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Littlejohn v. Bic Corp.


argued: April 15, 1988.


Appeal from the United States District Court for the Eastern District of Pennsylvania, Civil No. 85-5952.

Hutchinson, Scirica, and Rosenn, Circuit Judges.

Author: Rosenn


ROSENN, Circuit Judge.


This appeal requires us to consider the application of the common law right of access to judicial records where materials which were initially discovered under the aegis of a protective order requiring confidentiality are later admitted into evidence at an open civil trial. We are presented with two disputes over access to trial transcripts and exhibits that arose after the final settlement of a products liability suit in the United States District Court for the Eastern District of Pennsylvania.

In the primary dispute, Philadelphia News, Inc. (PNI) intervened in the district court to secure access to certain trial exhibits that had been admitted into evidence.*fn1 Appellant BIC Corporation (BIC), the defendant in the original personal injury action, sought to prevent PNI's access to these exhibits because they were confidential corporate documents, the disclosure of which was assertedly prohibited by the terms of a protective order (PO). In a parallel dispute, BIC petitioned for an order of attempt against the original plaintiff's attorney, appellee Mel D. Kardos, contending that he had violated the protective order by refusing to return confidential BIC documents pursuant to its provisions. BIC also sought to enlarge the record through further discover.

The district court granted PNI access to the judicial record, including access to three contested documents, refused to hold Kardos in contempt, and denied BIC's petition to enlarge the record. BIC's appeal implicates both the substantive and temporal boundaries of the common law right of public access. We affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.


BIC's attempts to retain control over the disclosure of its corporate documents are an outgrowth of a products liability action brought against it by plaintiff Cynthia Littlejohn. Littlejohn alleged that she had been seriously injured by a defectively designed BIC disposable lighter. After engaging in not uncommon disagreements over the scope of discovery, the parties stipulated to, and the district court entered, an "umbrella" protective order that was designed to protect BlC's "trade secrets and other confidential information" from public disclosure. See Fed. R. Civ. P. 26(c).

The PO restricted the distribution of any information or documents that BIC designated "confidential":*fn2

Counsel for any party other than the defendant shall use all product and information produced and disclosed by the defendant solely for the purposes of preparing for trial of this action. Under no circumstances shall material covered by this Protective Order be disclosed to anyone other than counsel in this action and experts retained by them. At the conclusion of the proceedings in this action, all documents and information subject to this Order, including any copies or extracts or summaries thereof, or documents containing information taken therefrom, shall be returned to counsel for the defendant.

Confidential materials obtained under the PO were to be maintained under seal by the court clerk and were to be made available only to the court and to counsel in the proceedings absent further court order. Violations of the PO were punishable as a contempt of court.

The district court bifurcated the trial of Littlejohn's action into liability and damages stages. Littlejohn's exhibits in the liability trial included confidential corporate documents that BIC had released under the PO. In particular, Littlejohn's expert witnesses testified that they had read and relied on two confidential internal BIC documents in formulating their opinions: a 1983 lighter audit (P-38) and intercompany memoranda detailing consumer complaints (P-39).*fn3 At the close of Littlejohn's case, the district court appeared to admit all of her exhibits into evidence. BIC failed to object to the admission of the now-contested exhibits.

The jury found BIC liable for the plaintiff's injuries. BIC then settled the case before the damages trial. The court rejected BIC's attempt to have the record sealed, and the settled action was dismissed shortly thereafter under Rule 23(b) of the Local Rules of Civil Procedure.

