Elizabeth Pichler v. Unite Union of Needletrades, Industrial

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-2354
_____________
ELIZABETH PICHLER; KATHLEEN KELLY; RUSSELL
CHRISTIAN; DEBORAH BROWN;
SETH NYE; HOLLY MARSTON; KEVIN QUINN; JOSE
L. SABASTRO; DEBORAH A. SABASTRO;
THOMAS RILEY; AMY RILEY; RUSSELL DAUBERT;
CARRI DAUBERT,
v.
UNITE (UNION OF NEEDLETRADES, INDUSTRIAL
AND TEXTILE EMPLOYEES, AFL-CIO), A NEW YORK
UNINCORPORATED ASSOCIATION; BRUCE RAYNOR,
A NEW YORK RESIDENT;
INTERNATIONAL BROTHERHOOD TEAMSTERS,
DOES 1-10
NATIONAL RIGHT TO WORK LEGAL DEFENSE
FOUNDATION INC,
Intervenor in
D.C./Appellant

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The Honorable Joseph Irenas, Senior District Judge of the*
United States District Court for the District of New Jersey,
sitting by designation.
2
On Appeal From the United States District Court
for the Eastern District of Pennsylvania
(Civ. No. 2-04-cv-02841)
District Judge: Hon. Stewart Dalzell
Argued: February 2, 2009
Before: McKEE and STAPLETON, Circuit Judges
and IRENAS, Senior District Judge*
(Opinion filed: November 13, 2009)
WILLIAM L. MESSENGER, ESQ. (Argued)
WILLIAM J. YOUNG, ESQ.
National Right to Work Legal Defense Foundation
8001 Braddock Road
Suite 600
Springfield, VA 22160
Attorney for Intervenor in D.C. - Appellant
LAWRENCE T. HOYLE, ESQ. (Argued)
ARLENE FICKLER, ESQ.
Hoyle, Fickler, Herschel & Mathes
One South Broad Street
Suite 1500

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In July of 2004, UNITE merged with the Hotel Employees1
and Restaurant Employees International Union (“HERE”) and
the combined entity became known as “UNITE HERE.” We
will refer to the union simply as “UNITE.”
3
Philadelphia, PA 19107
Attorneys for UNITE – Appellee
OPINION
McKee, Circuit Judge.
The National Right to Work Legal Defense Foundation
(“NRTW”) appeals the district court’s order denying its motion
to modify a protective order that restricts access to certain
records. For the reasons that follow, we will affirm.
I. Factual Background.
In the fall of 2002, the Union of Needletrades, Industrial
& Textile Employees AFL-CIO (“UNITE”) decided to launch1
a union organizing campaign targeting CINTAS Corporation,
the largest domestic employer in the industrial laundry industry.

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The International Brotherhood of Teamsters AFL-CIO2
represented some of UNITE’s employees, and UNITE and the
Teamsters therefore agreed to work together to organize
CINTAS employees. The Teamsters are not involved in this
appeal.
4
CINTAS employs approximately 28,000 people at 350 locations
in the United States and Canada. Many of those employees are
female, Black, or Hispanic.
UNITE initiated that campaign because it believed that
CINTAS was paying low wages, offering poor benefits, and
subjecting its employees to unsafe working conditions,
discriminatory practices, and violations of various labor laws.2
“CINTAS . . . is philosophically opposed to unions and union
organizing.” Pichler v. UNITE, 542 F.3d 380, 383 (3d Cir.
2008). UNITE therefore believed that its organizing efforts
would not be successful unless representatives of the union
visited employees’ homes because employees would not speak

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5
freely on the job where they could be observed by management
and exposed to coercion and/or retaliation.
In order to contact CINTAS employees in their homes,
UNITE compiled lists of names and addresses of presumed
CINTAS workers from a variety of sources. The sources
included license plate numbers of cars parked in CINTAS
parking lots. The license plate numbers were used to obtain
names and addresses of the registered owners of the respective
cars from databases containing state motor vehicle records, a
technique known as “tagging.”
Tagging was generally accomplished by UNITE
organizers entering or observing a CINTAS parking lot and
recording license plate numbers of cars. The license plate
numbers were then checked by using either a Westlaw database
or private investigators known as “information brokers.” The
information brokers would – either directly or through

