ANNOUNCER: On behalf of
the board of supervisors, welcome to the 75th
Ames Final Argument. It's our pleasure to
have so many past winners tonight, contestants,
and of course their families and friends. We have a distinguished
panel this evening. And we ask that there be no
flashes during the argument. And no moving around
unnecessarily, please. It's also a privilege
tonight to introduce the dean of the Harvard
Law School, Dean Vorenberg, introduce the panelists. JAMES VORENBERG: My role
as a brief and happy one. First, I have the pleasure
of welcoming you all-- students, faculty,
staff, alumni, and friends of the school-- to this very special
Ames Final Argument. Tonight's program marks
the 75th anniversary of the Ames Moot Court
Competition named for James Bar Ames, the dean of
a law school from 1895 to 1910 over there. He is also the
man in whose honor the court room has been named. Among you tonight
25 former winners of the Ames Final Argument
from the New England area representing more than
800 alumni who have participated in the Finals. Justice Blackmun, by the way,
was a member of one of the Ames Finals team in 1932. I wish to expand the
school's special thanks to the members of the board who
take such care in organizing the Ames competition,
and to the students who are arguing tonight as well
as their colleagues who worked so hard on the briefs. And if they were in the
room, I would certainly thank the judges for joining us. You are all invited
to a reception in the John Chipman Gray room in
Pound right after the argument. I hope you all have
a fine evening. Thank you. BAILIFF: All rise. The honorable chief justice
and associate justices of the Supreme Court
of the United States. Oyez, oyez, oyez. All persons having business
with the honorable Supreme Court of the United
States shall draw near and give their attention to
the court shall now be sitting. God save the United States
and this honorable court. HARRY BLACKMUN: I take it. Mr. Bailiff, that the pages
are off duty tonight because we almost sat on the floor. And usually they
hold our chairs. And when you get over 95, and
you need all the assistance that one can get. I take it there are no
admissions to the bar today. We have to have admissions
because this supplies the United States Treasury
and there was a day when, as you know, when it all
went into the court coffers. But the admissions
are falling off. And we have to do
something about it. Justice Kearse, do you have
any opinions to announce? AMALYA KEARSE: Relating to? Anything in particular? HARRY BLACKMUN: For
those assigned opinions that haven't been forthcoming
that were argued last June. I've been waiting for them. AMALYA KEARSE: I've
been away doing other things, Mr. Justice. HARRY BLACKMUN: So I understand. Well, we proceeded the calendar. It's number 86. 116 is the first case
for oral argument. Forest Phillips
individually and as executor of the estate of
Iris Phillip's petitioners against the Higgenson
Corporation Inc and SP Kaiser Inc, respondents. It comes to us from the Court
of Appeals for the Ames circuit. So if counsel are
ready, we'll proceed. My predecessor as
Chief Justice always said, you may proceed Mr.
Smith, whenever you are ready. I've been waiting for
someone to say, well, I'm not at all ready. But Mr. Inglemeyer. PAUL INGLEMEYER: Good evening,
and may it please the court. My name is Paul Inglemeyer. Along with my co-counsel
Christopher Grisanti, I represent Forest Phillips,
the petitioner in this case. The issue before
this court tonight is whether parties seeking
to bring tort claims against cigarette
manufacturers have been categorically prevented
from having their day in court. I will address the federal
preemption issue in this case. And I would like to focus
this court's attention tonight on two broad points. The first is that there
is simply no evidence that Congress, in passing
and Cigarette Labeling Act, intended to eliminate
common law claims and thereby leave smokers
without any judicial remedies. The second is that the
purpose as Congress articulated when it passed
the Cigarette Labeling Act will be frustrated,
not advanced, by a finding of preemption here. Mr. Grisanti will then argue
that the Ames Court of Appeals below was wrong to forbid
Mr. Phillips from sharing any of the information
that he has gained through discovery in this case. The facts of this
case are as follows. Mr. Phillips's wife Iris died
three years ago of lung cancer. She had smoked two packs
of cigarettes a day since 1942, when she was 11. HARRY BLACKMUN: You mean
she started that very day smoking two packs a day. PAUL INGLEMEYER: According to
the record, yes, your honor, as alleged by the petitioner. HARRY BLACKMUN: She didn't
have an initial illness or anything behind the barn
when she first started? Two packs the very first day. PAUL INGLEMEYER:
Believe it or not, your honor, that is
what she has alleged. She alleges that she has
been addicted to cigarettes since 1950 when she was 19. HARRY BLACKMUN: How do
you define addiction? PAUL INGLEMEYER: Your honor,
petitioner has not defined addiction in his complaint. However, we are alleging that
we believe that addiction means an inability to stop smoking. HARRY BLACKMUN: That's
a little different from drug addiction
isn't it, where one has to go back to the
drugs and increase doses. I take that you're using it
just as the inability to stop. PAUL INGLEMEYER: That
is correct, your honor. HARRY BLACKMUN: So it's really a
habit rather than an addiction. PAUL INGLEMEYER: Pardon me? HARRY BLACKMUN: It's more
a habit than an addiction. PAUL INGLEMEYER: No, your honor. The issue here is whether
Mrs. Phillips was indeed able to stop smoking. That's relevant
for these reasons. The respondents have argued that
Mrs. Phillips, having been sent a message by Congress, was
able to stop smoking after 1956 and that she chose
to continue smoking. Legally, your
honor, Iris Philips was unable to stop
smoking after 1950. And for purposes of some of the
legal decisions on the summary judgment motion, this court must
accept that fact as alleged. Your honors, that leads
directly into my first point. That is that Congress
did not intend to eliminate the common law
claims of cigarette smokers, be they addicts or others,
in 1965 when it passed the Cigarette Labeling Act. Your honors, that
act says nothing about eliminating
common law remedies. It says nothing about closing
off access to the judiciary. And it says nothing about
common law claims at all. It's preamble delineates
quite closely the field in with Congress
expected to operate. Here's what the preamble says. It says-- RICHARD POSNER: I'm not sure
why you care about the statute, because you said from 1950
on, she couldn't stop smoking. So it can't be your theory that
the problem with the cigarette companies' conduct
was that they didn't warn her with sufficient clarity
of the dangers of smoking. PAUL INGLEMEYER: That
is correct, your honor. However the Court
of Appeals below has argued that Mrs.
Phillips lacked the will to stop smoking after 1956. It has, in effect, ignored
the factual allegation in Mr. Phillips's complaint. That is why the
addiction continues to be relevant in this case. RICHARD POSNER: But I mean
you're abandoning, aren't you, your failure to warn
theory of liability? PAUL INGLEMEYER: Not
at all, your honor. RICHARD POSNER:
Because no matter how strong the warning,
if she couldn't stop, she couldn't stop. So they could have
said anyone who touches this package
will get cancer and it wouldn't have
made any difference. PAUL INGLEMEYER: That
is not-- your honor, the Court of Appeals below tried
to eliminate only the failure to warn causes of action. Anything that is not
based on failure to award under the Court of Appeals
theory would persist. You honor, the
Cigarette Labeling Act-- AMALYA KEARSE: Well, let me
interpose a question here. In those causes of
action would survive is it appropriate for
the Court of Appeals to have accepted
jurisdiction to hear of the appeal at this time? PAUL INGLEMEYER:
Absolutely, your honor. AMALYA KEARSE: Well,
why is its ruling a controlling one that
will dispose of the case? PAUL INGLEMEYER: I'm
not sure I understand why there would be a problem
with a Court of Appeals ruling as a matter of law. AMALYA KEARSE:
We're talking about an appellate jurisdiction. And I gather from the record
that the district court granted certification
under section 1292B. PAUL INGLEMEYER: That's correct. AMALYA KEARSE: And although
it's not clear from the record, I gather we are to assume that
the Court of Appeals granted leave to appeal. Now why was that appropriate
if the case is going to continue on other theories? PAUL INGLEMEYER:
Your honor, I am unable to account
for the behavior of the Court of Appeals
except to suggest that this is a very pressing issue. It relates to 50 other
cases around the country. It may well be that
the Court of Appeals sought to get this issue
resolved so as to clarify a decision that is likely to
have ramifications in far more than its particular circuit. AMALYA KEARSE: Well, it
may have ramifications for 50 other cases but
it doesn't seem that it's going to dispose of this one. Perhaps we should dismiss as
having improvidently granted cert or set aside the decision
below of the Court of Appeals as having improvidently
granted leave to appeal. PAUL INGLEMEYER: Your
honor, with all due respect we would urge that you
not dismiss this case for these reasons, your honor. The issue of smoking
and whether long time smokers should have a cause
of action is a critical one. Congress-- RICHARD POSNER: A cause
of action for what? PAUL INGLEMEYER: A cause of
action for, in this case, for a product's
liability, for negligence, for deceptive advertising,
and for failure to warn. RICHARD POSNER: Well, I have
a problem with the failure to warn because it seems to
me your basic allegation is that no warning would
have any effect on her. And therefore couldn't
affect her conduct. So how is it a
failure to warn case? PAUL INGLEMEYER: It
is a failure to warn case, your honor, because it may
well be that when this court, if this case is ultimately
return to a trial court, if Mr. Phillips is given his
day in court, that the addiction fact will not be proven
and yet Mr. Phillips will-- RICHARD POSNER: Let me ask my
question a little differently. As I understand the
federal statute, it relates to warnings. But if she is, maybe it's not
addiction in a technical sense, but if she can't
stop smoking it seems that the warning is not terribly
important one way or the other. And therefore, in what sense
is this question of law-- however important in
large it might be-- controlling of this litigation,
dispositive of this litigation? PAUL INGLEMEYER: Your
honor, it is controlling because Mr.
