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 &amp; Scott, Roy E.
                                                                 
Thompson, Jr.,  Glenn H. Robinson, and Thompson  &amp; Bowie were on brief
                                                    
for appellee.
James  D. Poliquin, Russell  B. Pierce,  Jr. and  Norman, Hanson &amp;
                                                                  
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-

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-

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-

     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-

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-

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-

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-

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-

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 &amp; William  H. ReMine,

Confidentiality  Orders,     4.10  (1988).    The  magistrate
                       

judge's order in this  case fell between these poles:  it was

                             -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 &amp;  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-

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-

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-

     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 &amp; 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-

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-

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-

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-

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-

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-

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-

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-

          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
                                               

          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-

case or controversy is presented to the court by real parties

in interest.

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-

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 &amp; 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-

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  &amp; 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-

(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 &amp; 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
                                       

          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-

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
                                                          

          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-

(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
              

          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-

have a legally protected  interest that would be  affected by

the outcome of this appeal.

           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-

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-

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-

          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-

          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-

          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-

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-

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-

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-
