
USCA1 Opinion

	




          March 24, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________        No. 92-1115        No. 92-1116                             RICHARD AND ANITA POLIQUIN,                                Plaintiffs-Appellants,                                          v.                                  GARDEN WAY, INC.,                                 Defendant-Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                         Torruella and Boudin, Circuit Judges,                                               ______________                             and Keeton,* District Judge.                                          ______________                                 ____________________            Maurice  A. Libner  with whom  Marcia J.  Cleveland  and McTeague,            __________________             ____________________      ________        Higbee, Libner, MacAdam, Case and Watson were on brief for appellants.        ________________________________________            Cheryl  Flax-Davidson  and  Bob  Gibbins  were on  brief  for  The            _____________________       ____________        Association of Trial Lawyers of America, amicus curiae.            Mark L.  Austrian with whom Collier, Shannon, Rill & Scott, Roy E.            _________________           ______________________________  _____        Thompson, Jr.,  Glenn H. Robinson, and Thompson  & Bowie were on brief        ____________    _________________      _________________        for appellee.            James  D. Poliquin, Russell  B. Pierce,  Jr. and  Norman, Hanson &            __________________  _______________________       ________________        DeTroy  were on brief for The Defense Research Institute, Inc., amicus        ______        curiae.                                 ____________________                                    March 24, 1993                                 ____________________        ___________________        *Of the District of Massachusetts, sitting by designation.                 BOUDIN,  Circuit  Judge.   Richard  and  Anita Poliquin,                          ______________            appellants in  this  court and  plaintiffs  below,  challenge            protective orders  of the  district court limiting  access to            certain discovery  materials in  this case.   The plaintiffs'            underlying  product liability  claim has  been settled.   The            discovery dispute lives on, consuming the time and  energy of            the courts, largely as  a contest between plaintiffs' counsel            and the defendant-appellee, Garden Way, Inc.  For reasons set            forth  below, we  modify  the  orders  under  review  in  one            important respect and otherwise affirm.                         I. PROCEEDINGS IN THE DISTRICT COURT                 In October  1990, Richard Poliquin was seriously injured            while   operating  the  Super  Tomahawk,  a  chipper/shredder            manufactured by Garden  Way.   He and his  wife brought  suit            against  Garden Way in the district  court, charging that the            injury was due to the defective  design of the product.   The            Poliquins sought  discovery from Garden  Way including design            specifications,  sales  data   and  information  about  other            accidents involving the Super Tomahawk or similar equipment.                 In  response,  Garden  Way  sought  a  protective  order            limiting  disclosure of  answers  and  documents produced  in            response  to  specified discovery  requests.    The Poliquins            resisted.  Garden Way submitted an affidavit from its general            counsel Lucia Miller in support  of its request.    On August            2, 1991, after  a hearing on  discovery issues, a  protective                                         -2-                                         -2-            order was entered  by the magistrate  judge to whom  discover            matters  had been assigned.   The protective  order said that            Garden  Way  did  have  "valuable  trade  secrets  and  other            confidential  information" which were sought in discovery but            should not be  made public.  The  order afforded confidential            treatment to information obtained  through some, but not all,            of the interrogatories  specified by Garden Way, and to other            information that had been the subject of the hearing.                 The  August  2  order   also  created  a  mechanism  for            resolving disputes about new discovery.   It provided that if            Garden Way  produced other  information or documents  that it            deemed  confidential,  it  should  mark them  with  a  legend            showing that they were "confidential" pursuant to court order            in  the case.  If the Poliquins disagreed, they could contest            the designation by motion  within a fixed period, effectively            15  days from  the production  of the  materials.   The order            provided  that it "shall  not terminate at  the conclusion of            this  action" and  within 90  days after the  conclusion, all            information and documents   subject  to the  order "shall  be            destroyed"  and  a  certificate of  destruction  provided  by            counsel.                 The  Poliquins  appealed  the  August  2  order  to  the            district judge  who affirmed  it as "not  clearly erroneous."            An   appeal  to  this  court  was   taken  but  dismissed  as            interlocutory.    The  interrogatory  answers  and  documents                                         -3-                                         -3-            provided by Garden Way under the  protective order listed the            names of other  persons who  had been injured  by Garden  Way            equipment and  included a  number of complaints  such persons            had  filed  in  other  suits.    The  Poliquins  later   took            depositions  (under  Fed.   R.  Civ.  P.  31)   of  23  other            individuals  who had suffered such accidents,  as well as the            videotaped deposition  of Jay  Sluiter, a former  employee of            Garden Way.  The  protective order provided that confidential            information   within  a  deposition   transcript  was  to  be            designated by underlining the  lines in question and stamping            the  pages "confidential."  It  is not clear  that Garden Way            did so in each instance.                 A pretrial hearing  occurred on October  24, 1991.   The            district judge  ruled that the  Poliquins were free  to offer            information  and documents  at  trial even  if they  had been            designated as  confidential  during discovery.   During  this            colloquy, plaintiffs' counsel suggested that material offered            in evidence  would be freed  from further restriction,  so he            could send such material to other  plaintiffs who had similar            cases.   Defense  counsel disagreed  and concluded  by saying            that when trial is  over "I will request that  those exhibits            be returned."  The court replied:  "Correct. . . .   When the            trial is over, whatever rights you have  . . . to control the            further dissemination of the material, you can invoke."                                           -4-                                         -4-                 Trial  began  on October  28, 1991.   During  trial, the            court  permitted the Poliquins' counsel to read to the jury a            portion  of Garden  Way's interrogatory  answers--relating to            certain   of  the   other  accidents  involving   Garden  Way            equipment--but  it did  not allow  the  written interrogatory            answers  themselves to  be offered  as exhibits  and excluded            information  about many  of the  other accidents  altogether.            None  of the Rule 31 depositions of other injured persons was            admitted or read  to the  jury, the court  excluding them  as            prejudicial  and of little value.  A videotape of the Sluiter            deposition was shown to the jury in its entirety.                 During trial, the parties agreed to settle the case, and            the jury  was discharged.  Thereafter, on  November 13, 1991,            defense counsel  wrote to the Poliquins'  counsel listing 214            items  claimed to  be  covered by  the protective  order, and            requesting that the listed material be returned or destroyed.            Some of the 214  items had not previously been  designated as            confidential.   Included in  the list  were  portions of  the            trial record.  It appears that the Poliquins' counsel did not            immediately reply.                 On November 18, 1991, plaintiffs executed a "release and            indemnity  agreement" and  received a  check.   The agreement            stated that "[r]eleasors and their attorney  acknowledge that            they  are  still  bound  by  the  terms  of  the  [August  2]            Protective  Order" as  to disclosure of  protected materials.                                         -5-                                         -5-            In  a signed  addendum, the  Poliquins' counsel  approved the            agreement and "acknowledge[d] continuing applicability of the            Protective Order and agree[d] to  comply with the portions of            this  agreement which  apply to him."   The  counsel "further            agree[d]"  that he  would instruct  any expert  or consultant            shown  confidential material  not  to disseminate  it and  to            return all  documents or  other written materials  to defense            counsel.  On November 27,  1991, the district court  formally            dismissed the case.                 Shortly   before   the  dismissal,   the   Poliquins  on            November 25, 1991,  filed  a  motion  "for  determination  of            confidentiality" asking  the court to  rule that a  number of            items  listed in  the  November  13,  1991, letter  were  not            subject to  any confidentiality  restriction.   The Poliquins            argued that their counsel had independently learned the names            of  seven  injury  victims  before  the interrogatories  were            answered;  that any  information  admitted into  evidence  at            trial,   (e.g.,  the   Sluiter  deposition)  should   not  be                      ___            protected; that it would be wasteful  of resources to protect            the unadmitted Rule 31 depositions of victims; and that court            complaints filed in other cases, although furnished by Garden            Way  in  discovery and  not  admitted at  trial,  were public            documents.                 Garden Way  opposed the motion  and asked  the court  to            seal  pendente  lite  confidential  material  to  the  extent                  ______________                                         -6-                                         -6-            contained in the court's file.  By endorsements, the district            judge  on December 10, 1991, granted Garden Way's request and            denied the Poliquins' motion.  Then, on January 17, 1992, the            district  court on  further  review of  Garden Way's  request            directed  that material  subject to  the August  2 protective            order  be removed from the  court file by  counsel for Garden            Way and the  court then sealed  "all testimony and  arguments            made during  the  trial dealing  with the  matters which  are            subject to"  the August 2  order, unless and  until otherwise            ordered by the court.                 The Poliquins  appealed to this court  both the December            10,  1991, order denying its motion and the January 17, 1992,            order  sealing in  part the  trial record.   An  amicus brief            supporting them  has been filed  by the Association  of Trial            Lawyers  of America and another in  opposition by the Defense            Research Institute, Inc.  There is no hint that the Poliquins            themselves have any practical interest in the  outcome of the            appeal, but as they are formally subject to protective orders            entered in their  case, we  see no lack  of standing to  seek            appellate review.                                II.  THRESHOLD ISSUES                 At the  outset, we  face  arguments on  both sides  that            important issues have been waived  or relinquished.  To raise            an  issue on appeal, a litigant must generally show the issue            was  raised in  the  trial  court  by  a  proper  request  or                                         -7-                                         -7-            objection  and  that  the right  ground  for  the request  or            objection  was given at the  time.  See  generally Clauson v.                                                ___  _________ _______            Smith, 823 F.2d  660, 666 (1st Cir.  1987) (collecting waiver            _____            cases).    Even  then,  a  mistake  in  the  ruling  will  be            disregarded unless prejudice resulted  from the error.  E.g.,                                                                    ___            Fed. R. Evid. 103(a).  Finally, nothing prevents a party from            consenting  by  stipulation  or  contract  not  to  pursue  a            specific issue on appellate review.                   The reason for  the rules  is not that  litigation is  a            game,  like golf, with arbitrary  rules to test  the skill of            the players.   Rather,  litigation is a  "winnowing process,"            Howell v. Federal  Deposit Ins. Corp., No.  92-1542, slip op.            ______    __________________________            at  15 (1st  Cir.  Feb. 17,  1993),  and the  procedures  for            preserving or  waiving issues  are part  of the  machinery by            which courts narrow what  remains to be decided.   If lawyers            could  pursue on  appeal  issues not  properly raised  below,            there would be  little incentive  to get it  right the  first            time and no end  of retrials.   Thus, while there are  escape            hatches--"plain error," "miscarriage  of justice," and  other            rubrics--an  argument not  properly  preserved  in the  trial            court is normally unavailable on appeal.                 Garden  Way argues  that  in the  release the  Poliquins            agreed to be "bound" by the August 2 protective order, and so            have  relinquished their  right  to challenge  the protective            order on appeal.  The argument may have more force as to some                                         -8-                                         -8-            of  the   information  in  dispute  (e.g.,   the  answers  to                                                 ___            specifically protected interrogatories) and less as  to other            items (anything  arguably "added" by  Garden Way's post-trial            letter to previously protected information).  But we need not            resolve  the   matter  because   Garden  Way  made   no  such            relinquishment argument to the district court when it opposed            the Poliquins' motion to determine confidentiality.                 Although appellate  courts  have discretion  to  resolve            issues  waived or  abandoned at  trial, Clauson, 823  F.2d at                                                    _______            666, this is and  should be uncommon, especially  where facts            pertinent to  the issue  are not  in the  record.   Here, the            import of the release is less clear than Garden Way suggests.            The release states that the Poliquins are "still bound by the            terms" of  the August 2 protective  order, but it is  open to            argument whether  "the terms" apply  to all  of the  disputed            material.   The parties'  intentions might be  illuminated by            facts  incident  to the  negotiations,  but  those facts  are            absent.    In all  events, we  conclude  that Garden  Way has            itself waived the right  to argue that the release  bars this            appeal.                 Garden Way next argues  that the Poliquins cannot attack            the protective order because they failed to file an affidavit            of their own in  opposition to the original request  for that            order.  We think it plain that the Poliquins, having made and            pursued a timely  objection to the August 2 order,   are free                                         -9-                                         -9-            to  argue that the order was  itself unlawful ab initio.  The                                                          __ ______            burden of showing cause for the order was upon Garden Way and            the Poliquins can argue that the  burden was not met (or that            the order was overbroad) without offering affidavits of their            own.                 Finally,  turning the  tables, the  Poliquins themselves            contend that Garden Way  lost the protection of the  August 2            order as to various depositions because they  were not marked            "confidential"  and  underlined  as  required  by the  order.            Garden  Way  says in  reply  that some  depositions  were not            received until  the midst of trial,  delaying the designation            process.  The facts  are obscure but need not  be determined.            The Poliquins'  waiver argument was not made  in their motion            for  a determination  of  confidentiality  or the  supporting            memorandum.  Accordingly, this fact-bound  argument is itself            unavailable on appeal.                                   III.  THE MERITS                 The August  2 Order.  Protective orders of various kinds                 ___________________            are employed in civil cases, ranging from true blanket orders            (everything is tentatively protected until otherwise ordered)            to  very  narrow  ones   limiting  access  only  to  specific            information after a specific finding of need.  