Farnum v. G.D. Searle & Co. , 1983 Iowa Sup. LEXIS 1709 ( 1983 )

CARTER, Justice

(dissenting).

I dissent. The defendant, G.D. Searle & Co. is not asking the court to deny the plaintiffs access to information which the latter wish to obtain by way of litigation discovery. Defendant only requests that the court grant protection against other uses of the information by plaintiffs which go beyond the purposes for which they seek the information.

Speaking with commendable candor during oral argument before this court, plaintiffs’ counsel stated that unless restrained he intended to disseminate the material garnered from the present discovery effort among the members of a group which he identified as “the plaintiffs’ bar.” The documents in question have been identified as not being public records. They are the private papers of the defendant Searle. That defendant is not obliged to show them to anyone in the absence of a specific legal entitlement on the part of the person or persons seeking to view them. Plaintiffs’ counsel has shown no entitlement to view the documents except as a representative of the plaintiffs. Plaintiffs only source of entitlement for viewing the documents is by reason of their assertion that the documents are material to the issues in the pending civil litigation. Given these circumstances, I submit that fairness to defendant Searle suggests that plaintiffs’ use of the information obtained should be limited to those purposes upon which their right of access is based.

The position which the court takes fails to adequately distinguish between the right to obtain information in the discovery process and the right to use it for purposes unrelated to the litigation. It seeks to turn the issue on some intangible public interest which is not identified. Quoting from In re Halkin, 598 F.2d at 191, it states “there must be no alternative means of protecting the public interest which intrudes less directly on expression.” I fail to see where any public interest in expression is involved. What is involved is two competing private interests, both of which would have been fairly accommodated if the protective order which was sought had been granted.

It is ironic that the majority concludes the opinion by encouraging “efforts to cooperate in discovery on an informal basis.” The standards adopted in the opinion for the granting of a protective order destroy any incentive for such cooperation. I would reverse the trial court’s order and remand the case for the entry of a protective order in the form which defendant Searle requests.

HARRIS, McGIVERIN and SCHULTZ, JJ., join this dissent.