UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

In accordance with the court's memorandum opinion issued herewith,

IT IS ORDERED that plaintiff's motion for a protective order (docket # 282) is GRANTED IN PART AND

DENIED IN PART. The following protective order is entered:

(1) Information regarding the present and former identities used by Expert Witness No. 15 during his service with the FBI and his past or present residences, or any other information that might tend to identify him, is restricted to outside counsel of record in this lawsuit. Such information is not to be disclosed to any other persons absent leave of court.

(2) Any expert witness report by Expert Witness No. 15, his deposition testimony, and other information revealing the identity of Expert Witness No. 15 shall be filed under seal.

DONE AND ORDERED this 7th day of March, 2001.

Joseph G. Scoville

United States Magistrate Judge

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UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

This is one of a series of lawsuits between two of the nation's largest manufacturers and distributors of products for household use. The latest round of hostilities began when Procter & Gamble Co. sued Amway Corporation and others in federal courts in Utah and Texas. The Texas litigation, The Procter & Gamble Co. v. Amway Corporation, case no. H-97-2384 (S.D. Tex. 1997), asserted, among other claims, RICO counts alleging that Amway and its distributors constitute an "association in fact enterprise" for purposes of RICO. Although conceding that Amway is engaged in legitimate manufacture and sale of household products, Procter & Gamble's pleadings in that action allege that Amway and its distributors were engaged in a pattern of racketeering activity involving, among other things, trade disparagement of Procter & Gamble and other competitors. The present lawsuit involves allegations by Amway that Procter & Gamble and the other defendants tortiously interfered with Amway's contractual and business relationships by publishing the Texas complaint, with its false and disparaging statements, on the Internet.

As required by the case management order, Amway has filed a list of expert witnesses that it proposes to call at trial. One of the expert witnesses is identified only as Expert Witness No. 15. Amway proposes to call this witness to demonstrate the falsity of the charge that "the Amway business is run in a manner that is parallel to that of major organized crime groups, in particular the Mafia." According to Amway, this allegation was raised in the Texas litigation by an expert witness report from Professor G. Robert Blakey, of the University of Notre Dame Law School, retained by Procter & Gamble in the Texas litigation to support its RICO claim against Amway. As Professor Blakey has been listed as an expert witness for Procter & Gamble in the present case, Amway plans to call Expert Witness No. 15, a former undercover FBI agent with firsthand knowledge of the organization of the Mafia, to testify concerning the lack of similarity between Amway and organized crime organizations.

Presently pending before the court is Amway's motion for protective order (docket # 282) seeking certain elements of relief with regard to Expert Witness No. 15. Amway seeks a protective order providing that (1) no party shall inquire into or investigate, or cause employees, agents or other parties related in any manner to defendants or their counsel to inquire into or investigate the current assumed name, any former assumed names adopted since the conclusion of his undercover role, and/or location of Plaintiff's Expert Witness No. 15; (2) information regarding the former identities used by Expert Witness No. 15 during his service in the FBI shall be restricted to select individuals with a demonstrated "need to know" that information; and (3) the expert report, deposition, and any references to Expert Witness No. 15 shall be filed under seal. Defendants oppose the motion for protective order on a number of grounds. For the reasons set forth below, the

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court concludes that Amway has shown good cause for the second and third requests for relief, but not for the first.

The court may issue a protective order in connection with discovery proceedings to protect a party or person from annoyance, embarrassment, oppression, or undue burden. FED. R. CIV. P. 26(c). Rule 26(c) allows the sealing of court papers or other limitations upon discovery only for "good cause shown." Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996). This rule puts the burden on the party seeking relief to show some plainly adequate reason therefor. 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & R. L. MARCUS, FEDERAL PRACTICE PROCEDURE: § 2035, at 484 (2d ed. 1994). "The burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements, in order to establish good cause." Id.; see Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 (1981); In re Terra Int'l, Inc., 134 F.3d 302, 306 (5th Cir. 1998).

In their briefs filed in opposition to plaintiff's motion for protective order, defendants raise several unavailing objections. First, they criticize plaintiff for failure to submit affidavits establishing that Expert Witness No. 15 was indeed an undercover agent who infiltrated organized crime and that his security would truly be endangered by disclosure of facts that would allow his enemies to identify and locate him. At one point, defendants go so far as to argue that no relief is allowable in the absence of documented proof that the witness has been threatened in the past. Apparently, a court should not deem any danger to be credible until it has first been attempted unsuccessfully. Defendants' demands are unreasonable. This court routinely relies upon statements

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by its officers concerning foundational matters. The court has no reason to doubt the representation by plaintiff's counsel concerning the previous occupation of Expert Witness No. 15, and the existence of a threat to his security may be fairly inferred as a matter of common sense. The cases upon which defendants rely condemn the issuance of a protective order on the basis of "stereotyped and conclusory statements," such as a general assertion that any fact witnesses employed by the defendant would necessarily be subject to retaliation if they testified. See, e.g., In re Terra, 134 F.3d at 306. These cases do not stand for the proposition that the good-cause requirement of Rule 26(c) requires support by affidavit in every case, especially in a circumstance where the filing of an affidavit itself could expose the affiant to the very harm he seeks to avoid.