The disputes over BIC's confidential documents began after the final settlement of the underlying Littlejohn suit. The Philadelphia Inquirer, researching a story on BIC lighter litigation, discovered that the original exhibits and deposition transcripts introduced at trial had been returned to defense counsel after the settlement, in accordance with the court's administrative practice and in conformance with the PO. PNI filed a motion for intervention in the Littlejohn action and sought access to the trial record after BIC refused to make available any evidence designated confidential under the PO.*fn4

The parties' attorneys were also skirmishing over the scope of the PO. Relying on the PO, BIC sought the return of copies of documentary evidence and deposition testimony still in the hands of plaintiff's attorney, Kardos. Kardos resisted, contending that he was entitled to retain one copy of each trial exhibit and deposition transcript admitted into evidence because they were part of the judicial record and, as such, no longer subject to the PO. BIC's first petition for contempt against Kardos, filed in February 1987, was denied without prejudice. In August 1987, BIC renewed its petition for contempt, seeking enforcement of the PO and sanctions.*fn5 Thereafter, Kardos submitted the disputed papers under seal to the district court.

The court held a hearing on the contempt and PNI matters in September 1987. Following the hearing, the court permitted PNI to intervene and granted it access to the judicial record, which was held to include depositions and exhibits that had been admitted into evidence. The court also denied the contempt petition. In a supplementary order, the court found that the three disputed documents had been admitted into evidence and were therefore part of the public record. BIC's motion for reconsideration and its request to enlarge the record were denied a month later and this appeal followed.*fn6 We will discuss the PNI and Kardos disputes seriatim.


PNI's motions for intervention*fn7 and access were based, in part, on the public's common law right of access to judicial proceedings and records.*fn8 The existence of such a right "is beyond dispute." Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). Access means more than the ability to attend open court proceedings; it also encompasses the right of the public to inspect and to copy judicial records. United States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981) (Criden I). The right, which antedates the Constitution, id. at 819, is based upon both "historical experience and societal utility," United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985) (Smith I). The public's exercise of its common law access right in civil cases promotes public confidence in the judicial system by enhancing testimonial trustworthiness and the quality of justice dispensed by the court. See 6 J. Wigmore, Evidence § 1834 (J. Chadbourne rev. 1976). As with other branches of government, the bright light cast upon the judicial process by public observation diminishes possibilities for injustice, incompetence, perjury, and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness. See, e.g., Bank of America Nat. Trust v. Hotel Rittenhouse, 800 F.2d 339, 345 (3d Cir. 1986) (Bank of America).

Although our courts recognize a general common law right to inspect and to copy judicial records and documents, the right is not absolute. Nixon, 435 U.S. at 598. "Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." Id. The common law thus merely establishes a presumption of public access to court proceedings and court records. Id. at 602. In resolving claims of access to trial evidence, "the strong common law presumption of access must be balanced against the factors militating against access." Bank of America, 800 F.2d at 344. Despite the presumption, courts may deny access to judicial records, for example, where they are sources of business information that might harm a litigant's competitive standing. Nixon, 435 U.S. at 598.

BIC's challenges to the district court orders at issue here naturally circumscribe the scope of our discussion of the common law right. BIC essentially attempts to avoid the application of the common law access doctrine by arguing that (1) the three disputed documents were not admitted into evidence; (2) the confidential documents were protected from disclosure by the protective order, even when admitted to evidence; and (3) any public access right evaporated when the court, pursuant to administration practice returned the exhibits to counsel.*fn9

A. Evidence in the Record

This court has definitively held that "there is a strong presumption that material introduced into evidence at trial should be made" available for public access. Criden I, 648 F.2d at 823; see also United States v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252, 1260-61 (D.C. Cir. 1976); rev'd on other grounds sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). BIC attempts to avoid the force of this presumption by arguing that the district court erred in finding that the 1981 lighter audit (P-37), the 1983 lighter audit (P-38), and the intercompany memoranda (P-39) were admitted into evidence. The district court's factual finding will not be overturned on appeal unless it is clearly erroneous.*fn10 Leeper v. United States, 756 F.2d 300, 307 (3d Cir. 1985).

At the close of the plaintiff's case the following colloquy occurred between the plaintiff's counsel, Kardos, the district court, and BIC's trial counsel, Foster:

MR. KARDOS:. . . and we would close our case and ask that all our exhibits be admitted into evidence and if Your Honor wants to sent the exhibits out with the jury, that's up to you but I don't believe they're necessary other than maybe one or two photographs of Cynthia Littlejohn. . . .


