Kalbers v. United States Department of Justice, No. 20-56316 (9th Cir. 2021)
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The Ninth Circuit reversed the district court's denial, as untimely, Volkswagen's motion to intervene in a Freedom of Information Act (FOIA) suit regarding millions of VW's documents. This case stems from the so-called "Dieselgate" emissions scandal.
The panel considered whether VW's motion to intervene as of right was timely and applied the timeliness factors, concluding that the short delay and reasons for the delay weigh in favor of timeliness, rather than against it. Furthermore, the court identified no prejudice stemming from the timing of VW's motion and the district court failed to adequately explain why a motion to intervene filed at this stage was unreasonably late. Therefore, the panel held that VW's motion to intervene was timely. The panel also concluded that VW has also met all the requirements to intervene as of right under Federal Rule of Civil Procedure 24(a). Accordingly, the court ordered the district court on remand to grant the motion and permit the immediate intervention of VW into these proceedings.
Court Description: Intervention / Freedom of Information Act. The panel reversed the district court’s order denying, as untimely, Volkswagen AG’s motion to intervene in a Freedom of Information Act (“FOIA”) lawsuit concerning millions of VW’s documents. Professor Lawrence Kalbers took an academic interest in the VW “Dieselgate” emissions scandal and submitted a FOIA request to the U.S. Department of Justice (“DOJ”). Kalbers sued DOJ under FOIA to obtain undisclosed documents. VW moved to intervene. The panel considered whether VW’s motion to intervene as of right was timely and applied the timeliness factors. Applying the first factor, the length of and reason for delay, the panel held that in a FOIA case delay is measured from the date the proposed intervenor knew or should have known the parties would no longer adequately protect its interests. The government’s obligation to comply with FOIA did not transform this fact-specific analysis into a bright-line rule mandating immediate intervention upon learning of the intervention. Here, the district court’s ruling to the contrary was an abuse of discretion. The district court used the wrong inquiry when it focused almost exclusively on the date when VW learned of the FOIA lawsuit and on VW’s representations concerning this knowledge. The panel held that, properly measured, the delay between when VW should KALBERS V. VOLKSWAGEN AG 3 have known that its interests might be inadequately protected by the parties and when VW filed its motion was just a few weeks, and such a short delay weighed in favor of timeliness. The panel next considered the factor of prejudice to the parties. The panel held that prejudice must be connected in some ways to the timing of the intervention motion, and the fact that adding another party might make resolution more difficult did not constitute prejudice. The district court’s prejudice analysis failed to conform to this rule. Applying the proper rule, the panel identified no prejudice stemming from the timing of VW’s motion. The lack of prejudice weighed heavily in favor of timeliness. Addressing the stage of the proceeding, the panel held that the district court failed to explain why a motion to intervene filed at this stage was unreasonably late. This case was in its early stages when VW moved to intervene. To the extent that the age of the case and the formal stage were relevant, both supported a finding of timeliness. The panel therefore concluded that VW’s motion to intervene was timely, and the district court abused its discretion when it held otherwise. The panel next considered the other Fed. R. Civ. P. 24(a) elements for intervention as of right. First, a proposed intervenor must demonstrate a significant protectable interest in the action. VW met this element when it asserted that its interest in the non-disclosure of its documents was protected under Exemption 4 of FOIA, and there was a direct, antagonistic relationship between VW’s interest in confidentiality and Kalbers’ interest in obtaining the documents at issue. The second element, whether the disposition of the action may impede VW’s ability to protect its interest, was met because VW’s interest in keeping its 4 KALBERS V. VOLKSWAGEN AG documents confidential would obviously be impaired by an order to disclose. The third element, adequacy of representation, was met where VW argued that it was uniquely well-positioned to explain the commercial significance of the documents at issue. The panel held that VW met all the requirements to intervene as of right. The panel ordered the district court on remand to grant the Rule 24(a) motion and permit the immediate intervention of VW into these proceedings.
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