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6
intermediaries – obtain the owners’ names and addresses
through state motor vehicle bureaus. This allowed UNITE to
obtain names and addresses of employees who might support
unionizing CINTAS, and it also allowed UNITE to identify
potential plaintiffs and construct a plaintiff class consisting of
approximately 1,800 to 2,000 CINTAS employees. The class
action subsequently asserted claims against CINTAS for
violating various employment laws.
According to Westlaw’s records, UNITE conducted
approximately 13,700 motor vehicle searches on Westlaw from
August of 2002 to October 13, 2004. However, some of those
searches were duplicates and some did not result in the retrieval
of any information. Of the total Westlaw searches conducted by
UNITE, approximately 1,576 pertained to CINTAS. The
remainder of the searches - approximately 12,000 in number -
did not pertain to individuals related to UNITE’s labor

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The group includes CINTAS employees, as well as spouses3
and friends of employees, whose cars were driven to work by
employees.
7
organizing campaign at CINTAS. This appeal centers around
Westlaw’s recreation of those 12,000 searches.
The named plaintiffs in this case, Elizabeth Pichler,
Kathleen F. Kelly, Deborah Brown, Russell Christian, Carri
Daubert, Holly Marston, Seth Nye, Kevin Quinn, Amy Riley,
Thomas Riley, Deborah A. Sabastro, Jose L. Sabastro and
Russell Daubert all have some connection to CINTAS’s plant
in Emmaus, Pennsylvania. Employees Pichler, Quinn, Thomas3
Riley and Jose Sabastro began complaining about UNITE’s
actions and inquiring into how UNITE could have obtained
their home addresses.
Employee complaints eventually came to the attention of
CINTAS’s outside counsel, Jeffrey I. Kohn, of O’Melveny &

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8
Myers. Kohn, in turn, contacted Paul R. Rosen, of Spector
Gadon & Rosen, P.C., to inquire whether he had any interest in
representing employees who were upset about what had
happened. In April 2004, employees Pichler, Brown, Kelly,
Nye, Russell Daubert, Thomas Riley and Jose Sabastro, met
with Kohn and James Bucci of Spector Gadon. Kohn
introduced himself and asked the employees to describe their
encounters with the union organizers. Soon after the meeting,
Bucci contacted nonemployees Christian Marston, Carri
Daubert, Amy Riley and Deborah Sabastro by telephone.
Ultimately, Spector Gadon was retained to bring a lawsuit
against UNITE based on UNITE’s tagging operation.
On June 28, 2004, Spector Gadon filed a lawsuit on
behalf of the named plaintiffs. A few weeks later, a one-count
amended class action complaint was filed, alleging that UNITE
and Bruce Raynor, UNITE’s president (hereinafter collectively

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9
“UNITE”), violated the Driver’s Privacy Protection Act of 1994
(“DPPA”), 18 U.S.C. §§ 2721-25. UNITE moved to dismiss
the amended complaint under Fed. R. Civ. P. 12(b)(6);
however, the district court denied the motion. Pichler v.
UNITE, 339 F. Supp. 2d 665 (E.D. Pa. 2004) (“Pichler I”). On
May 31, 2005, the district court certified a class to proceed
against UNITE, though not against Raynor, and dismissed some
of the plaintiffs for lack of standing. Pichler v. UNITE, 228
F.R.D. 230 (E.D. Pa. 2005) (“Pichler II”). On August 30, 2006,
the district court found that UNITE had violated the DPPA,
granted summary judgment against UNITE, awarded the
plaintiffs $2,500 each, and granted summary judgment in favor
of Raynor. Pichler v. UNITE, 446 F. Supp. 2d 353 (E.D. Pa.
2006) (“Pichler III”). Pursuant to Fed. R. Civ. P. 54(b), the
district court also certified the case for appellate review,
deferring the questions about class-wide and injunctive relief.

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10
Finally, on October 17, 2006, the district court amended its
previous judgment and granted summary judgment to UNITE
on the issue of punitive damages. Pichler v. UNITE, 457 F.
Supp. 2d 524 (E.D. Pa. 2006) (“Pichler IV”). The district court
also permanently enjoined UNITE and its employees from using
or disclosing any of the plaintiffs’ personal information
obtained by UNITE in violation of the DPPA. Both sides
appealed.
We affirmed the district court in part, vacated and
remanded in part. Although several issues were raised during
that appeal, the only issue relevant to our inquiry here is the
challenge to UNITE’s tagging operation, and the plaintiffs’
claim that it violated the DPPA. We affirmed the district
court’s conclusion that UNITE had violated the DPPA by
accessing plaintiffs’ motor vehicle records during its tagging
operation. Pichler v. UNITE, 542 F.3d 380 (3d Cir. 2008)