Next, defendants assert that plaintiff lacks standing to seek protection against harm to Expert Witness No. 15, who must seek protection in his own right. This argument is cynical at best. Plaintiff avers that Expert Witness No. 15, who is after all volunteering to testify in the case, would not appear in the absence of appropriate safeguards. Plaintiff, therefore, is not officiously seeking to vindicate the rights of a stranger, but attempts to safeguard its own ability to call Expert Witness No. 15 in this case. Defendants' standing argument lacks substance.

Third, defendants assert that the subject matter of this witness's testimony is tangential to the present case and cumulative to that of other witnesses. In support of this argument, Procter & Gamble points out that the allegedly defamatory writing, its amended complaint in the Texas complaint, makes no mention of the Mafia, nor does it attempt to connect Amway to organized crime. Procter & Gamble states that the allegation concerning the similarities between Amway and the Mafia were contained in a report by Professor Blakey submitted in the Texas litigation but kept at all times under seal. "In short, Professor Blakey's report and opinion stated in

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the Texas litigation has little, if anything, to do with Amway's allegations and the claims in the present lawsuit." (Procter & Gamble Brief, docket # 295, at 16). On this basis, Procter & Gamble argues that the testimony of Expert Witness No. 15 is irrelevant.

Procter & Gamble's argument would have merit, but for its own submission in the present case of a report from Professor Blakey, essentially reiterating his opinion concerning the similarities between plaintiff and organized crime. (Report of G. Robert Blakey, Jan. 12, 2001, p. 2, as reported in Amway's Reply Brief, docket # 305). Defendants cannot have it both ways. The relevance of Professor Blakey's opinion to the issues in the present case is not clear to this court. If, however, defendants persist in their effort to persuade the trier of fact that a major American corporation is run like organized crime, the object of the attack must certainly be allowed to defend itself.¹

Consequently, the court rejects defendants' broadside attack upon plaintiff's request for relief with regard to Expert Witness No. 15. The previous occupation of the witness creates the necessity for some caution. The court finds good cause to seal the expert report, deposition, and other references that would reveal the identity of Expert Witness No. 15. Furthermore, good cause exists for a protective order restricting dissemination of any information regarding the present and former identity of Expert Witness No. 15 during his service in the FBI, his past or present residences or any other information that might tend to identify him, to counsel of record and no other persons. Even in the absence of circumstances creating a risk of physical harm, the federal courts have

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¹ For the same reasons, the request of defendant Dinsmore & Shohl to exclude the testimony of Expert Witness No. 15 under Rules 403 and 702 of the Federal Rules of Evidence is not well taken at this time. At the appropriate stage of this case, upon appropriate motion, the court will scrutinize the testimony to be presented by any expert to determine whether it is allowable under the Rules of Evidence.

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restricted dissemination of sensitive discovery information to those persons with a true need for access to the information. See, e.g., Safe Flight Instrument Corp. v. Sundstrand Data Control, Inc., 682 F. Supp. 20 (D. Del. 1988). If defendants believe that dissemination of this information to certain other persons is necessary, they should first attempt to seek concurrence and the fashioning of an appropriate stipulation with plaintiff's counsel. In the absence of agreement, defendants may make a motion, supported by appropriate safeguards, for modification of the protective order.

Plaintiff has not, however, shown good cause for the principal relief that it seeks: a protective order preventing inquiry or investigation into the current assumed name, any former assumed names, or the location of Expert Witness No. 15. Such a :imitation is a major impediment to effective investigation and cross-examination of any witness, especially an expert. Seventy years ago, the Supreme Court of the United States reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the "place of residence" of a prosecution witness, over the insistence of defense counsel that "the jury was entitled to know who the witness is, where he lives and what his business is." Alford v. United States, 282 U.S. 687, 688-89 (1931). The Court noted that the question "where do you live" was an appropriate preliminary to cross-examination of any witness and was "an essential step in identifying the witness with his environment, to which cross-examination may always be directed." 282 U.S. at 693. Thirty-five years ago, the Court again faced a circumstance of a witness in a criminal case testifying under a pseudonym, without revealing his true name or residence. Smith v. Illinois, 390 U.S. 129, 130 (1968). In reversing the conviction, the court noted as follows:

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390 U.S. at 131. To be sure, the present civil case does not present issues under the Due Process or Confrontation Clauses. The comments of the Supreme Court, however, do not apply only to criminal cases. They illuminate the central role of basic questions concerning a witness's identity, history, and residence in assuring effective cross-examination.

