In re National Security Agency Telecommunications Records Litigation, No. M:2006cv01791 - Document 171 (N.D. Cal. 2007)
Court Description: ORDER granting in part and denying in part motions to intervene and unseal. Doc ##133, 139, CV-06-672-VRW. Signed by Chief Judge Walker on 2/20/2007. (vrwlc2, COURT STAFF) (Filed on 2/20/2007) (Entered: 02/20/2007)
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In re National Security Agency Telecommunications Records Litigation Doc. 171 1 2 3 4 5 6 7 United States District Court United States District Court For the Northern District of California For the Northern District of California 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 12 13 MDL Docket No 06-1791 VRW IN RE: NATIONAL SECURITY AGENCY TELECOMMUNICATIONS RECORDS LITIGATION ORDER 14 15 This Document Relates To: 16 ALL CASES 17 / 18 On May 19, 2006, members of the news media — the San 19 20 21 22 23 24 25 26 27 28 Francisco Chronicle, Los Angeles Times, The Associated Press, San Jose Mercury News, Bloomberg News and USA Today (collectively “media entities”) — moved pursuant to FRCP 24(b)(2) to intervene and unseal “all sealed documents” filed in Hepting v AT&T Corp, 06672. Doc #133-1 at 1. On May, 23, 2006, Lycos, Inc and Wired News moved to intervene and unseal documents on similar grounds. Doc #139. The court heard argument on these motions on December 21, 2006. For reasons discussed below, the court GRANTS the media entities’ motions to intervene but DENIES their motions to unseal documents. Dockets.Justia.com 1 I United States District Court For the Northern District of California 2 On April 5, 2006, plaintiffs in Hepting v AT&T Corp, 06- 3 672, filed under seal an amended motion for preliminary injunction. 4 Doc #30. 5 declarations of Mark Klein (Doc #31) and J Scott Marcus (Doc #32). 6 Attached to the Klein declaration were certain AT&T documents that 7 allegedly contain proprietary and trade secret information. 8 Doc #31, Ex A, B, C. 9 amici filed a number of briefs concerning whether the Klein Along with this motion, plaintiffs filed under seal the Over the next several weeks, the parties and 10 documents should remain under seal. 11 77, 84, 112, 114, 115. 12 See See, e g, Doc ##33, 61, 71, At a hearing on May 17, 2006, the court heard argument 13 regarding the sealing of the Klein documents. 14 hearing, the media entities moved to have all sealed records 15 unsealed. 16 the May 17 hearing and attempted to argue the sealing issues. 17 #138 at 4, 61 (transcript). 18 “the best course of action is to preserve the status quo” and 19 ordered that “plaintiffs, plaintiffs’ counsel and their consultants 20 not further disclose [the Klein] documents to anyone or any entity 21 without further order of the court.” 22 Doc #129. Shortly before the Counsel for the media entities appeared at Doc At the hearing, the court noted that Doc #138 at 27-28. Following the hearing, the court ordered that “[a]ll 23 papers heretofore filed or lodged under seal shall remain under 24 seal pending further order of court. 25 AT&T are directed to confer and to submit by May 25, 2006, jointly 26 agreed-upon redacted versions of the Preliminary Injunction Motion 27 (Doc #30) and the Klein declaration (Doc #31).” 28 court declined to hear argument from the media entities, ruling 2 Counsel for plaintiffs and Doc #130. The 1 that “[t]he court will entertain motions to intervene only on 2 written application therefor with appropriate notice and service on 3 all parties * * *.” United States District Court For the Northern District of California 4 Doc #130 at 2. Two days later, on May 19, 2006, the media entities filed 5 their motion to unseal. 6 court’s minute order, plaintiffs and AT&T reached agreement on 7 redacting the text of the Klein declaration and the preliminary 8 injunction memorandum; accordingly, on May 25, 2006, plaintiffs 9 filed redacted versions of each (Doc ##147, 149). Doc #133. Meanwhile, pursuant to the On June 22, 10 2006, plaintiffs filed a redacted version of the Marcus 11 declaration. Doc #277. 12 13 II 14 A 15 The media entities seek to intervene under FRCP 24(b)(2), 16 which permits, under certain circumstances, the intervention of a 17 non-party in ongoing litigation. 18 (applicant) bears the burden to demonstrate that it meets the 19 requirements of FRCP 24(b) for intervention. 20 Northwest v Continental Oil Co, 647 F2d 1005, 1010 (9th Cir 1981). 21 In ruling on a motion to intervene, however, “a district court is 22 required to accept as true the non-conclusory allegations made in 23 support of [the] intervention motion.” 24 Biological Diversity v Berg, 268 F3d 810 (9th Cir 2001). 