See  generally                                                           ___  _________            Francis H. Hare, Jr.,  James L. Gilbert & William  H. ReMine,            Confidentiality  Orders,     4.10  (1988).    The  magistrate            _______________________            judge's order in this  case fell between these poles:  it was                                         -10-                                         -10-            based  on  an affidavit  cast  in broad  terms;  it protected            specific  interrogatory answers;  and it  set up  a mechanism            allowing  Garden   Way  to  designate   further  confidential            material subject to objection by the Poliquins.                   District   judges  need   wide  latitude   in  designing            protective orders,  and the Federal Rules  of Civil Procedure            reflect that  approach.   Rule 26(c) generously  permits "for            good cause  shown"  the making  of "any  order which  justice            requires"  to  protect  against annoyance,  embarrassment  or            undue burden occasioned by discovery.  The district court has            "broad  discretion" to  decide  "when a  protective order  is            appropriate  and what  degree  of  protection  is  required,"            Seattle Times Co. v.  Rhinehart, 467 U.S. 20, 36  (1984), and            ________________      _________            great deference is shown to the district judge in framing and            administering such orders.   Public Citizen v. Liggett Group,                                         ______________    ______________            Inc.,  858 F.2d 775, 790  (1st Cir. 1988),  cert. denied, 488            ___                                         ____________            U.S. 1030 (1989);  8 Charles  A. Wright &  Arthur R.  Miller,            Federal Practice and Procedure   2036 (1970).            ______________________________                 Here, we have  no doubt  that the  magistrate judge  was            entitled to enter the August 2 order.  Some trial judges take            a stricter view  of the showing needed  to protect discovery.            But, in coping with the torrent of material often  discovered            but never  used at trial,  other judges require  some general            showing by affidavit and then protect materials designated by            one side,  subject to challenge by  the other.  Apart  from a                                         -11-                                         -11-            few aspersions on the Garden Way  affidavit, the Poliquins do            not seriously renew their prior attack on the original August            2 order.   To the  extent they do  so, we reject  that claim,            finding the Miller affidavit adequate to support the original            protective order.                 This conclusion, however, does not even begin to dispose            of the case.   The Poliquins' main attack  is directed not to            the  August  2  order of  the  magistrate  judge  but to  the            protection afforded or reaffirmed under the  district judge's            own ancillary orders  of December 10,  1990, and January  17,            1991.    These  orders  rejected the  Poliquins'  request  to            release (1) the Sluiter  deposition and certain excerpts from            interrogatory answers (read into  evidence at trial) relating            to  other accidents,  (2) court  complaints filed  by certain            victims (which were not  admitted at trial), and (3)  and the            Rule  31  depositions of  victims  (which  likewise were  not            admitted at trial).1                 Admitted  Evidence.   Among the  items protected  by the                 __________________            district  court's  orders  are materials  that  were actually                                            ____________________                 1These latter orders were  issued after the dismissal of            the case, and under  Public Citizen, 858 F.2d at  781-82, the                                 ______________            district  court   could  not   after  dismissal   expand  the            protective order  to create new obligations.   Examining this            "juris-dictional" issue  sua sponte, we find  that the orders                                     __________            in question represent in  part a declaration of the  scope of            the existing August 2 order as  applied to disputed materials            and in part a refusal to remove prior protection.   Thus, the            orders were within the district court's continuing  authority            over previously issued orders.                                         -12-                                         -12-            admitted into evidence at trial: the videotape of the Sluiter            deposition  and   excerpts   read  into   the   record   from            interrogatory answers  describing other accidents.   There is            no  issue of waiver here,  for (as earlier  noted) Garden Way            made clear  its desire to  enforce the protective  order even            for  material  admitted  at  trial, and  the  district  court            reserved decision on  the matter.  We conclude, however, that            only  the  most  compelling  showing can  justify  post-trial            restriction on disclosure of testimony or  documents actually            introduced  at trial.  That showing has not been made in this            case.                 We have  no doubt that, in  rare circumstances, material            introduced  at trial  can be  safeguarded against  disclosure            afterwards.  See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12                         ___ ________    ____________            (1st  Cir. 1986).  Material of many different kinds may enter            the trial record  in various  ways and be  considered by  the            judge or jury  for various  purposes.  The  subject could  be            national security, the formula for Coca Cola, or embarrassing            details  of private life.  The evidence might be offered only            at the  bench and  the transcript immediately  sealed, or  it            might be provided in a closed hearing, or it might be offered            in public but be hard to  replicate without a transcript.  It            is neither wise nor needful for this court to fashion a rule-            book to govern the range of possibilities.                                         -13-                                         -13-                 One  generalization,  however,  is  safe:  the  ordinary            showing  of good cause which is adequate to protect discovery                                                                _________            material from disclosure cannot alone justify protecting such            ________            material  after  it  has  been  introduced  at  trial.   This            dividing line may in some measure be an arbitrary one, but it            accords with long-settled practice in this country separating            the  presumptively  private  phase  of  litigation  from  the            presumptively public.  See Cowley v. Pulsifer,  137 Mass. 392                                   ___ ______    ________            (1884) (Holmes, J.).  Open trials protect not only the rights            of individuals, but  also the confidence  of the public  that            justice is being done by its  courts in all matters, civil as            well as  criminal.  See  Seattle Times  Co., 467  U.S. at  33                                ___  _________________            (distinguishing   discovery   material,   traditionally   not            available to  the public, from trial  evidence which normally            is available).                   There is thus  an abiding presumption of access to trial            records and ample reason to "distinguish materials  submitted            into evidence  from the raw fruits of discovery."  Littlejohn                                                               __________            v.  BIC Corp., 851 F.2d 673, 678,  684 & n.28 (3d Cir. 1988).                ________            As  we  have said  elsewhere,  "`[o]nly  the most  compelling            reasons can justify the non-disclosure of judicial records.'"            FTC v. Standard Financial Management Corp., 830 F.2d 404, 410            ___    __________________________________            (1st Cir.  1987) (quoting In re  Knoxville News-Sentinal Co.,                                      _________________________________            723 F.2d  470, 476 (6th Cir.  1983)).  Accord,  Joy v. North,                                                   ______   ___    _____            692 F.2d 880, 893-94 (2d Cir. 1982).  In this case, there are                                         -14-                                         -14-            no  separate findings  by the  district court  explaining the            need for post-trial  protection of trial evidence.   While in            some cases  "compelling reasons"  might be apparent  from the            record, that is not so here.                 Considering first  the description of other accidents in            the interrogatory responses, we believe no basis exists for a            finding  of "compelling  reasons."   