Phillips's allegations that his wife was
addicted to smoking is one that may or may not be
proven true in the trial court. This court should continue to
hear this case, your honors, because in case that
fact is not proven, Mr. Phillips will
then be pursuing-- RICHARD POSNER: So this
controlling question might easily disappear
if the case were tried? PAUL INGLEMEYER: Your
honor, if in fact she had proven to be addictive,
then the issue of failure to warn, we would
allege, is irrelevant. RICHARD POSNER: Didn't
the Court of Appeals jump the gun in deciding to
review the case, to review a difficult issue,
that might not be dispositive in
this litigation, might easily disappear. PAUL INGLEMEYER:
Your honors, we would urge that this court
continue to hear this case because the subject
matter is so important. This court does have
the ability to hear issues of its own motion. And we would hope that it
would do so in this case. Your honors, just to pursue the
issue of Congress's intentions, which is the key
issue in this case-- HARRY BLACKMUN: Before
you get over there, let me speak at my discomfiture
about failure to warn. Are you taking the position
that she needed to be warned? PAUL INGLEMEYER: Your honor,
we are taking the position that the state of Ames has
taken in its causes of action. That is that when one puts
a product out on the market one owes certain common law-- HARRY BLACKMUN: Well, has anyone
ever believed that cigarette smoking is good for one? PAUL INGLEMEYER: No,
your honor, but-- HARRY BLACKMUN:
100 years ago when I was in law school, whatever
it was, Lucky Strike or Old Gold or Chesterfields or
any of the others, everyone spoke of
them as coffin nails. Coffin nails. PAUL INGLEMEYER: Your
honor, Mr. Phillips only seeks his day in court
to prove that very point, that cigarette
smoking may in fact be hazardous to one's health and
that Mrs. Phillips may not have received the warnings
necessary to fill her in on the information
she needed to know to make an informed decision. Let's RICHARD POSNER: Let's
pursue that for a second. Do you think it's open
to you under the statute to argue the jury
that this warning that the federal government
requires is no good, and that this jury should send
a clear signal to Congress by awarding heavy damages
as showing that it just doesn't believe that
a warning like this is adequate to shake up a
person like Mrs. Phillips who is habituated to this and
requires some overwhelmingly powerful warning. Is that argument open
under the statute? PAUL INGLEMEYER: The
argument is certainly open, your honor, that juries
could find that-- RICHARD POSNER: I mean, you
could, in front of the jury disparage the federal warning
and say that is inadequate. Congress made a mistake. It should be a much stronger
warning I want you the jurors, by bringing in a
verdict for my client, to send a message to Washington
that that warning has to be beefed up. PAUL INGLEMEYER:
Your honor, that would be an adequate
warning, although I would phrase it a different way. And the issue would
be whether or not the warnings provided
by Kaiser and Higginson were adequate, not
whether Congress in announcing a statue
that had a fundamentally different purpose
from calibrating a duty to warn to that
of traditional tort law was erroneous. Your honors,
Congress's purpose when it included the terms
adequate warning was not to calibrate it's warning
to that of tort law. I call your attention to
the quotes in our brief that demonstrate from
Congress that all over the country that they did
not expect that they believe the tort suits would continue. AMALYA KEARSE: Some of them
said that this meant to be an assumption of risk offense. PAUL INGLEMEYER: Your honor,
that is absolutely true. Many congressmen did
believe that once in court, many cigarette plaintiffs would
face a very stiff assumption of the risk defense. That's not at issue here. The issue is rather
Forest Phillips can have his day in court at all. He may well facing some
stiff evidentiary barriers, and particularly if he
is not able to prove the fact of addiction,
which he has alleged. But that's not the
issue in this case. Your honors, Congress
twice returned to the act, in 1969 and in 1984. And it's behavior then, as
we demonstrate in our brief, shows that it felt that tort
claims however foreboding an obstacle or proof might be
for an individual plaintiff, were totally consistent
with the act. Congress was well
aware of the tort claim for continuing in
1969 and in 1984. Yet it did nothing. If Congress considered
those claims to be inconsistent with the act,
its will is being frustrated, it did nothing. Finally, your honor-- RICHARD POSNER: Anyone
ever win of judgment in one of these
cigarette cancer cases? PAUL INGLEMEYER: No,
your honor, they did not. But Congress was well aware
that the suits were continuing. And the issue tonight,
as per Congress, was not a matter of whether
or not a cigarette case should be won or lost in
the particular case but whether it should be
allowed to be pressed at all. This court has never held that
a federal lack has preempted all state remedies
when doing so would leave open no avenues
of judicial recourse or compensation. AMALYA KEARSE: Well, suppose
that's what Congress intended. Preemption's a matter
of congressional intent. Suppose Congress intended
that there be no tort actions. PAUL INGLEMEYER: Then we
would not be here tonight, your honor. Petitioner concedes that. But there is no
expressed preemption provision that deals with
common law claims in the act. Quite the contrary, it
excludes common law. It says nothing about common
law claims and in fact refers rather to
mandatory warnings imposed by state agencies or
by state legislatures. It also bars-- AMALYA KEARSE: Or by
political subdivisions. Perhaps we should consider the
courts-- the state courts-- political subdivisions? PAUL INGLEMEYER: Your
honor, I think this court-- AMALYA KEARSE: Many
judges are elected. PAUL INGLEMEYER:
This court has long been loathe to consider
itself a political body. I would urge it to continue-- AMALYA KEARSE: No, I
didn't mean we were. But there is no separation
of powers in many states. PAUL INGLEMEYER:
That is correct, your honor, but the
numerous statements on the floor of Congress
uncontradicted by respondents in their brief demonstrate
that Congress fully expected tort suits to continue. That should bear on the
interpretation of the term state in Section 1334. And there's a good
policy reason for that. What Congress was concerned
about, your honors, was conflicting mandatory
labels on cigarette packs. One can well imagine the chaos
that having mandatory labels would cause. Tort liability raised-- RICHARD POSNER: Suppose
it became settled in the state of
Ames that in order to have an effective
assumption of risk defense, a cigarette company
has to have in addition to the federal label,
which is required, another more shocking labels
with pictures of people dying of lung cancer and so on? And if that's the
only safe haven that is available under the
common law of Ames, and if you don't have
that, why, you have to pay enormous punitive damages. Why wouldn't that be
a mandatory label? PAUL INGLEMEYER:
Your honor, that would be like an
injunction in demanding a very specific label. And that would
clearly be preempted under Section 1334A that
prohibits any statements from being required. And clearly the graphic
statement that you have offered would qualify as a
statement every bit as much as New York saying
smoking can stunt growth. RICHARD POSNER: So there
is some preemptive effect on common law judication. PAUL INGLEMEYER: Absolutely. 1334A would clearly rule
out a specific performance or any sort of injunction. That's not the issue here. Here, your honor, respondents
have been unable to prove, for example, that they could
satisfy their common law duty to warn by
taking other steps, for example putting labels,
inside packets or warning people in other ways. Moreover, your honor-- HARRY BLACKMUN: Would
you carry this argument-- let's forget about the
federal act for a minute because you're speaking
of common law arguments-- would you carry this into the
liquor industry also where-- I have looked of
course at many labels but I haven't seen any warning
labels on liquor bottles. PAUL INGLEMEYER: Your
honor if Congress chose to do so it certainly could. But Congress
repealed prohibition. It repealed the Volstead Act. And Congress's intent is
what should control here. Hear the statements in Congress. Hear Congress's acquiescence
in ongoing tort suits. And hear that this court's
tradition of not inferring an intent to eliminate
last remaining remedies should control here. HARRY BLACKMUN: But as an
experienced trial lawyer in this field, generally
you would not hesitate today to bring an action for
chronic drunkenness because of the consumption of alcohol. Why not? PAUL INGLEMEYER:
Your honor, there is nothing that
Congress has done that has preempted such claims. I think, as a matter
of fact, there might be quite a good bit of
difficulty proving that there was no assumption
of the risk in light of what's known about alcohol. Your honor, let me turn very
quickly to a final point. The respondents have sought
to describe the Congress as having created a delicate
balance between the tobacco industry and the
public interest. Your honor, every
element of that balance was explicitly
contained in the act. Common law remedies were not. It would disrupt that
balance to suddenly include a big factor on one side of the
equation-- the tobacco industry side. And I would like to call your
attention to the many things that Congress
allowed states to do that would have the effect of
harming the tobacco industry, for example imposing
stiff cigarette taxes or imposing their police powers. Common law remedies were
not mentioned in the act, and nor were those things. This court should not infer
from Congress's silence that somehow despite
the absence of presence of quotes in the
congressional record, that Congress intended to
preempt, that it meant to. HARRY BLACKMUN: Think
you, Mr. Inglemeyer. We've stolen some of your
time by our questions. But that is routine
in this court. And we'll now hear
from Mr. Grisanti. CHRISTOPHER GRISANTI:
Good evening. May it please the Court. My name is Christopher Grisanti. And I also reprsesent the
petitioner Forest Phillips. Tonight I wish to focus
this court's attention on one broad point. This court's decision in
Seattle Times versus Reinhard does not require a trial court
