ELR Citation: ELR 20946
No(s). 85-5072 (3d Cir. Sep 4, 1985)

The court holds it does not have jurisdiction to review a pretrial discovery protective order prohibiting the release of a report by the state of New York on chemical emissions in appellee's New Jersey smelting plant owned by appellee, and that although it does have jurisdiction to consider a petition for a writ of mandamus, mandmus is not appropriate in this case. The court first rules that it does not have jurisdiction to review the protective order. A pretrial discovery order can only be reviewed if it satisfies three prerequisites, two of which are not satisfied here. First, this order is provisional rather than final; the district court simply affirmed the magistrate's order to deny New York's request to make the report public without prejudice, and it intends to reconsider the order after sampling from the plant is completed. Second, a determination of whether there is good cause for the protective order would necessarily involve a determination of certain of the underlying substantive issues. A case cited by New York that involved a protective pretrial discovery order is distinguishable since in that case the harm to the newspaper, a nonparty, would be irreparable, and the parties were not able to fully participate in trial preparation; here, the district court intends to allow the report to be disseminated as soon as the information regarding emissions from appellee's plant is complete.

The court concludes that since an action under the Clean Air Act is potentially within its jurisdiction it may consider plaintiff's request for a writ of mandamus, but refuses to issue the writ because plaintiff has not established the need for this extraordinary remedy. First, a protective order limited to information gathered during the discovery process and based on good cause does not violate the First Amendment. Problems such as government censorship, public trials, and prior restraint that give rise to concern regarding First Amendment issues are not present here. Second, the order does not prevent New York from enforcing environmental statutes or protecting the health of its residents. The state has not shown that the Environmental Protection Agency's (EPA's) inability to receive the report under the protective order, because EPA interprets the Clean Air Act as to require it to make the preliminary report public immediately, will compromise efforts to protect the public from the emissions. Third, the magistrate had the authority to issue the pretrial order. The order entered by the magistrate merely continues the case, and the district court maintained control over the case in all other respects. Lastly, the district court did not abuse its discretion. The court found the report to be inconclusive and concluded that releasing it at this time would not serve any useful purpose since several agencies had the report and could protect the public until the final report was completed.

Counsel for Appellant
Mary L. Lyndon
New York State Department of Law
Rm 4772, Two World Trade Center, New York NY 10047
(212) 488-4141

Counsel for Appellee
John B. Prior Jr.
Greenberg, Kelley & Prior
196 W. State St., Trenton NJ 08608
(609) 989-9800

Before Becker and Cohill,^* JJ.