MR. KARDOS: Otherwise, I don't think the exhibits need to go out. They've seen it all.

THE COURT: I expect counsel to get those pictures together at the end of the case so we can send them out to the jury.

MR. KARDOS: All the exhibits that were referred to being received into evidence at this time--

MR. FOSTER: Your Honor, I object only to the shoes and the trousers because I believe they were not identified . . . . [discussion of shoes and trousers]. . . .

THE COURT: I'll admit them as being part of the record. I understand from what counsel said they're not going out to the jury.

BIC argues that this exchange proves only that the shoes and trousers were admitted into evidence. The clear import of the record, however, is that the plaintiff moved to have those of her exhibits "referred to" admitted into evidence, that BIC's counsel failed to object to the admission of the documentary exhibits, and that the judge then acquiesced to the plaintiff's request.*fn11

BIC then contends that the plaintiff's reference to the admission of "all of our exhibits" did not include the contested documents because they were not used at trial. This argument fails with respect to two out of three of the exhibits listed in the district court's supplemental order. Exhibits P-38 and P-39 were admitted into evidence, based upon the pretrial identification of the proposed exhibits and the specific references to portions of those exhibits found in the trial record.*fn12 The court's finding of fact with respect to exhibits P-38 and P-39 must be affirmed. On the other hand, exhibit P-37 was not specifically referred to during the trial.*fn13 Under these circumstances, we hold it was error to find that exhibit P-37 was admitted into evidence and this portion of the court's order will be reversed.*fn14

B. The Effect of the Protective Order

BIC contends that PNI may not gain access to the confidential documents admitted into evidence because BIC relied upon the promise of confidentiality found in the PO in initially releasing the documents to the plaintiff. BIC argues that the district court erred as a matter of law in permitting PNI to gain access to these documents because the court failed to consider the extent of BIC's reliance on the PO and because the court did not require PNI to show a compelling need. See, e.g., Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979). Implicit in BIC's argument is the assumption that the PO properly may be read to govern the treatment of confidential BIC documents that were admitted into evidence. BIC's contention fails, however, even accepting this debatable assumption arguendo.*fn15

The court properly found BIC waived whatever rights to confidentiality that might have been created by the PO. In her pre-trial memorandum, the plaintiff signaled her intention to use some confidential documents as trial exhibits. BIC failed to raise the issue of confidentiality.*fn16 BIC also failed to assert its interest at trial when the plaintiff referred to and discussed portions of the confidential exhibits with her experts. Finally, BIC did not object when the plaintiff moved to have the disputed exhibits admitted into evidence, although after the settlement, BIC did move to seal the record "for the reasons that we stated in our motion for protective order." The court refused.

It is well established that the release of information in open court "is a publication of that information and, if no effort is made to limit its disclosure, operates as a waiver of any rights a party had to restrict its future use." National Polymer Products v. Borg-Warner Corp., 641 F.2d 418, 421 (6th Cir. 1981). The references to the confidential documents made in open court may have constituted a sufficient publication. See Matter of Continental Illinois Securities Litigation, 732 F.2d at 1312-13 (failure to read aloud entire report is not determinative, references and scattered quotes sufficient to support public access). But, in any event, we hold that BlC's failure to object to the admission into evidence of the documents, absent a sealing of the record, constituted a waiver of whatever confidentiality interests might have been preserved under the PO.*fn17 Cf. Bank of America, 800 F.2d at 345 (filed settlement became judicial record subject to public access); Zenith Radio Corp., 529 F. Supp. at 897-98.

C. The Effect of the Clerk's Return of Documents to Counsel

Our determination that the documents admitted into evidence had become judicial records, despite the PO, does not resolve PNI's motion for access. A novel and unique question arises because PNI first filed its motion after the underlying litigation had been finally settled, the case closed, and the disputed documents returned to the defendant BIC.*fn18

The district court held that "[t]he fact that the exhibits and depositions were withdrawn by counsel after the trial and settlement does not destroy their character as public records. . . ." In the alternative, the court found that the documents were restored to the public record when they were submitted under seal for the adjudication of the ancillary contempt petition against Kardos. Our review of the district court's resolution of this question of law is plenary.*fn19 Smith II, 787 F.2d at 113.

