In Brief: Baystate Technologies v. Bowers

Posted on | June 4, 2008 | No Comments

2008-1204 Baystate Technologies v. Bowers
D/MA 91-cv-40079
Judge Nathaniel Gorton

The appeal brief is in from movant/appellant Professor George Kuney seeking authority to receive and use materials from the underlying Baystate case in a textbook.  The material is covered by a stipulated protective order entered in 1998, and the district court summarily denied his motion to intervene and to modify a protective order. 

You can download the brief here.  The Summary of Argument is posted below the fold.

The appeal is being decided on the briefs, "argument" scheduled for Monday, July 7, 2008, 10:00 A.M., Courtroom 201.  However, only Kuney has filed a brief–all other interested parties declined to participate in the appeal.

Summary of Argument from movant/appellant Prof. George Kuney.  Univ. of Tennessee College of Law, Knoxville, TN (George Kuney) on brief.

The District Court erred as a matter of law in finding moot Kuney’s motions to intervene and to dissolve or modify the protective order because the relief requested is capable of being granted. Gowen, Inc. v. F/V Quality One, 244 F.3d 64, 66 (1st Cir. 2001). It is possible the motion to intervene was found moot on the ground that intervention was implicitly allowed. However, Kuney’s motion to dissolve or modify the protective order was not granted, explicitly or implicitly; the Stipulated Protective Order is still in place and the documents are still available. Thus, relief is capable of being granted.

The District Court abused its discretion in denying Kuney’s unopposed motion to enter the proposed stipulated order while indicating it would enter the order if Bean moved for it. Siedle v. Putnam Investments, Inc., 147 F.3d 7, 10 (1st Cir. 1998). In doing so, the District Court ignored “material factor[s] deserv[ing] significant weight,” Id., and acted in an arbitrary or capricious manner, In re Carp, 340 F.3d 15,24 (1st Cir. 2003). The stipulated order provided for disclosure of judicial records to which there a strong presumption of public access, and “only the most compelling reason can justify [their] non-disclosure ….” Poliquin v. Garden Way, 989 F.2d 527, 533 (1st Cir. 1993); see also In re Carp, 340 F.3d at 24; Siedle, 147 F.3d at 10. The District Court did not consider this presumption of access in denying Kuney’s motion, and no reason was submitted by the District Court or any party to justify nondisclosure of these documents. The District Court also abused its discretion in failing to consider the presumptive right of public access to discovery material under the Federal Rules of Civil Procedure, Public Citizen v. Liggett, 858 F.2d at 788, and the strong public policy favoring settlements, Cities Service Oil Co. v. Coleman Oil Co., 470 F.2d 925, 929 (1st Cir. 1972). The District Court had no objection to the substance of the proposed stipulated order and indicated it would enter the order-but only if Bean moved to modify the Stipulated Protective Order consistent with the terms of the proposed stipulated order. This action was arbitrary or capricious and an abuse of discretion. In re Carp, 340 F.3d at 24. Therefore, Kuney requests that the September 17, 2007 order be reversed and the matter remanded with instructions that the proposed stipulated order be entered. In re Salem Suede, 268 F.3d 42,45 (1st Cir. 2001); Siedle, 147 F.3d at 12.

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