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'Good cause' to support blanket gag order not shown

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NEWS MEDIA UPDATE   ·   THIRD CIRCUIT   ·   Secret Courts   ·   Aug. 29, 2005

NEWS MEDIA UPDATE   ·   THIRD CIRCUIT   ·   Secret Courts   ·   Aug. 29, 2005

‘Good cause’ to support blanket gag order not shown

  • A federal appeals court invalidated an order keeping all information secret in a Pennsylvania police officer’s civil suit against the state police for alleged retaliation.

Aug. 29, 2005  ·   A desire to preserve an impartial jury pool does not justify a broad and sweeping gag order on all information in a pending civil case, a federal appeals court ruled Aug. 24.

A three-judge panel of the U.S. Court of Appeals in Philadelphia (3rd Cir.) overturned a federal trial judge’s grant of a request by the Pennsylvania State Police Department for a gag order on all information regarding an employee’s ongoing lawsuit. The appeals court ruled the department failed to show “good cause” for the order as required by law.

U.S. District Judge Sylvia H. Rambo issued the order in December 2004 to prevent the release of nonpublic documents to anyone other than the parties and their attorneys and agents without the other side’s consent. The judge reasoned that disclosure of discovery documents to the press “could unduly prejudice the public, from which jurors for this litigation may be selected.”

But such a concern is “exactly the type of broad, unsubstantiated allegation of harm that does not support a showing of ‘good cause,'” Senior Judge Morton I. Greenberg wrote for the panel. Trial judges are usually able to choose a fair and impartial jury despite pretrial publicity, and there was nothing to indicate this case would be any different, the court said.

“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,” Greenberg wrote.

The State Police Department asked for the blanket gag order after The Philadelphia Daily News published news stories about allegedly defective radar devices used by the department. The stories were based in part on documents provided to the newspaper by attorneys for Officer John Shingara, who had obtained them through pretrial discovery in his civil-rights lawsuit against the department. Shingara claimed fellow members of the State Police retaliated against him for publicly criticizing the radar devices.

Under Rule 26 (c) of the Federal Rules of Civil Procedure, a court may grant a protective order, or gag order, to prevent the release of discovery materials if “good cause” is shown. In deciding whether there is good cause, a judge should consider several factors, including whether those who benefit from secrecy are public officials and whether the case involves important public issues.

By focusing on the concern for pretrial publicity, Rambo “unacceptably downplayed the fact that this case involves public officials and issues important to the public,” the court stated. The panel also rejected another of Rambo’s reasons for granting the order — that the documents would likely become public eventually — because she “did not point to any real threat of prejudice to the defendants.”

After Rambo refused in April to lift the gag order, the newspaper appealed to the Third Circuit. The appellate court decide the case under the “collateral order” doctrine, which allows review of nonfinal court orders. Although an appellate does not usually hear an appeal until after a case is over, in this case the immediacy of the issue at stake compelled prompt resolution.

“After all, nobody wants to read yesterday’s news,” Greenberg wrote.

The panel sent the case back to the trial court with instructions to lift the gag order. The decision does not prevent parties from asking the court to seal specific documents, it said.

(Shingara v. Skiles, Media Attorney: Michael E. Baughman, Dechert LLP, Philadelphia, Pa.)KK

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