to ignore the First Amendment. The Ames Court of Appeals,
however, advocates that kind of constitutional boycott. This error should be reversed
and the district court's decision to deny
a protective order should stand for two reasons. First, there's ample evidence
within the Seattle Times opinion itself that the First
Amendment should not be ignored in protective order analysis. And second, Judge Rice, the
trial court judge in this case, did exactly what he was required
to do under Seattle Times. Turning to the Seattle Times-- AMALYA KEARSE:
Didn't he interpret Seattle Times to forbid him
to enter a protective order? Didn't he say it
would be improper? Did he purport to
exercise any discretion? CHRISTOPHER GRISANTI:
Yes, your honor, he did exercise discretion. He did what Seattle
Times commanded of him, which was to
weigh the competing needs and interests of both
sides in the protective order analysis. And he felt that while the
respondent's interests were legitimate, they were overridden
when he took into consideration as he's required to
do under Seattle Times the First Amendment as
well as other factors. Turning to the
Seattle Times opinion, far from banishing
the First Amendment from the protective
order landscape, Seattle Times established
a First Amendment test right up front. RICHARD POSNER: Well, up front. What about the last sentence?As
I recall, the last sentence, the court said that if there's
a finding of good cause and if the order is limited to
pretrial discovery and if no information is suppressed that
it was obtained from sources other than discovery, a
protective order doesn't offend the First Amendment. CHRISTOPHER GRISANTI:
You've touched on the key of the opinion, your honor. First of all, from that sentence
you cannot infer that the First Amendment should be completely
prohibited from any part of any analysis like the
Court of Appeals does. Second, there's a footnote
to that very sentence. In that footnote,
this court went through a number of other
First Amendment concerns which weighed on that case. There were access to courts,
petition, association, and even in the Seattle Times
case, religious freedom. In that particular case,
they advocated the granting of a protective order. However, when you take
those kind of interests into consideration here,
you find that denial of the protect order-- for RICHARD POSNER: But you're
confining the court's decisions to its facts-- the facts of that case. CHRISTOPHER GRISANTI:
No, I'm not, your honor. For example, let's take the
court's opinion as a whole. The court first of all, as I
mentioned, establishes a test. It requires that
any protective order must further a
substantial government interest in order to justify
the suppression on speech. And second, that
court emphasizes both discretion and balance on
the part of the trial court. It's the trial court
in its discretion which must determine when
a substantial government interest is at stake. In other words,
it's the trial court that determines when a
protective order would violate the First Amendment. Then Seattle Times
go on to say, and I quote, "Trial court must
fairly weigh the competing needs and interests of all the
parties affected by discovery." Now, when the trial court has
done this, as Judge Rice did, it includes the First
Amendment within that balance. To exclude the First
Amendment would be to go against those cases in
which the same First Amendment test has been used. In the prison context
in the school's context in the military
context in many contexts where this court has analyzed
the extent of First Amendment rights within
government institutions. It has never prohibited
the First Amendment from becoming part of the
trial court's consideration. An additional point within
the Seattle Times opinion which indicates that they
meant the First Amendment to be considered was, as I pointed
out just a few minutes ago, the First Amendment
considerations that it itself takes into consideration. RICHARD POSNER: What
weight should we give this oral agreement
not to disclose? CHRISTOPHER GRISANTI: The oral
agreement not to disclose, your honor, has not as of
this point been broken. And the trial court had
evidence of the oral agreement. And it's the trial court
that should take weight of it and not this court. The trial court-- said RICHARD POSNER: You say
you haven't broken it yet. But you're planning to break it. CHRISTOPHER GRISANTI:
No, your honor. The trial court has
taken such an agreement into consideration. RICHARD POSNER: What do you
mean, under consideration? You made an agreement. Are you going to stick
to your agreement or break your agreement? CHRISTOPHER GRISANTI:
Your honor, we find that as we see
more and more documents there is a need to unfortunately
break our agreement. RICHARD POSNER: Well,
break your agreement. But haven't you waived
any First Amendment claim? You made an agreement you
wouldn't disclose the material. You're going back
on your agreement. You're adults. You waived it. Why should there be
any issue of the First Amendment in the case? CHRISTOPHER GRISANTI: With
all due respect, your honor, even adults can take
account of changing facts and must change their
arguments accordingly. The trial court heard the
exact arguments you're making and found that the interest and
dissemination must overcome. Now there is an agreement,
and the respondents are quite free to assert
the confidentiality of various documents to
prevent dissemination if they feel that a particular
document would injure their commercial well-being. AMALYA KEARSE: What
does that mean, exactly? Does that mean you're willing
to have a protective order cover specific documents
but not to have a wholesale protective order? CHRISTOPHER
GRISANTI: Your honor, as we showed in
our brief, if they can prove both a clear
harm from the revelation and that that economic
injury is serious, then they have a right to
protect certain narrow classes of documents. However, the sweeping
protective order that is urged on
the court tonight would do far more than that. And the trial judge
understood that. AMALYA KEARSE: Have you
negotiated with respect to categories that you're
willing to have covered by the protective order? CHRISTOPHER GRISANTI:
Respondents bring up in their brief, and we can agree
with respondents on this point, that the narrow subject
of tobacco ingredients is all that is protected under
the Federal Labeling Act. And that's what we would
agree should be protected. However, the documents in
question concern health memorandum, concerns how
this health information is transmitted to
government authorities, and it concerns how this
health information is marketed in its advertising campaigns. The trial judge found only the
potential for future injury. It did not find the requisite
serious economic harm nor did he find the clearly
defined harm which-- AMALYA KEARSE: What are
you really interested in? Are you interested in
publishing the information you've discovered? Or are you interested in
using it in other cases? CHRISTOPHER GRISANTI:
Your honor, we're interested in using
our information to evoke information from
future potential plaintiffs or from witnesses that
might be out there. We want to exchange
that information with other plaintiffs in
order to further our own case. There are 50 other
actions pending presently. AMALYA KEARSE: In this district? In the District of Ames? CHRISTOPHER GRISANTI: No,
all throughout the country, your honor. AMALYA KEARSE: Have you sought
multi-district consolidation? CHRISTOPHER GRISANTI:
No, your honor. We have not. Or at least the record does
not point out that we have. AMALYA KEARSE: Well,
wouldn't that be-- CHRISTOPHER GRISANTI: So I
guess that's an open question. AMALYA KEARSE: Wouldn't
that be a way for you to share the information
with other plaintiffs? CHRISTOPHER GRISANTI:
Yes, your honor. It would be. However, the distinct
nature of each injury in these particular cases is
so unique to the given case and as my co-counsels
pointed out, the different stages in
which people started smoking makes each case so distinct
that multi-district litigation might not be the
appropriate remedy here. At least Judge Rice saw
for the immediate future that the dissemination
of materials would greatly aid not only
this petitioner but 50 others. It would further the purposes
of federal civil procedure one, which is the speedy, just,
and inexpensive determination of all the-- RICHARD POSNER: Would it
really help the First Amendment on balance because obviously
if protective orders aren't available here or are subject
to these discretionary judgments giving great way to the
interest in disclosure, then in the future
companies in this position won't keep this kind of record. It becomes poison to
have it in your files. So there'd be less
research, less-- CHRISTOPHER GRISANTI: Well, with
all due respect, your honor, that's probably an
unfortunate truth. However those incentives
exist even now. I mean, all we're talking about
is dissemination to the public. But if those documents
as you suggest exist, then the cigarette
defendants here might already be held liable. And there's enough
incentive for them to destroy such
documents already. But I think it's important that
this court understand the First Amendment rights
which Judge Rice took under the discretion granted
to him by Seattle Times into account. HARRY BLACKMUN: Do you
think Seattle Times really is good law? CHRISTOPHER GRISANTI:
Absolutely, your honor. The justices that wrote that
opinion have my full support. HARRY BLACKMUN: Some of them-- CHRISTOPHER GRISANTI: Your
honor, excuse me for levity. HARRY BLACKMUN: There was a
concurrence, wasn't there? CHRISTOPHER GRISANTI: Excuse me? HARRY BLACKMUN: There was a
concurrence in Seattle Times? CHRISTOPHER GRISANTI: Yes, by
Justices Brennan and Marshall. HARRY BLACKMUN:
And to what extent did it differ from the majority? CHRISTOPHER GRISANTI:
It differed in that I think that Brennan
the concurrence wished to limit the Seattle
Times more to the facts of that specific case. However, we have no problem with
reading Seattle Times broadly since Seattle Times
grants the trial court the discretion to weigh
competing needs and interests. Respondents tonight
are going to get up here and urge this court to
look at their interests only. But Seattle Times
demands more than that. Even the majority says weigh the
competing needs and interests in all protective
order litigations. Here the trial court
found convincing-- RICHARD POSNER: Something,
