Imageware, Inc. v. U.S. West Communications

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________

No. 99-1853NE
_____________

Imageware, Inc., Nebraska *
Corporation, doing business as *
Cottonwood Communications, and *
Richard Dahlgren, an Officer and a *
Director of Imageware, Inc., *
*
Appellants, *
*
v. *
*
*
U.S. West Communications; *
U.S. Marketing Resources Group, Inc., * On Appeal from the United
doing business as U.S. West Direct; * States District Court
U.S. West, Inc.; U.S. West * for the Southern District
Communications Group, Inc.; * of Iowa.
Interactive Video Enterprises, Inc.; *
U.S. West Interactive Services, Inc.; *
U.S. West Multimedia Communications, *
Inc.; U.S. West: Multimedia Services *
Group, Inc.; U.S. West Advanced *
Technologies, Inc.; U.S. West Business *
Resources, Inc., Colorado *
Corporations; U.S. West Enhanced *
Services, Inc., a Washington *
Corporation; and U.S. West Multimedia *
Services of Omaha, Inc., *
*
Appellees. *
___________
 Submitted: April 13, 2000
Filed: July 25, 2000
___________

Before RICHARD S. ARNOLD, ROSS and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________

RICHARD S. ARNOLD, Circuit Judge.

This is a contempt proceeding arising out of an action under the antitrust laws
brought by Imageware, Inc., and others against U.S. West Communications, Inc., and
others. For a description of the underlying case, in which the defendants, whom we
shall call U.S. West, prevailed, see Mostly Media, Inc. v. U.S. West Communications,
186 F.3d 864 (8th Cir. 1999). In the proceeding now before us, the District Court held
Imageware and one of its principals, Richard Dahlgren, in civil contempt for violating
a court order protecting certain documents produced during pretrial discovery.
Imageware and Mr. Dahlgren appeal. Imageware does business as Cottonwood
Communications, and we shall therefore refer to appellants as Cottonwood, in
accordance with the convention they have adopted in their brief.

The case turns on the meaning of the court order in question, so we shall begin
by describing it. Early in the discovery process, Cottonwood had served subpoenas in
an attempt to obtain various documents. U.S. West filed a motion to quash the
subpoenas, and for the entry of a protective order. After hearing, the motion to quash
was denied, but a protective order was entered governing all material produced by
either party and labeled either "Confidential - Attorneys Only Information" or
"Confidential Information." The present controversy concerns documents bearing one
or the other of these labels.

The relevant paragraphs of the protective order are the following:

-2-
 4. Limitations on Use

Confidential Information and Confidential - Attorneys Only
Information may be used by the persons properly receiving such material
only for the purpose of preparing for and conducting pretrial and trial
proceedings in this action and for no other purpose.

* * * *

9. Use at Trial

Any Confidential Information or Confidential - Attorneys Only
Information, which is designated to be introduced at trial by any party at
least 10 days in advance of trial, may be offered into evidence in open
court unless the Designating Party obtains an appropriate protective order
from the Court. The party proposing to introduce the Confidential
Information or Confidential - Attorneys Only Information must give at
least 10 days notice to the Designating Party and a sufficient opportunity
for the Designating Party to seek such a protective order. Designation of
the Confidential Information or Confidential - Attorneys Only Information
is [sic] a final pretrial order in a manner that clearly provides notice that
such Confidential Information or Confidential - Attorneys Only
Information may or will be introduced at trial shall be sufficient notice
under this paragraph.

* * * *

14. Continuing Effects

After the termination of this action, this Order shall continue to be
binding upon the parties thereto and all persons to whom Confidential
Information or Confidential - Attorneys Only Information has been
disclosed or communicated. In the event that this action or any portion
thereof is transferred to another judicial district pursuant to order of the
Court, this Order shall continue in full force and effect for any portion of
the case not transferred and for any portion transferred until modified or
vacated by the transferee court.

-3-
Appellants' Addendum 3-4.

We next recount what Cottonwood did. At trial, certain documents (and only
documents in this category are at issue here) were offered in evidence by Cottonwood.
In accordance with the procedure set out in paragraph 9, quoted above, U.S. West was
given an opportunity to seek a protective order, to prevent the reception into evidence
of these documents in open court. No such order was sought, and the documents were
freely introduced in open court and published to the jury. Any discussion of the
documents that took place at the trial was in the open, and presumably any person
present at the trial (attendance at which was not restricted) could have requested and
received access to the documents. After the trial, these documents were kept in the
office of the Clerk of the District Court. In addition, other documents, not offered into
evidence in open court, were kept separately by the Clerk, under seal and in a vault,
these documents being clearly subject to the continuing-effects provision of paragraph
14.

After the trial, Richard and Laurie Dahlgren, both officers of one or more of the
corporate plaintiffs, sought to review the court record for the purpose of obtaining
copies. Permission was arranged through the chambers of the trial judge. The
Dahlgrens went to the Clerk's office and met with a deputy clerk. They were given
access to the documents. They did not request, nor did they receive, any access to
documents still under seal. A deputy clerk told them that attorneys and any member
of the press would be able to look at the records, including the documents viewed by
the Dahlgrens. Later, Ms. Dahlgren picked up and paid for copies of the documents
from the Clerk's office. Then, in a filing before the Federal Communications
Commission, Cottonwood included 16 documents that had been produced by U.S.
West under the original protective order, all 16 of which had either been received into
evidence at the trial, or had been marked as exhibits in the Joint Exhibit list, access to
which list had been afforded to the Dahlgrens by the deputy clerk. Thus, the

-4-
documents filed with the FCC had all been initially marked as confidential under
paragraph 4 of the protective order, and had all either been offered in evidence in open
court or marked as exhibits for that purpose. U.S. West had not availed itself of the
paragraph 9 procedure to obtain a further protective order with respect to any of these
particular documents.

