED, and THE TOBACCO INSTITUTE, Defendants-Petitioners. LIGGETT GROUP INC., PHILIP MORRIS INCORPORATED, R.J. REYNOLDS TOBACCO CO., THE TOBACCO INSTITUTE, and LOEW’S THEATRES, INC., Petitioners, = Y, = HONORABLE H. LEE SAROKIN, United States District Judge, District of New Jersey, Nominal Respondent. No. 87-5014 United States Court of Appeals, Third Circuit Decided June 8, 1987 Before: GIBBONS, Chief Judge, SEITZ and GARTH, Circuit Judges A-3 OPINION OF THE COURT GIBBONS, Chief Judge: The defendants in several product liability actions pending in the district court petition here pursuant to 28 U.S.C. § 1651 (1982) for a writ of mandamus (1) directing the district judge to vacate an order modifying a discovery order previously entered by a United States magistrate, and (2) reassigning the cases to another judge. Petitioners contend that the challenged order is inconsistent with the mandate of this court in Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986), and is otherwise inconsistent with law. They contend, as well, that the district court judge should be removed from the case because of bias against the defendants’ industry. We deny the petition for mandamus and for reassignment. I. Prior Proceedings The Cipollone case is one of eight actions filed on behalf of cigarette smokers in the state and federal courts of New Jersey by the same law firm. There are presently over 100 such cases pending in other jurisdictions. Plaintiffs in all of them are cigarette smokers or their personal repres. atatives who have filed product liability suits asserting negligence, strict liability and intentional wrongdoing by tobacco companies. Claiming that their lung cancer or other smoking-related disease resulted from smoking defendants’ cigarettes, the plaintiffs in those actions allege that the defendants failed to inform consumers adequately of the health risks in smoking and that when health warnings did appear on their products, they were effectively negated by their advertising practices. This case began in the United States District Court for the District of New Jersey, when Rose Cipollone and her husband, Antonio, filed a complaint on August 1, 1983 against Liggett Group, Inc., Phillip Morris, Inc., and Loew’s Theaters, Inc., all A-4 of which manufacture cigarrettes. Cipollone alleged that as a result of smoking defendants’ cigarettes for almost forty years, she developed bronchogenic carcinoma and sustained other per- sonal injuries. Cipollone sought compensation for her injuries on theories of strict liability and negligence and her husband sought compensation for loss of consortium. Cipollone’s primary contentions were that the defendants had withheld scientific evidence from the public and had misrepresented the health hazards of smoking. A short time later, Susan Haines, administratrix ad prose- quendum and executrix of the Estate of Peter F. Rossi brought an almost identical action in the same court against the same defendants as well as R.J. Reynolds Tobacco Co. and the Tobac- co Institute, Inc. Haines had the same counsel as Cipollone and sought compensation for Rossi’s pain and suffering and com- pensation for his death, which allegedly resulted from his smok- ing defendants’ cigarettes. Pursuant to 28 U.S.C.§ 636 (1982 & Supp. III 1985), the district court ordered discovery in both cases under the super- vision of then Magistrate Robert E. Cowen. In the fall of 1983, Cipollone made initial discovery requests of the defendants. The defendants responded by filing motions to strike, claiming that the information sought was irrelevant and that the requests were burdensome and harassing. Magistrate Cowen heard oral argu- ment on those motions on March 22, 1984. A discovery order was issued on May 2, 1984. Defendant’s counsel then approached Cipollone’s counsel about a confidentiality order. Counsel agreed temporarily not to disseminate any documents “until [they] had an opportuni- ty to attempt to agree upon a Protective Order regarding the documents or, if that [was] not possible [defendants were] to make request for such a Protective Order to the Court.” Let- ters between counsel dated May 3 and 4, 1984. That agreement was in force until the entry of Magistrate Cowen’s protective order dated March 25, 1985. In the interim, defendants pro- duced thousands of documents and many corporate represen- tatives were deposed. Additionally, discovery of non-parties, including the Tobacco Institute, was conducted. Cipollone’s A-5 counsel and the Tobacco Institute’s counsel agreed that if Cipollone wished to disclose confidential material received as a result of that discovery, ten (10) days notice would be given to allow the Tobacco Institute to object. See Letter Agreement dated August 2, 1984. Accordingly, on October 5, 1984, Cipollone’s counsel notified the Tobacco Institute of the inten- tion to disseminate certain confidential documents. See Letter from Marc Z. Edell dated October 5, 1984. Because the Tobacco Institute objected, however, the information was not disseminated. Meanwhile, negotiations regarding the terms of a protective order broke down because the parties could not agree on Cipollone’s counsel’s right to use the documents obtained in this discovery in other cases, and because of the defendants’ alleg- ed misuse of the “confidential” stamp on documents produced during discovery. On March 25, 1985 Magistrate Cowen entered a protective order for the stated purpose of streamlining the litigation. No specific findings of good cause for the issuance of the protective order were made. On March 25, 1985, Cipollone appealed the magistrate’s order and the district court, on July 17, 1985, vacated that order and entered a modified order. See Cipollone v. Liggett Group, Inc.., 106 F.R.D. 573 (D.N.J.1985). Defendants then petitioned this court for a writ of mandamus, which was granted. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 (3d Cir. 1986). Granting the writ, we held that the district court had commit- ted two errors of law: 1) it had applied the wrong standard for issuance of a protective order—first amendment con- siderations — rather than the less strict “good cause” standard under Fed. R. Civ. P. 26(c); and 2) it had exercised plenary review over the magistrate’s order instead of the review specified in 28 U.S.C. § 636. See Cipollone, 785 F.2d at 1123. In response to our judgment, Judge Sarokin reconsidered the protective order. He noted that the magistrate had made no specific findings regarding good cause. Judge Sarokin held that the magistrate’s failure to apply a good cause standard was a clear error. See Cipollone v. Liggett Group, Inc., 113 F.R.D. A-6 86, 93 (D.N.J. 1986). After considering the defendants’ arguments for finding good cause, the district court rejected them. With regard to the magistrate’s determination of an “um- brella order,” the district court upheld “the aspect of the magistrate’s order that permits defendants to make an initial designation of confidentiality, subject to their determination that such designation is warranted in good faith, and subject to plaintiff's later epportunity to challenge such designation and request sanctions pursuant to Fed. R. Civ. P. 26(g).” Cipollone, 113 F.R.D. at 94. Consequently, on December 18, 1986, the district court entered a new modified protective order and issued a supplemental opinion. See Cipollone v. Liggett Group, Inc., Civ. No. 83-2864 (D.N.J. Dec. 18, 1986). The magistrate’s pro- tective order remained unchanged except that the district court limited the scope of the order’s protection to “confidential” documents and permitted the use of documents in other related actions. ' ‘ Eleven paragraphs of the magistrate’s order were included verbatim. The changes [italicized] are set forth in a comparative table as foliows: Magistrate's Order 2. All information produced or ex- changed in the course of this civil ac- tion or any appeal arising therefrom (the “litigation) shall be used solely for the purpose of this case. 3. “Confidential information” as us- ed herein means any information which is designated as “confidential,” whether it be a document, informa- tion contained in a document, District Court’s Order 2. All “confidential” information produced by defendants in the course of this civil action or any appeal aris- ing therefrom (the “litigation”) may be used in all related or similar cases subject to the terms and conditions of this order. 3. Any plaintiff seeking to use “con- fidential or nonconfidential” infor- mation from this matter shall seek leave of the court before whom that matter is pending. 4. “Confidential information” as us- ed herein means any information which is designated as “confidential” whether it be a document, (footnote continued) Defendants then petitioned again for mandamus, claiming that the district court’s order on remand is contrary to law and contrary to this court’s instructions. In addition, they request reassignment of this case to another judge, suggesting bias against the defendants on the part of Judge Sarokin. information revealed during a deposition or in any interrogatory answer or otherwise disclosed in discovery. Information shall be designated as confidential only upon the good-faith belief that the infor- mation falls within the scope of con- fidential information under the Federal Rules of Civil Procedure and the precedents thereto. 6. Confidential information may be inspected only by the following persons: (a) Counsel of record for the plain- tiff and defendants in this litigation, any lawyers specifically employed by them in connection with the litiga- tion and any employee of such counsel assisting with this litigation: and (b) Experts retained by or on behalf of any party to provide assistance or information contained in a docu- ment, information revealed during a deposition or in any interrogatory answer or otherwise disclosed in discovery. Information shall be designated as confidential only upon good-faith belief that the informa- tion falls within the scope of “con- fidential” information under the Federal Rules of Civil Procedure and the precedents thereto, including this Court's opinions in this case. Counsel shall have the right to challenge, by motion, the designation of any docu- ment as “confidential” and, if the ob- jection is sustained, sanctions may be imposed upon the party making the designation, if not made in good faith, including attorney's fees and the reasonable expenses incurred by counsel pursuant to Fed. R. Civ. P. 26(g). 7. Confidential information may be inspected only by the following persons: (a) Counsel of record for the plain- tiff and defendants in this litigation, or where authorize2 in other litiga- tion, any lawyers specifically employed by them in connection with the litigation and any employee of such counsel assisting them; and (footnote continued) | II. Scope of Review in Mandamus In Sporck v. Peil, 759 F.2d 312, 314 (3d Cir.), cert. denied, 106 S. Ct. 232 (1985), we set forth the standards for issuing a writ of mandamus. Two requisites must be found: a) the testimony in connection with this litigation. 7. Each person, other than those described in Section 6(a), to whom designated confidential information or documents are to be disclosed shall, prior to disclosure, agree in writing under oath or attestation to the following, a copy of which shall forthwith be furnished to all counsel: I hereby attest to my understanding that information or documents designated confidential will be pro- vided to me pursuant to the terms and conditions and restrictions of the Protective Order of [ ], 1985, in Cipollone v. Liggett Group Inc., et al,, the United States District Court for the District of New Jersey; that I have been given a copy of and have read the Protective Order and have had its meaning and effect explain- ed to me by the attorneys providing me with such information or documents, and that I hereby agree to be bound by it and its terms. I fur- ther agree that I shall not disclose to others, except in accordance with the Protective Order, such information or documents, and that such infor- mation or documents shall be used only for the purposes of the legal pro- ceedings in which they were produced. (b) Experts retained by or on behalf of any party to provide assistance or testimony in connection with the litigation or where authorized in other litigation. 8. Each person, other than those described in Section 7(a), to whom designated confidential information or documents are to be disclosed shall, prior to such disclosure, agree in writing under oath or attestation to the following: I hereby attest to my understanding that information or documents designated confidential will be pro- vided to me pursuant to the terms and conditions and restrictions of the Protective Order of [ ] 1986, in Haines v. Liggett Group Inc., et al.., the United States District Court for the District of New Jersey; that I have been given a copy of and have read Protective Order and have had its meaning and effect explained to me by the attorneys providing me with such information or documents, and that I hereby agree to be bound by it and its terms. I further agree that I shall not disclose to others, ex- cept in accordance with the Protec- tive Order such information or documents, and that such informa- tion or documents shall be used on- ly for the purpose of the legal pro- ceeding in which they were produced. (footnote continued) party seeking the writ must have “no other adequate means to attain the relief he desires,” Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980), and b) the trial court must have I further agree and attest to my understanding that my obligation to honor the confidentiality of such in- formation or documents will con- tinue even after termination of that legal proceeding. I further agree and attest to my understanding that, in the event that I fail to abide by the terms of the Protective Order, I may be subject to sanctions, including sanctions by way of contempt of court, imposed by the Court, for such a failure. Copies of this attestation shall be served upon all counsel prior to such disclosure; in lieu of such service, copies of the attestation signed by medical experts may be filed under seal with the court, for the period prior to the identification of such ex- perts in pretrial discovery. 