BIC argues that the exhibits admitted into evidence lost their status as judicial records when they were returned to their owner after the case had been finally closed.*fn20 This change in custody does not in and of itself determine the content of the judicial record. Under Rule 10 of the Federal Rules of Appellate Procedure, for example, trial exhibits are a part of the record on appeal and "items that were before the district court and then withdrawn by counsel are still considered to be a part of the record on appeal, which may make it necessary to replace such items for transmission to the court of appeals." 16 C. Wright, A. Miller, E. Cooper, E. Gressman, Federal Practice and Procedure § 3956 at 386 (1977); see also, Fed. R. App. P. 11(a); 28 U.S.C. § 457 (1982) (records of district court should be retained until obsolete or no longer necessary or useful).

The instant case, however, presents more than a simple change of custody. The Littlejohn litigation had been completely closed: The parties had settled, the Clerk had returned the exhibits to their owner, and the court had dismissed the action with prejudice on October 6, 1986, under Local Rule 23(b). There was no appeal. Almost five months later, PNI, a non-party to the private litigation, first filed motions for intervention and access to the trial record and exhibits. Can we say that at this point in time the disputed exhibits still maintained their status as judicial records?

The contours in the right of access to judicial records still remain to be drawn; no case directly on point has been cited or discovered. The cases do suggest that the access right has been premised upon "historical experience and social utility." Smith I, 776 F.2d at 1114. The content of the judicial record thus must be responsive to these concerns.

Historically, the judicial system has recognized administratively that the content of the judicial record has temporal limits in addition to its substantive ones. Under Local Rule 39, the Clerk of the District Court has custody over "[a]ll exhibits received into evidence." Local Rules, United States District Court for the Eastern District of Pennsylvania (1986) ("Local Rules"). These exhibits, however, are considered only "auxiliary case records" and they are to

be taken from the Clerk's custody by the party by whom they were produced or offered within sixty (60) days after the dismissal of the case by the parties or under Rule 23 or the entry of final judgment by this court, or, in the event of an appeal, within ninety (90) days after the receipt and filing of a mandate or other process or certificate showing the disposition of the case by the appellate court, otherwise such exhibits shall be deemed abandoned and shall be destroyed or otherwise disposed of by the Clerk.

Id. at 39(e). A federal statute authorizes the district court's administrative regulation of its records. See 28 U.S.C. § 457 (obsolete court papers may be disposed of with approval of court).

At the time that PNI first sought access to the judicial record, the underlying case had long been settled, no appeal was pending, and the contested exhibits had been returned to the counsel.*fn21 If the exhibits had not been so returned, they would already have been destroyed by the district court clerk.*fn22 Historical experience thus suggests that the exhibits were no longer a part of the judicial record subject to presumptive public access. This conclusion is buttressed by an examination of the social utility of first amendment and common law access rights.

Public access serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness. See, e.g., Publicker, 733 F.2d at 1069-70. These purposes were served in this case during the trial period and while the case was pending in court. The public and the press had the opportunity then to observe the judicial process and to copy and inspect the testimony and exhibits that comprised the judicial record. We are not persuaded that these purposes are served after liability has been established by trial, the case thereafter settled by the parties and finally closed by order of the trial court with prejudice. No appeal was taken and the only matter before the court is a collateral contempt proceeding against counsel for one of the parties because of his failure to return copies of the disputed exhibits, allegedly in violation of the PO.

