                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-2005

Shingara v. Skiles
Precedential or Non-Precedential: Precedential

Docket No. 05-2376




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"Shingara v. Skiles" (2005). 2005 Decisions. Paper 590.
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                                                   PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                            No. 05-2376


                       JOHN SHINGARA

                                v.

  KATHY A. SKILES, WESLEY R. WAUGH, JAIME KEATING,
          RALPH PERIANDI, ROBERT SANNER

                  Philadelphia Newspapers, Inc.,

                                                   Appellant


          On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                 (D.C. Civil Action No. 04-CV-00621)
     District Judge: Honorable Sylvia H. Rambo, District Judge


                       Argued July 12, 2005

   Before: ALITO, BECKER, and GREENBERG, Circuit Judges.

                     (Filed: August 24, 2005)


Donald A. Bailey (argued)
Bailey & Ostrowski
4311 N. 6th Street
Harrisburg, PA 17110

  Attorneys for John Shingara

Amy B. Ginensky
Michael E. Baughman (argued)
Nory Miller
Alessandro Martuscelli
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103

   Attorneys for Appellant
   Philadelphia Newspapers, Inc.

Thomas W. Corbett, Jr.
Attorney General
J. Bart DeLone (argued)
Senior Deputy Attorney General
Calvin R. Koons
Senior Deputy Attorney General
John G. Knorr, III
Chief Deputy Attorney General
Chief, Appellate Litigation Section
Office of the Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120

   Attorneys for Appellees Kathy A. Skiles,
   Wesley R. Waugh, Ralph Periandi


                       OPINION OF THE COURT


GREENBERG, Circuit Judge.

                           I. INTRODUCTION

        This matter comes on before this court on an appeal by
Philadelphia Newspapers, Inc. (“PNI”) from an order of the district
court denying its motion to vacate a protective order. Though PNI
originally was not a party in this case, it sought to intervene and asked
the court to vacate the protective order which had designated as
confidential “all information” produced during the course of the
action. App. at 14.1 The district court granted PNI’s motion to
intervene but denied its motion to vacate the protective order.


       1
           “App.” refers to the appendix appellant’s attorneys filed.

                                     2
Because the district court erred in denying PNI’s motion to vacate the
protective order, we will reverse the district court’s order to the extent
that it denied that prong of PNI’s motion.

         The facts germane to this appeal are not complex. John
Shingara, an employee of the Pennsylvania State Police, filed this
action under 42 U.S.C. § 1983 against several other employees of the
Pennsylvania State Police (the “defendants”). Shingara alleges that
the defendants retaliated against him for speaking out about allegedly
faulty radar speed detection devices that the State Police used.
Through discovery, Shingara obtained documents related to those
devices. Shingara’s counsel gave some of those documents to PNI
and PNI relied on them in publishing newspaper articles regarding the
allegedly faulty radar devices. After PNI published those articles, the
defendants, at a time when PNI was not yet a party in this case,
without notice to PNI, through an oral motion sought a protective
order from the district court seeking to prevent further disclosure of
discovery documents to the media. On December 14, 2004, the
district court granted the motion and entered the following order:

           1) Defendants’ motion for a protective order is
       GRANTED.

               2) All information, including documents,
       deposition testimony, and other responses to discovery,
       produced or otherwise disclosed by either of the
       parties, including any witness for either of the parties,
       during the course of this action shall be held in
       confidence and shall be used only for purposes of this
       action and shall not be disclosed or made available to
       any persons other than the parties, their attorneys,
       including in-house counsel, persons employed in such
       attorneys’ offices or by such attorneys who are
       assisting counsel in this action, or any independent
       consultant or expert retained or employed for purposes
       of this action by either of the parties or their attorneys.

               3) Should either of the parties find it necessary
       in the preparation or trial of this action to disclose
       information obtained in discovery to any person other
       than a person identified in paragraph 2 above, a notice
       shall be served on the other party fully identifying the
       person to whom disclosure is to be made, together with


                                    3
       a designation of the specific information or documents
       to be disclosed to such person. Any objection to the
       proposed disclosure, and the reasons for the objection,
       shall be stated in writing within ten days of the receipt
       of the notice. If that objection is not resolved by
       agreement, then the matter shall be submitted to this
       court by the party seeking disclosure, and the
       disclosure shall not be made pending this court’s ruling
       as to whether the objection should be sustained.

