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No. 3-03-0775

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

MODIFIED UPON DENIAL OF PETITION FOR REHEARING
JUSTICE LYTTON delivered the Opinion of the court:

On May 30, 2002, the Catholic Diocese issued a press releasestating that the Diocese had asked certain priests to step downfrom the public ministry based on recent allegations of sexualmisconduct against them. The release went on to list plaintiff asone of the defrocked priests: "Edward Bush, 70, former pastor ofSt. Patrick, Colona."

Plaintiff filed a multi-count complaint against defendantsalleging defamation per se and per quod, false light, publicdisclosure of private facts, and breach of contract. Defendantsmoved for a protective order to keep the identities of the allegedsexual abuse victims confidential. The trial court entered aprotective order on May 14, 2003, which stated:

Statements of victims or alleged victims producedin this case should not be reproduced in full, inpart, or in summary form, and information containedtherein shall not be re-disclosed, outside of theattorneys, their staff, their client, theirinvestigators, or the author of such information orothers directly involved in trial preparation,without prior leave of the court.

Discovery continued, and plaintiff moved to vacate theprotective order. That motion was denied, but the court did orderdefendants to provide the names and addresses of the alleged sexualabuse victims, as well as the names and addresses of witnesses andpersons claiming to be witnesses to sexual abuse by plaintiff. Inresponse, defendants filed a motion for an emergency order forprotection on September 16, 2003, to extend the original order tocover any information which identified the alleged victim andwitnesses. The circuit court allowed the motion and amended theorder of protection. The court reaffirmed the May 14 order andadded the following:

However, notwithstanding the provisions of paragraph (1)above, the parties shall be permitted to conductdiscovery and investigation of the claims and defenses,and shall be permitted to interview witnesses or personsbelieved to have relevant knowledge and/or informationregarding the alleged victims, as well as conductdepositions of such witnesses or persons.

Plaintiff filed this interlocutory appeal pursuant to Supreme CourtRule 307(a)(1). Ill. Sup. Ct. R 307(a)(1).

The trial court's decision to issue a protective order willnot be overturned absent an abuse of discretion. Amoco Oil Co. v.Segall, 118 Ill. App. 3d 1002 (1983).

I. Standing

Plaintiff argues that by obtaining the protective order,defendants were protecting the rights of the alleged victims andnot their own, and thus, defendants lack standing to ask for theorder because their interests are not implicated nor could theysuffer injury from disclosure of the information. We disagree.

Subsection (c)(1) of Illinois Supreme Court Rule 201 permitsthe court to issue a protective order as justice requires. Ill.Sup. Ct. R 201(c)(1). Specifically, the rule provides, "[t]he courtmay at any time on its own initiative, or on motion of any party orwitness, make a protective order as justice requires, denying,limiting, conditioning, or regulating discovery to preventunreasonable annoyance, expense, embarrassment, disadvantage, oroppression." Ill. Sup. Ct. R 201(c)(1).

Plaintiff frames his argument in a traditional discussion ofstanding, that is, whether defendants have a legal interestentitling them to the relief provided by the protective order. SeeFlynn v. Ryan, 199 Ill. 2d 430, 436 (2002). However, thetraditional notions of standing required when seeking judicialrelief are not present here. Rule 201(c) empowers the court toissue protective orders as justice requires, without regard to whorequests the relief. Indeed, the rule allows the court to issue aprotective order on its own initiative. Under Rule 201(c), thecourt, or any party or witness must establish only that justicerequires the protective order. The rule does not require thepetitioner to establish or even assert standing to seek the order. This order protecting alleged victims of sexual abuse is directlyrelated to the goals of Rule 201(c), that is, preventingunreasonable annoyance, embarrassment or oppression. Therefore, thecourt had the power to include the alleged victims as protectedparties under the order.

II. Prior Restraint

Plaintiff argues that the protective order constitutes anunconstitutional prior restraint on speech under the FirstAmendment.