Finally, the conflicting needs of the parties, the intervenors, and the court require that the content of the judicial record have reasonable temporal limits. In this era of "the paper chase," hundreds of thousands of exhibits may be subpoenaed and entered into evidence in bulk in a single case.*fn23 See, e.g., Zenith Radio Corp., 529 F. Supp. at 873-74 (plaintiff's pretrial statement cross-references 250,000 documents); United States v. American Tel. and Tel. Co., 552 F. Supp. 131, 140 (D.D.C. 1982) (parties present tens of thousands of documents at trial). Must a court be forever burdened with the responsibility of maintaining, supervising the possession of, or adjudicating access rights to, such documentary exhibits? We believe not. This is an unreasonable burden to inflict upon courts, particularly at a time when litigation continues to grow more complex and voluminous.

We therefore hold that, absent allegations of fraud or other extraordinary circumstances, trial exhibits that were restored to their owner after a case has been completely terminated and which were properly subject to destruction by the clerk of court are no longer judicial records within the "supervisory power" of the district court. Cf. Nixon, 435 U.S. at 598. Neither the first amendment nor the common law right of public access empowers the district court to require that litigants return such exhibits to the court for the purposes of copy and inspection by third parties. The trial court erred insofar as it granted PNI access to exhibits P-38 and P-39 because they were no longer a part of the judicial record. We emphasize that our reversal of this portion of the court's opinion leaves untouched PNI's right of access to items that properly remained part of the judicial record, such as the deposition testimony read into evidence at trial or exhibits or portions thereof transcribed and made part of the official transcript.*fn24


We now turn to the remaining dispute raised in this appeal: The petition to hold Kardos, plaintiff's attorney, in contempt for violation of the PO. BIC based its petition for contempt on Kardos' failure to return confidential documents and deposition testimony as required by the provisions of the PO. BIC also belatedly contended during argument before the district court that circumstantial evidence suggested that Kardos had distributed confidential documents in violation of the PO. Kardos argued in opposition that he was not bound to return materials that were part of the judicial record because they were no longer "subject to" the PO. Further, he asserted that there was insufficient evidence to support BIC's contention that he had released confidential documents to PNI. The court denied the petition for contempt.*fn25 BIC then filed a petition for reconsideration and sought to enlarge the record by conducting discover to determine whether Kardos had released confidential documents to PNI. The court rejected this petition in its entirety. We review the court's denial of the contempt petition and its refusal to enlarge the record.

On appeal, the denial of a civil contempt citation is reviewed under the abuse of discretion standard. Delaware Valley Citizens' Council v. Comm. of Pennsylvania, 678 F.2d 470, 478 (3d Cir.), cert. denied, 459 U.S. 969, 74 L. Ed. 2d 280, 103 S. Ct. 298 (1982); Washington-Baltimore Newspaper v. Washington Post, 200 U.S. App. D.C. 165, 626 F.2d 1029, 1031 (D.C. Cir. 1980). We will reverse only when the denial is based on an error of law or a clearly erroneous finding of fact. See, e.g., Mac Corporation of America v. Williams Patent Crusher & Pulverizer Co., 767 F.2d 882, 885 (Fed. Cir. 1985). A party seeking a contempt citation must show the respondent's violation of a court order by clear and convincing evidence. Quinter v. Volkswagen of America, 676 F.2d 969, 974 (3d Cir. 1982). In addition, a contempt citation should not be granted where "there is ground to doubt the wrongfulness of" the respondent's conduct. Id. (quoting Fox v. Capital, 96 F.2d at 686 (3d Cir. 1938)).

Here, Kardos agreed to a protective order that required him to return to BIC "all documents and information subject to this order" at the termination of the proceedings.*fn26 As an officer of the court, Kardos bound himself to conscientiously adhere to these terms. Scrupulous compliance with court discovery orders is particularly important because our system of discover relies on the cooperation and integrity of attorneys operating within the guidelines provided by the Federal Rules of Civil Procedure and the provisions of any protective order. Nonetheless, we are constrained to hold that the court did not abuse its discretion in denying BIC's petition for contempt. Our review of the court's order requires us to consider (1) whether the public, including Kardos, had a right of access to the documents while they were a part of the public record; and (2) whether Kardos nonetheless could not retain copies of the documents because he was bound by the PO.