I must say is in candid, there's something vaguely
unappealing about the interest you assert because
you've sued these people and you've forced them
to disgorge documents and now you want to flag the
documents around the media in order to make the
cigarette companies-- embarrass them. You want to pool it with a
bunch of other plaintiff's cases so you can present some
overwhelming phalanx of litigation against
the companies. Why should that be given
great weight by a judge? CHRISTOPHER GRISANTI: Well, that
is exactly what the respondents are saying, your honor. However, in the trial
court when both of us had our chance to put
forward those arguments, we put forward arguments on
the other side, that efficiency would result, that less
expense would result. And Judge Rice in the discretion
granted to him by Seattle Times found the petitioner's
arguments more persuasive. We're merely asking you
tonight that Judge Rice in doing that balance
not be prohibited, as the Court of
Appeals has done, from considering the First
Amendment in that balancing test, the First Amendment rights
of meaningful access to courts recognized by Seattle
Times and further through NAACP versus
Button case, in addition to rights of association
and petition under that line of cases. And also the First Amendment
rights of dissemination itself are all furthered by a
protective order in this case. Here, we can get outside help. We can share costs. And we can share materials. There's a very real
chance if we have nothing to offer other
cigarette plaintiffs we will get nothing in return. That doctrine in the Upjohn
case persuaded that court that dissemination was necessary
for the widespread goals of the discovery system. HARRY BLACKMUN: It helps,
particularly, in contingent fee cases I suppose. I trust that you have this
one on a contingency-- CHRISTOPHER GRISANTI:
Your honor, we're only the appellate
litigants here. HARRY BLACKMUN: Oh, you didn't
try it on the trial court? CHRISTOPHER GRISANTI:
No, they handed us over because we're specialists. HARRY BLACKMUN: Why? Why is it that an
appellate counsel is never the one that tried the case. What CHRISTOPHER GRISANTI:
That's what I say, too. HARRY BLACKMUN: He can always
hide behind the record, and so forth. CHRISTOPHER GRISANTI: But
we don't share the fee. HARRY BLACKMUN: That's an
unfair question, counsel. Go ahead. CHRISTOPHER GRISANTI:
I'd just like to conclude with this, your honors. I have no doubt
that respondents are about to come up
here in a few minutes and go through their
interests one by one. But they've already had a chance
to do that in the trial court. And they came up short. Seattle Times demands the
trial court weigh the interests and look not at just the
respondent's interest. Respondents do have
legitimate interest. Yet the trial court's
required to balance them. We ask tonight that
the trial court be allowed to include the First
Amendment in that balance, and not, as the Court of
Appeals would have it, ban the First Amendment from
the protective order landscape. Thank you very much. HARRY BLACKMUN: Mr. Ecker,
we will hear from you. The calendar's certainly heavy
if we're holding night court. I notice that everybody
says good evening. Just like trial court in your
former city, Judge Kearse. STEVEN ECKER: Well good
evening, Mr. Chief Justice. And may it please the Court. My name is Steven Ecker and
along with Richard Zabel, I represent the
respondents SP Kaiser and Higginson corporation
in this lawsuit. I will address the question
of federal preemption here. Mr. Zabel will then take up the
issues relating to the motion for protective order. The question before this court
is whether the state of Ames may accomplish indirectly,
through its tort law, what it is prohibited from doing
directly under the Cigarette Labeling and Advertising Act. Now the Cigarette Labeling
and Advertising Act provides a recourse
to every smoker in this country by requiring
cigarette manufacturers to provide on every
package of cigarettes sold and in every promotional
advertisement for that product a federally specified warning
stating that cigarette smoking is hazardous to health. The act goes on then to
ensure the exclusivity of federal authority
in the field by expressly preempting states
from requiring any other health warning. That is the social policy
embodied in the act. Consumer education and exclusive
federal authority in the field. Now petitioner was confronted
with the federal warnings for 17 years and continued to
smoke cannot now disrupt that federal scheme by recourse
to Ames state law, which sets its own warning
standards and which prescribes a vastly different social policy
on the question of smoking and health. I will demonstrate-- RICHARD POSNER: That's
a pretty good argument, but doesn't the Silkwood
case sink that argument? Wasn't that really a
stronger case for preemption? STEVEN ECKER: In the
Silkwood case, your honor? Before the court in the
Silkwood case, first of all, was just simply the question
of punitive damages. What the court did there
was look back to the Pacific Gas and Electric case and-- RICHARD POSNER: I mean, you
have far more federal regulation of nuclear reactor safety
than you do federal regulation of the cigarette industry. And yet the court
said, if a jury wants to award punitive damages
because they don't think Kerr McGee is safe
enough, even though it's in compliance with federal
law, fine, they can do that. STEVEN ECKER: Well, your honor,
first of all the determination in Silkwood, like the
determination in this case, hinges on the legislative
history of the federal act. Now it's true that there
is a great federal interest in controlling the
nuclear energy. However, what this court
found in the Silkwood case was that Congress had expressly
indicated its intention to preserve liability claims,
including punitive damages. In this case, what
we need to do is look at the legislative intent
behind the Federal Labeling Act and discover what lies there. I think we find a
very different intent. AMALYA KEARSE: Why
wouldn't Congress have said that it intended to
bar common law tort claims, if that's really
what it intended, instead of saying
that it intended to provide a comprehensive
program to deal with advertising? STEVEN ECKER: Well, your
honor, first of all Congress didn't expressly preempt
common law claims. It didn't expressly
provide a savings clause. So again, the
question comes to what to make of the legislative
silence on the issue. It's not, although
the statute goes to advertising
and labeling, it's the purpose of the act
isn't consumer education. In fact, the 1984
amendment to the act is entitled The Consumer
Education Smoking Act. And when we look at the nature
of the subject matter being regulated, which is a
luxury consumer good which is voluntarily consumed,
it's not surprising, I don't think at all, that
Congress would believe that the way to regulate
this, unlike nuclear energy for example, is to say consumers
here's the information, now you make your choice. AMALYA KEARSE: I assume
you're familiar with studies about injury to those
who have passively inhaled cigarette smoke? Do you think Congress
intended to preempt those plaintiffs from bringing
common law torts claims? STEVEN ECKER: Well, your honor-- AMALYA KEARSE: What good
would a warning do to someone who inhales smoke
simply because they are in the presence of a smoker? STEVEN ECKER: It wouldn't
do any good at all, except that maybe they could
they could leave the room. AMALYA KEARSE: Well, would you
concede that those plaintiffs would get to sue for-- STEVEN ECKER: Yes, your honor. I don't believe that-- AMALYA KEARSE: All right, then
what about somebody who is addicted and cannot change
his or her habits on the basis of a warning? Why aren't those two
similar situations? STEVEN ECKER: Well, because
in one case, your honor, we're talking about
sidestream smoke. In the other case, we're talking
about a consumer going out and purchasing the
package of cigarettes and reading the warning. Now the addiction
issue in this case was before Congress
in 1966, in the midst of a vast amount of information
on the medical issues. It was again before
Congress in 1970. It was again before
Congress in 1984. Congress believed
that smokers who were warned of the very
serious health risks associated with their habit--
potential health risks-- associated with their
habit could stop smoking. That fact is indicated in
the legislative history. The Surgeon General stood
up both in 1964 and in 1969 and expressly stated
that he would not use the word addiction
to refer to the issue. Congressmen time and
again stood up and said, there is now hope for
smokers in this country. The 1984 act, there is a warning
on packages of cigarettes under the rotational
system that says quitting smoking now greatly
reduces serious risks to your health. I submit that if Congress had
truly believed in the addiction theory the petitioner's
press that they wouldn't have had wasted
their words on that warning. AMALYA KEARSE: Congress
often wastes words. HARRY BLACKMUN:
No other industry is immune from products
liability suits. Why should we presume that
a labeling statute passed in order, I think, to
aid and protect consumers was meant to create a broad
exception for the tobacco industry. STEVEN ECKER: Well,
your honor, first of all the cigarette industry
is not immune from tort suits. They can be sued just
like any other company if they produce a defective
or substandard product. But as to the question of an
inherently dangerous product when used precisely
as intended, I believe that that's an
attribute unique to cigarettes on the consumer market. And that, it's
therefore not surprising that Congress would deal
with the issue as it has. Basically, I believe
that there are two choices before Congress--
either ban cigarettes or count on the free market
modified by a consumer warning, consumer education
to deal with the issue. There doesn't seem to be
any in-between point when you're talking about a
potentially inherently dangerous substance. AMALYA KEARSE: You mean there's
no logical in between point. Is there any requirement that
Congress enacts something that you think is logical? STEVEN ECKER: No, your honor. But I do believe that when
you look at the statute, when you look at the
legislative history, that the act hangs together
in a logical fashion. RICHARD POSNER: It hangs
together though also if simply viewed as-- if you go back to the '66