Garden Way's  reason for            protection of  such  incidents is  set  forth in  the  Miller            affidavit.   It  amounts to  a garden-variety claim  that the            company's image  among customers will be  damaged through the            misuse  or distortion of those accident claims.  In our view,            this  threat  may be  adequate  as  a ground  for  protecting            discovery  material;2   but  it  is  outweighed,   after  the            material is introduced in  evidence, by the public's interest            in access to trial records.  See Littlejohn, 851 F.2d at 685.                                         ___ __________                 Trials after  all  commonly generate  bad publicity  for            defendants.  Specific pieces of evidence are  only details of            a larger  picture, often a  very disparaging one,  created by            reports of  the case  in the  press.   This publicity may  be            unfair or distorted,  but the  injury is the  price paid  for            open  trials.   At  least  in  the absence  of  extraordinary                                            ____________________                 2Some   courts   have   questioned   whether   corporate            reputation warrants  protection at  all under Rule  26, e.g.,                                                                    ___            Smith v.  BIC Corp., 869  F.2d 194  (3d Cir. 1989).   In  our            _____     ________            view, so long  as the protective  order permits the  opposing            litigant  to reach  the  material--and use  it  as needed  at            trial--it is hard to see why the district court should not be            allowed to safeguard reputation.                                         -15-                                         -15-            circumstances,  commercial embarrassment is not a "compelling            reason"  to  seal  a trial  record.    We  have examined  the            interrogatory answer excerpts at issue  in this case and find            nothing to alter our judgment.                 The  videotape of  the  Sluiter  deposition  presents  a            different problem  because Garden  Way, in arguing  about its            confidentiality, made  a proffer  which goes  somewhat beyond            claims of embarrassment.  Garden Way said that the deposition                      deal[s] with the  internal procedures  by                      which  Garden  Way  evaluates a  product,                      market  tests   products  and  ultimately                      purchases  the product  for incorporation                      into  its  product  line.     [Sluiter's]                      testimony and exhibits  deal with  Garden                      Way's   specific    business   plan   for                      shredders, business plans for other types                      of power equipment,  as well as  customer                      profile    information.       All    this                      information  is  highly confidential  and                      proprietary . . . .            Needless to  say, these  assertions, no matter  how accurate,            could not provide a basis for protecting the entire videotape                                                         ______            of the  deposition after its introduction  into evidence, but            at  most  only  trade  secret or  like  material  of  unusual            importance.                 In any event,  we see no  need for a remand  to consider            any  splicing of the  tape.   After reviewing  the deposition            transcript,  this  court  finds that  the  videotape contains            nothing  remotely comparable  to, say,  the formula  for Coca            Cola or  even  an  important  trade  secret.    Garden  Way's            business  methods are  discussed but  there are  no startling                                         -16-                                         -16-            revelations.    The  disadvantages  of disclosure  relate  to            future litigation, not the  conduct of Garden Way's business.            There  is no "compelling reason" here to restrict access to a            videotape already played in open court.                 We  note  that   a  litigant  like  Garden   Way  has  a            straightforward trial remedy, one apparently not used in this                            _____            case.   At the time  that confidential information is offered            in evidence, the trial judge has ample power to exclude those            portions  that  have  limited  relevance  but  contain  trade            secrets or other highly sensitive information.  Fed. R. Evid.            403.  This approach will not  solve every problem but, to the            extent  it   applies,  it  can  mitigate   harm  without  any            impairment of public access to the trial record.                 Public  Records.    The  Poliquins next  object  to  the                 _______________            protection after trial of copies of civil complaints filed in            other courts against  Garden Way by other accident victims in            other  cases.    None  of these  complaints  was  accepted in            evidence at trial.   Nor  do we understand  the Poliquins  to            claim   that   their   attorney   obtained   the   complaints            independently  of discovery.3   The  issue, then,  is whether                                            ____________________                 3Their attorney  asserts that  he obtained the  names of            seven victims  independently but then secured  the complaints            they had filed from  Garden Way through compulsory discovery.            In our  view this makes the  complaints themselves discovered            material.   Limiting use  of independently obtained  material            would,  of course, raise serious questions as to the scope of            the court's  authority and under  the First  Amendment.   See                                                                      ___            Seattle Times,  467 U.S. at 37;  International Products Corp.            _____________                    ___________________________            v. Koons, 325 F.2d 403, 409 (2d Cir. 1963) (Friendly, J.).                 _____                                         -17-                                         -17-            the character of the complaints as  public records means that            "good cause" cannot  exist for protecting them under  Rule 26            even though  they were obtained by  compulsory discovery from            the party seeking protection.                   At  first blush, it might appear odd to safeguard with a            protective  order  "public"  documents  that  anyone  in  the            country can secure  by visiting a government office and using            the  copying machine.   Yet, one can  easily imagine "public"            archival  material   where  difficulties  of   discovery  and            assembly represent  a significant investment  by the original            finder and  a  barrier to  easy  replication.   Indeed,  most            "trade secrets"  are duplicable with enough  time and effort.            The futility of protecting a "public" document might persuade            a  court  to deny  protection.   But we  see  no basis  for a            blanket rule  forbidding Rule 26 protection  in all instances            where the  "public"  document is  obtained through  discovery            under an otherwise justified protective order.                 The  "public" character  of the  complaints is  the only            reason given by the  Poliquins for ordering their disclosure.            We  therefore   have  no  reason  to   consider  whether  the            magistrate judge's original inclusion of the complaints under            the  protective order  was error  for any  other reasons.   A            protective order may often specify categories  of information            for protection  without document by document  review, and the                                         -18-                                         -18-            design of the order is in any event largely  within the trial            court's discretion.                   The  Rule 31  Depositions.   The remaining  documents in                 _________________________            dispute are the  Rule 31 depositions  of 23 accident  victims            not admitted into  evidence at trial.  The issue before us is            narrow.   The  Poliquins, as  we have  said, have  waived any            claim  that protection  for  the depositions  was not  timely            sought.    Nor do  the Poliquins assert  that the depositions            must  be  disclosed  in  order  to  advise  the  public,  and            especially  the  authorities,  of  an unknown  danger.    Cf.                                                                      __            Anderson  v.  Cryovac,  Inc.,   805  F.2d  at  8  (permitting            ________      _____________            plaintiffs  to disclose  to government  authorities discovery            information  regarding toxic  chemicals in  the city's  water            supply).  