The existence of a public right to access to the judicial record in the Littlejohn case must be determined by weighing the presumption of access and other interests favoring disclosure with those favoring secrecy.*fn27 See Bank of America, 800 F.2d at 344. The district court found that:

Defendant has not met its burden to show that the interest in secrecy outweighs the presumption of access. Denial of access would serve no important public purpose. Defendant has not shown with specificity how disclosure would work a clearly defined and serious injury to its interests. The information introduced into evidence does not contain trade secrets. In any event, defendant's interest in escaping disclosure of problems with its products which have injured consumers does not outweigh the presumption of openness plus the public interest in disseminating information about consumer goods that cause personal injuries.

If the public had a right of access to the deposition testimony and exhibits admitted into evidence, then Kardos did no more than exercise this right in retaining copies of these documents.

The presumption of public access to evidentiary materials is strong.*fn28 Criden I, 648 F.2d at 823. BIC argues, however, that there is no public access right to those portions of the judicial record which contain trade secret or confidential business information. The district court properly considered and rejected these arguments.

The court found that BIC's documents did not contain trade secrets and its finding of fact is subject to reversal only if clearly erroneous. Leeper, 756 F.2d at 307. BIC's contention that the 1983 field audit exhibit and the intercompany memoranda exhibit contained protected trade secrets is without merit. BIC relies on an affidavit which did not specifically state that the two contested exhibits contained trade secret information.*fn29 The affidavit does support BIC's contention that the documents contain confidential information which might injure its commercial standing. But documents do not contain trade secrets merely because they are confidential. See, e.g., Restatement of Torts § 757 comment b (1939). Under these circumstances, we cannot find that the district court's finding of fact is clearly erroneous.

Further, non-trade secret but confidential business information is not entitled to the same level of protection from disclosure as trade secret information. A private interest in secrecy has not been weighed heavily once the information has been used at trial, particularly where, as here, the commercial interest stems primarily from a desire to preserve corporate reputation. See, e.g. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983) (harm to reputation not sufficient to overcome common law presumption of access), cert. denied, 465 U.S. 1100, 80 L. Ed. 2d 127, 104 S. Ct. 1595 (1984).

BIC argues that it has shown how disclosure "would work a clearly defined and serious injury to its interests." The injury that BIC describes is an adverse effect on its disposable lighter sales by competitive use of the information and a potential loss in its capital stock value. However, as we stated in Publicker, "[t]he presumption of openness plus the policy interest in protecting unsuspecting people from investing in Publicker in light of its bad business practices are not overcome by the proprietary interest of present stockholders in not losing stock value or the interests of upper-level management in escaping embarrassment."*fn30 733 F.2d at 1074; see also Joy v. North, 692 F.2d 880, 894 (2d Cir. 1982), cert. denied sub nom. Citytrust v. Joy, 460 U.S. 1051, 75 L. Ed. 2d 930, 103 S. Ct. 1498 (1983).

The district court carefully considered each of the factors which favored access or continued secrecy for the documents at issue and assigned appropriate weights to the various interests. We therefore hold that the court did not abuse its discretion in determining that under the present circumstances the presumption of public access and the public interest in the suit outweighed BIC's interest in the continued confidentiality of exhibits and deposition testimony admitted into evidence. The public thus had a right of access to the judicial record in the Littlejohn case.

Kardos asserts that he was exercising his right of access when he retained copies of the exhibits and deposition testimony admitted into evidence. BIC essentially contends that Kardos relinquished this right when he agreed to become bound by the terms of the PO. We conclude that the district court correctly denied BIC's petition for contempt. Here, "there is ground to doubt the wrongfulness of" Kardos' conduct, Quinter, 676 F.2d at 974, because the protection order did not govern the treatment of items admitted into evidence absent a sealing of the record.