13. Within forty-five (45) days after the final adjudication or settlement of all claims in this case, counsel for the parties either shall return all documents produced, if so requested by the producing party, or shall destroy all such documents. All copies of documents, and all infor- mation and notes derived from them, I further agree and attest to my understanding that my obligation to honor the confidentiality of such in- formation or documents will con- tinue even after the termination of that legal proceeding. I further agree and attest to my understanding that, in the event that I fail to abide by the terms of the Protective Order, I may be subject to sanctions, including sanctions by way of contempt of Court, imposed by the Court, for such a failure. Copies of this attesta- tion shall be filed under seal with the court. 14a. Within forty-tive (45) days after the final adjudication or settlement of all claims in this case, counsel for the parties either shal] return all con- fidential documents produced, if so requested by the producing party, or shall destroy all such documents. All copies of confidential documents, (footnote continued) _ A-10 committed a clear error of law. As we stated in Cipollone, 785 F.2d at 1118, “[m]andamus is not available for abuse of discre- tion.” The Supreme Court has stated that a writ of mandamus is not readily issued: shall be destroyed. Compliance with this provision shall be certified to by all counsel for the obtaining party or parties. 17. This Order shall be binding upon any future party to this litigation. and all information and notes deriv- ed from them, also shall be destroyed. Compliance with this provision shall be certified to by all counsel for the obtaining party or parties. 17. This order shall be binding upon any future party to this litigation and any other party utilizing such discovery pursuant to the authority of any other court, and all pro- ceedings arising under it are referred to the magistrate for disposition. 18. Anything to the contrary not- withstanding, confidential informa- tion may be delivered to counsel in other related or similar actions pro- vided the court in such action per- mits same and provided further that the conditions of confidentiality im- posed herein are imposed in said action. A-11 Extraordinary writs are “reserved for really extraor- dinary causes”. .., and then only “to confine an in- ferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so... .” Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245 (1964) (citations omitted). “[T]he moving party [must] satisfy ‘the burden of showing that its right to issuance of the writ is “clear and indisputable” ’.” Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662 (1978) (citation omitted). The respondents do not dispute that errors with respect to the scope of a protective order probably cannot be corrected by a post-trial appeal. They dispute only whether the second requisite for mandamus has been met —that is, whether the trial court committed a clear error of law. Il. Discussion The gravamen of the petitioners’ argument in the instant peti- tion for mandamus is their disagreement with Judge Sarokin’s refusal, on remand, to uphold paragraph 2 of the magistrate’s protective order. Paragraph 2 of the magistrate’s order states that “[aJll information pre uced or exchanged in the course of this civil action or any appeal arising therefrom (the “litigation”) shall be used solely for the purpose of this case.” Judge Sarokin, in his protective order of December 18, 1986, replaced that paragraph with paragraphs 2 and 3 which state: 2. All “confidential” information produced by defend- ants in the course of this civil action or any appeal arising therefrom (the “litigation”) may be used in all related or similar cases subject to the terms and con- ditions of this order. 3. Any plaintiff seeking to use “confidential or non- confidential” information from this matter shall seek leave of the court before whom that matter is pending. (changes italicized). A-12 A. District Court’s Scope of Review Under Section 636 Petitioners’ first argument is that the district court erred again by engaging, on remand, in an impermissible plenary review of the magistrate’s orders rather than applying the “clearly er- roneous or contrary to law” standard. Under 28 U.S.C. § 636, a magistrate may hear and determine pre-trial matters, which are subject to reconsideration by the district court “where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Id. at § 636(b)(1)(A). Petitioners make two contentions to substantiate this argument. First, petitioners argue that the district court’s “good cause” determinations continued to be based improperly on a concern for the public interest rather than on the interest of the litigants or case management. In support, the petitioners contend that the magistrate’s paragraph 2 imposed no burdens on the respon- dent and that respondent never complained that the paragraph impeded her ability to go forward with her case. The provi- sions, the petitioners argue, merely prevented injury to them and expedited discovery. Citing to a passage in the district court’s opinion, the petitioners insist it proves that the court had a “con- tinuing conception that the public has some legitimate interest in the pretrial disclosure of cigarette company documents,” Peti- tioners’ Brief at 17 (emphasis in original). The district court stated: ... It is inconceivable to this court that under [the] circumstances the public interest is not a vital factor to be considered in determining whether to further conceal that information and whether a court should be a party to that concealment. However, even ignoring the public interest, defen- dants have failed to demonstrate any good cause for the concealment of otherwise non-confidential materials from the public in general. A-13 Cipollone, 113 F.R.D. at 87. Petitioners have taken this state- ment out of context. Judge Sarokin clearly stated that “(t]he Third Circuit has made it clear that first amendment considera- tions are not implicated in this analysis. It is thus this court’s duty to abide by that mandate.” Jd. After that statement, Judge Sarokin went on to express his concern about that ruling, by stating: “However, the court expresses its concern if the public interest is eliminated as a factor in determining whether discovery should be protected from disclosure.” Id. The passage relied on by petitioners followed, and served as an explanation of Judge Sarokin’s concern. Furthermore, there is no indica- tion in the opinion that Judge Sarokin, in making “good cause” determinations, considered the public interest in the documents. The second contention the petitioners raise in support of their section 636 argument is that, on remand, the district court failed to apply the “clearly erroneous or contrary to law” standard but rather continued to substitute its own judgment for that of the magistrate. The petitioners argue that the district court did not attempt to identify the grounds upon which the magistrate’s general finding of good cause was based. As proof that the district court did not apply the proper standard of review, the petitioners quote from the first district court opin- ion vacating the magistrate’s order, which stated: In the usual private litigation not involving the public interest, it would not be appropriate to permit the release of private materials whose existence and con- tent were disclosed only as the result of the litigation. Cipollone, 106 F.R.D. at 576. From all of this, the petitioners conclude that “[i]f the district court had in fact abandoned its special public interest test, it could not possibly have found clear error in the entry of the magistrate’s orders.” Petitioners’ Brief at 19 (emphasis in original). Contrary to the petitioners’ assertions, however, the district court made specific findings that the magistrate’s determina- tion of “good cause” was “clearly erroneous and contrary to law.” The court stated: A-14 In summary, the magistrate’s finding that de- fendants had shown good cause to support an order that nonconfidential discovery “shall be used solely for the purpose of this case” is clearly erroneous and contrary to law. To the extent that the magistrate found good cause based on embarrassment to de- fendants, the effect of dissemination on the fairness of trial, or the prior conduct of plaintiffs’ attorney, the finding is clearly erroneous. To the extent that the magistrate found good cause based on a desire to facilitate discovery or to prevent an abuse of the discovery process, the finding is contrary to law. Cipollone, 113 F.R.D. at 93. In fact, Judge Sarokin correctly noted in his opinion that “(t]he magistrate’s protective order did not contain specific written findings that good cause existed for prohibiting plaintiffs either from disseminating the fruits of nonconfidential discovery to the public or from utilizing discovery in other litigation.” Jd. at 89. Although Magistrate Cowen mentioned good cause in the March 25, 1985 protective order, the only stated reason for that order was his desire to streamline the discovery process. See Transcript of Proceedings of March 25, 1985 Before Magistrate Cowen at 56. Thus, it was completely logical for Judge Sarokin not to “attempt to identify the grounds upon which the miagistrate’s general finding of good cause was based.” Cipollone, 113 F.R.D. at 89 n:2. Instead, Judge Sarokin review- ed “the order itself, the transcript of the proceedings before the magistrate and defendants’ briefs and oral arguments,” id. at 89, and found five specific arguments for “good cause” under Rule 26(c). They were that (1) the defendants would suffer financial and other embarrassment; (2) fairness at trial would be compromised; (3) the plaintiffs were estopped from disseminating this material by plaintiffs’ counsel’s prior agree- ment; (4) discovery in this case would be facilitated; and (5) dissemination would constitute an abuse of the discovery pro- cess. The district court then examined the record with respect to each argument and concluded that none of the arguments A-15 supported a finding of good cause for an order limiting the use of nonconfidential documents solely to this case. The court specifically ruled that to the extent that the magistrate found good cause based on them, those findings were “clearly er- roneous” or “contrary to law.” Cipollone, 113 F.R.D. at 93. B. Concerns of Case Management Additionally, petitioners urge that the district court acted in- consistently with this court’s mandate and contrary to law in rejecting the magistrate’s concern about case management as an important basis for the entry of his protective order. That concern appears, however, to have been, not an important basis, but rather the sole basis for the magistrate’s protective order, for in entering it Magistrate Cowen stated: In the event this decision is appealed or reviewed by higher authority, I want the record to reflect that it’s my opinion, it’s my judgment that having this order in place will facilitate the efficacious production of documents and discovery of the defendants to some extent and that it will streamline the litigation to the point where the discovery sought and had in this case will be for this case and this case alone, and that at the time this case is tried that, of course, anything that goes into the record at that time will be of a public matter and public information. Transcript of Proceedings of March 25, 1985 Befpre Magistrate Cowen at 56. No other reason for entry of the order was men- tioned. Cipollone argues that the district court did not reject concerns of case management as “a” basis for a protective order but merely rejected it as the sole basis, where the court does not make specific and particularized findings of good cause under Rule 26(c). Cipollone is correct in this respect. The district court held: The magistrate’s reasoning, though based on com- mendable motives, misconstrues the nature of the A-16 “good cause” requirement of Rule 26(c). The magistrate apparently felt that limiting the use of discovery to this case alone would “secure the just, speedy and inexpensive determination” of this action, consistent with the intent expressed in Rule 1 of the Federal Rules. Rule 26(c), however, does not em- power individual courts to make such policy decisions. The Rule allows a court to “protect a party or per- son” — the focus is on injury to a specific individual, not on general concerns of case administration. Rule 26(c), understood as a piece of a larger framework, reflects a policy decision that the “just, speedy and inexpensive” determination of actions is best furthered by permitting the entry of protective orders only to prevent injury to individuals. The Third Circuit explanation of “good cause” recognizes that the Rule 26(c) inquiry must focus on the harm defendants will allegedly suffer from dissemination of discovery material. The Third Cir- cuit directed this court to test defendants’ allegations of harm against the legal standards they provided. Nowhere in the Third Circuit’s directive is this court told that the “good cause” supporting a protective order may be general concerns of trial administration. The magistrate’s rationale that entry of the protec- tive order would facilitate and streamline this litiga- tion is not sufficient “good cause” under Rule 26(c). Cipollone, 113 F.R.D. at 92-93. The district court’s summary of the Third Circuit’s mandate in this respect is quite accurate. Judge Becker stated: ...the party seeking the protective order must show good cause by demonstrating a particular need for protection. Broad allegations of harm, unsubstan- tiated by specific examples or articulated reasoning, A-17 do not satisfy the Rule 26(c) test. ... Moreover, the harm must be significant, not a mere trifle... . Although there appears to be a lurking dispute as