A group of newspapers filed this Dec. 4, 1995 motion to unseal the testimony of Jeffrey Wigand, a former researcher at Brown & Williamson, a tobacco company. Wigand provided information to 60 Minutes for a segment the TV news magazine chose not to air because of the risk of being sued. Wigand was deposed as an expert witness in the case of Moore v. American Tobacco Co., but his deposition has been placed under seal by the court.

MIKE MOORE, ATTORNEY GENERAL,
EX REL THE STATE OF MISSISSIPPI
PLAINTIFFS

VERSUS

CAUSE NO. 94-1429

AMERICAN TOBACCO COMPANY ET AL.
DEFENDANTS

MOTION TO INTERVENE AND TO VACATE ORDER SEALING
DEPOSITION OF JEFFREY S. WIGAND

COME NOW the Gannett Co., Inc.; New York Times Company; National Broadcasting Company, Inc.; Cable News Network, Inc.; American Broadcasting Companies, Inc.; CBS Inc.; and Newsday, Inc. ("Movants"), and pursuant to the Mississippi Rules of Civil Procedure, bring this motion to: 1) intervene in this cause for the limited purpose of asserting First Amendment and common law rights of access to these proceedings; and 2) vacate this Court's order of November 29, 1995, sealing the deposition of Jeffrey S. Wigand, and in support of the same would show unto this Honorable Court the following:

I. Factual Background

On or about November 16, 1995, Plaintiff noticed the deposition of Jeffrey S. Wigand ("Dr. Wigand"), a former employee of Brown and Williamson Tobacco Corp., Inc. ("B&W"). On November 22, 1995, Defendant B&W filed a motion for a protective order to prevent the taking of Dr. Wigand's deposition. Thereafter, this Court entered an order denying B&W's motion for protective order, allowing the deposition to be taken pursuant to the notice filed, but ordering that the deposition be filed with the court under seal until further order of the Court, thereby denying public access to the deposition. As will be explained in more detail hereafter, the facts which may be elicited during Dr. Wigand's deposition are of great public interest, and the press and public have a right under the First Amendment and at common law to that deposition, to the extent that portions of the deposition are not shown to contain trade secrets or privileged information. Movants hereby assert those constitutional and common law rights and request that the deposition of Dr. Wigand be open to the public. Further, Movants respectfully request that they be allowed access to the videotape and transcript portion of the deposition previously taken, and that they be allowed to attend the continuation of the deposition now recessed.

II. Standing

Movants, who are national and international publishers of newspapers, telecasters of television news services, and broadcasters of radio news services, including within the State of Mississippi, clearly have standing to bring this motion. Courts broadly recognize the right of the public and the media to intervene for the limited purpose of asserting First Amendment and common law rights of access to judicial proceedings. "It is well settled that representatives of the news media have standing to contest court orders restricting public access to legal proceedings."

III. Presumption of Public Access

The Court should immediately vacate its order sealing Dr. Wigand's deposition and make it available to the public. Defendant B&W has wholly failed to make the required showing of good cause for completely barring public access to Dr. Wigand's deposition in this case, which clearly involves a matter of great public interest and concern. Plaintiff, the State of Mississippi, by and through its Attorney General, Mike Moore, has asserted serious allegations against the Defendant concerning public health and safety risks posed by tobacco use. In particular, Plaintiff has alleged that long-term tobacco use by residents of Mississippi has resulted in serious physical ailments to the citizens of the State of Mississippi, which in turn has placed a significant financial burden upon the treasury of the State. The suit seeks to recover the millions of tax dollars paid out of the state treasury to provide health care services to its citizens who suffer from the effects of tobacco smoking.

Dr. Wigand, a former Vice-President for Research and Development with B&W, was in a unique position to know the public health and safety risks of tobacco use, and to know what actions, if any, were taken by B&W with regard to those risks. Dr. Wigand's testimony is of great public interest and should be available to the public. If in fact, Dr. Wigand has information relating to health and safety risks associated with tobacco use, not heretofore disclosed, the public has an immediate need for and compelling interest in gaining access to that information as soon as possible. Movants are clearly in the best position to provide such information to the general public, and in particular to the citizens of Mississippi, in the most efficient and comprehensive manner possible.