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A “‘Protective Order’ properly denotes court orders over4
information exchanged during discovery.” Pansy v. Borough of
Stroudsburg, 23 F.3d 772, 777 n.1 (3d Cir. 1994) (citing Fed. R.
Civ. P. 26(c)).
11
(“Pichler V”).
A. The Protective Order.
Shortly after the district court denied UNITE’s motion to
dismiss pursuant to Fed. R. Civ. P. 12(b)(6), UNITE filed a
motion for a protective order which it claimed was necessary4
to safeguard the privacy of the individuals involved in the
Pichler class action, prevent disclosure of UNITE’s organizing
strategy, and also prevent CINTAS from using the Pichler class
action as a tactical weapon against UNITE. The district court
issued the requested protective order on January 7, 2005. That
order allows UNITE to designate “potential evidence as
confidential if that potential evidence directly relates to
defendants’ labor union organizing or mobilization strategies.”

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12
(J. App. 29.) According to UNITE, the protective order has
allowed the Pichler class action to proceed independently of
both UNITE’s organizing efforts and the ongoing litigation
involving UNITE and CINTAS.
The protective order in the Pichler class action pertains
to the records that were disclosed in response to the Pichler
plaintiffs’ subpoena duces tecum as well as the testimony of a
representative of the company which operates Westlaw. Those
records included Westlaw’s recreation of the searches UNITE
conducted between July 1, 2002 and October 13, 2004. UNITE
designated those records as confidential pursuant to the
protective order, and therefore never filed them with the court.
Accordingly, they never became part of the judicial record.
Most importantly for our purposes, the disclosed records
that are subject to the protective order include the names of the
approximately 12,000 people whose motor vehicle information

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13
was accessed by UNITE, but who were not connected to
UNITE’s union organizing campaign at CINTAS, and who
were not putative members of the Pichler class action against
UNITE (the “Disputed Search Records”).
As we mentioned at the outset, this appeal arises from
the district court’s refusal to modify that protective order to
allow the NRTW access to the Disputed Search Records. The
NRTW is a foundation that describes itself as “a non-profit,
legal aid organization that provides information and legal
assistance to employees who have suffered violations of their
rights as a result of compulsory unionism.” (Appellant’s Br. 7.)
The NRTW summarizes its interest in the Pichler class action
as follows: “[T]he [NRTW] seeks to inform individuals whose
motor vehicle records were searched by UNITE, and who are
outside the Plaintiff Class, that UNITE accessed their motor
vehicle records in potential violation of the DPPA.”

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14
(Appellant’s Br. 8.)
B. The NRTW’s Attempt to Intervene.
On July 30, 2007, the NRTW sent a letter to counsel for
the Pichler plaintiffs requesting access to the Disputed Search
Records for the purpose of contacting the approximately 12,000
individuals whose motor vehicle records were accessed by
UNITE, who are not connected to UNITE’s union organizing
campaign at CINTAS, and who are not putative members of the
Pichler class. Pichler class counsel responded by informing the
NRTW that they had no objection to such disclosure if it was
consistent with the limitations imposed by the district court’s
protective order and the DPPA. Class counsel agreed not to
object to the NRTW’s intervention in the Pichler litigation, but
stated that they would take no position on the merits of the
NRTW’s efforts to obtain the records.
Thereafter, on September 19, 2007, while the

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15
interlocutory appeal of the district court’s grant of summary
judgment in Pichler III was pending, the NRTW moved to
intervene in the Pichler class action. The NRTW asked the
court to modify the protective order to allow it to access the
Disputed Search Records in order to notify each of the
approximately 12,000 individuals whose names and addresses
are contained in the Disputed Search Records that their privacy
rights under the DPPA may have been violated by UNITE.
If allowed access to the records, the NRTW intends to
inform those individuals that UNITE may have violated their
rights under the DPPA. The NRTW represented to the district
court that it would use the Disputed Search Records to mail one
letter to each of the 12,000 individuals to inform them that
UNITE accessed their motor vehicle records.
The proposed letter states:
The [NRTW] is a non-profit legal-aid organization that

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16
provides information and free legal advice and
representation to employees who have suffered
violations of their rights as a result of compulsory
unionism.
*******
If your [sic] are interested in determining whether
UNITE’s search of your motor vehicle records violated
your rights under the Driver’s Privacy Protection Act,
you should contact an attorney. If you wish, you can
contact the [NRTW] to learn about your rights and
options under the Driver’s Privacy Protection Act.
(J. App. 118-19.)
UNITE sought to prevent the NRTW from accessing the
Disputed Search Records. UNITE contended that “NRTW is
philosophically opposed to UNITE’s organizing activities, and
the information NRTW seeks can be used to reverse engineer
organizing strategies and combat UNITE’s organizing mission.”
(J. App. 9.)
On February 7, 2008, the district court granted the
NRTW’s motion to intervene, but denied the NRTW’s motion

