United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 99-1853NE

_____________

Imageware, Inc., Nebraska *

Corporation, doing business as *

Cottonwood Communications, and *

Richard Dahlgren, an Officer and a *

Director of Imageware, Inc., *

*

Appellants, *

*

v. *

*

*

U.S. West Communications; *

U.S. Marketing Resources Group, Inc., * On Appeal from the United

doing business as U.S. West Direct; * States District Court

U.S. West, Inc.; U.S. West * for the Southern District

Communications Group, Inc.; * of Iowa.

Interactive Video Enterprises, Inc.; *

U.S. West Interactive Services, Inc.; *

U.S. West Multimedia Communications, *

Inc.; U.S. West: Multimedia Services *

Group, Inc.; U.S. West Advanced *

Technologies, Inc.; U.S. West Business *

Resources, Inc., Colorado *

Corporations; U.S. West Enhanced *

Services, Inc., a Washington *

Corporation; and U.S. West Multimedia *

Services of Omaha, Inc., *

*

Appellees. *

___________
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Submitted: April 13, 2000

Filed: July 25, 2000

___________

Before RICHARD S. ARNOLD, ROSS and MORRIS SHEPPARD ARNOLD,

 Circuit Judges.

___________

RICHARD S. ARNOLD, Circuit Judge.

This is a contempt proceeding arising out of an action under the antitrust laws

brought by Imageware, Inc., and others against U.S. West Communications, Inc., and

others. For a description of the underlying case, in which the defendants, whom we

shall call U.S. West, prevailed, see Mostly Media, Inc. v. U.S. West Communications,

186 F.3d 864 (8th Cir. 1999). In the proceeding now before us, the District Court held

Imageware and one of its principals, Richard Dahlgren, in civil contempt for violating

a court order protecting certain documents produced during pretrial discovery.

Imageware and Mr. Dahlgren appeal. Imageware does business as Cottonwood

Communications, and we shall therefore refer to appellants as Cottonwood, in

accordance with the convention they have adopted in their brief.

The case turns on the meaning of the court order in question, so we shall begin

by describing it. Early in the discovery process, Cottonwood had served subpoenas in

an attempt to obtain various documents. U.S. West filed a motion to quash the

subpoenas, and for the entry of a protective order. After hearing, the motion to quash

was denied, but a protective order was entered governing all material produced by

either party and labeled either "Confidential - Attorneys Only Information" or

"Confidential Information." The present controversy concerns documents bearing one

or the other of these labels. 

The relevant paragraphs of the protective order are the following:
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4. Limitations on Use

Confidential Information and Confidential - Attorneys Only

Information may be used by the persons properly receiving such material

only for the purpose of preparing for and conducting pretrial and trial

proceedings in this action and for no other purpose.

* * * * 

9. Use at Trial

Any Confidential Information or Confidential - Attorneys Only

Information, which is designated to be introduced at trial by any party at

least 10 days in advance of trial, may be offered into evidence in open

court unless the Designating Party obtains an appropriate protective order

from the Court. The party proposing to introduce the Confidential

Information or Confidential - Attorneys Only Information must give at

least 10 days notice to the Designating Party and a sufficient opportunity

for the Designating Party to seek such a protective order. Designation of

the Confidential Information or Confidential - Attorneys Only Information

is [sic] a final pretrial order in a manner that clearly provides notice that

such Confidential Information or Confidential - Attorneys Only

Information may or will be introduced at trial shall be sufficient notice

under this paragraph.

* * * * 

14. Continuing Effects

After the termination of this action, this Order shall continue to be

binding upon the parties thereto and all persons to whom Confidential

Information or Confidential - Attorneys Only Information has been

disclosed or communicated. In the event that this action or any portion

thereof is transferred to another judicial district pursuant to order of the

Court, this Order shall continue in full force and effect for any portion of

the case not transferred and for any portion transferred until modified or

vacated by the transferee court.
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Appellants' Addendum 3-4.

We next recount what Cottonwood did. At trial, certain documents (and only

documents in this category are at issue here) were offered in evidence by Cottonwood.

In accordance with the procedure set out in paragraph 9, quoted above, U.S. West was

given an opportunity to seek a protective order, to prevent the reception into evidence

of these documents in open court. No such order was sought, and the documents were

freely introduced in open court and published to the jury. Any discussion of the

documents that took place at the trial was in the open, and presumably any person

present at the trial (attendance at which was not restricted) could have requested and

received access to the documents. After the trial, these documents were kept in the

office of the Clerk of the District Court. In addition, other documents, not offered into

evidence in open court, were kept separately by the Clerk, under seal and in a vault,

these documents being clearly subject to the continuing-effects provision of paragraph

14.

After the trial, Richard and Laurie Dahlgren, both officers of one or more of the

corporate plaintiffs, sought to review the court record for the purpose of obtaining

copies. Permission was arranged through the chambers of the trial judge. The

Dahlgrens went to the Clerk's office and met with a deputy clerk. They were given

access to the documents. They did not request, nor did they receive, any access to

documents still under seal. A deputy clerk told them that attorneys and any member

of the press would be able to look at the records, including the documents viewed by

the Dahlgrens. Later, Ms. Dahlgren picked up and paid for copies of the documents

from the Clerk's office. Then, in a filing before the Federal Communications

Commission, Cottonwood included 16 documents that had been produced by U.S.