The District Court held Cottonwood in contempt and imposed a civil sanction
in the amount of $4,543.50, the amount found by the District Court to have been
reasonably expended by U.S. West in connection with its motion for an order of
contempt. (The amount is not in question here – only the propriety of the contempt
finding itself.) In addition, to protect U.S. West against any further violations of the
protective order, the District Court required Cottonwood to post a $4,500.00 "contempt
bond."

The reasoning in support of these actions is simple: the documents were initially
produced under paragraph 4 and labeled "Confidential" or "Confidential - Attorneys
Only Information." Accordingly, by the express terms of that paragraph, they could be
used "only for the purpose of preparing for and conducting pretrial and trial
proceedings in this action and for no other purpose." Further, by the express terms of
paragraph 14, paragraph 4 continued in full force and effect after the termination of the
case. If that were all there is to the matter, we should have no difficulty affirming the
actions of the District Court. But there is more: specifically, paragraph 9. Under that
paragraph, certain of the documents were lawfully introduced at trial in open court.
U.S. West had available to it a procedure by which it could have obtained an
appropriate protective order, for example, providing that the documents would be
shown to the lawyers, jurors, and judge only, and would thereafter remained sealed.
U.S. West took no such action.

So how should the order be interpreted? Cottonwood argues that once
documents are introduced into evidence in open court, and especially when, thereafter,

-5-
they are kept in a public file in the Clerk's office open to anybody, including the press,
it makes no sense to say that anyone, including a party to the case, could obtain copies
of the documents, but could not show them to anybody else. National Polymer
Products v. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981), among other authorities,
is cited. There, certain documents were subject to a protective order which prohibited
their dissemination. The order provided that the documents could not be revealed to
anybody for any purpose other than preparation and trial of the underlying case, and,
specifically, that the documents could not be disclosed to the public or to any
governmental agency. Thereafter, the case was tried in open court, and testimony was
received concerning the documents. Borg-Warner did not move for in camera
proceedings or request any other restriction. After the trial, a vice president of one of
the parties was accused of disclosing to others information covered by the protective
order. A district court held that a contempt of court had occurred, but the Sixth Circuit
reversed. In substance, the Court held that anyone had a right to obtain and publish
information made a part of the record without restriction in a judicial proceeding.

U.S. West stresses, by contrast, that the particular documents involved in this
case were subject not merely to pretrial restrictions, but, by reason of paragraph 14,
continued to be subject to the protective order after trial. On this view, the fact that the
documents were offered into evidence in open court without restriction is irrelevant.
Anyone who happened to be in court could have learned of the documents, and, after
the trial, anyone coming to the Clerk's office could have looked at them and even taken
away copies of them, but paragraphs 4 and 14 would still prevent dissemination of the
information by any such persons, even to a governmental agency in a public
proceeding. Underlying this position is a practical proposition: the likelihood that
anybody would come to the Clerk's office to look at the documents, without intending
to disseminate them, is small. As a practical matter, therefore, filing the documents
with the FCC gave them much wider exposure.

-6-
 We find it unnecessary to pursue the First Amendment and case-law arguments
urged by the parties. Contempt of court is a serious matter, even civil contempt. No
one should be held in contempt for violating an ambiguous order, especially an order
purporting to restrict the right of the public to see public records and documents. A
contempt should be clear and certain. See International Longshoremen's Assn., Local
1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76 (1967); Project
B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991) ("civil contempt will lie only if the
putative contemnor has violated an order that is clear and unambiguous"). Here, the
presence of paragraph 9, which is not addressed in appellees' brief, makes the order
ambiguous. We think a reasonable person could have read the order as a whole not to
give continuing protection to documents that had been offered into evidence in open
court without objection. On this reading, the continuing-effects provisions of paragraph
14 would apply only to those documents not offered in open court or identified as
exhibits. These documents would continue to be confidential and, in fact, the Clerk of
the District Court seems to have acted accordingly, because only documents not offered
in open court or listed as exhibits remained under seal in the Clerk's office.

U.S. West relies on Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 630, 631
(8th Cir. 1984), aff'g per curiam 580 F. Supp. 913 (N.D. Iowa 1983). There, an
attorney distributed documents in violation of a protective order. The documents had
been introduced into evidence at trial, but a contempt finding was nevertheless upheld.
We think the case is distinguishable. So far as the reported opinions in Kehm reveal,
there was no provision in that case comparable to paragraph 9 of this protective order.
The order gave U.S. West a specific remedy by which it could have maintained, after
trial, the special status of documents even after they had been received into evidence.
For these reasons, we think that Cottonwood could reasonably, even if perhaps
erroneously, have believed that these documents were not subject to paragraph 14.

Accordingly, the judgment of the District Court, finding Cottonwood in civil
contempt, is reversed, and this cause is remanded to that Court with directions to

-7-
dismiss the motion for contempt with prejudice. In addition, the contempt bond of
$4,500.00 is discharged and exonerated.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-8-