morning ladies and gentlemen said smith and i are very pleased today to be joined by cathy brattle from the district of kansas and thank you so much for taking time out of your busy schedule to help us out in the nights are happy to do that thank you and with that we'll proceed with the first case on the oral argument calendar which is national fire marine versus united policyholders may please the court doesn't show for united policyholders i plan to reserve two minutes for rebuttal today's audience is an important reminder that public access is the bedrock of faith in the courts i want to talk separately today about intervening to unseal and intervening to reinstate or under vacate because even the insurance company doesn't seriously dispute that the district court should have allowed united policyholders to intervene for purposes of unsealing the decision the unsealing issue is squarely controlled by this court's precedents including san jose mercury news as for reinstatement this court's decision showed that the same logic applies so first unsealing the only prerequisite to permissive intervention in order to unseal a document is on timeliness and the district court held that united health policy holders did not unreasonably delay oh wait a minute it's true that in timing this is what the district court focused on but that's because he didn't deal with the fact that you also intended to reinstate and therefore were involved in the marriage of the case it was a express condition of the settlement that the order be vacated you're trying to reinstate that which is a marriage issue whether it should have been not been is not the issue here the question is can you intervene at this point when you have something that's clearly a substantive issue of this nature well first your honor respectfully we would seek to at least intervene and work so unseal even if for some reason we were not permitted to reenter intervene to reinstate but i'm going to ask for that be you ask for both  to vacate but that's not really an issue here respect for our it's not a marriage issue because the court didn't consider any marriage issue on the court as you noted just referred to the fact that supposedly that the  settlement was connected to that but in fact if you look at the court's findings the district court's findings on page four there's no finding that it would actually upset the settlement because there's no evidence that would actually upset the settlement or didn't even deal with that and the court focused on the timeliness issue because that's all it was going on at that point didn't focus on that the reinstatement but if you look at our case law center was a mercury news is clearly distinguishable where you go to the merits and if you just pointed out to judge you're not backing away from your desire to reinstate this so that's is a real marriage decision and there's a different requirement other than just timeliness when you do that and in this case i think you actually parties settle and instead of saying that this is a legitimate concern to be considered in fact this court in american games that we should smoke out the improper motive moving a case through settlements and thereby vacating the decision that's would still seek to intervene in order to reinstate but by reinstate i simply mean reversing or bake aiding the court's order that summarily vacated and sealed its prior decision it's you know one sentence order that said i hereby deal of deference to those discretionary decisions of just record so leaving aside the fact that it was part of the subtle man with the how with the vacation the court's own decision to vacate the decision be implicated here and other words leaving aside the settlement why why did the district court abused its discretion in vacating its own order well there there in finding a prejudice until you actually allow the party to intervene and then address the merits so you want to you want to playing this out you want to intervene and then you want to argue about the merits of the summary judgment partial summary judgment we would not prefer the merits no your honor in fact we lodged our briefing that we would file in order to see to reinstatement and decision when we filed a motion intervene it does not address any of the merits issues and that's frankly because we don't even we can't see the right we have a general understanding what is contained what so what you are object to use this as collateral estoppel in some other case we do not have any president present knowledge or interest in doing that this is united policyholders just represents the interests of the public and  district court found on page four it said whatever reason the parties had for reaching this agreement they were entitled to make that agreement and that's that's not a finding of prejudice that's saying it doesn't matter if there's prejudice because there is an agreement and this court is held that the parties are not entitle to agree to seal for whatever reason that's san jose mercury news where there was an agreement about protective order that's also american games in bonner mall whereas there is an agreement after settling to try and vacate the decision that's not a legitimate interest because it's not protecting the public's interest but the parties have an interest as well right in this case they decided to settle and they did so only because the company in this case said ok we will settle in the litigation but we want this sort of a kid with express condition the district court did not find that your honour's if you look at page four it says intervention the district court found intervention could potentially affect a material term of the party settlement the district court did not actually find that it would upset the settlement and frankly your honor i think it's telling that m did not oppose our intervention this would not there's no evidence that this would actually upset the settlement and the district court did not find it such the only finding that the court relied on was the finding that any agreement for whatever reason would upset would be a it please the court my name is charles work and i represent the apple lien ash and fire and marine insurance company i think it's important to emphasize as this court has i believe has already recognized that the motion to intervene below was a substantive motion it was not a motion made for a limited purpose so we are not dealing with the standard or test of mere timeliness of the motion instead this motion to intervene sought to reinstate a dispositive order that had been sealed and vacated therefore united must satisfy all three elements of all three requirements of the san jose case for permissive intervention they have satisfied none of them in this case i need not repeat those elements but i'd like to focus on the element of timeliness because it brings us to prejudice and there is prejudice here if this order were to be unsealed and vacated and let me pause there for a moment to say that i disagree with my friend who says that we have not seriously argued against him ceiling we argued against unsealing and  statement simultaneously in collectively and as one they moved as one we oppose those two efforts as one and frankly they are in of all practical effect synonymous here i don't think so i mean the decision to unseal is completely separate from the decision to reinstate what's wrong with unsealing the record well you can see why explain a part from the reinstatement explain to me why on sealing i would recognized of this settlement agreement that this order be sealed envy kate and if it is unsealed it is the end is back in the public domain and although it may not have precluded