## Facts

- A smoker’s family sued a cigarette manufacturer in federal court under diversity jurisdiction, asserting state-law wrongful-death claims based on allegedly inadequate warnings.
- During discovery, the district court entered a broad protective order barring dissemination of materials the manufacturer produced, despite the plaintiffs’ opposition.
- The district court later entered final judgment for the manufacturer, holding that federal cigarette warning-label law preempted the inadequate-warning claims.
- After judgment, a public-interest organization representing public health groups moved to intervene for the limited purpose of seeking modification of the protective order to obtain public access to discovery materials.
- The district court permitted intervention, modified the protective order to allow broader access to discovery materials, and also required the parties to file certain discovery materials with the court.
- The manufacturer appealed the modification of the protective order and the filing requirement.

## Issues

1. Whether a nonparty public-interest organization may intervene after final judgment for the limited purpose of challenging or modifying a discovery protective order.
2. Whether the district court abused its discretion under Federal Rule of Civil Procedure 26(c) by modifying a protective order to allow broader access once the case ended and circumstances changed.
3. Whether the district court may require parties to file discovery materials with the court primarily to convert them into judicial records subject to a public-access presumption.

## Decision

- The First Circuit affirmed the order permitting post-judgment intervention to seek modification of the protective order.
- The First Circuit affirmed the district court’s modification of the Rule 26(c) protective order to allow broader public access to certain discovery materials.
- The First Circuit reversed the portion of the district court’s order requiring the parties to file discovery materials with the court to bring them within a public-access presumption.
- The case was remanded for further proceedings consistent with the appellate ruling.

## Legal Principles

- Nonparties may be allowed to intervene, including after final judgment, for the limited purpose of challenging confidentiality restrictions that govern access to discovery materials.
- Protective orders under Federal Rule of Civil Procedure 26(c) are not permanent; a district court retains authority to modify them when the balance supporting “good cause” for confidentiality changes.
- In deciding whether to modify a protective order, a court may weigh changed circumstances, including reduced need for secrecy after case disposition and the public interest in the subject matter of the information.
- Unfiled discovery is generally not treated as a public judicial record; the common-law presumption of access typically attaches to materials filed with the court or used in adjudication.
- A court may not require wholesale filing of discovery materials primarily to manufacture public access by converting discovery into judicial records, because that distorts the normal separation between discovery exchange and court records.

## Conclusion

The First Circuit upheld post-judgment intervention and discretionary modification of a discovery protective order to expand public access where continued secrecy was less justified, but rejected an attempt to force public access by compelling the filing of discovery materials solely to make them judicial records.


Public Citizen v. Liggett Grp., Inc., 858 F.2d 775 (1st Cir. 1988)