No chance to object

An alarming trend in courts to deny intervention for the purpose of challenging a sealing order leaves the media shut out of the process

From the Summer 2001 issue of The News Media & The Law, page 43.

By Ashley Gauthier

For decades, there has been a tug-of-war between litigants wishing to keep trial records sealed and members of the media who want access to those records. Numerous cases, therefore, discuss the balance between the public’s right of access and the litigant’s privacy interests.

But until recently, no one seriously disputed that the media had a right to challenge a sealing order, even if the court ultimately ruled that the media did not have a right to obtain the records. Judges seemed to understand that intervention was the best way for the media to preserve its presumed right of access to court proceedings and records and without intervention, the right of access would be meaningless.

Recent cases, however, call into question the fundamental ability of the press or public to even ask for access.

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What are the courts doing?

The U.S. Court of Appeals in St. Louis (8th Cir.), for example, in February rejected the argument that permission to intervene to challenge sealing orders should be automatic. In Organization for Competitive Markets Inc. v. Seaboard Farms, Inc., OCM moved for permissive intervention for the limited purpose of challenging a protective order. The district court refused to permit intervention.

The underlying lawsuit involved a contract dispute between two players in the meatpacking industry. OCM, an independent non-profit organization, moved to intervene, hoping to obtain sealed documents for the purpose of educating the public about the meatpacking industry.

The district court denied OCM’s motion to intervene for two reasons. First, the court ruled that OCM did not have standing to intervene. Second, the court ruled intervention should not be permitted because OCM raised no claim or defense that raised a common question of law or fact with the underlying lawsuit.

The requirement that an intervener raise “a claim or defense that raises a common question of law or fact with the underlying lawsuit” is a legal technicality required by the Rules of Civil Procedure. The rule was designed to prevent a third party from intervening in lawsuits where they had no legitimate interest. However, most courts have previously allowed members of the public or press to intervene for the limited purpose of challenging a sealing order or other closure order because of the public’s presumed right of access to court proceedings.

Essentially, there has always been an assumption that such limited intervention is acceptable because, even if the intervener has no interest in the outcome of the case, the intervener has an interest in preserving his or her own right of access. For example, the U.S. Court of Appeals in Philadelphia (3d Cir.) held that the commonality requirement is satisfied when any third party objects to a confidentiality order. (Pansy v. Borough of Stroudsburg)

In OCM’s case, the court expressly rejected the arguments that the scope of or need for a protective order are a “common question” with the main action. Instead, the court found that the trial court did not abuse its discretion by denying intervention because there was no clear common interest between OCM’s desire for the documents and the parties’ dispute.

Similarly, the Court of Appeals of Ohio issued two opinions on June 1 that raised questions about when a member of the public or press may intervene to challenge a sealing order.

The first opinion involved a lawsuit against the rock band Metallica. Randy Adams, who was injured at a Metallica concert, moved to intervene in a lawsuit against the band to challenge an order sealing depositions. Adams hoped to obtain copies of the depositions. The trial court denied his motion to intervene. (Adams v. Metallica, Inc.)

On appeal, the court noted that “there is among federal courts a ‘forming consensus’ that permissive intervention is the appropriate procedural device to use when a litigant who is not an original party to an action seeks to challenge protective orders entered in that action.” However, the court also noted that the decision whether to permit intervention is within the trial court’s discretion.

The appeals court instructed lower courts to use a balancing test to decide whether to permit intervention in a given case. The factors to consider are: the avoidance of repetitive discovery; the nature of the order; whether and to what extent the parties relied on the order; the ability to access the information in other ways; the nature of the material for which protection was sought; the need for secrecy; the public interest involved; the similarity between the two lawsuits; and the merits of the second suit when weighed against the interests underlying the protective order.

The court concluded that the trial court did not abuse its discretion in denying intervention because Metallica had a sufficient privacy interest in keeping the deposition sealed, “presumably upon the basis that the depositions contain material that might be out of character for the public image of the band.” The court also reasoned that Adams could pursue discovery on his own and did not need the prior deposition.

In the second case, however, the court came to a different conclusion. In Doe v. American Cancer Society, the University of Cincinnati moved to intervene to obtain a sealed deposition. Again, the court of appeals stated that the trial court had discretion to grant or deny intervention, but stated that the trial court should rely on the factors discussed in the Metallica case.

The trial court had failed to explain why it denied intervention, and therefore, the court of appeals remanded the case and ordered the trial court to determine whether to grant the university’s motion for intervention based on the Metallica factors.

Prior to the Metallica case, members of the press or public in Ohio had no difficulty intervening for the purpose of challenging a sealing order. Lou Colombo, a media law attorney at Baker & Hostetler in Cleveland, said “I never had any difficulty trying to intervene in a case where access was an issue. Historically, it hasn’t been a problem.” The Metallica case, however, seems to indicate that a court may deny intervention in some circumstances, denying the public the ability to argue against a sealing order.

Fortunately, some courts have recognized that intervention should be permitted to preserve the public’s right of access.

In Kansas, for example, The Wichita Eagle and KWCH-TV, among others, sought to intervene in a high-profile murder trial to challenge an order sealing numerous evidentiary records. The trial court refused to permit intervention because it said the rules of criminal procedure did not specifically authorize intervention by third parties.

