ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. D.C. Civ. Nos. 83-2864 and 84-0678.
The defendants in several product liability actions pending in the district court petition here pursuant to 28 U.S.C. § 1651 (1982) for a writ of mandamus (1) directing the district judge to vacate an order modifying a discovery order previously entered by a United States magistrate, and (2) reassigning the cases to another judge. Petitioners contend that the challenged order is inconsistent with the mandate of this court in Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir.1986), and is otherwise inconsistent with law. They contend, as well, that the district court judge should be removed from the case because of bias against the defendants' industry. We deny the petition for mandamus and for reassignment.
The Cipollone case is one of eight actions filed on behalf of cigarette smokers in the state and federal courts of New Jersey by the same law firm. There are presently over 100 such cases pending in other jurisdictions. Plaintiffs in all of them are cigarette smokers or their personal representatives who have filed product liability suits asserting negligence, strict liability and intentional wrongdoing by tobacco companies. Claiming that their lung cancer or other smoking-related disease resulted from smoking defendants' cigarettes, the plaintiffs in those actions allege that the defendants failed to inform consumers adequately of the health risks in smoking and that when health warnings did appear on their products, they were effectively negated by their advertising practices.
This case began in the United States District Court for the District of New Jersey, when Rose Cipollone and her husband, Antonio, filed a complaint on August 1, 1983 against Liggett Group, Inc., Philip Morris, Inc., and Loew's Theaters, Inc., all of which manufacture cigarettes. Cipollone alleged that as a result of smoking defendants' cigarettes for almost forty years, she developed bronchogenic carcinoma and sustained other personal injuries. Cipollone sought compensation for her injuries on theories of strict liability and negligence and her husband sought compensation for loss of consortium. Cipollone's primary contentions were that the defendants had withheld scientific evidence from the public and had misrepresented the health hazards of smoking.
A short time later, Susan Haines, administratrix ad prosequendum and executrix of the Estate of Peter F. Rossi brought an almost identical action in the same court against the same defendants as well as R. J. Reynolds Tobacco Co. and the Tobacco Institute, Inc. Haines had the same counsel as Cipollone and sought compensation for Rossi's pain and suffering and compensation for his death, which allegedly resulted from his smoking defendants' cigarettes.
Pursuant to 28 U.S.C. § 636 (1982 & Supp. III 1985), the district court ordered discovery in both cases under the supervision of then Magistrate Robert E. Cowen. In the fall of 1983, Cipollone made initial discovery requests of the defendants. The defendants responded by filing motions to strike, claiming that information sought was irrelevant and that the requests were burdensome and harassing. Magistrate Cowen heard oral argument on those motions on March 22, 1984. A discovery order was issued on May 2, 1984.
Defendant's counsel then approached Cipollone's counsel about a confidentiality order. Counsel agreed temporarily not to disseminate any documents "until [they] had an opportunity to attempt to agree upon a Protective Order regarding the documents or, if that [was] not possible [defendants were] to make requests for such a Protective Order to the Court." Letters between counsel dated May 3 and 4, 1984. That agreement was in force until the entry of Magistrate Cowen's protective order dated March 25, 1985. In the interim, defendants produced thousands of documents and many corporate representatives were deposed. Additionally, discovery of non-parties, including the Tobacco Institute, was conducted. Cipollone's counsel and the Tobacco Institute's counsel agreed that if Cipollone wished to disclose confidential material received as a result of that discovery, ten (10) days notice would be given to allow the Tobacco Institute to object. See Letter Agreement dated August 2, 1984. Accordingly, on October 5, 1984, Cipollone's counsel notified the Tobacco Institute of the intention to disseminate certain confidential documents. See Letter from Marc Z. Edell dated October 5, 1984. Because the Tobacco Institute objected, however, the information was not disseminated.
Meanwhile, negotiations regarding the terms of a protective order broke down because the parties could not agree on Cipollone's counsel's right to use the documents obtained in this discovery in other cases, and because of the defendants' alleged misuse of the "confidential" stamp on documents produced during discovery. On March 25, 1985 Magistrate Cowen entered a protective order for the stated purpose of streamlining the litigation. No specific findings of good cause for the issuance of the protective order were made.
On March 25, 1985, Cipollone appealed the magistrate's order and the district court, on July 17, 1985, vacated that order and entered a modified order. See Cipollone v. Liggett Group, Inc., 106 F.R.D. 573 (D.N.J.1985). Defendants then petitioned this court for a writ of mandamus, which was granted. See Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1118 (3d Cir.1986). Granting the writ, we held that the district court had committed two errors of law: 1) it had applied the wrong standard for issuance of a protective order -- first amendment considerations -- rather than the less strict "good cause" standard under Fed. R. Civ. P. 26(c); and 2) it had exercised plenary review over the magistrate's order instead of the review specified in 28 U.S.C. § 636. See Cipollone, 785 F.2d at 1123.
