CASE CLOSED … what really happened in the 2001 anthrax attacks?

* Florida judge wants to unseal anthrax case documents dealing with scientist, Army lab

Posted by Lew Weinstein on November 4, 2011

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Judge Daniel Hurley

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Associated Press reports (11/4/11) … 

  • A federal judge is asking why records should remain sealed in a soon-to-be-settled lawsuit over the death of a Florida man in the 2001 anthrax attacks.
  • U.S. District Judge Daniel T.K. Hurley says in court papers the public generally has access rights to such documents. Those sealed include personnel records of Army scientist Bruce Ivins. He’s blamed by the FBI for the attacks that killed five people and sickened 17 others.
  • Other sealed documents involve security procedures at the Maryland Army lab where Ivins worked.
  • The attorney for Maureen Stevens, whose husband died in the attacks, says there’s no reason to keep those documents sealed.
  • Justice Department lawyers have not yet responded.
  • Both sides say a settlement of Stevens’ lawsuit is imminent.
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4 Responses to “* Florida judge wants to unseal anthrax case documents dealing with scientist, Army lab”

  1. DXer said

    U.S. Tort Liability When Bioweapons Escape: An Investigation into the Maureen Stevens Case

    Brian Thornton1
    1Texas Tech University School of Law, 1802 Hartford, Lubbock, TX 79410, USA

    http://www.degruyter.com/view/j/jbbbl.2013.4.issue-1/jbbbl-2012-0005/jbbbl-2012-0005.xml

  2. DXer said

    Judge Hurley is a very experienced and sophisticated jurist and is very informed on the principles that guide such an issue. For example, while serving on the Florida Court of Appeals, Fourth District, he wrote in 1985:

    “In my view, the parties should not be permitted to achieve through collusion what they could not obtain by court order. Litigation is not the parties’ private preserve; it is conducted in a public forum subject to rules which embody public policy choices.”

  3. DXer said

    The Florida District Court is following Eleventh Circuit precedent in this regard. “Good cause” does not exist for keeping the public in the dark in connection with this matter that involves the use of anthrax against targets in the United States. This is the correct decision given the risk of a mass aerosolized attack in the United States is incorrect in its speculation about Dr. Ivins.

    The Eleventh Circuit has articulated the “good cause” standard governing a protective order under Rule 26(c):

    “Good cause” is a well established legal phrase. Although difficult to define in absolute terms, it generally signifies a sound basis or legitimate need to take judicial action. In a different context, this court has identified four factors for ascertaining the existence of good cause which include: “

    [1] the severity and the likelihood of the perceived harm;

    [2] the precision with which the order is drawn;

    [3] the availability of a less onerous alternative; and

    [4] the duration of the order.”

    Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, 1205 (11th Cir. 1985). In addition, this circuit has superimposed a “balancing of interests” approach to Rule 26(c). See Farnsworth v. Procter & Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985). Id. at 356.

    As a general matter, the Eleventh Circuit court of Appeals has explained that agreed protective orders can be necessary to facilitate discovery, but that even when such orders are entered, the burden remains on the party seeking confidentiality to show good cause for protecting individual documents upon a later challenge:

    Because parties often resist the exchange of confidential information, “parties regularly agree, and courts often order, that discovery information will remain private.” The Manual for Complex Litigation, Second, prepared by the Federal Judicial Center, suggests that in complicated cases where document-by-document review of discovery materials would be unfeasible, an “umbrella” protective order, similar to the one issued in this case, should be used to protect documents designated in good faith by the producing party as confidential. Under the provisions of umbrella orders, the burden of proof justifying the need for the protective order remains on the movant; only the burden of raising the issue of confidentiality with respect to individual documents shifts to the other party. Protective measures requested by the parties incorporating umbrella orders have been approved by other courts pursuant to Rule 26(c).

    Id. (internal citations omitted); see also Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353, 1362 (N.D. Ga. 2002) (“[C]alling a document confidential does not make it so in the eyes of the court; these consensual protective orders merely delay the inevitable moment when the court will be called upon to determine whether Rule 26(c) protection is deserved, a decision ultimately rooted in whether the proponent demonstrates ‘good cause.’” (citation omitted)).