             4) This order shall not apply to public
       documents.

               5) Both parties shall comply with Local Rule
       83.2.7 and Pa. Rules of Prof’l Conduct R. 3.6.App. at
       14-15.

        As we have indicated, PNI filed a motion to intervene in
Shingara’s action and asked the district court to vacate the protective
order. In response, on April 11, 2005, the district court granted PNI’s
motion to intervene but denied its motion to vacate the protective
order. PNI timely filed a notice of appeal to this court on April 29,
2005, from the April 11, 2005 order to the extent that the court denied
PNI’s motion to vacate the protective order.2



                         II. JURISDICTION

        While we recognize that orders relating to discovery generally
are not final for purposes of appellate jurisdiction, we have
jurisdiction here under 28 U.S.C. § 1291 pursuant to the collateral
order doctrine because: (1) the district court’s order “conclusively
determines the disputed question;” (2) the district court’s order
“resolves an important issue that is completely separate from the
merits of the dispute;” and (3) the district court’s order will be
“effectively unreviewable on appeal from a final judgment.” In re
Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997) (discussing Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221 (1949));
see also In re San Juan Star Co., 662 F.3d 108, 112-13 (1st Cir. 1981).


       2
        No party challenges the April 11, 2005 order insofar as it
granted PNI’s motion to intervene.

                                   4
In this regard it is obvious that the order denying the motion to vacate
the protective order satisfies the first two criteria for finality under the
collateral order doctrine. The possibility that the district court on
motion of a party may reconsider the order with respect to a particular
document is too narrow to reject the conclusion that the court has
determined not to disturb the protective order. In fact, the court set
forth the possibility of focused reconsideration of its protective order
only in the order itself and not in the April 11, 2005 order denying its
vacatur. Furthermore, the designation as confidential of information
produced in the action addresses a matter completely distinct from the
substantive issues in the case.

        The more substantial question relating to the applicability of
the collateral order doctrine is whether the district court’s April 11,
2005 order effectively will be unreviewable on appeal after the entry
of a final judgment. In this regard we note that the district court
recognized in its opinion denying the motion to vacate the protective
order that after the case is resolved the confidentiality restrictions may
be relaxed. In that event an appeal at that time from the April 11,
2005 order might be moot and thus be ineffective. We are convinced,
however, that even if an appeal of the April 11, 2005 order would not
be moot after final judgment, the protective order never will be
effectively appealable unless we entertain PNI’s appeal now. We
have reached this conclusion because in this case a newspaper is being
constrained in its attempt to obtain information so that it can report
the news, and in such a situation time is of the essence.3 See In re San
Juan Star Co., 662 F.2d at 113. After all, nobody wants to read
yesterday’s news.4 Thus, we are satisfied that if we permit PNI to
appeal only after a final judgment, its appeal will be futile either
because the controversy will be moot or PNI, if successful, will obtain
only stale relief.


        3
         We hasten to add that we do not suggest that only a newspaper
could be entitled to appeal on the basis of the collateral order doctrine in
a situation similar to that here. We limit our discussion to newspapers
because only a newspaper seeks relief from the protective order in this
case. If another party sought the same relief the court would have to
address that party’s claim on the basis of the facts surrounding it.
        4
         We recognize that we should be cautious in finding that the
collateral order doctrine justifies the exercise of jurisdiction under 28
U.S.C. § 1291, see Bacher v. Allstate Ins. Co., 211 F.3d 52, 55 (3d Cir.
2000), but we regard our result here as consistent with that approach.

                                     5
                          III. THE MERITS

        On this appeal, our standard of review is clear. Though we
review the grant of a protective order, and thus the denial of a motion
to vacate the protective order, for abuse of discretion, “we exercise
plenary review over the district court’s interpretation and application
of the legal standard for granting or modifying a confidentiality
order.” Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783-84 (3d
Cir. 1994).