25 26 27 28 A non-party seeking to intervene Petrol Stops Southwest Center for Section (b) of FRCP 24 governs permissive intervention: Upon timely application, anyone may be permitted to intervene in an action: * * * when an applicant’s claim or defense and the main action have a question of law or fact in common. 3 1 United States District Court For the Northern District of California 2 FRCP 24(b). If the applicant meets these criteria under FRCP 24(b), 3 the determination whether to permit intervention is committed to 4 the discretion of the court. 5 24(b) instructs courts to “consider whether the intervention will 6 unduly delay or prejudice the adjudication of the rights of the 7 original parties.” 8 F3d 405, 409 (9th Cir 1998). 9 permissive intervention for a limited purpose: for example, to 10 gain access to discovery materials under seal. San Jose Mercury 11 News, Inc v United States Dist Court – Northern Dist (San Jose), 12 187 F3d 1096, 1100 (9th Cir 1999). 13 approved permissive intervention under FRCP 24(b) to allow a non- 14 party to seek the modification of a protective order, even if that 15 protective order was the product of an agreement between the 16 original parties. 17 Co, 966 F2d 470, 473 (9th Cir 1992). 18 In exercising this discretion, FRCP FRCP 24(b). See also Donnelly v Glickman, 159 The court may grant an applicant The Ninth Circuit has also See Beckman Industries, Inc v International Ins AT&T opposes intervention, contending that the EFF and 19 ACLU would adequately represent the media entities’ interest in 20 unsealing the documents and that intervention would unnecessarily 21 protract the litigation. 22 As the media entities note, courts routinely permit the media to 23 intervene for the purpose of unsealing judicial records. 24 the existing plaintiffs assert that the media entities provide a 25 distinct “point of view” not necessarily represented in the 26 litigation. 27 finds that the media entities satisfy the requirements set forth in 28 FRCP 24(b). Doc #160 at 3-5. See Lockyer, 450 F3d at 445. 4 The court disagrees. Moreover, Accordingly, the court 1 B United States District Court For the Northern District of California 2 The court turns to the media entities’ argument that the 3 court should unseal documents attached to plaintiffs’ motion for 4 preliminary injunction. 5 civil cases “creates a strong presumption in favor of access.” 6 Jose Mercury News, Inc v United States District Court, 187 F3d 7 1096, 1102 (9th Cir 1999); see also Foltz v State Farm Mut Auto Ins 8 Co, 331 F3d 1122, 1135 (9th Cir 2003) (“In this circuit, we start 9 with a strong presumption in favor of access to court records.”). The public’s common law right of access in San 10 Overcoming this presumption requires a showing of compelling 11 reasons for denying access. 12 Mercury News, 187 F3d at 1102. 13 has its limits; indeed, a presumption of access does not extend to 14 “sealed discovery document[s] attached to * * * non-dispositive 15 motion[s].” 16 1179 (9th Cir 2006) (citing Phillips v General Motors, 307 F3d 17 1206, 1212 (9th Cir 2002)). 18 Foltz, 331 F3d at 1135; San Jose Yet the public’s right of access Kamakana v City & County of Honolulu, 447 F3d 1172, The decisive issue here is whether a motion for a 19 preliminary injunction constitutes a dispositive motion. 20 portrays this question as premature, arguing that a motion is not 21 dispositive until the motion actually disposes of the case. 22 Doc #160 (“Perhaps someday it will have [dispositive] status; today 23 it does not”). 24 that the courts in Kamakana, Foltz and Phillips dealt with sealing 25 issues after the district court had ruled on the underlying 26 motions. 27 emphasize — the fact that the district court had disposed of the 28 case. Id. AT&T See Lending credence to this reasoning, AT&T observes But these cases fail to mention – let alone The framework established by the courts in Kamakana, Foltz 5 1 and Phillips centers on the potential outcome of the motion. 2 such, the court does not read these cases as mandating that a 3 motion actually dispose of a case before it may be considered a 4 dispositive motion. United States District Court For the Northern District of California 5 As The media entities principally rely on Leucadia, Inc v 6 Applied Extrusion Technologies, Inc, 998 F2d 157 (3rd Cir 1993), in 7 asserting that a preliminary injunction motion is dispositive and 8 thus triggers the presumption of the public’s right of access. 9 Although the Leucadia court unsealed documents attached to a 10 preliminary injunction motion, it did so pursuant to the Third 11 Circuit’s more exacting standard, which extends the right of access 12 to all “pretrial motions of a nondiscovery nature, whether 13 preliminary or dispositive.” 