    The Alexander Grant court also articulated the reasons that umbrella protective orders may be necessary:

    The realities of today’s world have shown that discovery and the exchange of information can become extremely difficult. Busy courts are simply unable to hold hearings every time someone wants to obtain judicial review concerning the nature of a particular document. The order issued in this case, as in others, is designed to encourage and simplify the exchanging of large numbers of documents, volumes of records and extensive files without concern of improper disclosure. After this sifting, material can be “filed” for whatever purpose consistent with the issues being litigated whether by pretrial hearing or an actual trial. Judicial review will then be limited to those materials relevant to the legal issues raised. History has confirmed the tremendous saving of time effected by such an approach. The objective is to speed up discovery. Efficiency should never be allowed to deny public access to court files or material of record unless there has been an appropriate predicate established. The procedures utilized here allow the litigation to proceed expeditiously without compromising the rights of anyone. . . . We conclude that in complex litigation where document-by-document review of discovery materials would be unpracticable, and when the parties consent to an umbrella order restricting access to sensitive information in order to encourage maximum participation in the discovery process, conserve judicial resources and prevent the abuses of annoyance, oppression and embarrassment, a district court may find good cause and issue a protective order pursuant to Rule 26(c).
    820 F.2d at 356–57. • The Eleventh Circuit has also set out the following standard:

    Public disclosure of discovery material is subject to the discretion of the trial court and the federal rules that circumscribe that discretion. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S. Ct. 2199, 2208, 81 L. Ed. 2d 17[] (1984).

    Where discovery materials are concerned, the constitutional right of access standard is identical to that of Rule 26(c) of the Federal Rules of Civil Procedure. McCarthy v. Barnett Bank of Polk County, 876 F.2d 89, 91 (11th Cir. 1989) (citations omitted). Accordingly, where a third party seeks access to material disclosed during discovery and covered by a protective order, the constitutional right of access, like Rule 26, requires a showing of good cause by the party seeking protection. Id. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001) (per curiam).

    With respect to the common-law right of access to judicial documents, the court explained that “[n]ot unlike the Rule 26 standard, the common-law right of access requires a balancing of competing interests.” Id. at 1311 (citation omitted). But the court cautioned that there is no common-law right of access to discovery materials:
    Although there is some disagreement about where precisely the line should be drawn, when applying the common-law right of access federal courts traditionally distinguish between those items which may properly be considered public or judicial records and those that may not; the media and public presumptively have access to the former, but not to the latter. An illustrative example is the treatment of discovery material, for which there is no common-law right of access, as these materials are neither public documents nor judicial records.
    Id. (footnote and citation omitted). With respect to the balancing required under Rule 26(c), the court stated:

    Rule 26(c) permits a court upon motion of a party to make a protective order requiring “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way.” FED. R. CIV. P. 26(c)(7). The prerequisite is a showing of “good cause” made by the party seeking protection. See id. Federal courts have superimposed a balancing of interests approach for Rule 26’s good cause requirement. Farnsworth v. Procter & Gamble, Co., 758 F.2d 1545, 1547 (11th Cir. 1985) (citations omitted). This standard requires the district court to balance the party’s interest in obtaining access against the other party’s interest in keeping the information confidential. Id. Id. at 1313.

    A court in the Eleventh Circuit has stated:

    Rule 26(c) authorizes the Court “for good cause shown” to protect parties from “undue burden or expense” in discovery by ordering “that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way . . . .” FED. R. CIV. P. 26(c)(7). The party moving for a protective order has the burden of demonstrating “good cause.” Williams v. Taser Int’l, Inc., No. 1:06-CV-0051, 2006 WL 1835437, at *1 (N.D. Ga. June 30, 2006) (Story, J.). In demonstrating good cause, the movant must “make a ‘particular and specific demonstration of fact as distinguished from
    stereotyped and conclusory statements’ supporting the need for a protective order.” Id. (citations omitted); see also United States v. Dentsply Int’l, Inc., 187 F.R.D. 152, 158 (D. Del. 1999) (“‘Broad allegations of harm, unsubstantiated by specific examples,’ do not support a showing for good cause.”) (quoting Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). Estate of Manship v. United States, 240 F.R.D. 700, 702 (N.D. Ga. 2006) (omission in original).