BIC relies on Kehm v. Procter & Gamble Mfg. Co., 580 F. Supp. 913 (N.D. Iowa 1983), aff'd, 724 F.2d 630 (8th Cir. 1984). In Kehm, the district court held an attorney in civil contempt after he sold and distributed documents covered by a protective order without first obtaining leave of the court. Id. at 916. The court there specifically found that the "lack of confidentiality of" documents covered by the protective order was not a defense to the contempt motion. Id. Kehm, however, is distinguishable from the facts of this case.

Here, the protective order did not explicitly cover deposition testimony read into the trial record or exhibits admitted into evidence without a sealing of the record. Neither the parties nor the court seemed to treat the PO as dispositive of the confidentiality of documents admitted at trial.*fn31 Finally, the court properly found that BIC had waived its right to confidentiality with respect to that material which was admitted to the judicial record.

Under these circumstances, we hold that the district court did not abuse its discretion in refusing to impose the serious sanction of civil contempt. Kardos cannot be bound by the provisions of the PO to return to BIC copies of deposition testimony read into the record or copies of exhibits admitted into evidence. The record indicates, however, that Kardos retained a copy of exhibit P-37, which was not admitted into evidence. See infra section III A. The district court's denial of BIC's contempt motion must therefore be vacated, in part, and the case remanded for consideration of whether Kardos' retention of this document was sufficient to hold him in contempt.

Finally, BIC challenges the district court's refusal to enlarge the record by permitting further discovery. We review the court's determination for an abuse of discretion. Skehan v. Board of Trustees of Bloomsburg State College, 590 F.2d 470, 478 (3d Cir. 1978), cert. denied, 444 U.S. 832, 62 L. Ed. 2d 41, 100 S. Ct. 61 (1979). BIC's contention is meritless because the record reflects a lack of diligence in pursuing discover*fn32 and because, in any event, BIC had waived its rights under the protective order by permitting the depositions and exhibits to become part of the trial record.


In conclusion, the district court order granting PNI access to the judicial record is affirmed. We reverse the court's supplementary order holding that exhibits P-37, P-38, and P-39 were a part of the judicial record to which PNI had access. As to BIC's petition against Kardos, we affirm the trial court's denial of the contempt petition based on his retention of copies of items properly found within the judicial record. We remand the case, however, for consideration of whether Kardos may be held in contempt for retaining a copy of exhibit P-37, which was not a part of the judicial record. Finally, we affirm the district court's refusal to permit BIC to enlarge the record in the contempt proceedings by conducting further discovery. Each party to bear its own costs.

SCIRICA, Circuit Judge, dissenting.

I join in much of the majority opinion, but I respectfully dissent from the denial of PNI's public right of access to trial exhibits in this case.

During the past decade this court has consistently reaffirmed the common law public right of access to examine judicial records and documents, including exhibits. Bank of America Nat. Trust v. Hotel Rittenhouse, 800 F.2d 339, 343 (3d Cir. 1986); United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984); Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1066-67 (3d Cir. 1984); United States v. Criden, 648 F.2d 814, 823 (3d Cir. 1981); see Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). The right was established in English common law, and has been given a broader application in our jurisprudence. See Comment, Public Access to Civil Court Records: A Common Law Approach, 39 Vand. L. Rev. 1465, 1467 (1986); Note, All Courts Shall Be Open: The Public's Right to View Judicial Proceedings and Records, 52 Temp. L.Q. 311, 338-43 (1979). Indeed, at least one court has labeled the public's right to examine judicial records as "fundamental to a democratic state." United States v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252, 1258 (D.C. Cir. 1976), rev'd on other grounds sub nom. Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306.

As the majority notes, the rule's basis is twofold: (1) it promotes the public's right to observe, participate, and comment on judicial proceedings, thereby fostering informed public debate; and (2) it promotes understanding of, and the perception of fairness in, the judicial process. See Bank of America, 800 F.2d at 345; Criden, 648 F.2d at 820-22. Although the right is not absolute, we have held that it creates a "strong presumption" in favor of access, Criden, 648 F.2d at 823, and have required that a party seeking to deny access demonstrate "an overriding interest based on findings that closure is narrowly tailored to serve that interest." Publicker, 733 F.2d at 1073.