Act, the primary purpose was simply to get the
FTC out of the business of regulating, labeling,
advertising of cigarettes. And then the provision
about preemption of states was designed to keep
little state FTCs or state legislatures from bringing
in the FTC's regulations by the back door. On that reading of
the statute, it just has nothing to do
with tort suits. STEVEN ECKER: Well,
you're exactly correct, your honor, in that that
was the primary concern. It was certainly the
impetus behind the '66 Act, the fear that primarily the
FTC and then later that states would step in with
the scare campaigns, as one Congressman called them. But common law tort
suits were mentioned by congressmen and senators,
both in the hearings and on the floor of the Senate. RICHARD POSNER: Because
it was recognized that the warning would
interact with the common law defense of assumption
of risk in some way. Isn't that the context in which
the tort suits are mentioned? That this statute could have an
effect on assumption of risk. Maybe it could even help
the tobacco companies, quite regardless of preemption. STEVEN ECKER: Well, it
was certainly mentioned in that way, your honor. And just to make a brief
point before going on and also discussing how it was mentioned
in terms of preemption, I think it's
important to recognize that that point in
itself severely undercuts petitioner's core theory
in this case, which is using the
language of Silkwood, that it would have been
inconceivable for Congress to preempt or to cut
out state tort claims. Indeed from reading the
legislative history, it's very clear that
Congress recognized the connection between the
federal warning and state common law and had no problem
at all, didn't even blink, in recognizing that there would
be a negative impact on those. Now the question is one
of interpreting well, did they-- did Congress
intend to fine tune the assumption of
risk defense, or did Congress intend to preempt
the claims altogether. AMALYA KEARSE: Well,
if they intended to preempt, why was there
any discussion of assumption of risk? STEVEN ECKER: Your honor, the
main discussion of assumption of risk in the memorandum,
the Ellenbogen Memorandum from the HEW in '66 was simply
requested by a single congressman asking-- we haven't talked
about common law here. What's going on? I'm not a lawyer. Can you please inform me? I think that the most
plausible interpretation of the references to
assumption of risk is one of not really
knowing what's coming down the pike in terms of law suits. There were only
about seven lawsuits across the country
in the 1960s filed against cigarette companies. But making it very clear
that Congress recognized that common law tort suits could
have a negative impact on what Congress was attempting
to do, and stating their clear intention that the
warnings would have an impact on the common law claims. In fact, at the one point
at which preemption actually is directly connected up to-- explicitly connected up
to the common law claims is in the 1969 hearings when
Representative Watson, who was quoted by petitioners
at page 11 of their brief, is discussing the
preemption issue. And as petitioners correctly
point out Representative Watson states in those hearings
that in his opinion the 1965 Act didn't
preempt claims. Representative Watson
goes on three pages later in the legislative hearing
discussing preemption still, and states, and I quote. "If we are to pass
their recommendations and state is a hazard"-- that is in upgrading
the warning from may be hazardous to is a hazard-- and I continue the quote,
"then I can assure you that that, in all
probability, would prevent any common law action." HARRY BLACKMUN: What
state was the congressman? STEVEN ECKER: The congressman
was from the state of South Carolina, your honor. But Senator Moss from
the state of Utah was the leading sponsor
of the 1970 amendment. And Senator Moss, who
we quote in our brief, stated that he saw moments
before the passage of the 1970 amendment, on the
floor of the Senate, Senator Moos stood
up and said, I think that the tobacco
industry, the tobacco states, should be happy with this
bill as the state interests because this bill is
going to provide-- I'm not quoting the exact
language but it's in the brief. It's going to bar
common law claims. Representative Moss was
from Utah, once again. And I think it's important
to point that out. HARRY BLACKMUN:
Congressman or a senator? STEVEN ECKER: I'm sorry, he
was a senator, your honor. Now, what I wanted to do
was demonstrate two points this evening. First, that the Cigarette
Labeling and Advertising Act occupies the field
of health warnings and therefore preampts Ames
law based on duty to warn. And secondly, that
all of the Ames laws-- RICHARD POSNER: But your
opponent really isn't pressing the duty to warn. I mean, it's kind of a
backup position for them just in case they
can't prove that Mrs. Phillips was in some
sense addicted or unable to stop smoking. So how much do you have to gain
by prevailing on this issue? STEVEN ECKER: Well, your
honor, if petitioners are willing not to
press the duty to warn issue, we of course will-- RICHARD POSNER: Well, they're
not willing to concede it, but it doesn't seem to be-- what of the plaintiff's
case, in your view, would survive if we held
that the federal act had this preemptive effect? STEVEN ECKER: Well,
your honor, we strongly believe that the duty
to warn claim would go. Now as you say, that seems to
be the weakest of the claims. The reason that we believe it's
important to present that issue here is that one of the
central policies behind the Act is warning uniformity. We want to ensure that that
policy of warning uniformity is preserved. But beyond that, our position is
that all of petitioners' claims are barred under a conflict
preemption analysis. That is, all of
petitioners' claims conflict with the purpose-- RICHARD POSNER:
Everything is barred? STEVEN ECKER: Yes, your honor. RICHARD POSNER:
They make a claim about deceptive advertising. What if cigarette companies
big ads which said ignore that nonsense
on the label that Congress requires
us to put there. It's phony. There's no hazards to smoking. Is it your view that she
would have no cause of action? STEVEN ECKER: That's
correct, your honor. The FTC-- RICHARD POSNER:
That's preempted also. STEVEN ECKER: That's
correct, your honor. The Federal Trade
Commission would obviously have jurisdiction
over that and I'm sure would exercise that
jurisdiction hastily. But Section 1334B
of the Act states-- Section 1334A of the Act
just discusses the statement on the label itself. Section 1334B of the Act goes
on to discuss the advertising issue in states. No requirement or prohibition
based on smoking and health shall be imposed under state law
with respect to the advertising or promotion of any
cigarettes the packages of which are labeled in
conformity with the provisions of this chapter. So long as the federal act
is complied, as respondent-- RICHARD POSNER: They could say
anything in their advertising. STEVEN ECKER: That's
correct, your honor, with fear only of
federal enforcement. The strict liability claims
are really a paradigm of what this case is about. What the state of Ames is doing
with its strict liability law is carrying out a
risk utility analysis, analyzing the social utility
of this product of cigarettes. Yet this is precisely the
same risk utility analysis undertaken by Congress
in the Cigarette Labeling and Advertising Act. That Ames will arrive at a
vastly different conclusion, at least on the utility side
of the balance, is clear, I think, from the district
court's opinion, page 32 footnote 1. RICHARD POSNER: What
if the state of Ames attempted to outlaw the
sale of cigarettes in it? Would that be preempted-- I mean, that might
raise problems under the interstate commerce--
would that be preempted by this Federal Labeling Act? STEVEN ECKER: Well, commerce
clause questions aside, your honor, our position is yes. The purpose of the Act and I
may just answer the question. HARRY BLACKMUN: You may
finish the question. The purpose of the act is to
preserve consumer free choice. It's stated throughout
the legislative history. Because prohibition
would directly fight fly in the face of that
legislative intent, it too would be preempted. Thank you. HARRY BLACKMUN:
Thank you, Mr. Ecker. Mr. Zabel, we will
hear from you. RICHARD ZABEL:
Mr. Chief Justice, and may it please the Court. My name is Richard
Zabel and I represent the respondents
Kaiser and Higgenson Corporations in this action. This case presents the
question of whether there are limits to a litigant's
use of discovery materials. I will demonstrate
that there are. And that in analyzing a motion
for rule 26C protective order, such as the one in this
case, a trial court must not consider the First Amendment. One thing is clear from
this court's decision in Seattle Times V Reinhard. And that is the last
sentence that Justice Posner pointed out. It states that the
First Amendment is not violated by a
protective order that is entered on a showing of good
cause as required by rule 26C, is limited to the context
of pretrial civil discovery, and does not restrict
the dissemination of the information if
gained from other sources. The Seattle Times court thus
resolved an apparent conflict between rule 26C and
the First Amendment and settled the standard under
which protective orders can be granted. That standard is good cause. The litigant does not have any
heavier burden of satisfying any First Amendment standard. I will show first
that petitioner has no First Amendment
rights to disseminate these discovery materials
to other litigants or to the public. Secondly-- AMALYA KEARSE: Suppose
the case were consolidated for pretrial proceedings. RICHARD ZABEL: Consolidated with
the other 50 cases, your honor? AMALYA KEARSE: With
the other 50 cases that were pending,
which sometimes happens. Wouldn't they all have
the right to share the fruits of discovery? RICHARD ZABEL: Your
honor, under our theory, even if the case
were not consolidated all outside litigants-- these
50 other litigants-- have to do is move to modify
the protective order. The standard for that is
only to show that they are similarly situated. AMALYA KEARSE: You would
not oppose such a motion? RICHARD ZABEL: Your
honor, whether we would oppose the
motion or not may have to do with whether
the other litigants are similarly situated. AMALYA KEARSE: If they showed
they were similarly situated, then are you saying that you