In Seattle Times Co., v. Rhinehart, 467 U.S. 20 (1984), theUnited States Supreme Court considered the constitutionality ofpretrial protective orders issued to prevent dissemination ofdiscovered information. Seattle Times involved claims of defamationand invasion of privacy brought by a religious organization and itsspiritual leader against the Seattle Times newspaper. The trialcourt entered a protective order prohibiting the newspaper fromdisseminating or using information it discovered from the religiousgroup regarding membership and donations, except in ways necessaryto prepare its defense. The Seattle Times claimed that the orderviolated its First Amendment rights. The Court rejected thenewspaper's contention that a protective order, entered after ashowing of good cause, offends the First Amendment. It held that aprotective order does not violate the First Amendment when it islimited to the context of pretrial civil discovery and does notrestrict the dissemination of the information if gained from othersources. Seattle Times, 467 U.S. at 37.

In this case, plaintiff argues that in communications withdefendants prior to the filing of the lawsuit, defendants disclosedthe names of the alleged victims and accounts of the circumstancessurrounding the alleged assaults. Plaintiff claims that SeattleTimes does not permit trial courts to prohibit the dissemination ofthat information.

The Court in Seattle Times held that a litigant has no FirstAmendment right of access to information made available solely forthe purposes of trying his suit. Seattle Times, 467 U.S. at 32. Inthis case, certain information such as names and accounts of theassault were made available to plaintiff by defendants in thecourse of communications between plaintiff, Bishop Jenky andMonsignor Rohlfs. Those private conversations were conducted in aneffort to resolve the dispute. At the meetings, plaintiff wasgiven the names of the alleged victims and agreed to obey therequest of the Diocese that he no longer publicly function as apriest. While the information was provided before suit was filed,it shares the same characteristics as information gathered informal pretrial discovery. For example, like facts gained throughdiscovery, the information plaintiff obtained from defendants wasacquired privately and between the parties, and it was required toaid plaintiff in determining an appropriate legal response. SeeSeattle Times, 467 U.S. at 32-33. For these reasons, Seattle Timesprotects certain information gained during the course of a civilaction. Given the unique factual circumstances of this case andthe Court's analysis in Seattle Times, plaintiff has no FirstAmendment right to freely disseminate that information.

Furthermore, though Seattle Times does not "restrict thedissemination of the information if gained from other sources," itdoes protect information gained from defendants. Seattle Times,467 U.S. at 37. The source is not independent from or differentthan the source in the discovery process; it is identical. TheSeattle Times exception applies to information gathered fromsources independent of those involved in the discovery process.When courts prohibit that dissemination, judicial action moreclosely resembles a classic type of improper prior restraint. Theprotective order in this case prohibits the dissemination ofinformation gathered from defendants in preparation for trial andis proper under Seattle Times.

III. The Protective Order's Impact on Discovery

Plaintiff argues that the protective order is overbroadbecause it prohibits him from engaging in pretrial interviews andinvestigations. Defendants respond that the order specificallyallows plaintiff to use the protected information in pretrialinvestigations and discovery.

The first paragraph of the protective order prohibits theparties from disclosing the names or other identifying informationof the alleged victims to anyone other than the parties, theirattorneys and staff, their investigators or others involved intrial preparation. The first paragraph prohibits the disclosure ofany information that would identify the alleged victims. If thatwere the entirety of the order, plaintiff would have a compellingargument that his ability to conduct pretrial investigation waslimited.

However, the second paragraph provides a clear exception tothe general prohibition established in paragraph (1):

"notwithstanding the provisions of paragraph (1) above,the parties shall be permitted to conduct discovery andinvestigation of the claims and defenses, and shall bepermitted to interview witnesses or persons believed tohave relevant knowledge and/or information regarding thealleged victims, as well as conduct depositions of suchwitnesses or persons."

The second paragraph begins with the word "notwithstanding,"which is defined as "without prevention or obstruction from or by."Webster's Third International Dictionary 1545 (1976). Thus, thetrial judge excepted from the strictures of paragraph 1 the use ofany information to conduct discovery and pretrial investigation.Both parties are allowed to use the protected information duringpretrial investigation and discovery, but are only prohibited fromdisclosing the information to the general public or media.

The order is not overbroad; it was written carefully andnarrowly enough to protect the alleged victims from potentialembarrassment or intimidation while still permitting the parties toengage in full pretrial investigation and discovery. Our reading ofthe second paragraph of the order removes any claimed impedimentsto discovery for either party.

CONCLUSION

The judgment of the Circuit Court of Peoria County isaffirmed.

Affirmed.

MCDADE and SLATER, JJ., concurring.