In  this case, nothing prevents  the Poliquins from            advising  the  government  of  their  claim  that  the  Super            Tomahawk is defective.                 The  Poliquins  argue  instead  that  disclosure  of the            depositions is  warranted to  avoid  wasteful duplication  of            discovery  in  other  cases.4   The  argument  has a  surface            appeal in  a  time of  swollen  litigation cost  and  crowded            dockets,  but it looks at  only one element  in the equation.                                            ____________________                 4The Poliquins' counsel also argues that he has invested            $5,000 in taking the depositions and should be free to recoup            his costs  by using  the depositions  in other  suits against            Garden Way.  This  version of events overlooks the  fact that            counsel  was not  doing  private research  but was  using the            court's  compulsory process  to  secure the  information from            deponents compelled to attend and answer.                                           -19-                                         -19-            Absent an immediate  threat to public  health or safety,  the            first concern of the court is with the resolution of the case            at  hand.   Judges have  found in  many cases  that effective            discovery,  with  a  minimum  of  disputes,  is  achieved  by            affording   relatively   generous  protection   to  discovery            material.    Impairing  this  process  has  immediate  costs,            including  the delay of discovery and the cost to the parties            and  the court of resolving objections that would not be made            if a protective order were allowed.                 For these reasons, the  district court under current law            retains  broad  discretion  to  protect  discovery  material,            despite  the  burden  of   re-discovery  imposed  on   future            litigants in  future cases.    There have  been proposals  in            Congress for "sunshine" legislation  to provide public access            to discovery, Court Secrecy:  Hearings Before the Subcomm. on                          _______________________________________________            Courts  and Administrative Procedure  of the Senate Judiciary            _____________________________________________________________            Committee, 100th Cong., 1st Sess. (1990), but  there has also            _________            been strong opposition to these proposals and few states have            adopted  them.    See, e.g.,  Judicial  Conf.  of the  United                              ___  ___            States, Report  of the Federal Courts  Study Committee 102-03                    ______________________________________________            (1990);  Arthur  Miller, Confidentiality,  Protective Orders,                                     ____________________________________            and Public Access to the Courts,  105 Harv. L. Rev. 427, 477-            _______________________________            502 (1991).  In all events, Congress has not altered the law.                 Where the  district court does  protect material  during            discovery,  it is common to  provide, as the magistrate judge                                         -20-                                         -20-            did here,  for post-trial protection including  the return or            destruction  of  protected  material.   In  most  cases,  the            lubricating  effects of  the  protective order  on  pre-trial            discovery would be  lost if the  order expired at the  end of            the  case or were subject  to ready alteration.   See Miller,                                                              ___            supra, at  499-500.   Nevertheless, a protective  order, like            _____            any  ongoing injunction,  is always  subject to  the inherent            power  of the district court to relax or terminate the order,            even after judgment.  Public Citizen, 858 F.2d at 781-82.                                  ______________                 This  retained  power  in the  court  to  alter its  own            ongoing   directives  provides  a  safety  valve  for  public            interest concerns, changed circumstances  or any other  basis            that may  reasonably be offered for later  adjustment.  Where            such a  request is made to  the district judge and  an appeal            thereafter follows, the  standard of review broadly  speaking            is abuse of discretion.  Id. at 790-92.  Nothing in this case                                     __            suggests  that the  district court  abused its  discretion in            refusing to lift the protective order for discovery materials            not introduced at trial.                 The  orders  of  the  district court  under  review  are            modified to  exclude from  their scope  the videotape  of the            ________            Sluiter deposition and  the interrogatory answer excerpts  to            the  extent  read into  evidence,  and  the district  court's            orders are otherwise affirmed.  No costs.                                 ________                                         -21-                                         -21-                      KEETON,   District   Judge    (Dissenting).       I                                ________________            respectfully dissent on the ground that this court is without            jurisdiction to  hear this  appeal, and, in  the alternative,            that the  most we have jurisdiction to  do, and should do, is            to  vacate aspects  of the  district court  orders that  were            beyond the district court's jurisdiction.                           I.  Jurisdiction Over the Appeal                           I.  Jurisdiction Over the Appeal                               ____________________________                      The  briefs filed in  this case by  counsel for the            named  parties  present  issues of  fundamental  significance            concerning the  nature and scope of  protective orders issued            by district courts during pretrial proceedings and concerning            settlements  on  terms  that  leave such  orders  in  effect.            Amicus briefs  (filed on  behalf of separate  associations of            ______            attorneys  who commonly  represent plaintiffs  and defendants            respectively in product liability actions) reflect widespread            interest in the bar.                        The  importance  of  the  issues   underscores  the            importance  of  this court's  sensitivity  to  limits on  its            jurisdiction.  I recognize how pressing  are the interests of            the bar  and  trial judges  in  having clear  guidance  about            important unsettled  issues that are confronted  almost daily            in  the  district  courts.    At  least  equally  compelling,            however,   are  the  interests   underlying  limits   on  our            jurisdictional  authority.   We  must respect  constitutional            constraints  against issuing  advisory opinions when  no live                                         -22-                                         -22-            case or controversy is presented to the court by real parties            in interest.            A.  Interest of the Poliquins            A.  Interest of the Poliquins                _________________________                      As noted  in Part  I  of the  Court's Opinion,  the            Poliquins, nominally the appellants  in this case, received a            check  from Garden Way and executed  a "release and indemnity            agreement"   that   included  a   provision   declaring  that            "[r]eleasors  and  their attorney  acknowledge that  they are            still bound  by the terms of the [August 2] Protective Order"            as to disclosure of  protected materials.  The  record before            us strongly suggests that Garden Way may have been influenced            to  make a higher cash  offer for this  settlement than would            have been made in return  for a release that did  not include            the provision binding the Poliquins and their attorney by the            terms of the  protective order.   Also, viewed  in the  light            most  favorable  to an  argument  that the  Poliquins  have a            legally  protected  interest at  stake  in  this appeal,  the            record  fails to show that they have any tangible interest in            the  outcome of this appeal  (if indeed it  does not strongly            suggest  the contrary).    Also, again  viewing matters  most            favorably to an argument that the Poliquins have an interest,            one may doubt that whatever intangible interest they have  in            the outcome of this appeal is a legally protected interest.                       The  fact that  the Poliquins  are named  as people            subject to  an ongoing protective order  does not demonstrate                                         -23-                                         -23-            that they  have a  legally protected interest  in challenging            that order.  