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The right of access to judicial proceedings and judicial5
records is beyond dispute. Pansy v. Borough of Stroudsburg, 23
F.3d 772 (3d Cir. 1994) (citations omitted). However, because
the documents the NRTW seeks have never been filed with the
district court, they are not judicial records, and, therefore, the
NRTW cannot obtain access to them under the right of access
17
to modify the protective order. The district court explained that
“NRTW’s only basis for accessing this information is the
common law right of access to judicial records; they do not, and
we believe cannot, point to any other common law, statutory, or
Constitutional right that would create a path of access to the
documents they desire. . . .” (J. App. 10-11.) The court
explained further that “what NRTW seeks has not been filed
with the court in any motions or pleadings; instead, it consists
of defendants’ production to the plaintiffs; such documents are
raw discovery and are ordinarily inaccessible to the public
through the common law right of access; thus, NRTW has no
path of access to this information or a presumptive right to it.”5

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doctrine. Id. at 780-83. The NRTW does not dispute that it
cannot obtain the documents under the right of access doctrine.
18
(J. App. 12.)
On February 19, 2008, the NRTW moved for
reconsideration, arguing that it never claimed it had a public
right of access to the documents. Rather, the NRTW had relied
on the fact that Pichler class counsel would provide the
documents to it but for the protective order prohibiting
disclosure.
On April 15, 2008, the district court denied the NRTW’s
motion for reconsideration. The district court clarified that in
its February 7, 2008 order, it had “held that NRTW did not have
standing to seek the documents in question because it had no
path of access to the documents, i.e., there is no legal basis for
NRTW to get at these documents other than the fact that
plaintiffs have them.” (J. App. 3.) In the alternative, the district

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We have jurisdiction under the collateral order doctrine to6
review the denial of the motion to modify the Protective Order
and the denial of the motion to reconsider. See Shingara v.
Skiles, 420 F.3d 301, 304-05 (3d Cir. 2005). Our review is for
abuse of discretion, but we exercise plenary review over the
district court’s interpretation and application of the legal
standard for granting or modifying a confidentiality order. Id.
at 305 (citation omitted).
19
court held that, even if the NRTW did have standing,
modification of the protective order would not be appropriate
under the applicable legal standard.
This appeal followed.6
II. The Driver’s Privacy Protection Act of 1994.
The DPPA forbids state officials from “knowingly
disclos[ing] or otherwise mak[ing] available to any person or
entity: personal information . . . about any individual obtained
by the department [of motor vehicles] in connection with a
motor vehicle record,” unless certain specified exceptions to the
prohibition apply. 18 U.S.C. § 2721(a). The DPPA also

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20
prohibits others from knowingly “obtain[ing] or disclos[ing]
personal information, from a motor vehicle record” for an
unlawful purpose and from “mak[ing] false representation[s] to
obtain any personal information from an individual’s motor
vehicle record.” 18 U.S.C. § 2722. Those who “knowingly
obtain[], disclose[] or use[] personal information, from a motor
vehicle record” are “liable to the individual to whom the
information pertains. . . .” 18 U.S.C. § 2724(a). If a defendant
is found liable, a court may award:
(1) actual damages, but not less than liquidated
damages in the amount of $2,500;
(2) punitive damages upon proof of willful or
reckless disregard of the law;
(3) reasonable attorneys’ fees and other litigation
costs reasonably incurred; and
(4) such other preliminary and equitable relief as
the court determines to be appropriate.
18 U.S.C. § 2724(b).

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21
However, the DPPA also specifies a total of 14
exceptions to the general prohibition against disclosing motor
vehicle records. See 18 U.S.C. § 2721(b). In Pichler III, the
district court rejected UNITE’s claim that its tagging operation
fit within two of the 14 exceptions in the DPPA, and that it
should therefore not be held liable for violating the DPPA’s
prohibitions. Those two exceptions allow access in connection
with litigation (the “litigation exception”) or for use by a
governmental agency or any private person or entity acting on
an agency’s behalf (the “agency exception”). Specifically, the
litigation exception states that motor vehicle records may be
accessed:
For use in connection with any civil, criminal,
administrative, or arbitral proceeding in any
Federal, State, or local court or agency or before
any self-regulatory body, including the service of
process, investigation in anticipation of litigation,
and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal,

