NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 16-1669

__________

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)

__________

OPINION*

__________

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.
2

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.
3

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.