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The 3rd U.S. Circuit Court of Appeals has lifted a gag order imposed in a whistleblower suit brought by a Pennsylvania state trooper who claims his superiors retaliated against him after he testified in court about allegedly faulty radar speed detection devices. The ruling in Shingara v. Skiles vacates a protective order issued by U.S. District Judge Sylvia Rambo of the Middle District of Pennsylvania after the trooper’s lawyer released hundreds of documents he had obtained in discovery to the Philadelphia Daily News. Plaintiff John Shingara, who is represented by attorney Donald A. Bailey of Bailey & Ostrowski in Harrisburg, Pa., claims he was removed from his duties after testifying publicly about inaccurate speed-readings the radar gun was giving. Bailey provided documents to the Daily News, which then reported that the state police had covered up problems with a radar gun that was prone to inaccurate readings. Defense lawyers then moved for a protective order and Rambo granted it, prohibiting either side from releasing any information to the media without both sides agreeing or without her permission. Lawyers for Philadelphia Newspapers Inc. urged Rambo to lift the order, but she refused, saying “disclosure of discovery materials to the media could unduly prejudice the public, from which jurors for this litigation may be selected.” Now a unanimous three-judge panel has ruled that Rambo was too quick to impose a “sweeping” gag order that barred disclosure of any of the documents in the case to the public. “The concern that the disclosure of discovery materials to the media could unduly prejudice the public is exactly the type of broad, unsubstantiated allegation of harm that does not support a showing of good cause,” Senior U.S. Circuit Judge Morton I. Greenberg wrote. “We ordinarily are confident that a district court will be able to select a fair and impartial jury in cases even where there has been pre-trial media attention to the case and we see no reason to believe that this case would present an exception to the usual case,” Greenberg wrote in an opinion joined by 3rd Circuit Judges Samuel A. Alito Jr. and Edward R. Becker. As a result, Greenberg said, “we fail to see how jury selection will be a serious concern, let alone good cause for a broad and sweeping protective order in this case.” The ruling is a victory for PNI and its team of lawyers from Dechert — Amy B. Ginensky, Michael E. Baughman, Nory Miller and Alessandro Martuscelli. Greenberg found that Rambo had failed to properly apply the 3rd Circuit’s strict test on the issuance of protective orders. In its 1994 decision in Pansy v. Borough of Stroudsburg, the 3rd Circuit complained that some lower court judges were routinely signing protective orders “without considering the propriety of such orders, or the countervailing public interests which are sacrificed by the orders.” Announcing a strict test, the Pansy court held that the party seeking a protective order must show “good cause” — a term the court defined as requiring proof that “disclosure will result in a clearly defined, specific and serious injury.” The Pansy court listed seven factors that a court should consider in determining whether to grant a protective order: � Whether disclosure will violate any privacy interests; � Whether the information is being sought for a legitimate purpose or for an improper purpose; � Whether disclosure of the information will cause a party embarrassment; � Whether confidentiality is being sought over information important to public health and safety; � Whether the sharing of information among litigants will promote fairness and efficiency; � Whether a party benefiting from the order of confidentiality is a public entity or official; � Whether the case involves issues important to the public. The court also cautioned that “broad allegations of harm are not sufficient to establish good cause.” Although Rambo cited Pansy in her ruling, she found that it left some questions unanswered. The issue in Pansy, Rambo noted, was the sealing of the terms of a settlement agreement between a police chief and the borough that had fired him. As a result, Rambo said, the Pansy court did not address issues relating to ongoing litigation and concerns about public disclosure of discovery materials prior to trial. “Although Pansy requires the court to balance the competing interests in the case, the facts of this case require the court to conduct an analysis that differs slightly from the test employed in Pansy itself,” Rambo wrote. Rambo concluded that a broad protective order was called for to ensure that the jury pool would not be tainted by media reports about the case. She also noted that “issues of public concern in this case may still reach the public in the future.” Now the 3rd Circuit has ruled that Rambo’s reasoning was flawed. “The district court’s reasoning here is not consistent with Pansy and the factual differences cannot justify a different result here,” Greenberg wrote. “By focusing on the issue of media attention, the district court unacceptably downplayed the fact that this case involves public officials and issues important to the public, two factors that we emphasized in Pansy. In fact, the district court never explained how it reasoned that its concern about media attention trumped those two factors,” Greenberg wrote. Instead, Greenberg found that “most of the Pansy factors weigh against the protective order in this case.” No privacy or embarrassment issues were ever raised, Greenberg noted, and there was no evidence that the Daily News had any “improper purpose.” Greenberg found that two of the Pansy factors clearly weighed against the protective order. “The parties benefiting from the protective order are public officials, and the case certainly involves ‘issues important to the public,’” Greenberg wrote. Defense lawyers argued that the public interest factor in Pansy came into play only for information “to which the public already was entitled access.” Greenberg disagreed, saying “we see no support for this claim. Rather, Pansy emphasized that a court always must consider the public interest when deciding whether to impose a protective order.” In his final paragraphs, Greenberg faulted Rambo for issuing a protective order that “grants broad, umbrella protection” instead of taking a “document-by-document approach.” “Given that this action is neither complex nor involves large-scale discovery and given that the district court should have realized that the good cause it found for entry of the protective order was weak at best (in actuality, nonexistent), the district court erred in adopting the sweeping umbrella approach in this case,” Greenberg wrote. Although the 3rd Circuit is ordering Rambo to vacate the protective order, Greenberg said the court was not tying her hands because the ruling “does not preclude any party from seeking protection over specific documents.”

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