The media appealed the denial of intervention to the Kansas Supreme Court, arguing that intervention must be permitted to preserve the public’s right of access to court proceedings and records. The Reporters Committee for Freedom of the Press filed a friend-of-the-court brief in support of the media.

The Kansas Supreme Court in June reversed the trial court and clarified that, when considering the sealing of a court record or the closure of a proceeding, a court must consider the societal interest in open proceedings and records. The court held, “The news media, as a member of the public, should be permitted to intervene in a criminal case for the limited purpose of challenging a pretrial request, or order, to seal a record or close a proceeding in that case, even without an express statutory provision allowing such intervention.”

The court reasoned that allowing intervention would provide the trial court with the perspective of a third-party well suited to represent the interest of the public: “the news media may identify, or at least be a strong proponent of the argument that there are . . . ‘reasonable alternative means’ to closure that would avoid the prejudicial effect on the defense or prosecution of the dissemination of information contained in the record or revealed during a proceeding.” (The Wichita Eagle Beacon Co. v. Owens)

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Why is this an issue?

Obviously, if the press cannot intervene for the purpose of challenging a sealing order, then the right of access cannot be enforced and has no meaning. How, then, can courts feel free to deny intervention?

The problem is that the notion of “permissive intervention” conflicts with the U.S. Supreme Court’s suggestion that the public and press are entitled to notice and an opportunity to be heard on the issue of their exclusion from court proceedings.

The Rules of Civil Procedure for all state and federal courts contain rules for intervention. For example, Rule 24 of the Federal Rules of Civil Procedure allows for “permissive intervention.” Permissive intervention is the type sought when the press wants to challenge a closure order of any kind, including sealing orders. Courts have discretion to decide whether to grant intervention, but until recently, they generally permitted the press to intervene for the limited purpose of challenging a closure order.

Professor Greg Ogden, a civil procedure expert at Pepperdine University School of Law, says that there is a lot of confusion regarding the media’s right to intervene because the Rules of Civil Procedure did not intend to address that issue. “The problem with media interveners is that Rule 24 wasn’t drafted with any consideration of their interests.” Ogden says that ordinary intervention by people who have a vested interest in the outcome of a case is entirely different from media intervention for a limited purpose to challenge a secrecy order. “It’s apples and oranges.”

Courts have noted only three possible methods for challenging closure orders: (1) intervention in the case for the limited purpose of challenging the closure order; (2) a writ of mandamus, which is a request to a higher court in that jurisdiction to order a lower court to perform an action; or (3) filing a separate lawsuit for an injunction or declaratory judgment to enforce the right of access.

Over time, the courts have concluded that intervention is the preferred method of challenging a sealing or closure order. The U.S. Court of Appeals in Denver (10th Cir.) once noted that “[t]he courts have widely recognized that the correct procedure for a nonparty to challenge a protective order is through intervention for that purpose.” (United Nuclear Corp. v. Cranford Ins. Co.)

In fact, the Supreme Court of Virginia went so far as to require the media to intervene before trying any other method to challenge a closure order. (Hertz v. Times-World Corp.)

Intervention is the preferred method of challenging closure orders for two reasons. First, it leaves the closure decision in the hands of the judge who is most familiar with the case and who will be directly affected by the decision. Second, it is the most efficient and least disruptive means for challenging a closure order, as other courts are not prematurely brought in to regulate the dispute.

The U.S. Supreme Court has implicitly endorsed the policies in favor of media intervention. In Globe Newspapers Co. v. Superior Court, the court stated that “representatives of the press and general public ‘must be given an opportunity to be heard on the question of their exclusion.'” Such a ruling implies that intervention must be permitted when the public or press challenges a closure order. However, that requirement has never been incorporated into the federal rules of civil procedure.

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How can the problem be fixed?

The tension between the Rules of Civil Procedure and the Supreme Court mandate that the press have an opportunity to be heard can be resolved in only two ways. Either the rules must be modified to account for the phenomenon of “limited intervention” or the courts must establish the requirements for limited intervention through case law.

A case currently pending in Hawaii, however, exemplifies the danger of leaving this decision up to the courts. The case involves the Campbell Trust, the largest landowner in Hawaii, with more than $2 billion in assets. The trust has existed for more than 100 years, and court proceedings involving the trust have been open to the public until recently.

In the last few years, the trustees have sought to close all proceedings and seal records. The trial court handling the trust’s cases has obliged.

The Honolulu Star Bulletin and KITV tried to intervene to challenge those secrecy orders, but the court denied intervention. The media now seek a writ of mandamus from the Hawaii Supreme Court, ordering the trial court to permit intervention.

If the court grants mandamus and allows intervention, then the press’ rights will be vindicated. But if the court denies mandamus, the media will be left with no recourse and no way to try to enforce its presumptive right of access to court proceedings or documents, rendering the “right of access” meaningless. If the problem is “resolved” through case law, however, there is a danger that the decisions will be unfavorable, as were the rulings in the Eighth Circuit and Ohio. To ensure that the media and the public can fight for their access rights, the federal rules of civil procedure will have to be modified to allow for limited intervention.