The United States Supreme Court has long recognized both a common law right and First Amendment right of access to court proceedings and court records. This right applies not only to criminal proceedings but to civil cases as well, in which a presumption of openness exists. Public access to civil trials promotes the public good because such access " "enhances the quality and integrity of the fact-finding process . . . [and] permits the public to participate in and serve as a check upon the judicial process--an essential component in our structure of self- government." -- This presumption of openness, which applies to civil proceedings, also extends to pre-trial discovery:

A statutory presumption of openness for discovery materials, even those not used at trial, derives from the Federal Rules of Civil Procedure. The Federal Rules do not restrict the use of properly discovered materials. Rule 26(c) requires the proponent of confidentiality to show good cause to limit the amount, method or use of discovery as well as the people who are present at discovery proceedings.

While the Mississippi Rules of Civil Procedure grant broad discretion to the Court as to decisions regarding the protection of discovery, that discretion is subject to Constitutional constraints. In Mississippi courts, as in federal courts, proceedings are open to the public unless a party demonstrates that there is good cause to protect a portion of the proceeding from public disclosure.

To show good cause, a movant for a protective order must articulate specific facts showing clearly defined and serious injury resulting from the discovery sought, and cannot rely on merely conclusory statements.

Although this Court declined to grant B&W's request for a protective order with regard to Dr. Wigand's deposition, it required that the deposition be sealed without articulating a finding of good cause. The Defendant attempted to show good cause in its motion for a protective order by making conclusory assertions that Dr. Wigand may testify as to trade secrets and other information subject to attorney-client privilege. Here, however, a claim of attorney-client privilege is not "good cause" to deny public access, since the rules of procedure and evidence afford Defendant adequaate protection from disclosure of privileged information. To the extent questions posed during Dr. Wigand's deposition seek to elicit privileged attorney-client information, Defendant must either successfully assert the privilege before the testimony is given or the privilege is waived.

As to Defendant's other ground for denying public access, Movants respect the need to protect trade secrets in appropriate circumstances. Defendant, however, has not shown in its motion what information might be revealed by Dr. Wigand that should appropriately be classified as trade secrets. The Mississippi Legislature has provided that only proprietary information from which the proponent of protection derives an competitive economic advantage can rise to the level of a protected trade secret. At common law in Mississippi, a trade secret is defined as þ "any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it."

In Brown & Williamson Tobacco Corp. v. F.T.C., B&W sought to seal documents filed by the F.T.C. which dealt with tar and nicotine levels in their cirgarettes. B&W attempted to protect themselves from reputational harm by requesting that all documents filed by the F.T.C. be sealed. In vacating the district court's seal on the record, the Sixth Circuit Court of Appeals stated, "[s]imply showing that the information would harm the company's reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records." B&W appears to be taking the same overly broad approach by attempting to deny completely the press and public access to Dr. Wigand's deposition.

Moreover, even if legitimate trade secret are revealed in the deposition, Defendant is not entitled unilaterally to determine what information is to be protected. Instead, this Court, not the parties, must make a fact-specific determination whether the protection should be granted in each case, based upon Defendant's specific showing that disclosure will result in economic and competitive injury.

In this case, the State of Mississippi seeks information which appears to fall outside the parameters of protected trade secrets. In fact, the scope of Dr. Wigand's deposition extends far beyond the trade secrets for which Defendant has expressed concern. The State of Mississippi's subpoena of Dr. Wigand requested documents regarding inter alia the alteration or falsification of business records, past product research on the biological or addictive effects of tobacco products, unlawful smuggling or transportation of tobacco seed, and false or materially misleading testimony provided by B&W to federal investigators. The information sought in the subpoena is not the sort of proprietary or confidential information which may be put to improper use by B&W's competitors. Instead, this information is more likely to cause reputational harm to B&W as were the studies B&W wanted to keep from the public in Brown & Williamson Tobacco Corp v. F.T.C. As already stated, reputational harm is an insufficient reason for protecting information of great public interest. In the words of the Sixth Circuit:

[T]he natural desire of parties to shield prejudicial information contained in judicial records from competitors and the public . . . cannot be accommodated by courts without seriously undermining the tradition of an open judicial system. Indeed, common sense tells us that the greater the motivation a corporation has to shield its operations, the greater the public's need to know.

