On Appeal from the United States District Court for the District of New Jersey, (D.C. Civ. No. 83-0850)
Before HIGGINBOTHAM and BECKER, Circuit Judges and COHILL, District Judge.*fn*
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
This case raises the questions of if and when this court may exercise its jurisdiction to review a pretrial discovery protective order. The State of New York seeks to appeal, pursuant to 28 U.S.C. §§ 1291 or 1292(a)(1) (1982), a protective order entered by the district court on January 10, 1985. The district court temporarily prohibited releasing to the public, and required confidentiality in disclosing to government employees, New York's preliminary report on gaseous and particulate chemical emissions in a smelting plant owned by United States Metals Refining Co. and its parent corporation, Amax, Inc. ("USMR"). The order modified and affirmed the United States Magistrate's order which provides that disclosure of the preliminary report is subject to the provisions of the magistrate's revised protective order, entered March 14, 1984, pursuant to FED. R. CIV. P. 26(c). In the alternative, New York requests that this court treat its notice of appeal as a petition under the All Writs Act, 28 U.S.C. § 1651 (1982), for a writ of mandamus to compel the district court to allow New York to distribute the report to the public. Since we find that this court does not have appellate jurisdiction, we will dismiss the appeal without prejudice. We also find that mandamus is inappropriate here and therefore deny the petition.
On March 11, 1983, New York filed a citizens' suit under section 7604 of the Clean Air Act, 42 U.S.C. §§ 7401-7642 (1977), and pendent state claims against USMR in the United States District Court for the District of New Jersey. In its complaint, New York alleged that USMR is emitting harmful quantities of pollutants into the ambient air from its metal smelting and refining plant in Carteret, New Jersey, and that these emissions are affecting residents of Staten Island, New York, which borders New Jersey across the Arthur Kill. The state seeks declaratory relief and an injunction directing USMR to control and abate the alleged air pollution.*fn1
The district court assigned a United States magistrate to preside over discovery matters in this case. On November 28, 1983, the magistrate entered a protective order over certain materials which were claimed to be confidential. In response to USMR's concern that trade secret information could be revealed in deposition testimony and then could be obtained by its competitors, the magistrate entered a revised protective order on March 14, 1984. Joint Appendix ("J.A.") at 245-50. The order provides in part:
1. Portions of documents or answers to be produced by the parties... in connection with any Request to Enter or Inspect may be claimed to be "confidential" by the producing party where it in good faith believes that public disclosure of such documents or answers would damage their commercial or proprietary interests or those of third parties whom it has an interest in protecting.
11. Nothing herein shall prohibit any party from seeking such further provisions regarding confidentiality as it may deem necessary.
J.A. at 246, 249-50.*fn2 New York and USMR conducted discovery subject to the provisions of the protective order.
Pursuant to the magistrate's access order and the discovery rules, in November, 1983, and in May and July 1984, New York entered USMR's smelting plant to inspect and collect dust samples from a "baghouse",*fn3 and to prepare a final report for New York's use in the lawsuit. New York had experts analyze the samples and then prepared a summary report of their findings. The report also called for additional testing.
On November 7, 1984, New York advised USMR and the district court that it intended to disseminate its report to the public. USMR immediately moved for enforcement and continuation of the protective order. After hearing initial arguments on November 8, 1984, the district court referred the motion to the magistrate who issued the protective orders.
On November 16, 1984, the parties argued the matter before the magistrate, who determined that New York's report was subject to his protective order and that USMR had shown good cause why the report should not be disclosed to the public at that time. On December 6, 1984, he therefore entered an order denying without prejudice New York's application for immediate distribution of the report to the public and confining disclosure to only designated government employees who signed confidentiality affidavits. J.A. at 5-7. The magistrate also ordered the report, the transcript of the hearing, and all papers related to New York's application to be filed under seal.
The district court reviewed the magistrate's order at a hearing, held November 27, 1984, and agreed that New York should be temporarily kept from releasing its report to the public. The transcript of this hearing is also sealed. In its order, filed January 10, 1985, the court affirmed the magistrate's order, noting that USMR had agreed to perform additional testing of emissions, and that USMR had met with New York and New Jersey's environmental agencies to prepare protocols and parameters for the testing and analyses. The parties were directed to submit this information to the court on an expedited basis. J.A. at 2-4. New York filed a notice of appeal on January 28, 1985. At the oral argument before this court, the parties explained that the district court intended New York to be able to show its report to anyone reasonably necessary either to conduct the tests it felt should be done or to help it in its preparation for trial, provided the persons signed a confidentiality affidavit. They also explained that an independent expert, whose consulting firm has a contract with the United States Environmental Protection Agency ("EPA") to perform similar tests throughout the country, was currently conducting the tests requested in the protocols and would issue a complete report in the near future.