14 the Leucadia decision is inapplicable here; indeed, to the extent 15 it pertains to the present motions, the decision’s reasoning 16 undermines the media entities’ argument, as the case distinguishes 17 between preliminary and dispositive motions. 18 Id at 164 (emphasis added). Hence, In the absence of explicit guidance on this issue, the 19 court looks to the underlying rationale for distinguishing between 20 dispositive and non-dispositive motions. 21 a heightened standard for dispositive motions because “the 22 resolution of a dispute on the merits, whether by trial or summary 23 judgment, is at the heart of the interest in ensuring the ‘public’s 24 understanding of the judicial process and of significant public 25 events.’” 26 Broadcasting, 798 F2d at 1294. 27 (supporting access to motions for summary judgment because they 28 “adjudicate[] substantive rights and serve[] as a substitute for The Ninth Circuit imposes Kamakana, 447 F3d 1172, 1179 (quoting Valley See also Foltz, 331 F3d at 1135-36 6 1 trial.” (quoting Rushford v The New Yorker Magazine, 846 F2d 249, 2 252 (4th Cir 1988)). 3 the public’s interest in non-dispositive motions is comparatively 4 modest because “those documents are often ‘unrelated, or only 5 tangentially related, to the underlying cause of action.’” 6 Kamakana, 447 F3d 1172, 1179 (citing Seattle Times co v Rhinehart, 7 467 US 20, 33 (1984)). 8 United States District Court For the Northern District of California 9 By contrast, the Ninth Circuit asserts that According to the media entities, the rationale articulated in Kamakana compels the inference that a preliminary 10 injunction is dispositve because such a motion “inevitably 11 involve[s] consideration of the merits of a dispute.” 12 5. 13 which emphasizes the “resolution of a dispute on the merits,” not 14 the mere “consideration” of the merits. 15 similarly place undue emphasis on the Kamakana court’s 16 characterization of non-dispositive motions (that such motions “are 17 often unrelated, or only tangentially related, to the underlying 18 cause of action.”). 19 entities proclaim that plaintiffs’ preliminary injunction motion 20 must be dispositive because it is not “tangentially related to the 21 underlying cause of action.” 22 to forge an independent requirement out of the Kamakana court’s 23 dicta. 24 Doc #133 at But this argument misconstrues the discussion in Kamakana, The media entities Disregarding the term “often,” the media Id. The court rejects this attempt In view of the Ninth Circuit’s reasoning, the court 25 concludes that a preliminary injunction motion is not dispositive 26 because, unlike a motion for summary adjudication, it neither 27 resolves a case on the merits nor serves as a substitute for trial. 28 Accordingly, due to the court’s prior finding, the usual 7 1 presumption of the public’s right of access is rebutted and the 2 media entities must present “sufficiently compelling reasons” why 3 the court should reconsider its May 17, 2006, order, maintaining 4 the status quo regarding sealing. United States District Court For the Northern District of California 5 Two considerations weigh against unsealing the documents 6 at the present juncture in the litigation: 7 already released redacted versions of the documents at issue. 8 Although the media entities understandably seek unbridled access, 9 the disclosure in part vindicates the interests they assert in first, the parties 10 their motions to unseal. 11 warrants caution. 12 pursuant to 28 USC § 1292(b), the court recognized that its order 13 posed issues for which “there is a substantial ground for 14 difference of opinion.” 15 this uncertainty, the court declines to disturb the existing 16 compromise between the parties. 17 the distinct perspective the media entities offer to this 18 litigation. 19 point in the litigation, the court grants the media entities’ 20 motions to intervene. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // Second, the present posture of the case In certifying the Hepting order for appeal See Doc #308 at 70, 06-672. In view of The court nevertheless recognizes Because the court may revisit this issue at a later 8 1 2 III In sum, the court GRANTS the media entities’ motions to 3 intervene for the purpose of unsealing judicial records in MDL 1791 4 but DENIES their motions to unseal documents at the present time. 5 6 IT IS SO ORDERED. 7 8 9 United States District Court For the Northern District of California 10 VAUGHN R WALKER United States District Chief Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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