would not oppose the motion? RICHARD ZABEL: Your honor, that
would depend on other factors, the nature of the suit. Of course, I can't comment on
what those suits would entail. But the important point
that you're bringing up is that under our theory, where
the First Amendment is not taken into account,
other litigants are not barred from this information. They move then to modify
the protective order and if they are
similarly situated, they are granted
the information. RICHARD POSNER: These documents
are in the physical possession now of the plaintiffs? RICHARD ZABEL: Yes, they
are in the possession. Some of the documents are in
the possession of petitioner. They also are moving to
disseminate information that they may get in
the future, your honor. AMALYA KEARSE:
Should the court give different degrees of protection
to different categories of documents? I notice your motion says
that you'll be exposed to humiliation and annoyance. And I presume there are
some trade secrets that you want protected as well. Should the Court try to
fine tune a protective order to give different
degrees of protection to the different categories? RICHARD ZABEL: Your honor, the
different degrees of protection that would be
required that would be a problem under
petitioners' theory where First Amendment would
have to be taken account. And different items
of information would have different
constitutional weight under the First Amendment. Under our theory, there
is only one standard and that is the same theory
that the Seattle Times court laid out, and that
standard is good cause. Any material we can show
good cause for which we should be granted a protective
order should be protected. AMALYA KEARSE: And do you
think that the likelihood of annoyance is equally
good cause with protection of trade secrets? RICHARD ZABEL:
Well, your honor-- AMALYA KEARSE: You think those
two equally show good cause? RICHARD ZABEL: Your honor,
I think they both meet the good cause standard. I think the problem
that you're getting at that would come under
petitioners' theory is that a trial court
in a situation where trade secrets are at
issue would be presented with a situation
where it would be forced to weigh the First
Amendment against the Fifth Amendment. The Fifth Amendment because
the disclosure of trade secrets could constitute a taking. That is exactly why the
Seattle court examined rule 26C and carved out a narrow context
in which protective orders could be issued under
the good cause standard and where the First Amendment
would not have to be weighed, and thereby hindering
the court's discretion. AMALYA KEARSE: Well, you're
not making a taking argument with respect to any
documents that don't contain trade secrets, are you? RICHARD ZABEL: No, your honor. We're not making a takings
argument as to those documents. We do not even need to
make a takings argument as to any of the information
because we have satisfied the district court that
we have shown good cause to the district court. The district court, indeed,
despite petitioners' claims, did not have any
discretion in this case. It said, absent the
necessity of having to consider the First
Amendment it would have granted a protective order in this
case because good cause had been shown. We do not need show that
there's been a taking. We do not need to
show that there's been a violation of privacy rights. All we have to do is
meet the good standard. We satisfied the district
court as to that standard. And we satisfied a
unanimous circuit court as to that standard. Petitioners have no
First Amendment right to disseminate any
of this information. Because in the context of
discovery, the broad powers they have been granted
to gain this information, to gather this
information to in effect the broad powers that
litigants are granted to invade each
other's privacy, those are a form of legislative
grace granted under a statute under the rules of discovery. And they are granted so that
litigants may prepare for suit. That is the purpose of
the rules of discovery. It is not unlike other-- RICHARD POSNER:
You didn't produce these pursuant to an
order, though, did you? RICHARD ZABEL: Excuse me? RICHARD POSNER: You didn't
produce these documents in response to an order. RICHARD ZABEL: No, your honor. RICHARD POSNER: You just
exchanged them voluntarily. RICHARD ZABEL: We
produced them voluntarily under an oral
confidentiality agreement. And we would still be
producing them today had that agreement
not been renounced or said to be potentially
renounced by petitioners. Nevertheless, it's clear
from the discovery rules that much of this
information, if not all of it, would have been judicially
compelled to be produced under the discovery rules. RICHARD POSNER: Why didn't
you just refuse and make them apply for an
order of discovery if they're so embarrassing
and touch, and so on? Well, you trust to
their good faith. RICHARD ZABEL: I don't think
that respondents' good faith in voluntarily coming to
an agreement, the lawyers in this case coming
to an agreement to the exchange of
discovery, should cut against the respondents. As the manual for
complex litigation says, it's ideal for litigants
to arrange discovery among themselves and not
drag the court into it. Of course, we could have
forced them to go to the court and make us give up documents. That would have seemed to
just proliferate disputes rather than to
expedite discovery in this case,
which was happening under the oral agreement. As I said then that at the-- RICHARD POSNER: Are you
suing for breach of contract? RICHARD ZABEL: Whether we can
sue them for breach of contract is a separate issue, your honor. The issue that we
are concerned about is that the respondents
not be bankrupted by the disclosure of
their trade secrets to competitors and to
the rest of the public, and not be subject to
humiliation, embarrassed, and annoyances as
rule 26C states, which may even prevent them
from getting a fair trial should this case go to
trial in the future. The reasons that the standard
for issuing protective orders is good cause and not
First Amendment scrutiny is that any injection of
a First Amendment issue would undercut the substantial
government interest that this court in
Seattle Times recognized underlie the discovery process. The court recognized two
substantial government interest, one in
protecting the privacy of litigants who are involved
in the discovery process. And the second interest was
in allowing trial courts the discretion, the ability
to manage efficiently the discovery process. In this case, it is clear
that the information that we seek to protect
stands at the heart of our entrepreneurial
enterprises. That is, it is confidential
information that constitutes private information. And this court recognized
in Seattle Times that privacy is the
rationale for rule 26C, the protection of privacy. The fact that the
disclosure of trade secrets and other information
would affect the taking only serves to show how
extreme petitioners' theory that the First Amendment
must be weighed in each protective order motion,
how extreme a burden that you put on trial courts attempting
to issue protective orders and having to choose between
the First and Fifth Amendment. Now the second substantial
government interest was in allowing trial
courts to efficiently manage the discovery process. The injection of a
First Amendment issue into every protective
order motion would force trial courts to
protract the discovery process as they made the necessary
burdensome evidentiary findings to decide
constitutional questions. Protective order motions
would be constitutionalized and a trial court would
have to weigh the evidence as to factors such
as public interest in the documents,
other factors that bear on the First Amendment. AMALYA KEARSE: Does
it have to weigh it with respect to each document
or category of document? Or can it simply weigh
the public interest in the subject matter? RICHARD ZABEL: Well, your
honor, that points out I think what is another
inescapable problem with petitioners' theory. That is normally a court has the
discretion to issue an umbrella protective order, a broad
protective order, as to categories of information. However, under
petitioners' theory, the trial court would have to do
a document by document approach and would virtually be held
hostage to years of discovery because each document would
have a different constitutional weight as to the public interest
in that document, as to the-- AMALYA KEARSE: Did you make this
argument to the district court? RICHARD ZABEL: Excuse me? AMALYA KEARSE: Did
you make this argument to the district
court, which probably would have been receptive to
it than we, who would not have to do a document by document-- RICHARD ZABEL: Well, your honor. I was not there to make this
argument to the district court. However, I can tell
you that the district court on page 35 in its opinion
recognized that broad discovery orders categorical or
umbrella protective orders, those do expedite discovery. It recognized that fact,
and then said absent the necessity to consider
the First Amendment. Since it had found
a good cause, it seems that it would have
granted the protective order. And it recognized that
the most efficient type of protective order
in this case would have been as respondents'
did point out in the district court, a
broad protective order. The second problem
then with injecting a constitutional question
into protective order motions is that it would create
a question of law, as to what was formally a
discretionary decision by trial courts to grant
protective orders. That would lead to an incredible
amount of interlocutory appeals to both the circuit courts
and maybe to this court. RICHARD POSNER: What
is the basis for and interlocutory appeal? Maybe the Court of Appeals
didn't have jurisdiction? RICHARD ZABEL: In this case,
your honor, in this case the Court of Appeals
said that under 1292B an interlocutory appeal can
be granted if the district court certifies it for
appeal to the circuit court and the circuit court
accepts that certification. That's what happened
in this case. The circuit court
went on to point out, however, that the appeal also
would have come up to it-- had it not been done
in that manner-- would have come up on mandamus
because the district court had committed a clear error of law. That clear error of law was
to inject the First Amendment into this inquiry where the
good cause standard should have been the standard. AMALYA KEARSE: I mean, you