to what may constitute good cause for a protective order, see discussion, supra at pp. 1114-15, we are satisfied that the district court understood and will apply on remand the principle that Rule 26(c) pro- tects parties from embarrassment as well as from disclosure of trade secrets. We add to the district court’s comments only our own understanding that, because release [of] information not intended by the writer to be for public consumption will almost always have some tendency to embarrass, an applicant for a protective order whose chief concern is embarrass- ment must demonstrate that the embarrassment will be particularly serious. As embarrassment is usually thought of as a nonmonetizable harm to individuals, it may be especially difficult for a business enterprise, whose primary measure of well-being is presumably monetizable, to argue for a protective order on this ground. Cf. Joy v. North, supra (a protective order will not issue upon the broad allegation that disclosure will result in injury to reputation); to succeed, a business will have to show with some specificity that the embarrassment resulting from dissemination of the information would cause a significant harm to its competitive and financial position. Cipollone, 785 F.2d at 1121 (citations omitted). Judge Becker clearly focused upon the issue of particular need for party pro- tection, not upon general concerns of trial efficiency. Therefore, the district court’s ruling is not inconsistent with our mandate. The petitioners further argue, however, that the district court’s rejection of concerns of case management conflicts with our recommendation of the use of umbrella protective orders as “a useful method of dealing with large-scale discovery.” Id. at 1123 (footnote omitted). This is a disingenuous argument and A-18 the quote is taken out of context. The quote came at the end of a discussion about an umbrella order approach versus a document-by-document approach to determine confidentiali- ty. See id. at 1122-23. Judge Becker stated: Under this approach, the umbrella order would in- itially protect all documents that the producing par- ty designated in good faith as confidential. After the documents delivered under this umbrella order, the opposing party could indicate precisely which documents it believed to be not confidential, and the movant would have the burden of proof in justifying the protective order with respect to those documents. The burden of proof would be at all times on the movant; only the burden of raising the issue with respect to certain documents would shift to the other party. Id. at 1122 (footnote omitted). In response, the district court abandoned its document-by-document approach and instead adopted in paragraph 4 of its modified protective order, exact- ly what we advocated. Perhaps because they are on such unsure ground in relying on claimed inconsistency with our mandate, petitioners next argue that the district court’s holding conflicts with various cases that have recognized that “expedition of discovery and the avoidance of undue burden and expense are sufficient justifica- tions for the entry of protective order provisions like paragraph 2.” Petitioners’ Brief at 22. We question whether, absent in- consistency with our mar-date, this contention is appropriately considered in support cf a mandamus petition. Assuming arguendo that it is, the contention is without merit. In support, petitioners string cite five cases which in fact do not stand for such a proposition. Jn re Consumers Power Co. Securities Litiga- tion, 109 F.R.D. 45 (E.D. Mich. 1985), involved a protective order entered by the court on stipulation of the attorneys which was challenged by a non-party newspaper. Applying a first amendment analysis, the court upheld the validity of the order A-19 vis-a-vis the non-party. Chambers Development Co. v. Browning-Ferris Industries, 104 F.R.D. 133 (W.D. Pa. 1985), a memorandum opinion outlining the terms of a protective order, merely states that the defendants established good cause under Rule 26(c) but does not discuss how they did so. In re “Agent Orange” Product Liability Litigation, 96 F.R.D. 582 (E.D.N.Y. 1983), did not reach the issue of good cause. Rather, a media non-party who had filed a motion to obtain access to non-confidential documents produced by the government was held not to have standing where the party itself had agreed to the order and did not itself assert its right to disseminate discovery documents. In re Korean Airlines Disaster, 597 F. Supp. 621 (D.D.C. 1984), involved the same facts as the Agent Orange case—a consensual protective order which was later challenged by a non-party newspaper — and did not discuss good cause for entry of a protective order. Similarly, Quinter v. Volkswagen of America, 676 F.2d 969 (3d Cir. 1982), did not address the issue of good cause but rather involved whether the protective order concerning trade secrets applied to plaintiff's expert witness and whether the witness had violated the order. Thus, Judge Sarokin’s holding is not contrary to any law to which we have been referred. We note also that the district court did not attack the appropriateness of protective orders in general as promoting the efficient management of cases. In fact, Judge Sarokin upheld most provisions of the magistrate’s order. He simply vacated certain of its overbroad provisions. The petitioners further argue that the district court’s conclu- sion that courts may not enter protective orders without a specific showing of injury to a specific individual is clear error because 1) it ignores the court’s inherent equitable power over its own process, and 2) it is an overly restrictive reading of Rule 26(c). Citing to International Products Corp. v. Koons. 325 F.2d 403 (2d Cir. 1963), in which Judge Friendly held that courts, under their inherent equitable power to control their own pro- cess, may enter protective orders against the dissemination of discovery materials, the petitioners urge that, because the district court here did not choose to exercise its inherent equitable | power, it committed “clear error.” This argument is without merit. Courts are not required to exercise their inherent A-20 equitable powers where there are applicable procedural rules. The district court here complied with the mandate of this court to look for a specific showing of need for protection, while per- forming a Rule 26(c) analysis. The magistrate did not purport to exercise inherent equitable power. In addition, petitioners urge that it would be unfair to change the protective order because they relied on it in producing documents up to that point. In support, they cite Jn re Coor- dinated Pretrial Proceedings in Western Liquid Asphalt Cases, 18 Fed. R. Serv.2d 1251, 1252 (N.D. Cal. 1974), which found that changing a protective order when the parties have relied on it is a “breach of faith,” and to other cases in which courts have refused to vacate protective orders when parties have justifiably relied on them. See, e.g., Martindell v. IT&T Corp., 594 F.2d 291, 296 (2d Cir. 1979); GAF Corp. v. Eastman Kodak Co., 415 F. Supp. 129, 132 (S.D.N.Y. 1976); Tavoulareas v. Washington Post Co., III F.R.D. 653, 658 (D.D.C. 1986); H.L. Hayden Co. v. Siemens Medical Systems, Inc., 106 F.R.D. 551, 555 (S.D.N.Y. 1985); Data Digests. Inc. v. Standard & Poor's Corp., 57 F.R.D. 42 (S.D.N.Y.1972). While this argument at first blush has appeal, these cases are persuasive only if, in producing documents, the petitioners justifiably relied on the protective order. As Cipollone correct- ly points out, however, hundreds of thousands of documents were produced in the instant case before the magistrate’s pro- tective order of March 25, 1985. After a long discovery dispute, on May 2, 1984, Magistrate Cowen issued a discovery order allowing plaintiffs narrow discovery. So far as the record discloses, prior to that no discussions or negotiations had taken place regarding a protective order. Subsequently, petitioners approached Cipollone about a protective order. Cipollone agreed that truly confidential documents should not be disclosed but never agreed to a broad sweeping umbrella protective order including non-confidential documents or to limiting the use of the documents in other cases. Apparently, Cipollone agreed tem- porarily not to disseminate any documents “until [they] had an opportunity to attempt to agree upon a Protective Order regar- ding the documents or, if that [was] not possible to make a ’ a A-21 request for such a Protective Order to the Court.” Letters be- tween counsel dated May 3 and 4, 1984. Thus, reliance cannot be justifiably based on this interim agreement. Further, once the protective order was issued over Cipollone’s objection, an appeal by Cipollone was filed within 10 days. See Notice of Mo- tion to Vacate Magistrate’s Protective Order filed April 4, 1985. Clearly respondent never agreed with the protective order and no order was in place when most of the documents were pro- duced. Thus, reliance under these facts cannot fairly be found, and was properly rejected. Finally, petitioners quarrel with Judge Sarokin’s application of Rule 1, maintaining that he inconsistently applied the rule in two different parts of his opinion. Again, petitioners’ argu- ment is without merit. The district court observed that the Rule 1 consideration that federal rules “be construed to secure the just, speedy and inexpensive determination of every action,” Fed. R. Civ. P. 1, militates against limiting the use of discovery material in other litigation. See Cipollone, 113 F.R.D. at 91. Later in the opinion, Judge Sarokin ruled that the magistrate’s limitation on the use of documents, apparently pursuant to Rule 1, was inconsistent with the good cause requirement of Fed. R. Civ. P. 26(c). He reasoned that “Rule 26(c), understood as a piece of a larger framework, reflects a policy decision that the ‘just, speedy and inexpensive’ determination of actions is best furthered by permitting the entry of protective orders on- ly to prevent injury to individuals.” Cipollone, 113 F.R.D. at 92-93. There is nothing inconsistent in the court’s analysis. C. Evidence of Potential Financial Harm The petitioners contend that the district court erred in con- cluding that their submissions on potential financial harm were inadequate. They believe that the magistrate’s protective order should have been upheld on this basis. This court, in issuing our writ of mandamus, instructed the district court that to show good cause “a business will have to show with some specificity that the embarrassment resulting from dissemination of the in- formation would cause a significant harm to its competitive and financial position.” Cipollone, 785 F.2d at 1121. We also stated | A-22 that “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.” Cipollone, 785 F.2d at 1121. According to the petitioners, they submitted the following proofs: (1) that counsel for plaintiffs intended to disseminate to the general public selected portions of the material received by them in discovery; | (2) that counsel for plaintiffs intended to accom- | pany such dissemination with slanted “explanations” of the significance of particular documents; (3) that counsel for plaintiffs have regularly attend- ed and participated in symposia and seminars con- cerning the smoking and health litigation, including those sponsored by securities analysts; (4) that securities analysts closely follow the smok- ing and health litigation, and have rendered opinions and issued investment advice, including a decision to downgrade their investment opinions concerning tobacco stocks such as those of defendants Reynolds and Philip Morris, based directly upon developments in this litigation; (5) that major institutional investors in tobacco stocks independently monitor such developments and make decisions to invest in or disinvest of tobacco stocks, including stocks of defendant R. J. Reynolds, hased upon these developments: (6) that the market in tobacco company stocks has been sensitive to developments in this litigation; (7) a market analysis distributed by the investment firm of Drexel Burnham Lambert which referred to the “obvious volatility” of tobacco stocks in relation to events arising out of the smoking and health litigation; A-23 (8) evidence that the firm of E.F. Hutton has noted that the viability of tobacco stocks was “directly related” to product liability litigation. Petitioners contend that Judge Sarokin mischaracterized and ignored their submissions. He did not. Rather, he made a careful analysis of petitioners’ submissions concerning potential finan- cial harm. See Cipollone, 113 F.R.D. at 89-91. He considered the contention that the market price of defendants’ stock will be adversely affected but found that “[s]uch a sweeping allega- tion” does not rise to the level of specificity required by Rule 26(c). See Cipollone, 113 F.R.D. at 90. Noting the “only specific ‘example’ cited by defendants” —“that Philip Morris stock in- creased in value ten points after the Third Circuit’s issuance of their writ of mandamus” — the court found that the petitioners here, unlike the petitioners in Tavoulareas,’ never specifically demonstrated how dissemination would hurt their business. See Cipollone, 113 F.R.D. at 90. Failing to provide the district court with a single document as a concrete example of the type of harm they would suffer, petitioners made only broad allega- tions of harm. Although the petitioners claim that “[t]he district court’s opinion indicates that nothing will do but a showing, document-by-document and deposition-by-deposition, that each, separately released, would in fact cause a fall in the market for defendants’ securities,” Petitioners’ Brief at 31, there is nothing in the opinion which substantiates such a proposition. The district court stated: / Defendants have shown that their financial standing has been affected by this and related litigation. Defen- dants have not substantiated, however, how preven- ting the release of all discovery materials is needed * In Tavoulareas v. Washington Post Co., III F.R.D. 653 (D.D.C. 1986), Mobil Oil Co. produced certain documents concerning business arrangements in the Middle East and argued that disclosure of those documents might interfere with its business dealings in Saudi Arabia. Mobil reviewed specific documents and provided the court with concrete examples of how their disclosure would harm its business operations. A-24 to prevent particularized, significant injury to their financial and competitive position. Defendants have not identified a single document which they contend will or might have such an effect. Id. Obviously, the district court did not require a document- by-document showing. It was merely looking for concrete examples.’ IV.- Remand to a Magistrate We note that the petitioners did not assert in the district court, or in the petition here, that our mandate required the district court to do anything more than reconsider the previous ruling in light of the two legal errors which this court found. Indeed, the district court undertook exactly such a reconsideration and so it is not surprising that the petitioners have not urged either a new hearing or new factfinding. We find no basis, therefore, in the petition or in the representations made by petitioners for considering a contention that the district court should have per- mitted either the creation of a new record or a new opportuni- ty for factfinding by a different magistrate. os Reassignment Petitioners contend that the case should be reassigned to a different judge because of Judge Sarokin’s bias, which, they in- sist, is demonstrated because: 1) he did not follow our prior ' Solely in connection with III C, Judge Seitz would note that the writ of mandamus issued by this court in Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986), required the district court to adhere to the “good cause” standard in Fed R. Civ. P. 26(c) as there interpreted. Considering our necessarily amorphous direction with respect to the duty of the district court. Judge Seitz is satisfied that the district court fairly attempted to comply. Under these circumstances, he believes that it is not our function in this mandamus context to inquire further. <<< ,~- A-25 mandate; 2) his rulings indicate hostility to the tobacco industry; and 3) he has prejudged critical factual disputes. Each of these bases for suggesting bias lacks merit. As we conclude in Part III above, Judge Sarokin did follow our mandate. Additionally, even if he had not, that alone, despite the petitioners’ insistence to the contrary, is not a suffi- cient basis to remand to a different district court judge. It does not establish bias. In this area, we may take instruction from cases arising under 28 U.S.C. § 144 (1982), and its predecessor, section 21 of the Judicial Code (1911), ch. 231, § 21, 36 Stat. 1087, 1090 (1911). See Berger v. United States, 255 U.S. 22, 31 (1921) (“bias or prejudice which can be urged against a judge must be based upon something other than rulings in the case” and the disqualification statute “was never intended. . . to enable a discontented litigant to oust a judge because of adverse rul- ings”); accord Hanger v. United States, 398 F.2d 91, 101 (8th Cir. 1968), cert. denied, 393 U.S. 1119 (1969). In support of their contention that Judge Sarokin’s ruling demonstrates hostility to the tobacco industry, petitioners point to the district court’s first decision on the protective order, in which the court entered an order requiring petitioners to file briefs with the magistrate to justify the claim of confidentiali- ty for each document so designated. This, they correctly state, was more relief than Cipollone requested. That order, however, has been rescinded and the district court’s modified protective order is in compliance with cur siandate. An error of law, cor- rected by a reviewing court, does not establish bias. Finally, the petitioners accuse Judge Sarokin of prejudging critical fact issues that have not been yet heard. These issues are: “(1) whether consumers have been adequately informed of the dangers of smoking; (2) whether smokers are properly viewed as ‘victims’ of their smoking; and (3) whether cigaret- tes are addicting.” Petitioners’ Brief at 46-47. In support, peti- tioners quote various sentences in 649 F. Supp. 664 (D.N.]J. 1986), 593 F. Supp. 1146 (D.N.J. 1984) and slip op. (D.N.J. Dec. 7, 1984), which, they say, show that the district court has already decided these issues. See Petitioners’ Brief at 47-56. All A-26 are taken out of context and exaggerated. They are not worth setting forth here. The petition that we remove Judge Sarokin from the case by exercising our authority under 28 U.S.C. § 1651 to protect peti- tioners from bias is entirely without merit, and a thinly disguised effort at judge shopping. VI. Conclusion The district court on remand following the previous decision in this case complied in good faith with our mandate. The court committed no clear error of law in modifying the magistrate’s protective order. The petitioners’ suggestion of bias is entirely without merit. The petition for mandamus will therefore be denied. GARTH, Circuit Judge, dissenting: My quarrel with the majority opinion stems from the ma- jority’s failure to recognize that the district court did not com- ply with the mandate we prescribed in our first review of this issue. Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986). As I understand our mandate, we directed the district court to review the magistrate’s good cause determination under the clearly erroneous and contrary to law standard prescribed by 28 U.S.C. § 636(b)(1)(A). Instead, the district court, when faced with this directive and a record barren of any facts found by the magistrate, redrew the protective order with no regard to our remand for further factfinding. After concluding that the district court had reviewed the magistrate’s original decision under an erroneous standard of review, the prior panel of this court set out its mandate. That panel, noting that “no specific good cause findings have been made,” Cipollone, 785 F.2d at 1120, directed the district court to “take second looks at the good cause issue...and at the magistrate’s protective order.” Jd. Moreover, the panel observed that a court of appeals review of the order would be “unwise.” Id. Such a review would entail “detailed consideration of the A-27 defendants’ assertion of good cause,” and therefore would be “exceedingly difficult” without a remand to the district court for its reconsideration under appropriate standards. Id. The panel then predicted that the district court’s “good cause hear- ing will likely reveal the appropriate shape that the protective order should take and it is thus better that any delineation of specifics await that hearing.” /d. To comply with that instruction, Judge Sarokin should have reviewed the magistrate’s opinion and order using the “clearly erroneous and contrary to law” standard prescribed by 28 U.S.C. § 636(b)(1)(A). As explained in the statute’s legislative history, the magistrate’s “determination set forth in an ap- propriate order shall be ‘final’ subject only to the ultimate right of review by a judge of the [district] court.” See H.R. Report No. 1609, 94th Cong., 2nd Sess. 9-11, reprinted in 1976 U.S. Code Cong. & Ad. News 6162, 6170. Therefore, a district court judge first would determine whether the facts found by the magistrate to support the good cause determination were clearly erroneous and whether the conclusions of law supporting the finding were contrary to law. If the district court held that facts found by the magistrate were clearly erroneous or that conclu- sions of law were incorrect, then the district court must recon- sider the magistrate’s decision. ' ' The legislative history for 28 U.S.C. § 636(b)(A)(1) sets out the circumstances in which a judge “may reconsider” the matter before the magistrate: Use of the words “may reconsider” in subparagraph (A) is in- tended to convey the congressional intent that a matter “heard and determined” by the magistrate need not in every instance be heard a second time by the judge. However, if a party requests reconsideration based upon a showing that the magistrate’s order is clearly erroneous or contrary to law then the judge must recon- sider the matter. Of.course, the judge has the inherent power to rehear or reconsider a matter sua sponte. See H.R. Report No. 1609, 94th Cong., 2nd Sess. 9-11, reprinted in 1976 U.S. Code Cong. & Ad. News 6162, 6170. A-28 Unfortunately, in this case, the magistrate failed to make specific findings on the good cause “issue,” and thus the district court, while told to review good cause findings, was faced with no findings to review. Indeed, the district court itself observed that “[t]he magistrate’s protective order did not contain specific written findings that good cause existed for prohibiting plain- tiffs either from disseminating the fruits of nonconfidential discovery to the public or from utilizing discovery in other litiga- tion.” Cipollone v. Liggett Group, 113 F.R.D. 86, 89 (D.N.]J. 1986). Yet, although our court’s mandate required that specific writ- ten findings be made, the district court did not remand the issue to the magistrate for factfinding, nor did it perform such fact- finding itself. Rather, the district court took it upon itself to formulate and examine five separate “arguments” to determine whether the “arguments” were “clearly erroneous or contrary to law.” As if in anticipation of my concern, the district court protested that it “[did] not attempt to identify the grounds upon which the magistrate’s general finding of good cause was bas- ed,” but only “analyze[d] whether any of these arguments could support the magistrate’s finding.” Id. at 89 n.2. Following this “review” of the magistrate’s order, the district court held, in part, that “[t]o the extent that the magistrate found good cause based upon embarrassment to defendants, the effect of dissemination [of discovery to the press and third par- ties] on the fairness of trial, or the prior conduct of plaintiffs’ attorney, the finding is clearly erroneous.” Jd. at 93. The district court also held that “[t]o the extent that the magistrate found * The district court identified “upon analysis of the order itself, the transcript of the proceedings before the magistrate. and defendants’ briefs and oral arguments. . . five specific arguments for ‘good cause’ under Rule 26(c): 1) that defendants will suffer financial and other embarrassment; 2) that fairness at trial will be compromised; 3) that plaintiffs are estopped from disseminating this material by a prior agreement of plaintiffs’ counsel; 4) that discovery in this case will be facilitated; 5) that dissemination constitutes an abuse of the discovery process.” Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 89 (D.N.J. 1986). A-29 good cause based upon a desire to facilitate discovery or to pre- vent an abuse of the discovery process, the finding is contrary to law.” Id. In effect, without the benefit of any findings of fact, the district court constructed and then “reviewed” three of the five arguments, all of which required factual support. The arguments so reviewed were: the possibility of embarrass- ment to the defendant cigarette companies, the possibility of financial harm due to the pretrial dissemination of discovery materials, and a claim cf estoppel based upon the conduct of plaintiffs’ attorney. It was on this basis that the district court concluded that good cause had not been demonstrated: a con- clusion reached without the review of, or the finding of, a single fact. At no point does the majority opinion claim that findings of fact appear in the record. Indeed, while the majority opinion notes that the magistrate made no findings, it curiously fails to mention that the district court’s decision and order is similarly flawed. Characterizing the district court’s opinion as a review of “five specific arguments” is no substitute for the absence of findings at both the district court and magisterial level. As a reviewing court we must be sensitive to the factfinding functions of the courts we review, and to this date no findings on the issue of good cause have ever been made. The district court should have ensured that findings were made, not only to comport with the review process envisioned by 28 U.S.C. § 636(b)(1)(A), but also to obey the mandate handed down by the prior panel of this court. My decision that the writ should issue to enforce our man- date is compelled by the fact that this panel is bound by the earlier mandate, just as Judge Sarokin was bound. See Taylor v. United States, 815 F.2d 249, 252 (3d Cir. 1987)(“It is well- established that a district court must adhere to the mandate’); Bankers Trust Co. v. Bethlehem Steel Corp. , 761 F.2d 943, 949 (3d Cir. 1985)(“It is axiomatic that on remand for further pro- ceedings after decision by an appellate court, the trial court must proceed in accordance with the mandate”). The district court, bv refusing to remand for factfinding or by failing to find the A-30 essential facts itself, did not satisfy the mandate of our court. Nothing that appears in the majority opinion excuses that failure. Because no compliance was had without mandate I would issue the writ of rmandamus. While I of course agree with the majority's disposition of the reassignment request, I am obliged to dissent from the majori- ty’s disposition for the reason I have set out above. B-l Opinion of the District Court dated November 12, 1986 ANTONIO CIPOLLONE, Individually and as Executor of the Estate of Rose D. Cipollone, Plaintiff, me | oe LIGSETT GROUP INC., PHILIP MORRIS INCORPORATED, and LOEW’S THEATRES INC., Defendants. SUSAN HAINES, as Administratrix ad Prosequendum and Executrix of the Estate of Peter F. Rossi, Plaintiff, —-vV— LIGGETT GROUP INC., LOEW’S THEATRES, INC., R.J. REYNOLDS TOBACCO CO., PHILIP MORRIS INCORPORATED, and THE TOBACCO INSTITUTE, Defendants. Nos. 83-2864 and 84-678 United States District Court, District of New Jersey Decided November 12, 1986 SAROKIN, District Judge This matter is now before the court pursuant to defendants’ receipt of a writ of