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22
State, or local court.
18 U.S.C. § 2721(b)(4). The agency exception allows records
to be accessed “[f]or use by any government agency, including
any court or law enforcement agency, in carrying out its
functions, or any private person or entity acting on behalf of a
Federal, State, or local agency in carrying out its functions.” 18
U.S.C. § 2721(b)(1).
As we have just noted, in defending against the Pichler
class action, UNITE argued that tagging was a permissible use
under the litigation and agency exceptions. UNITE contended
that the litigation exception applied because it had obtained the
plaintiffs’ personal information as part of a union organizing
effort, activity protected under the National Labor Relations
Act. See 29 U.S.C. § 157. UNITE also argued that the agency
exception applied because it had subsequently filed
discrimination charges against CINTAS with the EEOC and

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“From 2002 through October 13, 2004, UNITE brought or7
assisted in bringing against CINTAS, six federal cases, three
state court cases, eighteen charges with the Equal Employment
Opportunity Commission (“EEOC”), and four charges with the
Occupational Safety and Health Administration (“OSHA”).
Pichler III, 446 F. Supp. 2d at 363 (footnotes omitted). “UNITE
also filed unfair labor practice charges with various offices of
the National Labor Relations Board (“NLRB”), some of which
were settled without any admission of liability.” Id. “In
addition . . ., UNITE . . . filed a charge with the Ohio Civil
Rights Commission, and the California Department of Fair
Employment and Housing.” Id.
23
was therefore acting as a private attorney general to eradicate
employment discrimination at CINTAS. It further contended
that the agency exception applied because it either assisted, or
itself filed, four OHSA complaints against CINTAS. The7
district court rejected UNITE’s contentions and concluded that
UNITE’s tagging operation violated the DPPA. See Pichler III,
446 F. Supp. 2d at 373-74.
III. Discussion.
Although the litigation involving UNITE, CINTAS, and

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24
the Pichler class is multifaceted and ongoing, the dispute before
us is discrete and straightforward. As we noted at the outset,
the NRTW argues that the district court erred in not modifying
the protective order to allow it access to the Disputed Search
Records.
The district court held that the NRTW lacked standing to
request modification of the protective order because the
Disputed Search Records are not judicial records, and the
NRTW therefore lacked a path of access. The NRTW contends
on appeal that it has standing to seek modification of the
protective order, not based on the common law right of access
to judicial records, but rather because Pichler class counsel
would provide the Disputed Search Records to NRTW if not for
the protective order. In response, UNITE argues that the
NRTW lacks standing under this second theory as well.
Because we agree that the NRTW lacks standing, that ends our

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Standing is a jurisdictional requirement under Article III.8
See Soc’y Hill Towers Owners’ Ass’n v. Rendell, 210 F.3d 168,
175 (3d Cir. 2000). In Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 93-102 (1998), the Supreme Court
held that a federal court may generally not rule on the merits of
a case without first determining jurisdictional issues.
A confidentiality order “denote[s] any court order which in9
any way restricts access to or disclosure of any form of
information or proceeding, including but not limited to
‘protective orders,’ ‘sealing orders’ and ‘secrecy orders.’”
Pansy, 23 F.3d at 777 n.1.
25
inquiry, we need not consider the district court’s alternative
holding that modification of the protective order is
inappropriate on the merits.8
In Pansy v. Borough of Stroudsburg, we addressed a
third party’s standing to challenge protective orders or
confidentiality orders in an effort to access information or9
judicial proceedings. 23 F.3d 772 (3d Cir. 1994). We began
our standing analysis by explaining:
Art. III requires the party who invokes the court’s

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No party involved in the appeal addressed the issue of10
FOCUS’s standing.
26
authority to show that he personally has suffered
some actual or threatened injury as a result of the
putatively illegal conduct of the defendant, and
that the injury fairly can be traced to the
challenged action and is likely to be redressed by
a favorable decision.
Id. at 777 (quoting Valley Forge Christian Coll. v. Am. United
for Separation of Church and State, Inc., 454 U.S. 464, 472
(1982) (citation and internal quotations omitted)).
In FOCUS v. Allegheny County Court of Common Pleas,
we considered whether a citizen’s advocacy group (“FOCUS”)
had standing “to present . . . free speech challenges to the gag
orders” that had been entered by a state trial court. 75 F.3d10
834, 838 (3d Cir. 1996). We noted that:
The party invoking federal jurisdiction bears the
burden of establishing the elements of standing,
and each element must be supported in the same
way as any other matter on which the plaintiff

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27
bears the burden of proof, i.e., with the manner
and degree of evidence required at the successive
stages of the litigation.
Id. (citations and internal quotations omitted).
Questions of standing arose in FOCUS because gag
orders had constrained the attorneys and parties in other
litigation from disclosing information to FOCUS that was
pertinent to the group’s mission. FOCUS argued that the gag
orders entered in the other litigation prevented a willing speaker
from disclosing information to it, even though the orders did not
“constrain [FOCUS’s] speech in any way[,]” and that FOCUS
therefore had standing. Id. We agreed that the impact of the
orders on FOCUS could be sufficient to give FOCUS standing
to challenge the protective orders. We explained that “‘[w]e
have routinely found, . . . that third parties have standing to
challenge protective orders and confidentiality orders in an
effort to obtain access to information or judicial proceedings.’”