Plaintiff's request, made in the context of an expert witness voluntarily agreeing to testify, is unprecedented. None of the cases cited by plaintiff grants such relief in even remotely analogous circumstances. For example, in Clark v. Ricketts, 958 F.2d 851 (9th Cir. 1991), the trial court ordered in a criminal case that counsel not elicit on cross-examination the name and address of the government's John Doe witness. Prior to trial, however, the government disclosed the witness's true name and felony record to defense counsel. "The defense had every opportunity to discover material which might be used to impeach Doe's credibility." 958 F.2d at 855. Consequently, the Clark decision had nothing to do with discovery of possibly impeaching facts. Rather, its relevance is limited to trial procedure. Likewise inapposite are cases such as Does 1-XXIII v. Advance Textile Corp., 214 F.3d 1058 (9th Cir. 2000), in which the courts allowed named plaintiffs in an FLSA collective action to temporarily bring suit under pseudonyms. The courts that allow this device do so as a temporary expedient, recognizing that at some point in the proceedings, disclosure of plaintiffs' true identities will become necessary. See, e.g., Advance Textile, 214 F.3d at 1072-73; Gomez v. Buckeye Sugars, 60 F.R.D.106, 107 (N.D. Ohio 1973) ("Should it appear at

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any time that defendants are prejudiced by this order in obtaining any necessary discovery, the Court will reexamine its ruling, if and when the defendants make their specific needs known to the Court."). Contrary to these FLSA cases, plaintiff here seeks to shield necessary information about Expert Witness No. 15 in perpetuity.

Plaintiff has not cited any case in which a federal court has allowed a party to present expert witness testimony with the restrictions on cross-examination that plaintiff now proposes. Plaintiff's heavy reliance in this regard on State v. Benson, 1998 WL 156957 (Wash. Ct. App. Apr. 6, 1998), an unreported criminal case from the Washington Appellate Court, is unavailing. The Benson decision involved admissibility of narcotic test results from the Washington State Patrol Crime Laboratory. During the course of the hearing, defense counsel expressed doubts as to the validity of the education and work background of the forensic scientist who tested the suspected cocaine, because they had been unable to verify her alleged undergraduate chemistry degree after she had changed her name. After a hearing, the court disclosed the scientist's former name to defense attorneys and provided the records of her employment and education under seal. The only relief granted to the scientist was an order prohibiting inquiry on the record concerning her former name or the reasons for her name change, which the court found were irrelevant to the case. On appeal, the court upheld the minimal restrictions ordered by the trial judge. The unreported Benson case is not even of precedential value in the State of Washington. WASH. REV. CODE § 2.06.040 (2000); WASH. RULES APP. P. 10.4(h). "[U]npublished opinions of the Court of Appeals will not be considered in the Court of Appeals and should not be considered in the trial courts." Washington v. Fitzpatrick, 491 P.2d 262, 267 (Wash. Ct. App. 1972); accord State v. Sanchez, 875 P.2d 712, 713

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(Wash. Ct. App. 1994). Even if the Benson decision were precedential, it does not support the sweeping relief sought by plaintiff in the present case.

It is conceivable that a narrow group of witnesses, such as innocent eye witnesses to a crime or persons vulnerable to retaliation by foreign governments, might be entitled to the protections sought here by plaintiff, as they find themselves endangered through no decision of their own by the specter of testifying in open court. Expert Witness No. 15 does not fit within this narrow category. An expert witness is free to accept an engagement or not. If he accepts, he must anticipate that the normal requirements of discovery and cross-examination in a civil case will inevitably require disclosure of his identity and residence. If these disclosures could prove harmful, the expert witness (unlike the eye witness) is able to merely decline the engagement. Although this court hesitates to say that an expert witness might never be entitled to such protection, the witness's ability to protect himself in virtually every conceivable circumstance would make the propriety of such protection exceedingly rare. Plaintiff has not shown good cause for the extraordinary relief that it seeks. The court notes in this regard that plaintiff has listed two other witnesses competent to opine in the same general area, without the necessity of restricted disclosure.

The court will therefore enter a limited protective order, as outlined above. Expert Witness No. 15 and plaintiff will then be faced with the decision whether to present the witness's testimony or to withdraw it.

A protective order consistent with this memorandum opinion will be entered.

Dated: March 7, 2001

Joseph G. Scoville

United States Magistrate Judge

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