mandamus from the Third Circuit. Specifically, the Third Circuit’s opinion directed this court to (1) reconsider B-2 its prior decision reversing various aspects of a magistrate’s pro- tective order in light of the “good cause” standard of Rule 26(c) of the Federal Rules of Civil Procedure, and (2) to reconsider its reversal of that aspect of the magistrate’s protective order which permits the party seeking protection from dissemination to designate documents confidential without first establishing good cause to do so on a document-by-document basis. The court proceeds to do so. The order heretofore entered in this matter prohibited all discovery of defendants from being disclosed either to the public in general or plaintiffs in other similar litigation. Before defen- dants are entitled to such a protective order they are required to establish that there is “good cause” for its entry and continuance. The general focus of discovery in this matter has been the knowledge of the defendant tobacco companies regarding the risks of cigarette smoking and what action was taken to conceal or minimize these risks and neutralize the required warnings. The Third Circuit has made it clear that first amendment con- siderations are not implicated in this analysis. It is thus this court’s duty to abide by that mandate. However, the court expresses its concern if the public interest is eliminated as a factor in deter- mining whether discovery should be protected from disclosure. Discovery may well reveal that a product is defective and its continued use dangerous to the consuming public. The public disclosure of that information will certainly embarrass that party and cause it financial loss. It is inconceivable to this court that under such circumstances the public interest is not a vital fac- tor to be considered in determining whether to further conceal that information and whether a court should be a party to that concealment. However, even ignoring the public interest, defendants have failed to demonstrate any good cause for the concealment of otherwise non-confidential materials from the public in general. Defendants’ arguments are even less persuasive with respect to related litigation. By requiring,each plaintiff in every similar action to run the same gauntlet over and over again serves no B-3 useful purpose other than to create barriers and discourage litiga- tion against the defendants. Good cause as contemplated under Rule 26 was never intended to make other litigation more dif- ficult, costly and less efficient. BACKGROUND The protective order at issw¢ here was entered on March 25, 1985 by the Honorable Robert E. Cowen, United States Magistrate. As noted by this court in its prior opinion in this matter, the order limits the extent to which one party may disclose certain confidential information made available by its opponents during discovery proceedings. Specifically, the order provides that “[al]ll information produced or exchanged in the course of this civil action or any appeal arising therefrom . . . shall be used solely for the purpose of this case,” (para. 2), and shall be returned or destroyed after trial. (para. 13.) More complex limitations are imposed upon “confidentia! information”. If a party has a “good-faith belief that the infor- mation falls within the scope of confidential information under the Federal Rules of Civil Procedure,” (para. 3) it may label such information accordingly, and it is then to be filed, or otherwise utilized, under seal (para. 11-12). Once labelled, confidential information is, under the order, open for inspection only by counsel or their associates or employees (para. 6(a)), or by experts retained for the purposes of the litigation (para. 6(b)), but the latter are required to sign an oath attesting to their understanding that they are bound by the terms of the order (para. 7). In the event of any disclosure, counsel and the court, shall be advised, in writing, of the name, address and occupation of the person to whom counsel propose to disclose, for the purposes of this litigation, said confidential information. Jd. Additional protections or other modifications of the order may also be sought. Plaintiffs appealed this order, arguing that it constituted an abuse of discretion and a violation of both the first amendment and of basic discovery principles. By opinion dated July 17, 1986, this court found merit in a number of plaintiff's contentions, B-4 concluding (1) that the court should engage in a de novo stan- dard of review because first amendment rights were implicated by the protective order; (2) that according to Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32 (1984), protective orders such as the one here at issue limit first amendment freedoms unless they are no broader than necessary to protect the governmental in- terests furthered by Rule 26(c), see Procunier v. Martinez, 416 U.S. 396, 413 (“First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression . . . . Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular govern- mental interest involved.”); (3) that the order violated Rule 26(c) and also the first amendment by shifting the burden with regard to confidentiality designations from the party desiring such designation to the protesting party; (4) that the order improperly restricted the use of non-confidential discovered materials to use in this case; and (5) that the order likewise improperly prohibited plaintiffs’ attorneys from using confidential material in other litigation in which they are participants. Cipollone v. Liggett Group, 106 F.R.D. 573 (D.N.J. 1985). Defendants appealed, and in the alternative sought man- damus. The Third Circuit found this court’s order to be non- appealable, Cipollone v. Liggett Group, 765 F.2d 1108, L117 (3d Cir. 1986), but concluded that it did have mandamus jurisdic- tion pursuant to 28 U.S.C. §1651, because the matter at issue involved the disclosure of confidential materials, 765 F.2d at 1118. The Third Circuit thereupon determined that this court had erred in two ways. First, it had misread Seattle Times when it concluded that an order prohibiting the disclosure of informa- tion obtained under the discovery rules violates the first amend- ment unless it meets the “least restrictive means” test. Rather the Third Circuit explained, the Supreme Court’s first amend- ment language in Seattle Times was mere dictum, and as such was outweighed by those portions of the opinion that emphasized that the discovery process is not a forum traditionally open to the public, and that held that “a protective order . . . entered B-5 on a showing of good cause does not offend the First Amend- ment.” 467 U.S. at 37; see New York v. United States Metal Refin- ing Co., 771 F.2d 796, 802 (3d Cir. 1955). The Third Circuit then stated as follows: We may summarize thus. Seattle Times required the district court merely to inquire whether the defen- dants had demonstrated good cause for the protec- tive order; the district court instead applied a least restrictive means test. The good cause standard is significantly less demanding than the least restrictive means test; the court’s error, therefore, may have worked a serious detriment to the defendants. Second, the Third Circuit determined that this court had im- properly exercised de novo review, as such review was premised on the perceived constitutional question at issue, which issue did not actually exist under a proper reading of Seattle Times. This court was therefore instructed on remand to review the magistrate’s order to determine whether it is “clearly erroneous or contrary to law,” 28 U.S.C. § 636(b)(1)(A), particularly with regard to whether that order was based on a sufficient showing of “good cause.” The Third Circuit added that this court had erred in concluding that Rule 26(c) obliged it to require defen- dants to show good cause for protected status on a document- by-document basis, as an umbrella order is appropriate for com- plex litigation such as this. Having been so instructed, the court turns once again to the task of evaluating the appropriateness of the magistrate’s protective order. DISCUSSION I. The Question of Good Cause Plaintiffs contend that Paragraph 2 of the protective order, limiting use of non-confidential discovery materials to litiga- tion in this case! is not supported by “good cause” as required under Rule 26(c). ‘ Paragraph 2 applies to all discovery materials. Plaintiffs do ©: challenge the paragraph’s limitation as it applies to “confidential” materiai. B-6 Rule 26(c) states: Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppres- sion, or undue burden or expense . . The Third Circuit opinion above explicitly guides the court in its application of this language to the case at hand. The opi- nion stressed that defendants have the burden of “demenstrating a particular need for protection.” Cipollone v. Liggett Croup, Inc., 785 F. 2d 1108, 1121 (3d Cir. 1986). The opinion coun- seled, “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c} test .. . . Moreover, the harm must be significant, not a mere trifle.” Id. The Third Circuit, as an example of an argument that failed to establish good cause, cited a Second Circuit opi- nion finding insufficient to support a protective order the par- ty’s broad allegations that disclosure would injure them in the industry and community. Id., citing Joy v. North, 692 F. 2d 880, 894 (2d Cir. 1982), cert. denied, 460 U.S. 1051 (1983). The Third Circuit summarized as follows: We add to the district court’s comments only our own understanding that, because release of information not intended by the writer to be for public consump- tion will almost always have some tendency to em- barrass, an applicant for a protective order whose chief concern is embarrassment must demonstrate tiat the embarrassment is particularly serious. As embar- rassment is usually thought of as nonmonetizable harm to individuals, it may be especially difficult for a business enterprise, whose primary measure of well- being is presumably monetizable, to argue for a pro- tective order on this ground. . . . [T]o succeed, a business will have to show with some specificity that B-7 the embarrassment resulting from dissemination of the information would cause a significant harm to its com- petitive and financial position. id. The magistrate’s protective order did not contain specific writ- ten findings that good cause existed for prohibiting plaintiffs either from disseminating the fruits of non-confidential discovery to the public or from utilizing discovery in other litigation. The court, upon analysis of the order itself, the transcript of the pro- ceedings before the magistrate, and defendants’ briefs and oral arguments, identifies five specific arguments for “good cause” under Rule 26(c): 1) that defendants will suffer financial and other embarrassment; 2) that fairness at trial will be compromis- ed; 3) that plaintiffs are estopped from disseminating this material by a prior agreement of plaintiffs’ counsel; 4) that discovery in this case will be facilitated; 5) that dissemination constitutes an abuse of the discovery process. The court examines whether any of these arguments constitutes “good cause” for limiting use of discovery solely to this case.’ (1) Financial and other embarrassment The order signed by Judge Cowen, submitted by defendants, contained the following general language in its preamble: And it further appearing that the confidential business records and private information of the parties should be given the protection of an order of this Court to prevent injury to and invasion of the confidential pro- perty of the parties by reason of any disclosure not otherwise necessitated by the parties’ lawful interests in this litigation only, and good cause appearing .. . * The court does not attempt to identify the grounds upon which the magistrate’s general finding of good cause was based. The court analyzes whether any of these arguments could support the magistrate’s finding. } B-8 The order does not specify or elaborate on the “injury” which the order is designed to prevent. Defendants, in their brief, elaborate on the nature of this “injury.” The likelihood of financial and other forms of embar- rassment from dissemination was obvious when the protective orders were entered, and they remain so... . This litigation, which has been closely follow- ed by the financial community and the press, has resulted in wide gyrations in the values of the defen- dants’ stock, and plaintiffs’ counsel have met with in- vestment advisers to discuss this litigation in an at- tempt to affect the market price of the defendants’ stock. Defendants’ Memorandum of Law in Support of Protective Order of March 25, 1985, at 12. In essence, defendants now argue that if the truth be known and discovery disclosed it might prove embarrassing and affect the market price of defendants’ stock. Such a sweeping allega- tion, however, does not reach the level of specificity that the Third Circuit has emphasized is required by Rule 26(c). Defen- dants have shown that their financial standing has been affected by this and related litigation. Defendants have not substantiated, however, how preventing the release of all discovery materials is needed to prevent particularized, significant injury to their financial and competitive position. Defendants have not iden- tified a single document which they contend will or might have such an effect. The inadequacy of defendant’s showing is illustrated by con- trasting a recent case in which a corporation made a sufficiently particularized showing to justify a finding of “good cause” to retain a protective order. See Tavoulareas v. Washington Post Co., slip op., Nos. 80-3032, 80-2387 (D.D.C. Aug. 11, 1986). In Tavoulareas, Mobil Corporation presented a statement explain- ing how release of discovered materials would significantly im- pair specific business relationships of Mobil in Saudi Arabia. B-9 The evidence presented explained how release of these documents would destroy the confidentiality necessary to main- tain those ongoing relationships. The court found this to be a sufficient showing under Rule 26(c) both to justify the initial entry of the order and to justify the order’s retention after litigation. Defendants, in contrast, allege only that release of discovery materials will cause their general business standing to decline. The only specific “example” cited by defendants is the fact that Philip Morris stock increased in value ten points after the Third Circuit’s issuance of their writ of mandamus. Defendants’ Memorandum, at 17; Defendants’ Reply Memorandum, at 7. The probative value of this event is uncertain.’ More fundament- ally, this isolated incident does not constitute a showing of par- ticularized and significant injury required by Rule 26(c). Defen- dants never identify specifically how dissemination will injure their business, as did Mobil in Tavoulareas; instead, defendants offer only the broad allegation that release will harm their overall standing. Rule 26(c), as made plain by the Third Cir- cuit, requires more for a showing of good cause. Defendants’ arguments are even less persuasive with regard to limiting use of discovery material in other litigation. The causal chain behind their position is as follows. Defendant’s financial and competitive position may be harmed by this type of litigation; prohibiting use of Cipollone/Haines discovery in other litigation makes such litigation more difficult to sustain; consequently, defendant will suffer significant injury if discovery is not confined to this litigation. Defendants’ argument not on- ly fails to substantiate a particularized and significant injury as required by Rule 26(c). The argument also runs counter to a fundamental purpose of discovery under the Federal Rules. ' Defendants do not explain the surrounding market context of this rise: thus. the court cannot know if the Third Circuit’s opinion was the critical or even an important factor in the price change. Additionally, defendants offer no evidence that stock prices fell due to this court’s reversal of the entry of the order. B-10 All of the Federal Rules are informed by the admonition of Rule 1 that they “be construed to secure the just, speedy, and inex- pensive determination of every action.” Acting consistent with this purpose, a number of courts have rejected requests to limit the use of discovery to the litigation in which it is initially ob- tained. Their reasoning is best summarized by the opinion of Judge Wisdom in Wilk v. American Medical Ass'n, 635 F.2d 1295, 1299 (7th Cir. 1980), which states that the presumption of open discovery should operate with all the more force when litigants seek to use discovery in aid of collateral litigation on similar issues, for . . . access in such cases materially eases the tasks of courts and litigants and speeds up what may otherwise be a lengthy process. Particularly in litigation of this magnitude, we, like the Multidistrict Panel, are impressed with the wastefulness of requiring the [collateral party] to duplicate discovery already made . . . . We therefore agree with the result reached by every other appellate court which has considered the issue, and hold that where an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only after repetition of another’s discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification. See Marcus, Myth and Reality in Protective Order_Litigation, 69 Cornell L. Rev. 1, 41 (1983); see also Cipollone v. Liggett Group, Inc., 106 F.R.D. at 585-586 (citing several cases stan- ding for this proposition). Here, defendants’ showings simply do not establish that substantial rights will be so tangibly pre- judiced that injustice will result unless the discovery obtained in this litigation is limited to it. Indeed, no direct purpose can be discerned from their position except to discourage future iden- tical actions against them by maintaining the costliness of the discovery involved to other plaintiffs. As noted by this court in its previous opinion herein, B-11 The court cannot ignore the might and power of the tobacco industry and its ability to resist the individual claims asserted against it and its individual members. There may be some claimants who do not have the resources or such able and dedicated counsel as in this case to pursue the thorough investigation which these cases require. To require that each and every plain- tiff go through the identical long and expensive pro- cess would be ludicrous. Even from the point of view of the defendants (though they resist), it would seem that they would benefit by avoiding repetition of the same discovery in each and every case.” Cipollone, 106 F.R.D. at 577. So long as the initial litigation has not itself been instituted in bad faith for the purpose of obtaining documents for other ac- tions, and so long as the interests of those represented in the initial litigation are being fully and ethically prosecuted, the Federal Rules do not foreclose the collaborative use of discovery. See American Telephone & Telegraph Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1978); Johnson Foils, Inc. v. Huyck Corp., 61 F.R.D. 405, 410 (N.D.N.Y. 1973). Defendants expressed concern at oral argument that each court should have the right to control discovery in the particular matter before it, and that making the discovery in this matter available in others will defeat that control. That concern is susceptible to easy resolution. Any plaintiff seeking to utilize the discovery in this matter for his or her own purposes shall be required to seek leave of the court before whom the matter is pending. That court can resolve any objections based upon relevance or otherwise. Defendants have not made a showing that they will suffer “embarrassment” or injury sufficient to support the magistrate’s finding of good cause under Rule 26(c). 2) Fairness at trial Defendants in their brief on this motion assert that the good cause supporting the order lies also in the preservation of a fair B-12 trial. Defendants claim that “extra-judicial use of the documents covered by the protective order could affect the fairness of the trials themselves, and would be in conflict with the purpose of discovery.” Defendants’ Memorandum, at 12. At oral argument, counsel for defendants referred to news coverage, including a New York Times article in which plaintiffs’ counsel was quoted. Transcript of Proceedings, September 25, 1986, at 25. Accor- ding to defendants’ counsel, plaintiffs’ counsel inaccurately characterized certain documents to the prejudice of defendants. Id. Defendants argue that “one has to assume that the judge was aware of these facts and took them into account when he decided to enter this order.” Jd. at 26.* The court is satisfied that appropriate precautions can be taken in the jury selection process to guard against the possibility that the publication of such material might affect the outcome of the trial. This argument does not support the magistrate’s finding of good cause. (3) Estoppel Defendants, in their brief, claim that they initially agreed to comply with broad discovery requests on plaintiffs’ assurances that the discovered documents would be used only for this litiga- tion, and that it would be “grossly inequitable” for these documents to be “let loose for the purposes of harming the defen- dants.” Defendants’ Memorandum, at 12. The court finds the claim to be totally without support. The agreement which plaintiff's counsel reached was one made pen- ding entry of a protective order and was scrupulously honored by a plaintiffs’ counsel. Therefore, restriction on the use of discovery materials as to this litigation only cannot be predicated upon any agreement or representation by plaintiffs counsel. The magistrate stated at the proceeding, however. that he read nothing in the New York Times article that was “improper at ai!” Transcript of Pro- ceedings, March 25, 1985, at 39. B-13 (4) Facilitation of discovery in this case The magistrate, at the March 25, 1985 hearing at which he issued the protective order, explained the rationale behind his decision. [T]he Court has decided that I’m going to go with the protective order that has been propounded -- pro- posed by the defendant Reynolds in both the Haines and Cipollone case. In the event this decision is ap- pealed or reviewed by higher authority, I want the record to reflect that it’s my opinion, it’s my judgment that having this order in place will facilitate the ef- ficacious production of documents and discovery of the defendants to some extent and that it will streamline the litigation to the point where the discovery sought and had in this case will be for this case and this case alone, and that at the time this case is tried that, of course, anything that goes into the record at that time will be a public matter and public information. Transcript of Proceedings, March 25, 1985, at 56. Thus, in the magistrate’s own words, the good cause behind the order was his belief that the order would “facilitate” and “streamline” the litigation. The magistrate’s reasoning, though based on commendable motives, misconstrues the nature of the “good cause” require- ment of Rule 26(c). The magistrate apparently felt that limiting the use of discovery to this case alone would “secure the just, speedy and inexpensive determination” of this action, consis- tent with the intent expressed in Rule 1 of the Federal Rules. Rule 26(c), however, does not empower individual courts to make such policy decisions. The Rule allows a court to “protect a party or person” -- the focus is on injury to a specific individual, not on general concerns of case administration. Rule 26(c), understood as a piece of a larger framework, reflects a policy decision that the “just, speedy and inexpensive” determination of actions is best furthered by permitting the entry of protec- tive orders only to prevent injury to individuals. B-14 The Third Circuit explanation of “good cause” recognizes that the Rule 26(c) inquiry must focus on the harm defendants will allegedly suffer from dissemination of discovery material. The Third Circuit directed this court to test defendants’ allegations of harm against the legal standards they provided. Nowhere in the Third Circuit’s directive is this court told that the “good cause” supporting a protective order may be general concerns of trial administration. The magistrate’s rationale that entry of the protective order would facilitate and streamline this litigation is not sufficient “good cause” under Rule 26(c). (5) Abuse of the discovery process | Defendants’ counsel at oral argument contended that good cause may be established by a showing that a protective order is needed “to prevent an abuse of the discovery process.” Jd. at 20. Defendants’ counsel explains that the sole purpose of the discovery process is to help the parties prepare for litigation. Anything that goes beyond that constitutes an abuse of the discovery process . . . .” Id. Because dissemination to the public and use in other litigation goes beyond the “sole purpose” of discovery, the magistrate had “good cause” to enter this order to protect from that abuse.” This argument, like that concerning facilitation of discovery, ignores the language and misconstrues the purpose of Rule 26(c). The Supreme Court has stated that Rule 26(c) protective orders are designed to prevent abuse of discovery, but abuse in the sense of causing injury to particular individuals. * The magistrates’ order contains no specific finding that plaintiffs’ proposed use is an abuse of the discovery process. Furthermore, Judge Cowen’s remarks at the proceeding contain no such reference. Defendant's counsel suggests, though, that “we have to assume” that Judge Cowen had the fundamental principles of discovery in mind when he entered the order. , B-15 There is an opportunity, therefore, for litigants to ob- tain -- incidentally or purposefully -- information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The govern- ment clearly has a substantial interest in preventing this sort of abuse of its processes. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984). Again, the Third Circuit’s discussion of “good cause” shows that pro- tection from injury to individuals must be the focus of a Rule 26(c) protective order. Thus, the mere fact that plaintiffs in- tend to use these materials outside of this litigation is not “good cause” to support the protective order, unless defendants can establish that the discovery was not procured in good faith for the purposes of this litigation. No such showing is made or claimed. Absent a showing that plaintiffs use will sufficiently injure the defendants, the magistrate had no good cause to limit use of the discovery to this case alone. In summary, the magistrate’s finding that defendants had shown good cause to support an order that nonconfidential discovery “shall be used solely for the purpose of this case” is clearly erroneous and contrary to law. To the extent that the magistrate found good cause based on embarrassment to defen- dants, the effect of dissemination on the fairness of trial, or the prior conduct of plaintiffs’ attorney, the finding is clearly er- roneous. To the extent that the magistrate found good cause based on a desire to facilitate discovery or to prevent an abuse of the discovery process, the finding is contrary to law. II. The Propriety of an Umbrella Order Finally, the Court of Appeals pointed out that this court reasoned improperly when it vacated that aspect of the magistrates order that permitted defendants to designate documents “confidential,” with plaintiffs bearing the respon- sibility of contesting such designation. 