can get mandamus every time the district court clearly
makes a mistake of law? RICHARD ZABEL:
Well, your honor, I wouldn't presume to
say that a mandamus is an extraordinary writ and
it's not that often granted. However, it has been granted
on protective order motions with this type of fact pattern. And the circuit
court said that it would have granted a writ
of mandamus in this case. And I think that that's
what petitioners' theory, which injects a First
Amendment--a constitutional question as to each protective
order motion, would lead to. RICHARD POSNER: Why? Why is a constitutional error
more likely to be clearer than a non-constitutional error? RICHARD ZABEL: Not
that it would be clear, your honor, necessarily,
but that it would-- RICHARD POSNER: Because
your conception of mandamus is that a discovery order or
anything, any time the judge makes a clear error,
the Court of Appeals can jump in and reverse it. RICHARD ZABEL: No, your honor. We do not claim that
writs of mandamus would be running rampant-- RICHARD POSNER: I mean,
suppose a judge made it clear in excluding evidence. Could the lawyers say,
hey, wait a minute, judge, I'm going
to get a mandamus to make you reverse that one. RICHARD ZABEL: Well, it is
up to the court of course to grant a writ of
mandate, your honor. And I think that even
if writs of mandamus we're not being granted all the
time, which they shouldn't be and probably
wouldn't be, the fact remains that injecting the First
Amendment into protective order motions creates a question
of constitutional law. And that would be
coming up on appeal. No matter what level of
First Amendment scrutiny you would inject into
protective order motions, it's still a constitutional
question and an important one and would lead to
interlocutory appeals. This case demonstrates that. And so does Seattle Times. RICHARD POSNER: But if the
judge had granted this, why couldn't your
opponents say, look this judge made it clear
error in giving weight under 26C to embarrassment
that an industry might feel when it is discovered
that it is killing people. Why couldn't that be
argued as clear error? RICHARD ZABEL: It could not
be argued as a clear error of law, your honor. The good cause standard
is discretionary, and it would have to go
up to the Court of Appeals as an abuse of discretion. The other claim for a
First Amendment right to disseminate that
petitioners have asserted is that there is great public
interest in this information. The magnitude of the public
interest in the information does not create a First
Amendment right of access for the public to
discovery materials. Nor does it create a First
Amendment right to disseminate the materials to the public. The public interest
is triggered, the First Amendment
right of public access is triggered, by evidence
when it goes into court and becomes part of
the evidentiary record, the public documents
of the court, then the First Amendment
right is triggered and the public has access
to the information. Evidence is the touchstone
of a First Amendment right. Civil discovery has never
been opened historically to the public and should not
be made open under petitioners' theory now to the public. The other problem with
petitioners' theory as to injecting
a First Amendment interest into the
discovery process is that the First Amendment
interests as is evident, I think, in this case
are not necessarily beneficial to the
petitioner, to the client. Their interest that the
lawyer has in material that he has become aware of
through the discovery process by allowing the First
Amendment issue to be raised to allow the dissemination
of discovery materials would create a
situation where lawyers who would come upon
valuable information could use the discovery process
to create as the circuit court noted it's in footnote on
this case, a commercial asset for themselves. That is information-- RICHARD POSNER: But
you can't prevent that. Because unless we threw
out your entire case, you presumably would be
forced by this information to settle under threat of
having it put into trial and bankrupting the
industry, won't it? RICHARD ZABEL: I'm not sure I-- RICHARD POSNER: You
say it's dynamite. It's disaster for you
if this comes out. But of course, it will be
admissible, most of it, at trial. RICHARD ZABEL: It's not clear,
your honor, that this case will go to trial. RICHARD POSNER: Well, as I
say, if we don't knock out every claim that
the plaintiffs have, then there will
be triable issues. RICHARD ZABEL: There will be
triable issues, your honor. RICHARD POSNER:
There'll be, you know, a motion for summary judgment. RICHARD ZABEL: Yes, your honor. There will be. RICHARD POSNER: And then
in response to that, all this dynamite will come in. It'll be part of
a public record. And it'll be widely broadcast. So you're just-- this is
just a delaying action for you, isn't it,
for a few months? RICHARD ZABEL: No, your honor. I don't think it's
a delaying action. It's not clear what information
will come out at a trial, whether there is a trial. The important point, though,
that your question points up is that whereas there would
be irreparable harm done to the respondents
in this case should the information from
discovery be revealed, it is clear that it's only
a delay for the petitioners and outside litigants who will
have access to the information once it becomes part
of the trial record. In summary then, what
is at stake here, it seems clearly to be the
integrity of the discovery process. And more importantly at
stake is whether this court will allow litigants to be
stripped of their privacy by the limitless use
of discovery materials. We respectfully ask
this court to affirm the judgment of the circuit
court of Ames in all respects. HARRY BLACKMUN:
Thank you, Mr. Zabel. Mr. Inglemeyer and Mr.
Grisanti, do a rebuttal? You have, I think,
four minutes for it. PAUL INGLEMEYER: We will waive
our rebuttal time, your honor. HARRY BLACKMUN: You'll wave it? Well, the case is
under submission. And the Court will do
its best to resolve it. BAILIFF: All rise. [APPLAUSE] SPEAKER 1: Could
everyone please sit down? The judges are ready. We'd also like to
remind everyone that there will be a reception
immediately following the judge's decision in the
Ropes Gray Room and Pound. BAILIFF: All rise. HARRY BLACKMUN: Well,
now comes the hour of reckoning I suppose. What I've asked Judge Posner
and Judge Kearse to do is to make initially
some general comments about the argument. And then eventually
we shall do our best to name the winners of the
best brief if you will. And the best oral argument
and the winning team. These are always excruciating
choices, as I think all of you can appreciate the
argument tonight. Judge Posner, will you want
to make some general comments? RICHARD POSNER: OK. Thank you, Justice Blackmun. I will make just two points
about the presentation of the case. The first has to do with the
use of precedent in the briefs. As the case was created,
skillfully created I might add, there were two cases that had
a commanding significance. One favoring the the plaintiffs,
the petitioners, one, the respondents, the defendants. The Silkwood case seemed to
be a very powerful precedent supporting the petitioner's
position with regard to preemption and the
Seattle Times case seemed an equally
powerful case supporting the respondents position with
regard to the protective order. But in neither of
the briefs, what were these cases really drawn
to the court's attention in the most forceful way? And we thought, all
of us, that the briefs would have been more effective
if focused on these cases respectively. Telling the judges,
telling us, that is exactly what these cases were
about and what the court held, rather than simply referring
to them from time to time and not sufficiently emphasizing
their central importance. That's just a minor criticism. The second point, not
really a criticism at all. But a comment on a curious
feature of the case. Although it's a very
skillfully created case and very interesting and
well balanced on the merits so that each side had a
good issue and a weak issue, the case has buried in it
some jurisdictional problems which made it seem to
some of us at least a somewhat premature
case, actually. It's not at all
clear, for example, that the preemption
issue is properly brought to the Court of
Appeals under Section 1292B. There's a small technical reason
for this and a larger reason. The small technical reason
is that the way in which the record is written, it is
implied although not stated that the only
certification of the issue is by the district court. Whereas the rule,
of course, requires that the Court of Appeals
be asked within 10 days to certify the issue for review. And if it doesn't, then the fact
that district court certified it is of no moment. The larger issue is whether
this is really the sort of case that the framers
of 1292B thought would be brought up to
the Court of Appeals. The issue of preemption
is a very difficult issue, very important issue,
but not clearly dispositive of this case. And moreover, it's not clear
that the issue can be properly evaluated in advance of trial. Because judges interested in
deciding the case as narrow a basis as possible would like
to know what use would be made of the warning issue at trial. Would the federally
mandated warning be disparaged by the
plaintiff's counsel? What use would be made
of it by the defendant? So the issue might be a good
deal more ripe after a trial, and that would be a powerful
reason for not certifying it under 1292B. There's also a question
about the protective orders appealability to the
Court of Appeals. It doesn't fit 1292B at all. It fits mandamus
only in the sense that everything fits mandamus. That's a catch all. Discovery orders are
very rarely subject to interlocutory appeal. The standard remedy, if you're
really upset by a discovery order and want to
appeal it immediately, is to refuse to comply and
be held in criminal contempt and be an appeal from
that, which you can do. The issue is made
murky here by the fact that the respondents had turned
over some documents as to which contempt would no longer
be a remedy but not others. Again, I think a
real court would be delighted to be able to
duck the issue by refusing to hear it at this time. Although courts have
disagreed, it really seems a classic case for use of
the collateral order doctrine another route of appeal, but
not involved in the problem. Having made these points about