    Standard for Entering a Sealing Order

    The Chicago Tribune court recognized a heightened standard under the common-law right of access analysis where a court seals an entire case:

    In certain narrow circumstances, the common-law right of access demands heightened scrutiny of a court’s decision to conceal records from the public and the media. Where the trial court conceals the record of an entire case, making no distinction between those documents that are sensitive or privileged and those that are not, it must be shown that “the denial [of access] is necessitated by a compelling governmental interest, and is narrowly tailored to that interest.” This heightened scrutiny is necessitated by the fact that entire civil cases otherwise open to the public are erased as if they never occurred. 263 F.3d at 1311 (alteration in original) (internal citations omitted). In contrast, the court stated that “[t]he common law right of access standard as it applies to particular documents requires the court to balance the competing interests of the parties.” Id. at 1312. The court concluded that the degree of public access to court documents depends on the documents’ involvement in judicial decisionmaking on the merits of a case: “The better rule is that material filed with discovery motions is not subject to the common-law right of access, whereas discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right, and we so hold.” Id. (footnote omitted).

    In connection with sealing documents filed with the court, the Eleventh Circuit has also recognized that the court has an independent duty to scrutinize requests for sealing:

    [E]ven where no third party challenges a protective order, “[t]he judge is the primary representative of the public interest in the judicial process and is duty-bound therefore to review any request to seal the record (or part of it). He may not rubber stamp a stipulation to seal the record.” Citizens First Nat’l Bank of Princeton v.
    Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (citations omitted). Otherwise, “the interest in publicity will go unprotected unless the media are interested in the case and move to unseal.” Id.
    Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F. Supp. 2d 1353, 1363 (N.D. Ga. 2002) (second alteration in original).

    The Martin Luther King court discussed the common-law right of access to judicial records:

    Because the “operations of the courts and the judicial conduct of judges are matters of the utmost public concern,” courts have long recognized the public’s right to inspect and copy judicial records. Nevertheless, this common-law right of access to the courts is not absolute. For example, the public has no common-law right of access to discovery materials, exchanged during a process that is typically conducted in private with minimal judicial supervision. Further, even where litigants file discovery materials with a court in connection with pretrial discovery motions, such as motions to compel, the supporting discovery documents are not subject to the common-law right of access. However, discovery materials filed with the court “in conjunction with pretrial motions that require judicial resolution of the merits [are] subject to the common-law right . . . .” This is because, unlike privately exchanged discovery materials, “documents filed as part of a dispositive motion, such as a summary judgment motion,” assist the court in determining the parties’ substantive rights, serve as a substitute for trial, and render those discovery documents “judicial.”

    Nevertheless, even where the common-law right of access attaches, only in extraordinary circumstances need the denial of such access be justified by a compelling interest. Instead, the common-law right of access merely necessitates a “good cause” analysis under Rule 26(c). This analysis requires the court to (1) determine whether valid grounds for the issuance of a protective order have been presented; and (2) balance the public’s interest in access against the litigant’s interest in confidentiality. Where the proponent of the protective order contends that the materials at issue contain trade secrets, for example, the court must first determine whether such assertion is true. To present a prima facie case for trade secret protection, the proponent of the protective order must prove that it consistently treated the information as a secret and took steps to guard it, the information is of substantial value to the proponent, the information would be valuable to the proponent’s competitors, and the information “derives its value by virtue of the effort of its creation and lack of dissemination.” If the proponent fails to satisfy this first inquiry, then no “good cause” exists for the protective order. If satisfied, however, the court must then weigh the proponent’s interest in confidentiality against the public’s interest in access before ultimately deciding whether to issue the order. Id. at 1365–66 (alteration and omission in original) (internal citations omitted).

    With respect to the First Amendment right of access, the court stated that “‘[m]aterials merely gathered as a result of the civil discovery process . . . do not fall within the scope of the constitutional right of access’s compelling interest standard,’” and that “for purposes of determining whether to unseal such discovery materials, the First Amendment right of access standard is ‘identical to the Rule 26 good cause standard.’” Id. at 1366 (alteration and omission in original) (citations omitted). The court also explained that “[w]ith respect to discovery documents submitted to a court in connection with a dispositive motion, rather than ‘[m]aterials merely gathered as a result of the civil discovery process,’ the Eleventh Circuit has presented a somewhat muddled First Amendment analysis,” and stated that “[e]ven though documents filed in support of dispositive motions are used to facilitate a resolution of the action on the merits, and are likely considered by courts in lieu of a trial to adjudicate the parties’ substantive rights, the Eleventh Circuit has declared that the good cause standard, rather than the compelling interest test, satisfies any First Amendment concerns.” Id. (second alteration in original) (citing Chicago Tribune, 263 F.3d at 1316; Citizens First Nat’l Bank, 178 F.3d at 946).