affecting any other cases which i understand they're not seeking to accomplish anyway it then becomes nevertheless an instrument for them to use in whatever manner they choose whatever other matter they what's wrong with that i mean in the sense of the court issued its decision and put it on the public record and you want to conceal it i don't understand the interest on that from our public point of view when we try to make our records pop well let me let me speak to the public interest here because i think it's important to notice that in the motion to intervene public access was not argued at all and in the opening it was not argued no i understand that but i was going to separate question because you know because i was a mercury news i think is  spot on in terms of the interests of the public and of course it was a media not not a private party but still the interest of the public and having access to court records i understand your reluctance on reinstatement that's tinkering with the merits  access to the decision itself even though it's now vacated i don't quite understand well your honor it again first of all i recognize that generally the public has an interest in the court's records but that interest is not absolute as i believe is recognized by san jose or others here that the parties part of the bargain was to seal this case this decision in addition to vacating it and so it was part of their bargain and they will  these parties will be prejudiced at least national fire in marine believes it will be prejudiced if it is even unsealed even though not vacated and so i think you explain the prejudice to me i understand the at the fact that if it's vacating reinstated somebody could argue that that has some collateral effect on a different case but simply making it public i don't would you explain your precious the prejudice in that respect your honor simply the loss of the benefit of the bargain that national fire  that's on this record that is all that i can offer you because the record does not include the reasons of the parties behind this settlement agreement but what it what do we know it looks like the district judge didn't make the even go through the motions of the unseen the prejudice against the public right to know well it wasn't being argued in the motion to intervene and i think therefore that whole subject has been that issue has been way if i'm talking about it that's when the court decided to seal and i mean that's when the analysis should have been conducted about whether the decision should have been sealed thank you for clarifying what has understood your my for that question you know never your fault we don't have a good complete record on that your honor i understand that when the settlement was proposed to the court that there was a telephone a conference with holland to discuss the fact that the settlement had been reached conditionally what was being proposed to the court and that there was discussion with the court but the extent of that discussion is is not a part of this record so i don't think we should presume one way or another i certainly we shouldn't presume that the court did not consider the interests of the public in this matter but putting aside just for a moment the public interest issue which is an important one my understanding here is then we might have an entirely different issue then we'd be strictly dealing with the public policy issues that have been raised by my colleagues and they mercury would be very very key to it but here even out of the question in the court your opponent has declined to cease its request for a vacant you're so you've got a combined substantive request under the rules how can they qualify for a permissive intervention i don't believe that they can because they are this is not a motion for a limited purpose i don't think this is a case comparable to those where the seeking to access discovery materials for use in another case to lift a protective order for example if it goes beyond that and the interesting thing here in these papers is that united policyholders has never  it wants this specific order unsealed and vacated ice i say again that the two go hand in hand and it was a part of the bargain it's an inseparable part of the bargain that was made by these parties and that was approved by this judge after whatever conversation and that the court has broad discretion and that discretion not to be disturbed at this level and one of the problems with the court's order on timeliness is that the district judge found it was timely but that it was prejudicial now to me if you just said this is untimely it's six months after i've just missed the case it would be more defendable but here we have a finding of timeliness how do you how do you square that well he he found that it was timely in the sense that that there had not been und delay because they contend they didn't learn of the order until afterwards and couldn't do anything about it until after it had already been vacated but the timeliness here hasn't has a  aspect of prejudice as you know under the empire case i believe it is and so we have to look at timeliness and in that light and here and here there is prejudice even though they moved let's say as soon as they possibly could i've a question that frankly because this order was in the public press within weeks of its being issued and before it had been vacated and i suspect that they actually have the order but i didn't hear that being conceded here today but nevertheless let's just assume they moved as soon as they possibly could nevertheless when they moved it what they saw it was going to be prejudicial and that's what judge holl found because it was going to be contrary to this bargain that these parties had made and would would also i think he had in his mind as we certainly argued to him then we said if reinstating it was going to upset not only that bargain but was going to deny national fire its right to appeal from that summary judgment order with with which it had disagreed you understand you correctly to say that the order that was ordered sealed was already someone looking for today it is still sealed to who to those few people whoever they are who got it in the weeks after it had been issued you know they have it and part of the bargain that was here part of the judge's order was not to claw back those documents that the order i acknowledge that thank you time it is now sealed you can't find it on westlaw i don't know where you could find it says was slava just say you know say somebody that's familiar with this particular case has copies of it there around about it was originally attached to a lottery sixty article decision in which it has no stake respectfully your honor this is not a this is about being able to cite it in future potential cases for guidance for the other courts that's the reasons that supreme court gave for example in bo a potential legitimate interest that this court recognized backman are you so inclined i asked you earlier that you were not going to use it for collateral estoppel purposes and you said no are you i put tell you here now no i have possesses the jurisdiction to do in bonn or mall the supreme court explain that this is a reasonably ancillary purpose when after a court has after a case is the mooted through settlement the court retains jurisdiction to be able to show you to reinstate yeah but that's that's completely and  completely separate from the third party are being intervening for that purpose well respectfully your honor that's that would go to the merits then we haven't been able to intervene because the court did no balancing and held that there was a prejudice even though every intervention motion of