the case and about the briefs, let me say that I
thought that the case is an excellent case,
very cleverly created, very interesting to us, and
very challenging, and very well balanced and well adapted to
an argument by four people. And I thought the
briefs were excellent. And the arguments
were excellent. And so that I think
both the people who created the case and the
people who have presented the arguments should
certainly be congratulated. HARRY BLACKMUN: Judge Kearse. AMALYA KEARSE: Thank you. I'd like to direct my
comments principally toward the oral
argument which we all found to be of very, very high
quality on the part of all four of the oralists. I thought that all
the oralists did a very good job of being
responsive to the questions of the court. One of the things that we
find sometimes in real court is that the parties are
not terribly responsive. And especially
there, unlike here, we really want to know the
answers to our questions. So to the extent
that you can continue to be responsive
to the questions you will advance your cause. We threw you a
few curve balls on the jurisdictional questions,
simply because they were there. And I think that by and
large, you did as good a job as you could with those. I think it's also
important that you be able to hit a curve
ball because you'll get a few of those
in real court also, whether it's because the judge
is thinking of a different case or because there's
something in the case that you haven't foreseen. I was also impressed with
the ability of each of you to weave into the
mainstream of your argument the answers to the questions
that we were throwing at you. Because sometimes we
would anticipate something that perhaps you had
intended not to reach until later in your argument. And one of the most
frustrating things for a judge who wants to
know the answer to a question is to hear, I'll
get to that judge. I'll get to that
later in my argument. We have perhaps a childlike
desire to know immediately. When we ask a question, we
want to know the answer to it. I'd finally like to say that
I think that the comparison with the lawyers that
we hear every day, you were all better
than about 95% of them. Of course, I would also point
out that you're probably never again be as well-prepared
as you were tonight. HARRY BLACKMUN:
Well, first of all, I would like to
express appreciation on the part of the panel here
to Professor Charles Knutsen who I understand
supervised the case, suggested it, and came up with
what we feel was a good one. And to Renee Landers for her
preparation of the record. I almost called her Ann,
but this is a big job to do. And I think it was a
job that was well done and deserves an expression
of appreciation. And then to Michael Fealy,
who is here as a supervisor generally. It's a lot of work. I know it is. And I think they are
to be commended for it. Well, so far as my general
comments are concerned, they are very general. I hope this is a great day
for you, the four of you. And I and the
others on the brief, and let's not forget them. I say that because I was
on the brief 100 years ago. And I hope it's a happy
day, however it comes out. I think you're especially
privileged to have participated in the Final Argument
of an Ames competition that really goes over your
entire law school curriculum. I'm sure you'll look back
on this, not only tonight but on the experience. And if you are not
chosen as the winner, I hope you will realize it
isn't the end of the world. I echo what Judge Kearse said
that the performance tonight, I think, ranks high
among the practice of appellate practitioners in
the courts, the federal courts of this country. I wish that every
case in the court in which I'm
privileged to sit were as well argued as this one was. I think initially when we
looked at these briefs, we are pleased that we
do not have to decide the case on the merits. They are so evenly balanced and
yet after we hear the argument, we wish we could decide
it on the merits. And tonight was no
different than many others. Someone has to lose and that's
the nature of litigation. It's the nature
of the profession you have chosen to follow. And so, you have to
anticipate as you get out into practice that you're
going to lose some, you're going to win some. You'll win some you
don't deserve to win. And you'll lose some that
you know you should have won. And but I think I can say
without any hesitation that you will succeed,
the four of you, and the rest of
you on the briefs. And the future lies
bright ahead of you. I suspect you would not
be bored of an actual case as much as you probably
are with this one, the way you labored
on it in the way I noticed your
especially assigned work tables up in Liondell
library this afternoon. I was tempted to put
those books away myself. Just a couple of comments,
and I think the judges here will agree with me on it. Don't ever be concerned
if your carefully prepared oral argument goes down
the drain due to questions that the court advances. As Judge Kearse has
stated, the court wants an answer to its question
and it wants it right now. And many times that lawyers
wonder about a question that is posed that is not on
all fours with the one under consideration. The reason, of
course, is the court is looking ahead
to the next case and to the ramifications of
the decision in this one. And it's always disturbing
when counsel said, well that isn't this case. And then, to mimic
my good friend who sits next to
me, Justice White, he'll say, yes, yes, but
answer my question, counsel. Answer my question. And so there's a
bit of a tug of war. So I do say generally
answer the questions put to you specifically
and without conditions. And I think this was
done generally tonight. Know when to sit down. We know some lawyers, if
we give them 30 minutes, are through in 10 minutes and
they start all over again. And then they start
all over a third time just to take up that 30 minutes. Former dean of this law
school Irwin Griswald is in this respect
one who never errs. He is thoroughly prepared as
he argues before our court. He never exceeds that time
limit and he never repeats. And if you can ever see
him argue some time, I recommend and
commend it to you. I think also you should
remember that in a court with as many members
as our court has, nine of them sitting up there
like a long line of owls, looking down at poor
solitary counsel, sometimes the questions amount
to arguments among the justices themselves. It's like testifying
before a Senate committee with that horseshoe table. It took me a little while when
I went through the confirmation process to realize that
some of the questions, although ostensibly
directed to me, were really directed at their
counterparts across the table. And I think to a
lesser degree, that is true in a nine judge panel. Know your facts and
know your record and this is particularly true
if you're not trial counsel. Don't hide behind the fact that
somebody else tried the case. I think also it's
well to remember that a decided cases is
not judged Zilch's case if he wrote the opinion. It's the court case. And he may have authored,
but it is a court decision and not the author's decision. I thought it was interesting. I don't know whether any
of you have been watching Fred Friendly's Managing
Our Miracle series on PBS on Tuesday evenings
at 10 o'clock. But the program was
on this very subject. And I thought it was a good one. And professor Nussin
was holding forth. He started off very nervous-like
holding a cigarette, and went in and confronted
somebody and said I'm going to marry your
daughter but I have-- and we took off from there,
they took off from there. So that these are pertinent
in live and pregnant problems, so to speak, that
are current today. I think it is a fact. I saw it in a reputable
medical journal this week that those persons who
will die this year from cancer about 30% or 145,000
people have their cancer linked to cigarette smoking. I well remember when I
was on the staff of Mayos and the first inkling
of this problem broke. The chief of the
biomedical division came in storming into
my office one day. And he said, the AMA is nuts. And I said, Joe,
what's the matter. He said the statistics
don't prove their case. Well, he was a chain smoker
and I wasn't surprised that he felt that way. But there are today
those who feel that, as certainly some
of the cigarette companies profess to feel, that
smoking and cancer have not proved to be linked. Well, I've said
before here, I'm sure, but I think it was
Justice Jackson who said that if the day comes
when you make an oral argument and you're not excited by it,
the adrenaline isn't running, don't make it. It's one of the great
days in your life. And that's not only true here. It's true in any argument,
I think, before any court. And one day you'll be privileged
to argue before these two very splendid appellate judges. And I think it will be an
exhilarating time for you to have that experience. So our compliments
are due all around. I hope that you have learned
something by this experience. I know that we have. And tomorrow I guess all of
us will go back to our jobs where the cases are a
little easier to decide. Well, having made you
wait all that time. I think the first thing
we have to announce is which side's
briefs are the better. And Judge Posner, would
you take that one on? RICHARD POSNER: Yeah. We thought the briefs were
of extremely similar quality. And that is not said
simply out of politeness but was in fact the
reaction of all three of us. We thought they were
excellent briefs. And as I say, virtually
indistinguishable in quality. But for us to make a
choice, and recognizing the difficulty of it, we
decided that the briefs of the respondents of the six
unknown named agents team was-- their brief was
marginally superior. And so that's our decision
on that aspect of it. HARRY BLACKMUN: The next
day is the best oralist. Judge Kearse. AMALYA KEARSE: Again, we
had a difficult decision to make because we thought
that all four of the oralists were very, very good. So that the one that
we have named best is not best by a wide margin. On the other hand, he can brag
that he was best of a good lot. And that is Richard Zabel. [APPLAUSE] HARRY BLACKMUN: That
leads us the winning team, and I suppose those two words
indicate that with difficulty, and I say this with
sincerity, with difficulty, we have decided that the
respondents should be named the winning team for this year. [APPLAUSE]