    Standard for Modifying a Protective Order

    The Eleventh Circuit has not firmly set out a specific standard for modifying a protective order. See SRS Techs., Inc. v. Physitron, Inc., 216 F.R.D. 525, 526 (N.D. Ala. 2003). The SRS Technologies court noted that there is “no consensus among the circuits as to the proper standard to apply” to modification. Id. at 527. The court distinguished the First Circuit’s Public Citizen case, explaining that in the case at bar, the parties mutually agreed to the terms of the protective order and the plaintiff was not a public citizen group seeking to obtain documents for public benefit, but a party seeking to use confidential documents in lawsuits against third parties. Id. After surveying the approaches in different circuits, the SRS Technologies court settled on the following approach:

    While this review of authority reveals no majority rule or consensus among the circuits, and no dispositive case in the Eleventh Circuit, one undisputed point does emerge: the trial court retains the power and the discretion to modify a prior protective order. See, e.g., Public Citizen, 858 F.2d at 782; United Nuclear, 905 F.2d at 1427. Exactly what standard should guide a trial court in deciding whether to modify a protective order is less clear. The Second Circuit test, urged by defendants, applies a stringent standard that requires the moving party to show extraordinary circumstance or a compelling need to modify a protective order. In re Agent Orange, 821 F.2d at 147. As noted, the Eleventh Circuit rejected this strict standard in favor of grand jury access to material produced in civil litigation and covered by a protective order. In re Grand Jury Proceedings, 995 F.2d [1013,] 1020 [(11th Cir. 1993)]. The court assumes that the Eleventh Circuit would not follow that rejected standard in a case involving access to protected material for use in a future civil case, even though the circumstances of these two cases vary widely. The court concludes, however, that the Eleventh Circuit would not adopt the per se rule of disclosure employed in In re Grand Jury Proceedings, 995 F.2d at 1015, in situations like this case that do not involve the special concerns of a grand jury subpoena.

    This court finds that the better-reasoned standard applies a balancing test to determine whether any justification exists for lifting or modifying the protective order, similar to that employed by the Third Circuit. See Pansy, 23 F.3d at 790. As the Third Circuit noted, one factor the court should consider is the reliance placed by the parties on the protective order. Id. Another important factor should be the integrity of court orders and the purpose of confidentiality orders in streamlining the discovery process. See Miller, supra, 105 HARV. L. REV. at 499–501.
    Id. at 529–30. In considering modification, the court found it important that one of the parties sought to undo the protective order after the parties had agreed to it, that the defendant had relied on the protective order, that it was important to promote reliance interests for future cases, that the plaintiff had waited until after the lawsuit settled to seek changes, and that the parties had settled the lawsuit without either party admitting liability. See id. at 530.

    In the context of a nonparty seeking modification of a stipulated protective order, a court in the Eleventh Circuit has explained that the party seeking confidentiality bears the burden of showing good cause for protection. See McCarty v. Bankers Ins. Co., 195 F.R.D. 39, 42 (N.D. Fla. 1998) (“[W]here good cause was not shown for the initial issuance of the protective order, parties seeking to maintain the protective order must establish the need for continued protection (i.e. good cause).” (citation omitted)). The court stated that although “some jurisdictions have held that general concerns of case management and efficiency have been held not to establish the requisite good-cause required for the initial issuance of a protective order,” id. (footnote omitted), where there has been reliance on the protective order, “the good-cause analysis for maintaining the protective order differs from the good- cause analysis which would normally accompany an initial request for a protective order,” id. The court held that “additional factors such as reliance on the protective order, the status and needs of the person or entity seeking modification, and the pendency of other litigation brought by the person or entity seeking modification, will factor into the court’s determination of the propriety of maintaining the protective order.” Id.

    • DXer said

      The Eleventh Circuit has cited the First Circuit’s Public Citizen case.

      Public Citizen now has taken an interest in the issue of anthrax threat.

      As Alan B. Morrison of Public Citizen who brilliantly taught a litigation seminar at Harvard might agree, if given the choice between making unsupported policy assumptions or getting the documents, one should always seek the documents so as to be able to test one’s assumptions and understanding.

      Here, if Public Citizen gets these documents, Public Citizen may better understand that US biodefense was infiltrated by scientists supporting Dr. Ayman Zawahiri and blind sheik Abdel-Rahman.

      Public Citizen then can oppose testing the anthrax vaccine on children on some other grounds if it likes. Opposing it on the grounds that the anthrax threat is illusory, however, is a very weak argument.

      Homeland undersecretary O’Toole has urged all members of Congress to get a classified briefing so that they might better understand the threat.

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