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28
Id. (quoting Pansy, 23 F.3d at 777). However, we also noted:
[That] putative recipients of speech usually have
standing to challenge orders silencing would-be
speakers does not necessarily mean that [FOCUS
has] standing . . . . [FOCUS] must still show that
the gag orders have caused them injury in fact
and that their injury is likely to be redressed by a
favorable decision. . . . Accordingly, courts have
found that third parties have standing to challenge
a gag order only when there is reason to believe
that the individual subject to the gag order is
willing to speak and is being restrained from
doing so.
Id. at 838-39 (citations omitted). Consistent with the last
sentence recited above, we wrote:
Looking at the allegations in the verified
complaint in the light most favorable to [FOCUS]
here, there are reasons to conclude that [FOCUS]
has adequately met a “willingness of the speaker”
requirement for standing at this stage of the
litigation. As we have noted, while neither party
to the [other litigation] is on record as being
opposed to the gag orders, the [foster parents
involved in the other litigation] at least were
willing to talk at some point prior to the entry of
the gag orders: The complaint alleges that the
[foster parents] “recently released a book

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29
detailing their experiences with [a child they were
trying to adopt] and their frustration with
[Allegheny County Children and Youth Services]
and the courts.” Moreover, the complaint further
alleges that the judge “has threatened to remove
[the child] from the [foster parents’] home if [the
foster parents] appear to publicly promote their
book or otherwise discuss their case.” It is
reasonable to infer from these allegations that the
[foster parents] are willing but restrained speakers
who dare not challenge the gag orders for fear of
reprisal from the judge. At this stage, we must
accept these allegations and this permissible
inference in [FOCUS’s] favor.
In sum, we find that [FOCUS] has alleged facts
in [its] verified complaint which would be
sufficient to survive a motion to dismiss for lack
of standing.
Id. at 839.
We also discussed the “willing speaker” doctrine in
United States v. Wecht, 484 F.3d 194 (3d Cir. 2007). The case
involved Dr. Cyril Wecht, a well-known forensic pathologist,
who had been indicted for theft of honest services, mail fraud,
wire fraud, and theft from an organization receiving federal

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30
funds. After the indictment, the government and defense
counsel agreed to a gag order pursuant to a local rule of the
United States District Court for the Western District of
Pennsylvania which limited the extent to which attorneys could
comment on a case. About two months after the gag order was
entered, the government notified the district court about
statements that Wecht’s attorneys had made to the press.
At some point, two newspapers and two TV stations
successfully moved to intervene and then challenged the gag
order under the willing speaker doctrine. They argued that
since defense counsel wanted to speak about the case, the gag
order placed an improper restriction on their access to the
attorneys’ statements. The media outlets claimed this improper
restriction gave rise to their third-party standing to challenge the
constitutionality of the local rule allowing such gag orders, and,
therefore, they could bring claims for disclosure under the First

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31
Amendment on behalf of the public. Wecht, 484 F.3d at 202.
The government contended that the defense attorneys
could not be willing speakers because they agreed to the gag
order. The government argued that defense counsel’s consent
to the gag orders precluded the media outlets from establishing
third-party standing.
We began our discussion of third party standing by
recalling our analysis in FOCUS:
We noted [in FOCUS] that “putative recipients of
speech usually have standing to challenge orders
silencing would-be speakers,” but that “plaintiffs
still must show that the gag orders have caused
them injury in fact and that their injury is likely to
be redressed by a favorable decision.” [Focus, 75
F.3d] at 838. Accordingly, we held that “third
parties have standing to challenge a gag order
only when there is reason to believe that the
individual subject to the gag order is willing to
speak and is being restrained from doing so.”
[Focus, 75 F.3d] at 838-39.
Wecht, 484 F.3d at 202. We rejected the government’s