Dr. Wigand's entire deposition nevertheless, has been sealed on the basis of alleged trade secrets and asserted attorney-client privilege, in spite of the fact that there has been no showing that B&W will suffer any of the economic and competitive harm required for the protection of legitimate trade secrets. A specific factual showing of the economic or competitive injury which will likely result from disclosure of such information must be made prior to a determination that any information possessed by Dr. Wigand is entitled to protection.

Although the seal placed on the deposition undoubtedly protects any of Defendant's trade secrets, sealing the entire record is overly broad in that it also prevents disclosure of other information to which the public has a right of access. Less restrictive means of protecting confidential trade secret information exist which do not infringe so broadly upon the public right of access to discovery. Even if Defendant makes a legitimate showing that a substantial likelihood exists for the disclosure of allegedly protected trade secrets, the Court must then fashion an order which balances the public's right of access against the parties' need for protection. The factors which the Court should consider include:

1) the magnitude and imminence of the threatened harm;

2) the effectiveness of the protective order in preventing the harm;

3) the availability of less restrictive means of preventing the harm; and

4) the narrowness of the protective order if it is deemed necessary.

In this case, a narrowly drawn protective order which covers only protected trade secrets, the disclosure of which will likely cause Defendant competitive harm, would sufficiently protect the Defendant's interest in keeping trade secrets confidential, while also preserving the historical openness of court proceedings and the public right of access to court proceedings and records.

When faced with similar issues involving matters of great public interest, other courts have granted the press and/or public access to those proceedings. For example, in In re Texaco, several media organizations intervened in a bankruptcy proceeding for the limited purpose of obtaining copies of depositions taken of parties in the matter. In denying the creditor's motion for a protective order, thereby allowing public access, the court recognized that "[a]ccess to discovery materials is particularly appropriate when the subject matter of the litigation is of general public interest." Another case involving matters of substantial public interest was United States v. Poindexter. In Poindexter, many of these same Movants sought access to the videotaped depositions of former President Ronald Reagan prior to Mr. Poindexter's criminal trial involving the Iran-Contra affair. The court granted the media access to the videotapes of President Reagan's deposition after security agencies edited the tapes to remove any classified information.

The public health, safety and financial issues in this case make it one of paramount public interest. The Defendant has not shown good cause to seal Dr. Wigand's deposition or to prevent public access to such important information. Beyond that, a complete bar of access to Dr. Wigand's entire deposition is not reasonably calculated to protect the public and private rights.

IV. Conclusion

For the reasons set forth supra, Movants respectfully request that this Honorable Court grant their motion to intervene in these proceedings for the limited purpose of asserting their First Amendment and common law rights of access to these proceedings. Movants further request that this Court vacate its order of November 29, 1995 sealing the deposition of Dr. Wigand and allow the press access to both the videotape and the transcript of the portion of the deposition previously taken. Movants additionally request that the press be permitted to attend the continuation of the deposition in a manner which will not disrupt its taking, and be permitted access to videotape and transcripts of these further proceedings.

RESPECTFULLY SUBMITTED, this the _____ day of December, 1995.

EATON AND COTTRELL, P.A.

BY:

_______________________________________

H. Rodger Wilder
Attorneys for: Gannett
Co., Inc.; New York
Times Company;
National Broadcasting
Company, Inc.; Cable
News Network, Inc.;
American Broadcasting
Companies, Inc.; CBS
Inc.; and Newsday, Inc.

H. Rodger Wilder
Mississippi Bar No. 7200
Paul J. Delcambre, Jr.
Mississippi Bar No. 6034
Ricky J. Cox
Mississippi Bar No. 9606
Susannah R. Cooley
Mississippi Bar No. 10088
EATON and COTTRELL, P.A.
P. O. Box 130
1310 Twenty Fifth Avenue
Gulfport, MS 39501-7748
(601) 864-9900