from the Iowa District Court for Polk County, Jeffrey D.
McCleary appeals the dismissal of his application for
McCleary, Des Moines, pro se appellant.
L. Shaff, Amanda M. Richards, and Brandon W. Lobberecht of
Betty Neuman & McMahon P.L.C., Davenport, for appellees.
Considered by Potterfield, P.J., Doyle, J., and Scott, S.J.
February 2017, a protective order was entered in Jaysen
McCleary's personal-injury case against the City of Des
Moines and one of its employees. The order prohibited the
parties from disclosing protected information, including all
financial and health records. In July 2017, McCleary filed
expert witness documentation that contained sensitive
personal information. Because McCleary inadvertently failed
to designate the documents as "Confidential," the
district court did not seal them. McClearly settled his case
with the city, and it was dismissed with prejudice on
November 13, 2017. After Clark Kauffman, a writer for the Des
Moines Register ("the Register"), emailed McCleary
to inform him the documents were accessible to the public,
McCleary filed a motion on November 16th to seal the
documents, which the district court granted the same day. The
court ordered the defendants "and any third parties now
in possession" of the documents to destroy them. The
order further states that the documents "may not be
disclosed by the defendants or any third party."
McCleary emailed the order to Kauffman and served Kauffman
and the Register with a copy. In a separate action, McCleary
sought injunctive relief to prevent Kauffman and the Register
from publishing a story that included information from the
December 8, 2017, McCleary filed an application in this case
for rule to show cause asserting Kauffman and the Register
were in contempt for violating the protective order. He
contended that representatives of Kauffman and the Register
indicated that Kauffman and the Register were still in
possession of the protected materials and that they intended
to disclose the contents of the reports in an article to be
published in the Register. He asked the district court to
hold Kauffman and the Register in contempt for failing to
destroy the documents. The district court denied the
application, holding "neither Mr. Kauffman nor the
Register are parties to this case, and thus, neither are
subject to the protective order." McCleary appeals,
arguing the district court erred in determining that
nonparties to his personal-injury case cannot be held in
contempt for violating the court order.For the reasons
set forth, we affirm.
aggrieved party may directly appeal the dismissal of an
application for contempt. See Lysenko v. Jensen, No.
10-0270, 2010 WL 4108826, at *4 (Iowa Ct. App. Oct. 20,
2010). "Our review of such cases is not de novo, but on
assigned errors only." Id. (citing City of
Masonville v. Schmitt, 477 N.W.2d 874, 876 (Iowa Ct.
argument centers on whether Kauffman and the Register can be
found in contempt of the protective order as nonparties. In
Hutchenson v. Iowa District Court for Lee County,
our supreme court held nonparties can be held in contempt
"if certain requirements are met." 480 N.W.2d 260,
264 (Iowa 1992) (quoting Annotation, Violation of State
Court Order by one Other Than Party as Contempt, 7
A.L.R.4th 893, § 2 (1981 & Supp.). These
requirements are that the nonparty (1) has notice or
knowledge of the court's order and (2) is in privity with
a party to the litigation or acts in concert with one.
See id.; see 17 Am. Jur. 2d
Contempt § 63.
Kauffman and the Register had notice of the court's
order, there is no evidence in our record to support a
finding that either were in privity or acted in concert with
a party to McCleary's personal-injury case. McCleary
alleges Kauffman and the City "worked together to
disparage McCleary to the greatest extent possible to avoid a
significant judgment against the City" in the personal
injury case. However, his application and affidavit to the
district court fail to point to any evidence of the City and
the nonparties acting in concert. Accordingly, the court
correctly rejected McCleary's application.