In response to our judgment, Judge Sarokin reconsidered the protective order. He noted that the magistrate had made no specific findings regarding good cause. Judge Sarokin held that the magistrate's failure to apply a good cause standard was a clear error. See Cipollone v. Liggett Group, Inc., 113 F.R.D. 86, 93 (D. N.J. 1986). After considering the defendants' arguments for finding good cause, the district court rejected them. With regard to the magistrate's determination of an "umbrella order," the district court upheld "the aspect of the magistrate's order that permits defendants to make an initial designation of confidentiality, subject to their determination that such designation is warranted in good faith, and subject to plaintiff's later opportunity to challenge such designation and request sanctions pursuant to Fed. R. Civ. P. 26(g)." Cipollone, 113 F.R.D. at 94. Consequently, on December 18, 1986, the district court entered a new modified protective order and issued a supplemental opinion See Cipollone v. Liggett Group, Inc., 649 F. Supp. 664, (D. N.J. Dec. 9, 1986). The magistrate's protective order remained unchanged except that the district court limited the scope of the order's protection to "confidential" documents and permitted the use of documents in other related actions.*fn1
Defendants then petitioned again for mandamus, claiming that the district court's order on remand is contrary to law and contrary to this court's instructions. In addition, they request reassignment of this case to another judge, suggesting bias against the defendants on the party of Judge Sarokin.
Scope of Review in Mandamus
In Sporck v. Peil, 759 F.2d 312, 314 (3d Cir.), cert. denied, 474 U.S. 903, 106 S. Ct. 232, 88 L. Ed. 2d 230 (1985), we set forth the standards for issuing a writ of mandamus. Two requisites must be found: a) the party seeking the writ must have "no other adequate means to attain the relief he desires," Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980), and b) the trial court must have committed a clear error of law. As we stated in Cipollone, 785 F.2d at 1118, "[m]bandamus is not available for abuse of discretion." The Supreme Court has stated that a writ of mandamus is not readily issued:
Extraordinary writs are "reserved for really extraordinary causes" ..., and then only "to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so ...."
Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 11 L. Ed. 2d 674, 84 S. Ct. 769 (1964) (citations omitted). "[T]he moving party [must] satisfy the burden of showing that its right to issuance of the writ is "clear and indisputable"'." Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 57 L. Ed. 2d 504, 98 S. Ct. 2552 (1978) (citation omitted). The respondents do not dispute that errors with respect to the scope of a protective order probably cannot be corrected by a post-trial appeal. They dispute only whether the second requisite for mandamus has been met -- that is, whether the trial court committed a clear error of law.
The gravamen of the petitioners' argument in the instant petition for mandamus is their disagreement with Judge Sarokin's refusal, on remand, to uphold paragraph 2 of the magistrate's protective order. Paragraph 2 of the magistrate's order states that "[a]ll information produced or exchanged in the course of this civil action or any appeal arising therefrom (the "litigation") shall be used solely for the purpose of this case." Judge Sarokin, in his protective order of December 18, 1986, replaced that paragraph with paragraphs 2 and 3 which state:
2. All "confidential" information produced by defendants in the course of this civil action or any appeal arising therefrom (the "litigation") may be used in all related or similar cases subject to the terms and conditions of this order.
3. Any plaintiff seeking to use "confidential or non- confidential" information from this matter shall seek leave of the court before whom that matter is pending.
A. District Court's Scope of Review Under Section 636
Petitioners' first argument is that the district court erred again by engaging, on remand, in an impermissible plenary review of the magistrate's orders rather than applying the "clearly erroneous or contrary to law" standard. Under 28 U.S.C. § 636, a magistrate may hear and determine pre-trial matters, which are subject to consideration by the district court "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." Id. at § 636(b)(1)(A). Petitioners make two contentions to substantiate this argument.
First, petitioners argue that the district court's "good cause" determinations continued to be based improperly on a concern for the public interest rather than on the interest of the litigants or case management. In support, the petitioners contend that the magistrate's paragraph 2 imposed no burdens on the respondent and that respondent never complained that the paragraph impeded her ability to go forward with her case. The provision, the petitioners argue, merely prevented injury to them and expedited discovery. Citing to a passage in the district court's opinion, the petitioners insist it proves that the court had a "continuing ...