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32
argument that defense counsel’s consent to the gag order
negated third party standing because that argument
“misconstrue[d] the purpose of the ‘willing speaker’ rule as
well as the requirements for standing.” Id. We explained:
The purpose of the “willing speaker”
requirement, therefore, is not to tie the third
party’s interests to those of the speaker, but to
ensure that there is an injury in fact that would be
redressed by a favorable decision. Here, it is
undisputed that Wecht’s attorneys are willing to
speak about the case and that [the local rule
pursuant to which the gag order was entered]
limits their ability to do so. To the extent that an
occasion arises in the future where defense
counsel desires to make public statements about
the case, we believe the media and the public
have a legitimate interest in those comments not
being inhibited by overly restrictive limitations.
Accordingly, we hold that the consent of the
parties to the order limiting speech is irrelevant to
third-party standing analysis as long as the third
party can demonstrate that an individual subject
to the order would speak more freely if the order
is lifted or modified. . . . The media outlets have
satisfied this requirement and have standing to
challenge the constitutionality of the [local rule].

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33
Id. at 202-03.
Based on these cases, the NRTW contends that it has
third party standing to seek modification of the protective order
and obtain access to the Disputed Search Records
because Pichler class counsel would provide the Disputed
Search Records absent the protective order. However, the
NRTW misinterprets the parameters of the willing speaker
doctrine as well as the obstacles to disclosure of the Disputed
Search Records.
Pichler class counsel cannot accurately be characterized
as willing to provide the Disputed Search Records but for the
protective order. In response to the NRTW’s July 30, 2007
letter requesting disclosure, Pichler class counsel wrote:
We and our clients have no objection to
providing you with this information, at your
expense, provided that we are assured that doing
so will not violate any obligations we may have
to maintain the confidentiality of that

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In addition, the challenges in FOCUS and Wecht were11
premised on violations of First Amendment rights. FOCUS
alleged that the gag order violated its First Amendment rights,
and the media outlets in Wecht asserted First Amendment claims
on behalf of the public. Obviously, the NRTW cannot make a
First Amendment challenge to the protective order here.
34
information, whether pursuant to the Court’s
protective order or under the DPPA. In this
regard we would accept your proposal that you
intervene in this case to seek an order permitting
our disclosure of this information to you. We
would consent to your motion to intervene, but
not take a position as to the merits of your effort
to obtain the information.
(J. App. 115 (emphasis in original).)
Thus, Pichler class counsel are not in the same position
as the foster parents in FOCUS or defense counsel in Wecht, all
of whom were willing to speak, but silenced solely by gag
orders. The protective order is not the only reason the NRTW11
is prevented from accessing the Disputed Search Records here,
and NRTW’s claim to the contrary is just plain wrong. Even

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35
absent the protective order, disclosure still cannot be allowed if
it would violate the prohibitions and protections Congress
established under the DPPA.
The NRTW argues that it can obtain the Disputed Search
Records under the DPPA’s “litigation exception.” As
previously noted, that exception allows disclosure of otherwise
protected records:
For use in connection with any civil, criminal,
administrative, or arbitral proceeding in any
Federal, State, or local court or agency or before
any self-regulatory body, including the service of
process, investigation in anticipation of litigation,
and the execution or enforcement of judgments
and orders, or pursuant to an order of a Federal,
State, or local court.
18 U.S.C. § 2721(b)(4). The NRTW makes three arguments in
support of its contention. First, it claims that the Disputed
Search Records will be used “pursuant to an order of a Federal
. . . court” because it is requesting that a federal court enter an

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36
order that permits it to use the Disputed Search Records to send
notices to the victims of UNITE’s motor vehicle record
searches. Second, NRTW contends that its use of the Disputed
Search Records will be “in connection with any civil . . .
proceeding in any Federal . . . court” because using evidence of
the wrongdoing in Pichler to inform similarly situated victims
is an action “in connection with” the Pichler class action against
UNITE. Third, it contends that its use of the Disputed Search
Records will be pursuant to an “investigation in anticipation of
litigation” because it intends to provide free legal aid to
employees who contact it upon learning that UNITE violated
their DPPA rights. We are not persuaded by any of these
arguments.
When we decided Pichler V, we agreed with the district
court’s conclusion that the litigation exception did not extend
to UNITE’s tagging operation. In rejecting UNITE’s contrary

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37
position there, the district court explained:
[T]he exception applies only if a defendant obtains
protected information for a permitted “use.” As we
construe the term, “use” implies a reasonable likelihood
that the decision maker would find the information
useful in the course of the proceeding.
Pichler I, 339 F. Supp. 2d at 668 (emphasis added). We agreed
with the district court that the litigation exception of the DPPA
requires something more than merely using the protected
records to identify potential litigants. The two examples that
the district court used in explaining the limitation of the
exceptions UNITE relied upon illustrate the point:
[I]f the Unions claimed before the [National Labor
Relations] Board that Cintas somehow rigged a
certification election so that the results did not accurately
reflect the number of employees who wanted union
representation, they would need to identify which
employees actually desired such representation.
Obtaining personal information about employees to
contact them regarding how they voted would be a
permissible “use” because it is reasonably likely that the
Board would need to know which employees supported
unionization. On the other hand, the litigation exception