West under the original protective order, all 16 of which had either been received into

evidence at the trial, or had been marked as exhibits in the Joint Exhibit list, access to

which list had been afforded to the Dahlgrens by the deputy clerk. Thus, the
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documents filed with the FCC had all been initially marked as confidential under

paragraph 4 of the protective order, and had all either been offered in evidence in open

court or marked as exhibits for that purpose. U.S. West had not availed itself of the

paragraph 9 procedure to obtain a further protective order with respect to any of these

particular documents.

The District Court held Cottonwood in contempt and imposed a civil sanction

in the amount of $4,543.50, the amount found by the District Court to have been

reasonably expended by U.S. West in connection with its motion for an order of

contempt. (The amount is not in question here – only the propriety of the contempt

finding itself.) In addition, to protect U.S. West against any further violations of the

protective order, the District Court required Cottonwood to post a $4,500.00 "contempt

bond." 

The reasoning in support of these actions is simple: the documents were initially

produced under paragraph 4 and labeled "Confidential" or "Confidential - Attorneys

Only Information." Accordingly, by the express terms of that paragraph, they could be

used "only for the purpose of preparing for and conducting pretrial and trial

proceedings in this action and for no other purpose." Further, by the express terms of

paragraph 14, paragraph 4 continued in full force and effect after the termination of the

case. If that were all there is to the matter, we should have no difficulty affirming the

actions of the District Court. But there is more: specifically, paragraph 9. Under that

paragraph, certain of the documents were lawfully introduced at trial in open court.

U.S. West had available to it a procedure by which it could have obtained an

appropriate protective order, for example, providing that the documents would be

shown to the lawyers, jurors, and judge only, and would thereafter remained sealed.

U.S. West took no such action. 

So how should the order be interpreted? Cottonwood argues that once

documents are introduced into evidence in open court, and especially when, thereafter,
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they are kept in a public file in the Clerk's office open to anybody, including the press,

it makes no sense to say that anyone, including a party to the case, could obtain copies

of the documents, but could not show them to anybody else. National Polymer

Products v. Borg-Warner Corp., 641 F.2d 418 (6th Cir. 1981), among other authorities,

is cited. There, certain documents were subject to a protective order which prohibited

their dissemination. The order provided that the documents could not be revealed to

anybody for any purpose other than preparation and trial of the underlying case, and,

specifically, that the documents could not be disclosed to the public or to any

governmental agency. Thereafter, the case was tried in open court, and testimony was

received concerning the documents. Borg-Warner did not move for in camera

proceedings or request any other restriction. After the trial, a vice president of one of

the parties was accused of disclosing to others information covered by the protective

order. A district court held that a contempt of court had occurred, but the Sixth Circuit

reversed. In substance, the Court held that anyone had a right to obtain and publish

information made a part of the record without restriction in a judicial proceeding.

U.S. West stresses, by contrast, that the particular documents involved in this

case were subject not merely to pretrial restrictions, but, by reason of paragraph 14,

continued to be subject to the protective order after trial. On this view, the fact that the

documents were offered into evidence in open court without restriction is irrelevant.

Anyone who happened to be in court could have learned of the documents, and, after

the trial, anyone coming to the Clerk's office could have looked at them and even taken

away copies of them, but paragraphs 4 and 14 would still prevent dissemination of the

information by any such persons, even to a governmental agency in a public

proceeding. Underlying this position is a practical proposition: the likelihood that

anybody would come to the Clerk's office to look at the documents, without intending

to disseminate them, is small. As a practical matter, therefore, filing the documents

with the FCC gave them much wider exposure.
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We find it unnecessary to pursue the First Amendment and case-law arguments

urged by the parties. Contempt of court is a serious matter, even civil contempt. No

one should be held in contempt for violating an ambiguous order, especially an order

purporting to restrict the right of the public to see public records and documents. A

contempt should be clear and certain. See International Longshoremen's Assn., Local

1291 v. Philadelphia Marine Trade Association, 389 U.S. 64, 76 (1967); Project

B.A.S.I.C. v. Kemp, 947 F.2d 11, 16 (1st Cir. 1991) ("civil contempt will lie only if the

putative contemnor has violated an order that is clear and unambiguous"). Here, the

presence of paragraph 9, which is not addressed in appellees' brief, makes the order

ambiguous. We think a reasonable person could have read the order as a whole not to

give continuing protection to documents that had been offered into evidence in open

court without objection. On this reading, the continuing-effects provisions of paragraph

14 would apply only to those documents not offered in open court or identified as

exhibits. These documents would continue to be confidential and, in fact, the Clerk of

the District Court seems to have acted accordingly, because only documents not offered

in open court or listed as exhibits remained under seal in the Clerk's office.

U.S. West relies on Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 630, 631

(8th Cir. 1984), aff'g per curiam 580 F. Supp. 913 (N.D. Iowa 1983). There, an

attorney distributed documents in violation of a protective order. The documents had

been introduced into evidence at trial, but a contempt finding was nevertheless upheld.

We think the case is distinguishable. So far as the reported opinions in Kehm reveal,

there was no provision in that case comparable to paragraph 9 of this protective order.

The order gave U.S. West a specific remedy by which it could have maintained, after

trial, the special status of documents even after they had been received into evidence.

For these reasons, we think that Cottonwood could reasonably, even if perhaps

erroneously, have believed that these documents were not subject to paragraph 14. 

Accordingly, the judgment of the District Court, finding Cottonwood in civil

contempt, is reversed, and this cause is remanded to that Court with directions to
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dismiss the motion for contempt with prejudice. In addition, the contempt bond of

$4,500.00 is discharged and exonerated.

It is so ordered.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.