Here, PNI sought access to information admitted into evidence during a public trial. BIC contended that its interest in maintaining the confidentiality of its records outweighed the right of access, and in the alternative, maintained that the exhibits' character as public records was destroyed by their return to counsel pursuant to a local rule of court of the Eastern District of Pennsylvania. The district judge applied the Criden test and found a right of access. In addition, he noted that counsel's withdrawal of the exhibits after trial and final settlement did not destroy their character as public records. I agree, and accordingly I would affirm the judgment of the district court granting access.

Balancing the various factors relevant to the right of access is a task committed to the discretion of the district court. Bank of America, 800 F.2d at 344 (citing Nixon, 435 U.S. at 599). The district judge carefully examined the competing interests and determined that the records could be provided without inconvenience. The presence of a local rule of operating procedure permitting destruction or return of exhibits within sixty days after dismissal, see Local Rule 39(e), does not undermine this discretionary function.

Even if application of the local rule is viewed as transforming the access inquiry into a legal question permitting plenary review, existence of the rule cannot annul the common law's strong presumption of access that attaches to records when they are introduced into a public judicial proceeding. It is well established that "[n]o statute is to be construed as altering the common law, farther than its words import." Shaw v. Railroad Co., 101 U.S. at 557, 565 (1879); see also Norfolk Redev. & Housing Auth. v. C & P Tel. Co., 464 U.S. 30, 35-36, 78 L. Ed. 2d 29, 104 S. Ct. 304 & n.7 (1983); Mobile Gas Serv. Corp. v. Federal Power Comm'n, 215 F.2d 883, 889 (3d Cir. 1954), aff'd, 350 U.S. 332, 76 S. Ct. 373, 100 L. Ed. 373 (1956). Any statutory modification of common law must be made by express legislative enactment. We are not faced with an act of that magnitude; rather, we are faced with a conflict between a fundamental common law right and a judicial rule of internal procedure. Thus, if a statute cannot implicitly override the common law, neither may a local rule of court.

But for the passage of a brief period of time beyond the sixty-day limit set in the local rule, PNI could have obtained access pursuant to the district court's application of Criden. For whatever reason, PNI deemed trial exhibits essential to its ability to effectively report on the topic. Its only error was that it waited a bit too long before launching its investigation of the circumstances underlying the issues litigated in the BIC case.

The significance of public issues and the public interest in a judicial proceeding and its accompanying evidence cannot be forced to comport with notions of administrative convenience. For example, heightened public scrutiny of a legal issue or a judicial proceeding may not arise during the actual pendency of the trial or subsequent appeal. At the time of litigation, the issue may be of little interest to anyone other than the named parties, or the proceeding may occur in a small community where the media has neither the ability nor the resources to contemporaneously report every ongoing legal dispute. Similarly, allegations of impropriety, misconduct, or irregularity may not surface until months after the case is closed.

The effect of today's decision will be felt beyond the newsroom of PNI. Any member of the public, whether a student of the law, an interested observer, or a historian, will be required to assert his rights within two months or lose them forever. Such a result is at odds with the purposes of granting public access.

I recognize, of course, that in some cases the absence of any temporal or practical limits on retention of court records and exhibits may result in burdens on the parties and the courts. This, however, is not such a case. Although the clerk had returned the exhibits to BIC, opposing counsel asserted that his copies of the exhibits were public records. Moreover, BIC retained the contested items; they had not been destroyed. Thus, the practical reasons for denying access were not present here, and will not be present in many other similar cases.

In cases where practical and temporal limits are a major concern, the district court should consider the burden on the parties and the court, and the timeliness of the request for access, as additional factors influencing its decision on access. I do not view a local rule permitting return or destruction of exhibits as controlling the determination of right of access. Rather, the district judge should be permitted to inquire whether the contested items are still available from any source. If the items exist, their character as judicial records renders them presumptively open to public examination, absent "Improper purposes." See Nixon v. Warner Communications, 435 U.S. at 598.

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