To  whatever extent the interlocutory protective            order survives  after final judgment  (dismissing the  action            after the parties reported  their settlement), it survives as            a  "protective  order"  of  the  court  --  or  perhaps  more            accurately  stated,  as  protective  terms  of  a  settlement            agreement --  only because  the Poliquins and  their attorney            agreed to it.                        The  Poliquins, and  the  attorney who  represented            them in effecting the settlement, are barred by contract from            challenging  the  terms  of   the  order  or  the  settlement            agreement incorporating  those terms.  I  conclude also that,            by  reason  of  this bar,  the  Poliquins  lack  the kind  of            interest that would give  them standing in this court  (or in            the  district court, see Part II below) to challenge the very                                 ___            terms of the "protective  order" to which they had  agreed in            settling the case.                      The  rule that  a party  who settles a  case cannot            thereafter appeal  a court  order entered previously  in that            case is confirmed in precedent and is comprehensive in scope.            Any  case  or  controversy previously  existing  between  the            parties is moot after complete settlement.  See Lake Coal Co.                                                        ___ _____________            v.  Roberts & Schaefer Co., 474 U.S. 120 (1985) (per curiam).                ______________________            Although partial  settlement does not  necessarily bar appeal            of unsettled disputes, see Nixon v. Fitzgerald, 457 U.S. 731,                                   ___ _____    __________                                         -24-                                         -24-            743-44 (1982)  (case not moot after  agreement fixing damages            dependent  on outcome of appeal), when a party enters into an            agreement  encompassing a  specific  issue, no  live case  or            controversy  exists  over that  issue.   See  13A  Charles A.                                                     ___            Wright et  al., Federal Practice  & Procedure  3533.2  at 234                   _______  _____________________________            ("A  partial  settlement moots  the  issues  involved in  the            settlement,  but not those that the parties did not intend to            settle.").  One context in which appeals  have been dismissed            concerns appeal of a  trial court order of remittitur.   Even            when a plaintiff agrees  to a remittitur "under  protest" and            purports  to  reserve  a  "right to  appeal  therefrom,"  the            plaintiff  "may not  appeal from  a remittitur  order he  has            accepted."  Donovan v.  Penn Shipping Co., 429 U.S.  648, 650                        _______     _________________            (1977) (per  curiam) (affirming circuit court's  dismissal of            appeal).                        Here,  the settlement agreement purported to settle            the entire controversy, and the Poliquins specifically agreed            to  abide by the  terms of the  protective order.   Any legal            controversy  between Garden  Way and  the Poliquins  over the            propriety of the protective order, therefore, is moot.                      Because the  legal controversy over  the protective            order was  rendered moot  by  the settlement,  we should  not            decide the important issues argued  before us, whether or not            the  parties  waived  any  jurisdictional  impediment.    See                                                                      ___            DeFunis v. Odegaard,  416 U.S. 312,  316 (1974) (per  curiam)            _______    ________                                         -25-                                         -25-            (determining that in federal courts, a case is not saved from            mootness by "great public  interest in the continuing issues"            even  if that  circumstance  might permit  jurisdiction in  a            state's legal system).   Resolution of  any dispute over  the            protective   order   should   be   resolved   under  contract            principles, and not the  (moot) legal controversies addressed            by the opinion of the Court in this case.  See 13A Charles A.                                                       ___            Wright et al., Federal Practice & Procedure  3533.2 at 233-34                   ______  ____________________________            ("[Q]uestions  arising  out  of  settlements,  [as  well  as]            mootness  questions  should  be  answered  according  to  the            [manifested] intent of the  parties and more general contract            principles.").            B.  Interest of the Poliquins' Attorney            B.  Interest of the Poliquins' Attorney                ___________________________________                      Any interest  the Poliquins'  attorney may  have in            challenging  the terms that both the  Poliquins and he agreed            to as part of  the settlement cannot properly be  asserted in            this appeal as  an interest  of the Poliquins.   Indeed,  any            suggestion to the contrary  is troubling not only because  of            its inconsistency  with precedents,  to be considered  below,            but also because it raises a problem of potential conflict of            interest between the Poliquins and their attorney.                      A  party defendant  may  be willing  to offer  more            cash,  and a party plaintiff may  be willing to accept it, on            condition  that the  terms  of a  protective order  remain in            force  after the settlement.  An attorney, on the other hand,                                         -26-                                         -26-            might  naturally  be  more  or  less  resistant  to  such  an            agreement  than the  client.   The  potential conflict  might            affect   the   attorney-client   relationship   both   during            settlement negotiations and in further proceedings before the            court  after  the final  judgment  of  dismissal.   In  post-            settlement proceedings in this  case, of course, the opposing            attorneys  were formally appearing not  each in his own right            but each for his client or clients.            C.  Real-Party-in-Interest and Constitutional Requirements            C.  Real-Party-in-Interest and Constitutional Requirements                ______________________________________________________                      Federal Rule  of Civil Procedure  17 requires  that            "[e]very action shall be  prosecuted in the name of  the real            party  in interest."   Fed.  R.  Civ. P.  17(a).   It may  be            debatable whether this rule applies to proceedings in a court            of appeals.  See Fed.  R. Civ. P. 1 ("These rules  govern the                         ___            procedure  in the United States district  courts ... with the            exceptions stated in Rule 81.").  See also Fed. R. Civ. P. 81                                              ________            (containing no specific provision regarding  applicability to            proceedings  in a  court of  appeals).   Something akin  to a            real-party-in-interest  requirement  nevertheless applies  to            appeals because  of the constitutional requirement  of a case            or controversy.  See  Diamond v. Charles, 476 U.S.  54 (1986)                             ___  _______    _______            (appellant pediatrician did not have  a judicially cognizable            interest  in defending Illinois  criminal statutes;  only the            State did, and  it did  not appeal; appeal  dismissed).   See                                                                      ___            also Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2137-38            ____ _____    _____________________                                         -27-                                         -27-            (1992) (the "injury in  fact" test requires both injury  to a            cognizable  interest and  a  showing that  the party  seeking            review is among the injured  and would be "directly" affected            by challenged action) (citations omitted).                        Moreover, the Federal Rules of  Appellate Procedure            contain a requirement that a "notice of appeal  shall specify            the  party or  parties taking  the appeal,"  Fed. R.  App. P.            3(c), and this requirement has  been rigorously enforced.   A            court of appeals is without jurisdiction to hear an appeal on            behalf of a person  who has not been specified  in the notice            of  appeal as  a  party taking  the appeal.    See Torres  v.                                                           ___ ______            Oakland Scavenger Co., 487  U.S. 312 (1988);  Santos-Martinez            _____________________                         _______________            v. Soto-Santiago, 863 F.2d  174 (1st Cir. 1988).   This court               _____________            has dismissed an appeal  that an attorney sought to  press to            decision  after  the  attorney's  clients   had  settled  all            interests they had in  the appeal.  Pontarelli v.  Stone, 978                                                __________     _____            F.2d 773 (1st Cir. 1992).            D.  Conclusion            D.  Conclusion                __________                      In view of the likelihood, suggested by the record,            that  the only  named  appellants have  no legally  protected            interest at stake in  this appeal, I conclude that  we should            dismiss  this appeal  unless,  within thirty  days from  this            date, a submission is filed with this court showing a factual            and legal basis for a determination that the named appellants                                         -28-                                         -28-            have a legally protected  interest that would be  affected by            the outcome of this appeal.                       II.  Jurisdiction of the District Court                       II.  Jurisdiction of the District Court                            __________________________________                      In  view of  the rejection of  my position  that we            should  dismiss the appeal in this case for want of appellate            jurisdiction,  I turn  next  to considering  limits upon  the            district court's jurisdiction and  the effect of those limits            upon the jurisdiction of this court.                        Once this court determines that it has jurisdiction            of  this appeal for any  purpose, I do  not question that the            court should  at  least  exercise  jurisdiction  to  consider            whether the district court erred in making an order in excess            of  its  jurisdiction.    This court's  jurisdiction  may  be            limited, however,  to authority to  vacate any aspect  of the            orders  of the district court that  the district court lacked            jurisdiction to make.                        If  the district  court,  in either  of its  orders            appealed  from (the  December 10,  1991 and January  17, 1992            orders) made an order  on the merits (for  example, expanding            or narrowing  the scope  of the magistrate  judge's August  2            order), it erred.  The  district court lacked jurisdiction to            enter such  an order in  a closed  case (a final  judgment of            dismissal,  by reason  of a  settlement between  the parties,            having been entered).   See  Part I.A, above.   The  district                                    ___            court's error  in this respect cannot  confer jurisdiction on                                         -29-                                         -29-            the  court of appeals to reverse  in part and affirm in part,            thereby  making a different order on the merits; instead, our            jurisdiction  is limited  to  ordering that,  insofar as  the            district court  orders appealed  from purported to  expand or            otherwise modify the August 2 order, they be vacated for lack            of jurisdiction of the district court to make such orders.                      Just as I  believe it imperative that this court be            sensitive to limits on its jurisdiction over an appeal in the            name of the Poliquins if  they are no longer real parties  in            interest  (for  reasons  explained  in Part  I.C,  above),  I            believe it imperative also  that this court  be  sensitive to            limits on the jurisdiction of the district court to  act on a            motion  made on  behalf of  the Poliquins  in that  court if,            before the motion was  filed, the Poliquins had ceased  to be            real parties in interest.   The fact they are  formally named            as  subject to  the terms  of the  "protective order"  is not            enough  to give them either a practical interest or a legally            protected  interest  to   support  their  motion   seeking  a            modification of a "protective order" to  which they agreed as            part of the settlement.                      In  the  district  court,  Federal  Rule  of  Civil            Procedure  17  was  applicable  without  doubt.    Also,  the            district court was under the same  constitutional constraints            as this court with respect to the jurisdictional necessity of            a  live   case  or  controversy  between   the  parties  (the                                         -30-                                         -30-            Poliquins)  by  whom the  motion  was brought  and  the party            (Garden Way) against which relief was sought.                      A summary  of the  history of the  protective order            includes these steps:                      August  2, 1991.    The magistrate  judge made  the            Protective  Order  at  Garden  Way's  request  and  over  the            Poliquins' opposition.  The  Poliquins appealed this order to            the  district   judge,  who  affirmed  it   as  not  "clearly            erroneous."   An appeal to the court of appeals was dismissed            because the order was interlocutory.                      October 24,  1991.   During a pretrial  hearing, in            response to a  suggestion by plaintiff's attorney  that he be            free  from any  restriction  against  disclosure of  material            offered in evidence at  trial, defendant's attorney disagreed            and stated, "I will request that those exhibits be returned."            The  district court replied:  "Correct....  When the trial is            over,  whatever rights you  have ...  to control  the further            dissemination of the material, you can invoke."                      November  4,  1991.   [This  date  is indicated  in            Defendant's  Memorandum in  Opposition to  Plaintiffs' Motion            for Determination  of Confidentiality at 1  (seven days after            trial commenced on October 28, 1991).]  On this date,  during            trial, the parties  reported to the district  court that they            had settled.  The court discharged the jury.                                           -31-                                         -31-                      November  13,  1991.    Defense  counsel  wrote  to            plaintiffs' counsel  listing 214 items claimed  to be covered            by  the  Protective  Order  and requesting  that  the  listed            material be returned or  destroyed.  Some of these  items had            not previously been designated  as confidential.  This letter            appears not to have been delivered to the court at that time,            but  apparently  it  was  brought to  the  court's  attention            through the Poliquins' motion of November 25, 1991.                        November  18,  1991.    The  Poliquins  executed  a            "release and indemnity agreement" and received  a check.  The            agreement   stated  that  "[r]eleasors   and  their  attorney            acknowledge that they  are still  bound by the  terms of  the            Protective Order"  as to  disclosure of  protected materials.            In    an   addendum,    plaintiffs'   attorney    signed   an            acknowledgement that the agreement was binding on him.                      November 25, 1991.   Two days  before entry of  the            final judgment  of dismissal  and seven days  after executing            the "release and indemnity  agreement," the Poliquins filed a            motion "for determination of confidentiality".                      November  27,  1991.   The  clerk  entered a  final            judgment of  dismissal of  the action.   That  final judgment            made  no  reference to  the  terms of  the  protective order,            either in  its  August  2nd  form or  as  it  may  have  been            interpreted or  modified by the district  court's oral ruling            in the pretrial hearing of October 24, 1991.                                         -32-                                         -32-                      December  5,  1991.     Defense  counsel  sent   to            plaintiffs'  counsel and the court a letter, later treated by            the court  as defendant's  Motion to Seal  Documentation from            its File Until Parties Come to An Agreement.                      December  9,  1991.    Defendant  filed  a  written            memorandum in opposition to the Poliquins' motion of November            25.                      December 10,  1991.   The clerk sent  the following            notice to all counsel:                      Please  take notice that Chief Judge Gene                      Carter has  this date made  the following                      endorsements on the motions listed below:                      (1)  Plaintiffs' Motion for Determination                           ____________________________________                      of  Confidentiality:    "12/10/91  MOTION                      ___________________                      DENIED".                      (2)  Defendant's    Motion     to    Seal                           ____________________________________                      Documentation from its File until Parties                      _________________________________________                      Come to An Agreement (Letter addressed to                      ____________________                      William Brownell dated  December 5,  1991                      from  Roy E. Thompson):  "12/10/91 MOTION                      GRANTED; Counsel to file a proposed final                      order within ten (10) days".            Addendum to Appellants' Brief at 1.                      January 17, 1992.   The court signed and  the clerk            entered   an   "Order   on   Defendant's   Motion   to   Seal            Documentation" as follows:                           After    reviewing    Garden     Way                      Incorporated's   request   to  seal   all                      confidential information contained in the                      Court's file, it  is hereby ordered  that                      all  such  documentation  may be  removed                      from  the  Court's  file  by  counsel for                      Garden    Way    Incorporated.        The                      documentation which  is to be  removed is                                         -33-                                         -33-                      subject to this Court's  Protective Order                      dated August  2, 1991.   In addition  the                      Court   will   seal  all   testimony  and                      arguments made during  the trial  dealing                      with  matters which  are subject  to said                      Protective Order, and any sealed material                      shall not be  reviewed except upon  order                      of this Court.            Id. at 2.              ___                      The  Poliquins filed  notices  of appeal  from  the            December 10, 1991 and January 17, 1992 orders.                      It  is  true  that   Garden  Way's  Memorandum   in            Opposition   to  Plaintiffs'  Motion   for  Determination  of            Confidentiality does not argue  that the district court lacks            jurisdiction to grant plaintiffs' motion.  Instead, it argues            that  the  district  court  should  deny  plaintiffs'  motion            because, after the litigation has                      been  settled,  the  case  dismissed  and                      Plaintiffs   paid,  Plaintiffs'   counsel                      seeks   an   order   from    this   Court                      essentially   reversing   the  Protective                      Order, thereby permitting counsel for the                      Plaintiffs to  disseminate this protected                      information on a nationwide basis.            Defendant's  Memorandum in  Opposition to  Plaintiffs' Motion            for  Determination  of  Confidentiality, 12/9/91,  quoted  in            Addendum to Reply Brief of Appellants, at 17.                        It  is  true also  that  defendant's counsel,  too,            after the  settlement, in effect sought a modification of the            protective order.   First, the letter  of November 13,  1991,            addressed to plaintiffs' counsel, listed 214 items claimed to            be covered  by the  protective order  and requested  that the                                         -34-                                         -34-            listed material be  returned or destroyed.   The record  does            not disclose that  this request  was made to  the court,  but            apparently  it  was  brought  to  the  court's  attention  by            plaintiffs' motion of  November 25,  1991.  In  any event,  a            second  request was made by  letter of December  5, which the            court treated as a motion to seal.                      Even  if the separate requests  to the court by all            parties were treated as a  manifestation of their consent  to            the   court's   exercise    of   jurisdiction   to   consider            modifications of  the protective order, such  a joint request            made  after  the  court  had  entered  a  final  judgment  of            dismissal  cannot confer  jurisdiction  on  a  United  States            district  court contrary  to the  limitations imposed  by the            Constitution and laws of the United States.                      This  point is  reinforced by  the comment  of this            court  when  dismissing  the  appeal  from the  interlocutory            protective order in this case:                      The  fact that the parties may settle the                      litigation    and    thereby    foreclose                      appellate   review   does  not   make  an                      interlocutory      order      immediately                      appealable.            Id. at 17,  quoting the  ORDER OF COURT  entered October  18,            ___            1991.                      In view of this history of the protective order and            the incorporation  into the  settlement agreement of  some or            all of the  terms of the protective order as  they existed at                                         -35-                                         -35-            the  moment of  execution  of the  settlement agreement,  the            record before us  lacks complete clarity about the  extent to            which protective  terms survive as  an order of  the district            court, even though not  incorporated into the final judgment,            or  only as  terms of  the settlement  agreement between  the            partes, or (perhaps by  analogy to a consent decree)  in some            combination of court order and agreement of the parties.                        For  present purposes, nevertheless,  I assume that            the  district court  is  not precluded  from considering  and            ruling  upon any  motion  for enforcement  of the  settlement            agreement.   Also, incident  to such a  motion, the  district            court  may consider  any  request for  interpretation of  the            agreement  and --  should  grounds  be  shown for  doing  so,            consistently with  the law  applicable to  interpretation and            enforcement of  contracts -- may receive  evidence to resolve            any ambiguity in the settlement agreement.                      The motions before the court in this case, however,            as well as the  orders of December  10, 1991 and January  17,            1992, were  focused on proposed modifications  of the court's            protective order  as  an order  of  the court  continuing  in            effect beyond  the execution of the  settlement and dismissal            of the  case.  The  motions were  not viewed by  the parties,            their   attorneys,   or   the   court   as  motions   seeking            interpretation and  enforcement of the  settlement agreement.            In these circumstances, even if we have jurisdiction to treat                                         -36-                                         -36-            the motions in the district court as if they  were motions to            enforce (and  interpret)  the settlement  agreement,  and  to            treat the appeal from the district court's orders as properly            before  us for  consideration on the  merits to  this limited            extent, the more prudent course is not to do so.  Neither the            attorneys  nor the  district  court viewed  the  matter as  a            proceeding to  enforce the  settlement.   Nor has the  matter            been argued  before  us from  this perspective.   The  better            course  is to allow the  contentions of the  parties, and any            evidence relevant to their contentions, to be developed first            before the district court.                      In any event,  exercising jurisdiction over motions            to modify  the protective order of  August 2, 1991  is a very            different matter  from exercising  jurisdiction to  enforce a            settlement agreement.  If the appeal now before us is  not to            be dismissed  for want  of jurisdiction,  I conclude that  we            should (a) vacate the district court's orders of December 10,            1991 and January 17,  1992 insofar as they purport  to modify            and continue in force,  as modified, the protective  order of            August 2,  1992,  and (b)  remand  with directions  that  the            district  court decline  to  exercise  jurisdiction over  any            further  motion by  any  of  the  parties to  the  settlement            agreement,   or  their   attorneys,  seeking   a  substantive            modification of the protective order to which they  agreed as            part of their settlement.                                         -37-                                         -37-
