NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 16-1669
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UNITED STATES OF AMERICA EX REL.
ROBERT P. BAUCHWITZ, M.D., PH.D.,
Appellant
v.
WILLIAM K. HOLLOMAN, PH.D;
CORNELL UNIVERSITY MEDICAL COLLEGE;
ERIC B. KMIEC, PH.D; THOMAS JEFFERSON UNIVERSITY
__________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-04-cv-02892)
District Judge: Honorable Timothy J. Savage
Submitted Under Third Circuit LAR 34.1(a)
October 25, 2016
BEFORE: VANASKIE, KRAUSE, and NYGAARD, Circuit Judges
(Filed: November 29, 2016)
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OPINION*
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NYGAARD, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
In June of 2004, Appellant, Robert P. Bauchwitz, filed a qui tam action against
William K. Holloman, Cornell University Medical College, Eric B. Kmiec, and Thomas
Jefferson University. This appeal purportedly springs from a show cause hearing that
took place on October 17, 2005 and concerned Appellant’s counsel’s request to withdraw
representation. Although this hearing was entered on the docket, no transcript was ever
produced nor does it appear from the docket that one was ever contemporaneously
requested. In December of 2009, the District Court granted summary judgment to
Thomas Jefferson University and Dr. Kmiec, but denied the same to Cornell University
Medical College and Dr. Holloman. See United States ex rel. Bauchwitz v. Holloman et
al., 671 F.Supp.2d 674 (E.D. Pa. 2009). In April of 2010, the District Court dismissed
the remaining case with prejudice by stipulated order. No appeal was taken from that
dismissal.
Appellant alleges that he sought to obtain a transcript of the show cause hearing
through contact with the District Court Clerk’s Office. The Clerk’s Office informed
Appellant in September of 2012 of an equipment malfunction and that there were no
court reporters notes available from the hearing. Appellant then filed a motion requesting
access to the court reporter’s original stenographic record and/or untranscribed recordings
of the October 17, 2005 hearing. The District Court held a hearing on that request which
was denied a few months later. Appellant has appealed the denial of that motion.1
1
Shortly after the Notice of Appeal was filed, Thomas Jefferson University, Cornell
College of Medicine, Eric Kmiec and William Holomon informed us that they would not
be participating in this appeal and indicated their belief that Appellant’s arguments were
an exercise in futility.
2
On appeal, Appellant contends that he has a First Amendment right of access to a
transcript of the hearing and, if the Court cannot provide that, this right of access extends
to any “storage media” on which the hearing record may be stored. Appellant’s Br. at 7.
Accordingly, Appellant argues that he should be permitted to have a forensic expert
investigate any such media that is in the Clerk’s office possession in order to attempt to
extract the lost data and recreate the hearing transcript. In denying relief, the District
Court noted that “there is no storage medium that can be used to create a transcript of the
hearing,” and it could not provide Appellant something that does not exist. Specifically,
the District Court determined that the notes and hearing testimony were never
transcribed. The scant record on appeal likewise provides us no basis to grant relief.
Eleven years has passed since the hearing date; six years have passed since the case was
dismissed with prejudice; the court reporter has long since retired; and the stenographic
equipment no longer functions. Thus, the District Court’s determination that the
information Appellant seeks does not exist is credible.
And even if Appellant’s First Amendment right of access to judicial documents
extended to the storage media he seeks, he has no right of access to storage equipment
that is not within the court’s files. See Pansy v. Borough of Stroudsburg, 23 F.3d 772,
782 (3d Cir. 1994) (observing that “even where there is no dispute that documents were
at one time judicial records, once such documents are no longer part of the court file they
lose their status as judicial records”). Therefore, the District Court did not err by denying
the Appellant’s request for access to a non-existent stenographic record, and we will
affirm.
3