         Under Federal Rule of Civil Procedure 26(c), a court “for good
cause shown” may, in certain circumstances, enter a protective order
in the context of discovery. We are satisfied that after the court enters
such an order there must be good cause to maintain the order in the
face of a motion to vacate it, particularly when, as here, the moving
party did not have an opportunity to oppose the entry of the protective
order in the first instance. In Pansy, we explained that “it is well-
established” that good cause must exist to obtain a protective order
over discovery materials. 23 F.3d at 786. While the facts in Pansy
involved a confidentiality order issued to protect a settlement
agreement from public knowledge, we indicated there that the good
cause analysis of Rule 26(c) applied “whether an order of
confidentiality is granted at the discovery stage or any other stage of
litigation.” Id.

        In Pansy we explained that there is good cause when a party
shows that disclosure will result in a clearly defined, specific and
serious injury but that broad allegations of harm are not sufficient to
establish good cause. Id. We also stated that the party seeking
protection has the burden of showing that there is good cause for it.
Id. at 786-87. We directed the district court to determine whether
there is good cause by balancing the interests of the public and the
parties and further indicated that the court should explain the
reasoning behind its balancing conclusion. Id. at 789.

        We discussed several balancing factors in Pansy, though we
stated that those factors are not exhaustive. Id. In particular, in Pansy
and in a later decision, Glenmede Trust Co. v. Thompson, 56 F.3d
476 (3d Cir. 1995), we listed seven factors that a court should
consider in determining whether to grant a protective order. Those
factors are:

                       1) whether disclosure will


                                    6
               violate any privacy interests;

               2) whether the information is being
               sought for a legitimate purpose or for an
               improper purpose;

               3) whether disclosure of the information
               will cause a party embarrassment;

               4) whether confidentiality is being
               sought over information important to
               public health and safety;

               5) whether the sharing of information
               among litigants will promote fairness
               and efficiency;

               6) whether a party benefitting from the
               order of confidentiality is a public entity
               or official; and

               7) whether the case involves issues
               important to the public.

Id. at 483 (citing Pansy, 23 F.3d 787-91).

        Though the district court in this case recognized our direction
in Pansy by stating that it must “balance the privacy interests of the
parties against the public interest in access to the discovery
information,” app. at 5, and it recognized certain factors from Pansy
that we have listed above, the court ultimately agreed with the
defendants that “the analysis should not turn on the fact that the
[Pennsylvania State Police] is a public entity and the fact that this case
involves issues of public concern.” Id. at 6-7.

         The district court distinguished this case from Pansy because
this case involves a protective order over discovery materials whereas
Pansy was not concerned with the effect of disclosure on ongoing
litigation but rather concerned the confidentiality of a settlement
agreement. The district court believed that this distinction is relevant
for two reasons. First, the district court stated that “[h]ere, the
disclosure of discovery materials to the media could unduly prejudice
the public, from which jurors for this litigation may be selected,” a


                                    7
concern the district court determined we did not address in Pansy. Id.
at 7. Second, the district court reasoned that “[t]he issues of public
concern in this case may still reach the public in the future.” Id. As a
result of these distinctions from Pansy, the district court concluded
that “although Pansy requires the court to balance the competing
interests in the case, the facts of this case require the court to conduct
an analysis that differs slightly from the test employed in Pansy
itself.” Id. at 7-8.

        We are convinced that even though there are significant
factual differences between this case and Pansy, and that in some
cases the distinction between protection of materials before and after
completion of the trial court proceedings could be critical, the district
court’s reasoning here is not consistent with Pansy and the factual
differences cannot justify a different result here. To start with, the
concern that the disclosure of discovery materials to the media could
unduly prejudice the public is exactly the type of broad,
unsubstantiated allegation of harm that does not support a showing of
good cause. See Glenmede Trust Co., 56 F.3d at 483. We ordinarily
are confident that a district court will be able to select a fair and
impartial jury in cases even where there has been pre-trial media
attention to the case and we see no reason to believe that this case
would present an exception to the usual case. See United States v.
Gilsenan, 949 F.2d 90, 96 (3d Cir. 1991). Therefore, we fail to see
how jury selection will be a serious concern, let alone good cause for
a broad and sweeping protective order, in this case. After all, the
defendants did not present any evidence to support their argument,
drawn from the information already published, that there will be
difficulty selecting a jury in this case or evidence that if additional
information is published there would be such difficulty.