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38
would not apply if the Unions argued before the NLRB
that Cintas engaged in an unfair labor practice by hiring
security guards to keep them from recording employee
license plate numbers because it is not reasonably likely
that the Board would require any information about
which employees parked in a particular lot to resolve the
issue.
Id.
Just as the litigation exception protected the records of
CINTAS employees who might have been interested in
pursuing legal or administrative remedies against their employer
from UNITE’s tagging operation, it also protects the 12,000
persons whose records comprise the Disputed Search Records
from the NRTW’s efforts to identify persons who might be
interested in pursuing legal remedies against UNITE.
The records the NRTW is seeking will not advance the
inquiry of any decisionmaker charged with deciding any claims
under the DPPA that may arise from disclosure to the NRTW.
The information the NRTW wants to obtain would do nothing

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39
more than identify potential litigants and claimants who may
wish to pursue remedies for UNITE’s violation of the DPPA.
That is not enough to compromise the privacy afforded
motorists by the DPPA. In fact,
The least sympathetic case for discovery sharing is presented by
a request for access on behalf of someone who is merely
contemplating the commencement of litigation. The risk of a
fishing expedition or some other form of mischief is greatest in
this context. The safest course seems to be denial of discovery
sharing until the requesting party actually has begun a lawsuit,
unless he demonstrates extraordinary need.
Arthur R. Miller, Confidentiality, Protective Orders, and Public
Access to the Courts, 105 Harv. L. Rev. 427, 499 (1991).
UNITE’s use of the information obtained through
tagging was impermissible because it amounted to nothing more
than discovery of potential plaintiffs. We see no distinction
between UNITE’s impermissible purpose, and the purpose for
which the NRTW is seeking the information.

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40
We realize that the district court’s analysis in Pichler I
turned in part upon the “tenuous connection between the
protected information and issues tangentially related to a
conceivable litigation strategy,” Pichler I, 339 F. Supp. 2d at
668, and that it is far more likely that litigation could result
from disclosure here because there is little doubt that each of the
persons whose records were accessed has a cause of action
under the DPPA. However, that is not determinative. Rather,
as the district court explained, the applicable exceptions to the
protections of the DPPA turn on whether there is a “reasonable
likelihood” that the disputed records would assist the fact
finder’s resolution of the dispute before it.
As the district court explained in Pichler III, “[t]he
DPPA . . . does not permit one to acquire and use statutorily
proscribed personal information to solicit or find claims.” 446
F. Supp. 2d at 370. The district court believed that “UNITE’s

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41
actions amounted to . . . trolling [that was] far short of the
concreteness Congress had in mind to remove the DPPA’s
protection.” Id. The NRTW’s trolling is almost certain to result
in a much richer catch than UNITE’s because the waters the
NRTW is trolling have been stocked with 12,000 potential
plaintiffs. The waters UNITE was trolling had far fewer fish,
and there was no certainty of finding any claimants or plaintiffs
at all. However, that quantitative distinction does not result in
a qualitative difference.
In Pichler v. UNITE argued that Congress could not
have intended to punish tagging under the DPPA because
Congress had enacted legislation to protect labor organizing.
Thus, according to UNITE, Congress could not have intended
to prohibit a disclosure that advances labor rights conferred by
Congress. We rejected that argument. We now reject the
NRTW’s attempt to argue that since Congress created a cause

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42
of action for the improper disclosure of motor vehicle records,
it could not have intended to prohibit disclosure to advance that
cause of action. None of the Disputed Search Records could
advance the adjudication of pending or future litigation. The
NRTW is not seeking to obtain information for use in the
Pichler class action; on the contrary, as UNITE notes, the
NRTW is seeking information about people who are not even
members of the Pichler class.
Since the proposed use for which the NRTW seeks the
Disputed Search Records is not permissible under the DPPA,
Pichler class counsel cannot be deemed a “willing speaker.”
Accordingly, the court action cannot redress the NRTW’s
asserted injury. The NRTW therefore lacks standing to
challenge the protective order.
III. Conclusion.
For the above reasons, we will affirm the district court’s

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43
order denying the NRTW’s motion to modify the protective
order and its order denying the NRTW’s motion for
reconsideration.

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