765 F.2d at 1122. This court expressed its concern then and repeats it now. The wholesale designation of confidentiality by defendants places B-16 an undue and unnecessary burden upon plaintiff. The poten- tial of an ultimate award of sanctions does not relieve plain- tiffs counsel of the need to expend time and money in the first instance to set aside that designation. The fact that they may be ultimately reimbursed after the expenditure of further time and money seeking such reimbursement is insufficient and fails to recognize the inequality of the parties before the court in reference to their economic positions and their relative abilities to pursue or resist discovery. According to the Third Circuit, this court erred when it con- cluded that such order shifted the burden of proof to plaintiffs in violation of Rule 26(c). Rather, the Third Circuit noted, it is appropriate and in keeping with the Manual for Complex Litigation to utilize an “umbrella order” for confidentiality designations, in which groups of documents may be marked con- fidential subject to the good faith requirement that defendants invoke such protection only for documents that are truly con- fidential. Having been so instructed, the court concludes that the magistrate’s determination was not clearly erroneous or con- trary to law in this regard, and therefore upholds the aspect of the magistrate’s order that permits defendants to make an in- itial designation of confidentiality, subject to their determina- tion that such designation is warranted in good faith, and sub- ject to plaintiff's later opportunity to challenge such designa- tion and request sanctions pursuant to Fed. R. Civ. P. 26(g). CONCLUSION The court abides by its previous reversal of Paragraph 2 of the magistrate’s order as it applies to nonconfidential materials. The court orders that any other plaintiff seeking to utilize discovery from this matter comply with the procedures described in the opinion. The court abides by its previous modification of Paragraph 7 of the order. The court affirms the propriety of the “umbrella order” entered by the magistrate. The court directs plaintiffs’ counsel to submit an appropriate order. S/ H. LEE SAROKIN H. LEE SAROKIN, U.S.D.]J. C-1 Opinion of the Court of Appeals Dated March 12, 1986 ANTONIO CIPOLLONE, Individually and as the Executor of the Estate of Rose D. Cipollone, Plaintiff-Respondent, LIGGETT GROUP INC., PHILIP MORRIS INCORPORATED, and LOEW’S THEATRES, INC., Defendants-Petitioners. LIGGETT GROUP INC., PHILIP MORRIS INCORPORATED, and LOEW’S THEATRES, INC., Petitioners, HONORABLE H. LEE SAROKIN, United States District Judge, District of New Jersey, Nominal Respondent. C.2 SUSAN HAINES, as Administratrix ad Prosequendum and Executrix of the Estate of Peter F. Rossi. Plaintiff-Respondent, LIGGETT GROUP INC., LOEW’S THEATRES, INC.., R.J. REYNOLDS TOBACCO Co.. PHILIP MORRIS INCORPORATED, and THE TOBACCO INSTITUTE, Defendants-Petitioners. LIGGETT GROUP INC.., LOEW’S THEATRES, INC., R.J. REYNOLDS TOBACCO CO., PHILIP MORRIS INCORPORATED. and LOEW’S CORPORATION. Petitioners. HONORABLE H. LEE SAROKIN. United States District Judge, District of New Jersey, Nominal Respondent. C-3 Nos. 85-3423, 85-3424, 85-5529 and 85-5530 United States Court of Appeals, Third Circuit Decided March 12, 1986 OPINION OF THE COURT BECKER, Circuit Judge. These appeals require us to apply the principles and case law pertaining to Fed.R.Civ.P. 26(c) to a claim that certain materials obtained in civil discovery but alleged by the produc- ing party to be confidential may be disclosed by the discover- ing party to the public. We must also consider whether we have appellate jurisdiction over the district court’s interlocutory order permitting disclosure of the materials. The appeal arises from two of the several cases nationwide in which cigarette smokers or their personal representatives have instituted product liability suits against tobacco companies. In both cases, the parties had already engaged in extensive discovery, including production of a very large number of documents by defendants, when the defendants sought protec- tive orders that would prevent the dissemination, either to the public or to counsel in other similar cases, of any documents they had produced or would produce during discovery.' A federal magistrate entered identical protective orders in both cases along the lines requested by thre defendants. On appeal fre the mayistrate’s orders, the district court substantially revise. them. The court altered the procedure that ' Although the record is unclear on the poiat, it appears from representations made at oral argument that confidentiality was maintained during the in- itial phase of the litigation by tacit mutual understanding and that it was only when plaintiffs’ counsel evinced an intention to use the material beyond the confines of the litigation that the protective order phase of the litigation began. ———————— oS —_ C-4 the magistrate’s orders had established for deciding disputed claims of confidentiality, and restricted the orders’ scope so that release of the documents to the press and public would have followed almost as of course but for this appeal. The revised orders also permitted the documents to be used in other cases in which plaintiffs’ counsel was the counsel of record. The defendants thereupon appealed to this Court and peti- tioned for mandamus, asserting that the revised orders violated Fed.R.Civ.P. 26(c) and reflected a skewed reading of Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). The defendants also moved for an expedited appeal and a stay of the district court’s orders, as well as reinstatement of the magistrate’s orders pending appeal. We granted those motions. The plaintiffs moved to dismiss the ap- peals for want of appellate jurisdiction, and also moved to dismiss the petition for mandamus. We hold that: (1) we do not have jurisdiction to review the order pursuant to the collateral order doctrine as enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); (2) we do have mandamus jurisdiction to review the order pursuant to 28 U.S.C. § 1651 (1982); (3) because the district court’s reading of Seattle Times constituted a clear error of law, the ruling on the defendants’ motion for protective orders was incorrect; and (4) the district court also clearly erred in relying on Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) to exercise plenary review of the magistrate’s protective order, for the court was bound to apply a “clearly erroneous” standard. We therefore grant the writ of mandamus. To assist the district court in future proceedings, we discuss two additional points relevant to this case: the definition of “good cause,” and the administration of protective order proceedings. C-5 1, PROCEDURAL HISTORY A. The Institution of the Suits Rose Cipollone and her husband Antonio filed a complaint against Liggett Group, Inc., Philip Morris, Inc., and Loew’s Theaters, Inc., all manufacturers of cigarettes,” in the district court for the District of New Jersey on August 1, 1983. Jurisdic- tion was based on diversity of citizenship. 28 U.S.C. § 1332 (1982). The complaint alleged that defendants manufactured or sold cigarettes and that Rose Cipollone had smoked defen- dants’ cigarettes for almost forty years. As a result of her smok- ing, the complaint alleged, she acquired bronchogenic car- cinoma and other personal injuries; it further alleged that she had experienced severe pain and suffering and that her illness had caused her — and would continue to cause her — great ex- pense. Plaintiffs sought compensation for Rose Cipollone’s in- juries, suing under theories of negligence and strict liability. Central to plaintiffs’ case was their allegation that defendants had withheld scientific evidence from the public and had misrepresented the effects upon health of smoking cigarettes. They also sought compensation for Antonio Cipollone’s loss of consortium. Shortly thereafter, Susan Haines as administratrix ad prose- quendum and executrix of the Estate of Peter F. Rossi brought suit in the same court against the same three defendants as well as R.J. Reynolds Tobacco Co. and the Tobacco Institute, Inc. Haines was represented by the same attorney who represented the Cipollones. Jurisdiction was based on diversity, and once again the complaint alleged tortious conduct sounding in strict liability and negligence. The complaint also included an allega- tion of misrepresentation. The plaintiff sought compensation for the decedent’s pain and suffering and for his death, which she alleged was the result of his smoking defendants’ cigarettes. * Liggett and Philip Morris are well-known tobacco companies. Loews, originally an entertainment company but now a conglomerate, manufactures True Cigarettes. C-6 B. The Initial Protective Order The district court ordered discovery in both cases under the supervision of a federal magistrate. 28 U.S.C. § 636(b)(1)(A) (1982). Discovery proceeded until March 1985, and a large number of documents were produced by the defendants for in- spection pursuant to Fed.R.Civ.P. 34. On that date, the defen- dants moved for an “umbrella” protective order. The defendants argued that such an order would facilitate the discovery pro- cess by reducing the r-imber of occasions for lawyers’ con- ferences and discussions about the confidentiality of particular documents. Defendants also argued that they had good cause for the protective order under Fed.R.Civ.P. 26(c)* and that the closely analogous Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984), permitted a protective order in this case. Plaintiffs objected to the defendants’ proposal, countering that the defendants’ real purpose was to make it im- possible for plaintiffs in other suits against the cigarette com- panies to share information gathered from the defendants. The defendants’ strategy, said plaintiffs, was to raise the expense of litigation for future plaintiffs, thus making the cost of suits prohibitive. ’ The rule reads: Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the follow- ing: (1) that 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 the discovery be limited to certain mat- ters: (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed on- ly 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.... C-7 After hearing the matter, the magistrate found for defendants. On March 25, 1985, he entered identical protective orders in both cases. The crucial aspects of the protective orders may be summarized as follows: (a) “all information” produced in discovery, presumably confidential and non-confidential alike, could be used only for the instant cases and not for other cases or other purposes; (b) the defendants had the responsibility in the first instance of deciding in good faith which of their documents were confidential and marking them accordingly; (c) information marked confidential could be examined as a mat- ter of course by plaintiffs’ lawyer, his associates, and experts retained by plaintiffs or their lawyer for the cases; (d) if plain- tiffs wished to disclose the information to anyone else, they had to inform defendants’ counsel, who then had opportunity to app- ly to the court to prevent that disclosure; and (e) all documents and copies thereof had to be destroyed or returned at the con- clusion of the litigation.* * The relevant portions of the Magistrate’s protective order read as follows: 2. All information produced or exchanged in the course of this civil action or any appeal arising therefrom (the “litigation”) shall be used solely for the purpose of this case. 3. “Confidential information” as used herein means any information which is designated as “confidential” . . . . Information shall be designated as confidential only upon a good-faith belief that the information falls within the scope of confidential information under the Federal Rules of Civil Procedure and the precedents thereto. 6. Confidential information may be inspected only by the following persons: (a) Counsel of record for plaintiff and defendants [and other lawyers employed by plaintiff and defendants for this case]; (b) Experts retained by or on behalf of any party. ... 10. Prior to the disclosure of any confidential information to any per- son, other than outside counsel and their employees or medical experts, the party seeking disclosure shall advise counsel and the Court, in writing, of the name, address and occupation of the person to whom counsel proposes to disclose. . .. Within twenty (20) days after such ad- vice, counsel to whom notice is given may... give written notice to adverse counsel of an application to this Court for an order prohibiting (footnote continued) C-8 C. Plaintiffs’ Appeal to the District Court Plaintiffs appealed the protective order to the district court, arguing that the order violated plaintiffs’ first amendment rights to disseminate the information that they had received through discovery. Plaintiffs relied on Seattle Times, supra, arguing that the defendants and the magistrate had misconstrued the Supreme Court’s holding in that case. They also argued that the defendants had failed to demonstrate good cause as required for a protective order by Fed.R.Civ.P. 26(c). The district court filed a lengthy opinion, covering its scope of review of the magistrate’s decision, the meaning and relevance of Seattle Times, the notion of “good cause” in Fed.R.Civ.P. 26(c), and the proper scope of the protective order. Disposi- tion of the appeal requires that we describe each part of the district court’s opinion in some detail. 1. The District Court’s Scope of Review of the Magistrate's Protective Order Although 28 U.S.C. § 636(b)(1)(A) states that a magistrate’s order is not to be reconsidered unless it is “clearly erroneous or contrary to law,”’ the district court ruled that its standard of review was plenary, relying on Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, the proposed disclosure. No such disclosure shall take place until the Court has acted upoi such application. 13. Within forty-five (45) days after the final adjudication or settle- ment of all claims in this case, counsel for the parties shall either return all documents produced, if so requested by the producing party, or shall destroy such documents. App. at 52-56, 59-63. >’ See also Fed. R.Civ.P. 72(a); General Rule 40 D(4) of the U.S. Dist. Ct. for the Dist. of N.J. See generally United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 2411, 65 L.Ed.2d 424 (1980); Merritt v. International Brotherhood of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. 