        We also believe that by focusing on the issue of media
attention, the district court unacceptably downplayed the fact that this
case involves public officials and issues important to the public, two
factors that we emphasized in Pansy. In fact, the district court never
explained how it reasoned that its concern about media attention
trumped those two factors. While the Pansy factors are not
exhaustive, that does not mean that a district court may ignore the
concerns Pansy specifically addressed. Similarly, because the district
court did not point to any real threat of prejudice to the defendants, we
disagree with its reasoning that the likelihood of the discovery
documents becoming public in the future is a determinative factor.



                                    8
        In fact, most of the Pansy factors weigh against the protective
order in this case. First, neither party has pointed to any legitimate
privacy concerns regarding the requested documents, and we can
think of none. As we observed in Pansy, “privacy interests are
diminished when the party seeking protection is a public person
subject to legitimate public scrutiny.” 23 F.3d at 787. Additionally,
there is no evidence in the record that PNI seeks access to the
information “for an improper purpose.”

        With regard to the third factor–embarrassment–in Pansy we
noted that “an applicant for a protective order whose chief concern is
embarrassment must demonstrate that the embarrassment will be
particularly serious.” Id. (quoting Cipollone v. Liggett Group, Inc.,
785 F.2d 1108, 1121 (3d Cir. 1986)). Defendants have not shown any
risk that “particularly serious” embarrassment will result from the
release of the documents. The fourth and fifth factors–“whether
confidentiality is being sought over information important to public
health and safety” and “whether the sharing of information among
litigants will promote fairness and efficiency”–are either neutral or
weigh against the protective order.

        Finally, the last two factors clearly weigh against the
protective order. The parties benefitting from the protective order are
public officials, and the case certainly involves “issues important to
the public.” Defendants argue that “Pansy made clear that the weight
of public interest was only relevant with respect to that information to
which the public already was entitled access,” appellant’s br. at 21
n.7, but we see no support for this claim. Rather, Pansy emphasized
that a court always must consider the public interest when deciding
whether to impose a protective order. See, e.g., 23 F.3d at 785
(“Disturbingly, some courts routinely sign orders which contain
confidentiality clauses without considering the propriety of such
orders, or the countervailing public interests which are sacrificed by
the orders.”).

         We also take issue with the nature of the district court’s
protective order in that it grants broad, umbrella protection to the
defendants. On this issue the district court understandably relied on
our opinion in Cipollone in which we stated that we “commend the
umbrella approach for consideration of the district courts in this
circuit in complex cases.” Cipollone, 785 F.2d at 1123. Nevertheless
in Cipollone we cautioned that “[t]here may be cases in which the
document-by-document approach . . . will be preferable.” Id. Given


                                   9
that this action is neither complex nor involves large-scale discovery
and given that the district court should have realized that the good
cause it found for entry of the protective order was weak at best (in
actuality, nonexistent), the district court erred in adopting the
sweeping umbrella approach in this case.5



                          IV. CONCLUSION

         In view of the conclusions we reached in the foregoing
discussion, we will reverse the district court order of April 11, 2005,
to the extent that it denied the motion to vacate the protective order
and we will remand the matter to the district court for it to enter an
order vacating the protective order. We emphasize that our opinion in
no way relieves the parties or their counsel from their ethical
obligations and does not preclude any party from seeking protection
over specific documents. Such protection is available only where
good cause exists, however, and a district court may determine that
good cause exists only based on reasoning that is true to the direction,
language and spirit of Pansy. Finally, we point out that we are
predicating our opinion on the situation as it now exists and as we
anticipate it will develop. Thus, even though we doubt that the
district court in the future in this case will need to enter a protective
order similar to the order of December 14, 2004, we do not shut the
door to that action if a change in circumstances requires it.




       5
         In his brief Shingara raises an issue regarding the
constitutionality of Middle District Local Rule 83.2.7. The district court
referenced this local rule in its December 14, 2004 order. We, however,
do not address this point because Shingara is not an appellant and PNI
did not advance the issue.

                                   10