1981). C-9 80 L.Ed.2d 502 (1984), which held that an appellate court has plenary review over the finding of actual malice in libel cases. See Dist.Ct.Op. at Al7-A18.° 2. The District Court’s Analysis of Seattle Times The district court next engaged in a lengthy first anmendment analysis of protective orders in discovery. It reviewed the con- flicting approaches of the circuit courts prior to Seattle Times’ and then observed that Seattle Times had resolved the issue. The court quoted what it believed to be the relevant analysis from that case: The critical question that this case presents is whether a litigant’s freedom comprehends the right to disseminate information that he has obtained pur- suant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In address- ing that question it is necessary to consider whether the “practice in question [furthers] an important or substantial governmental interest” and whether “the limitation of First Amendment freedoms [is] no greater than is necessary to the protection of the *28 U.S.C. § 636(b)(1)(B) also allows a district judge to designate a magistrate to submit to the court a report containing proposed findings of fact and recom- mendations for disposition. The court reviews de novo any portions of the report to which parties object. Jd. The parties in this case agree that the magistrate was acting pursuant to § 636(b)(1)(A). ’ One court required a showing of serious harm in the absence of a protective order and a demonstration that the proposed protective order would be the least restrictive means possible for avoiding the harm. See In re Halkin, 598 F.2d 176, 191-96 (D.C.Cir.1979). Another court held that the first amend- ment did not affect a court’s authority to issue a protective order. See Inter- national Products Corp. v. Koons, 325 F.2d 403, 407-08 (2d Cir.1963). A third court took a middle course, applying a balancing test that includes the magnitude of the threatened harm in the absence of a protective order, the breadth of the order, and the order’s probable effectiveness. See In re San Juan Star Co., 662 F.2d 108 (1st Cir.1981). C-10 particular governmental interest involved.” Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). 104 S.Ct. at 2207 (quoted in Dist.Ct.Op. at A21-A22). The district court believed the passage established that, when a case involves matters of substantial public interest, a protec- tive order implicates first amendment concerns and some con- stitutional analysis is required. Dist.Ct.Op. at A24-A25. The district court went further, explicitly analogizing the case before it to Seattle Times and holding that the same constitutional in- quiry was appropriate in both cases: “It therefore remained there, and remains here, to decide only whether the protective orders at issue limited first amendment freedoms more than necessary or essential to protect the governmental interests fur- thered by Rule 26(c).” Dist.Ct.Op. at A22. The court did note one point of confusion about Seattle Times that is relevant to our discussion below. Despite the Supreme Court’s apparent endorsement in the above passage of a least restrictive means analysis, its holding subsumes a different analysis entirely. The district court quoted that holding in full: We therefore hold that where, as in this case, a pro- tective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment. 104 S.Ct. at 2209-10 (footnote omitted) (quoted in Dist.Ct.Op. at A22-A23). As the district court noted, this explicit holding appears to exclude any first amendment analysis from the deci- sion about whether a court should issue a protective order; that is, it implies that “if a protective order passes muster under Rule 26(c), it must, of necessity, be constitutional.” Dist.Ct.Op. at A24. However, the analytical passage quoted earlier, see supra pp. 1113-14, implies that a court must apply a least restrictive alternative test to all proposed protective orders. Although it noted this apparent contradiction, the district court did not C-11 resolve it explicitly, apparently assuming that Seattle Times im- posed a least restrictive alternative test and that the test had to be read into the holding. See Dist.Ct.Op. at 24-25; see generally infra part IV (discussing the district court’s first amendment analysis).° 3. The District Court’s Findings on Good Cause The district court noted that the party seeking the protec- tive order bore the burden of proving that there was good cause for such an order. It also observed that a protective order could issue only upon a showing that disclosure would result in “clearly defined and serious injury.” Dist. Ct.Op. at A26. Although early in its opinion the court suggested that there could be good cause only for revelation of technical information that might hurt one of the defendants’ competitive positions,® the court later made it clear, as the caselaw has established, that lesser concerns, in- cluding “embarrassment,” might constitute good cause for a pro- tective order. Dist.Ct.Op. at A32 n. 8." * The district court may have been motivated to make this assumption by its perception that a protective order would favor the economically powerful defendants and prevent the public and the relatively impecunious plaintiffs from gaining access to material in which there was an enormous public in- terest. See id. at All (“The court cannot ignore the might and power of the tobacco industry and its ability to resist the individual claims asserted against it and its individual members.”) * The court wrote that {djefendants [are] entitled to protection from the disclosure of matters which are truly secret, where disclosure thereof will affect the opera- tion of their business, but not their potential liability. Formulae, marketing strategy, and other matters whose disclosure would affect defendants with their respective competitors or in conjunction with the day-to-day operation of their business are entitled to protection. Al0-Al1l1. © Rule 26(c) protects parties from a broad range of troubles: “annoyance, embarrassment, oppression, or undue burden or expense.” Consistent with the spirit of the Rule, courts have he!d that a showing of harm to nonbusiness interests may constitute a good cause. See, e.g., Krause v. Rhodes, 671 (footnote continued) C-12 After discussing these broad legal issues, the court turned to the particular facts before it, and found that neither the magistrate’s opinion nor the submissions of the defendants sus- tained the burden of justifying the protective order. It found that “the reasons asserted are quite conclusory,” id. at A28, and that defendants’ suggestion that the magistrate’s protective order would ‘streamline the litigation’ was not sufficient to carry the evidentiary burden. Id. 4. The Scope of Confidentiality As noted above, the magistrate’s order applied to all infor- mation produced during discovery. See supra p. 11; Magistrate's Order 42, supra note 4. The district court criticized this ap- proach, stating that non-confidential maierial was, by defini- tion, information for which no Rule 26(c) good cause had been shown and that therefore no protective order should protect such material. Dist.Ct.Op. at A29. The district court also criticized the portion of the magistrate’s order that had prohibited the use in any other case of the materials produced in this case’s discovery. The district court said that the prohibition “undermine[d] the purpose of the Federal Rules of Civil Procedure ‘to secure the just, speedy, and inexpensive determination of every action.”” Dist.Ct.Op. at A34 (quoting Fed.R.Civ.P. 1)(footnote omitted). Additionally, the court noted that prohibiting the use of materials from one case in other cases would burden both the plaintiffs and the defendant: There may be some claimants who do not have the resources. ..to pursue the thorough investigation which these cases require. To require that each and F.2d 212 (6th Cir.) (government's interest in conducting thorough and con- fidential investigations is ground for a protective order), cert. denied, 459 U.S. 823, 103 S.Ct. 54, 74 L.Ed.2d 59 (1982) Galella v. Onassis, 487 F.2d 986 (2d Cir.1973)(protection of public figure from physical and emotional harassment). The Supreme Court has expressly stated that Rule 26(c) pro- tects privacy interests. Seattle Times, supra, 104 S.Ct. at 2208 n. 21. C-13 every plaintiff go through the identical, lone [sic] and expensive process would be ludicrous. Even from the point of view of the defendants (though they resist), it would seem that they would benefit by avoiding repetition of the same discovery in each and every case. Id. at All. 5. The District Court’s Amendment to the Protective Order The district court amended the magistrate’s protective order in light of its conclusions as outlined above. The court’s amend- ments were as follows: (a) whereas the magistrate’s protective order had limited the use of all materials produced in discovery, the amended protective order would apply only to confiden- tial materials and would not restrict the use of nonconfidential materials; (b) rather than making defendants’ good faith the only limitation on their freedom to designate documents con- fidential, and forcing the plaintiffs to challenge the designa- tion subject thereafter to rulings by the Court, the amended order required the defendants to demonstrate in a document- by-document showing to the court that each document they believed to be confidential was so in fact; the advantage of this system, the court explained, was that it “does not allow misuse of the confidentiality designation and places the burden of pro- ving such confidentiality squarely upon defendants, as required by Rule 26(c) and the first amendment,” id. at A29-A30; (c) although the court agreed that confidential information could not be released to the public, its order differed from the magistrate’s in that the court’s order allowed plaintiffs’ counsel to use any and all confidential materials in cases in which he was a participant, id. at A32; and (d) the amended order eliminated entirely the provision requiring counsel to return or destroy all documents produced in discovery; this was done vir- tually without discussion, because defendants had not opposed plaintiffs’ motion to eliminate the provision." '' The relevant portions of the district court’s protective order read as follows . (all parts of the district court’s order that were not part of the magistrate’s (footnote continued) C-14 The defendants immediately moved the district court for a stay of its own protective order. The district court granted a stay conditioned on defendants’ instituting proceedings in the court of appeals, which they did promptly. We granted a fur- ther stay pending disposition of the appeal, having been inform- ed that apnellees had scheduled a press conference for the mor- ning following expiration of the stay and that they would, at that time, release to the public all the documents obtained in discovery. Il. COLLATERAL APPEALABILITY [1] Discovery orders, being interlocutory, are not normally appealable. See Borden Co. v. Sylk, 410 F.2d 843, 845 (3d Cir.1969); 8 C. Wright & A. Miller, Federal Practice and Pro- cedure: Civil § 2006 at 29 (1970 & Supp. 1985). The first issue before us, therefore, is whether we have appellate jurisdiction. The defendants make two arguments in favor of appellate jurisdiction. First, they assert that the district court's protec- tive order is a collateral order appealable under the rule of order are italicized; all parts of the magistrate’s order that the district court omitted are i square brackets; unchanged portions are unmarked): 2. All “confidential” information produced by defendants (or exchanged] in the course of this civil action or any appeal arising therefrom (the “ligitation”) may be used in all cases in which plain- tiffs’ counsel in this action are counsel of record {shall be used for the purpose of this case]. 3. “Confidential information” as used herein means any docu- ment [information] which is found by the court or agreed by the parties to be [designated] “confidential”. . . . Information shall be designated as “claimed confidential” only upon the good faith belief that the information falls within the scope of confidential information under the Federal Rules of Civil Procedure and the precedents thereto. If defendants claim that a particular docu- ment is confidential, it shall be the defendants’ burden to bring a motion before the court to determine whether the document in question is a confidential document under the Federal Rules of Civil Procedure and the precedents thereto. Failure of defen- dants to bring such a motion within ten days of advising plaintiffs’ (footnote continued) C-15 Cohen v. Beneficial Industrial Loan Corp. , 337 U.S. 541 (1949). In the alternative, they argue that this court should exercise its statutory power of mandamus, 28 U.S.C. § 1651 (1982), to review the order. We consider collateral appealability here and the mandamus argument in part III infra." Title 28 U.S.C. § 1291 (1982) provides that courts of appeals may review only “final” decisions of the district courts. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court established a narrow exception to the rule of finality. Cohen counsel of any claim of confidentiality shall constitute a waiver of any claim of confidentiality as to the document in question and permit removal of the claim of confidentiality. Should the court determine that the defendants have misused the “claimed confidential” designation, it will consider awards of costs including counsel fees incurred as a result of the misuse of said designation. 5. Confidential information may be inspected only by the following persons: (a) Counsel of record for the plaintiff and defendants in this or other litigation, any lawyers specifically employed by them in connection with this or other litigation and any employee of such counsel assisting with this or other litigation: (b) Experts retained by or on behalf of any party to provide assistance or testimony in connection with this litigation. 9. Prior to the d [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0961%3A2. Public record. Not legal advice.