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For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

IN RE:

NATIONAL SECURITY AGENCY

TELECOMMUNICATIONS RECORDS

LITIGATION

This Document Relates To:

ALL CASES

 /

MDL Docket No 06-1791 VRW

ORDER

On May 19, 2006, members of the news media — the San

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, 06-

672. 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. 

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I

On April 5, 2006, plaintiffs in Hepting v AT&T Corp, 06-

672, filed under seal an amended motion for preliminary injunction. 

Doc #30. Along with this motion, plaintiffs filed under seal the

declarations of Mark Klein (Doc #31) and J Scott Marcus (Doc #32). 

Attached to the Klein declaration were certain AT&T documents that

allegedly contain proprietary and trade secret information. See

Doc #31, Ex A, B, C. Over the next several weeks, the parties and

amici filed a number of briefs concerning whether the Klein

documents should remain under seal. See, e g, Doc ##33, 61, 71,

77, 84, 112, 114, 115.

At a hearing on May 17, 2006, the court heard argument

regarding the sealing of the Klein documents. Shortly before the

hearing, the media entities moved to have all sealed records

unsealed. Doc #129. Counsel for the media entities appeared at

the May 17 hearing and attempted to argue the sealing issues. Doc

#138 at 4, 61 (transcript). At the hearing, the court noted that

“the best course of action is to preserve the status quo” and

ordered that “plaintiffs, plaintiffs’ counsel and their consultants

not further disclose [the Klein] documents to anyone or any entity

without further order of the court.” Doc #138 at 27-28.

Following the hearing, the court ordered that “[a]ll

papers heretofore filed or lodged under seal shall remain under

seal pending further order of court. Counsel for plaintiffs and

AT&T are directed to confer and to submit by May 25, 2006, jointly

agreed-upon redacted versions of the Preliminary Injunction Motion

(Doc #30) and the Klein declaration (Doc #31).” Doc #130. The

court declined to hear argument from the media entities, ruling

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that “[t]he court will entertain motions to intervene only on

written application therefor with appropriate notice and service on

all parties * * *.” Doc #130 at 2. 

Two days later, on May 19, 2006, the media entities filed

their motion to unseal. Doc #133. Meanwhile, pursuant to the

court’s minute order, plaintiffs and AT&T reached agreement on

redacting the text of the Klein declaration and the preliminary

injunction memorandum; accordingly, on May 25, 2006, plaintiffs

filed redacted versions of each (Doc ##147, 149). On June 22,

2006, plaintiffs filed a redacted version of the Marcus

declaration. Doc #277. 

II

A

The media entities seek to intervene under FRCP 24(b)(2),

which permits, under certain circumstances, the intervention of a

non-party in ongoing litigation. A non-party seeking to intervene

(applicant) bears the burden to demonstrate that it meets the

requirements of FRCP 24(b) for intervention. Petrol Stops

Northwest v Continental Oil Co, 647 F2d 1005, 1010 (9th Cir 1981). 

In ruling on a motion to intervene, however, “a district court is

required to accept as true the non-conclusory allegations made in

support of [the] intervention motion.” Southwest Center for

Biological Diversity v Berg, 268 F3d 810 (9th Cir 2001). 

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.

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FRCP 24(b).

If the applicant meets these criteria under FRCP 24(b),

the determination whether to permit intervention is committed to

the discretion of the court. In exercising this discretion, FRCP

24(b) instructs courts to “consider whether the intervention will

unduly delay or prejudice the adjudication of the rights of the

original parties.” FRCP 24(b). See also Donnelly v Glickman, 159

F3d 405, 409 (9th Cir 1998). The court may grant an applicant

permissive intervention for a limited purpose: for example, to

gain access to discovery materials under seal. San Jose Mercury

News, Inc v United States Dist Court – Northern Dist (San Jose),

187 F3d 1096, 1100 (9th Cir 1999). The Ninth Circuit has also

approved permissive intervention under FRCP 24(b) to allow a nonparty to seek the modification of a protective order, even if that

protective order was the product of an agreement between the

original parties. See Beckman Industries, Inc v International Ins

Co, 966 F2d 470, 473 (9th Cir 1992). 

AT&T opposes intervention, contending that the EFF and

ACLU would adequately represent the media entities’ interest in

unsealing the documents and that intervention would unnecessarily

protract the litigation. Doc #160 at 3-5. The court disagrees. 

As the media entities note, courts routinely permit the media to

intervene for the purpose of unsealing judicial records. Moreover,

the existing plaintiffs assert that the media entities provide a

distinct “point of view” not necessarily represented in the

litigation. See Lockyer, 450 F3d at 445. Accordingly, the court

finds that the media entities satisfy the requirements set forth in

FRCP 24(b).

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B

The court turns to the media entities’ argument that the

court should unseal documents attached to plaintiffs’ motion for

preliminary injunction. The public’s common law right of access in

civil cases “creates a strong presumption in favor of access.” San

Jose Mercury News, Inc v United States District Court, 187 F3d

1096, 1102 (9th Cir 1999); see also Foltz v State Farm Mut Auto Ins

Co, 331 F3d 1122, 1135 (9th Cir 2003) (“In this circuit, we start

with a strong presumption in favor of access to court records.”). 

Overcoming this presumption requires a showing of compelling

reasons for denying access. Foltz, 331 F3d at 1135; San Jose

Mercury News, 187 F3d at 1102. Yet the public’s right of access

has its limits; indeed, a presumption of access does not extend to

“sealed discovery document[s] attached to * * * non-dispositive

motion[s].” Kamakana v City & County of Honolulu, 447 F3d 1172,

1179 (9th Cir 2006) (citing Phillips v General Motors, 307 F3d

1206, 1212 (9th Cir 2002)). 

The decisive issue here is whether a motion for a

preliminary injunction constitutes a dispositive motion. AT&T

portrays this question as premature, arguing that a motion is not

dispositive until the motion actually disposes of the case. See

Doc #160 (“Perhaps someday it will have [dispositive] status; today

it does not”). Lending credence to this reasoning, AT&T observes

that the courts in Kamakana, Foltz and Phillips dealt with sealing

issues after the district court had ruled on the underlying

motions. Id. But these cases fail to mention – let alone

emphasize — the fact that the district court had disposed of the

case. The framework established by the courts in Kamakana, Foltz

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and Phillips centers on the potential outcome of the motion. As

such, the court does not read these cases as mandating that a

motion actually dispose of a case before it may be considered a

dispositive motion.

The media entities principally rely on Leucadia, Inc v

Applied Extrusion Technologies, Inc, 998 F2d 157 (3rd Cir 1993), in

asserting that a preliminary injunction motion is dispositive and

thus triggers the presumption of the public’s right of access. 

Although the Leucadia court unsealed documents attached to a

preliminary injunction motion, it did so pursuant to the Third

Circuit’s more exacting standard, which extends the right of access

to all “pretrial motions of a nondiscovery nature, whether

preliminary or dispositive.” Id at 164 (emphasis added). Hence,

the Leucadia decision is inapplicable here; indeed, to the extent

it pertains to the present motions, the decision’s reasoning

undermines the media entities’ argument, as the case distinguishes

between preliminary and dispositive motions. 

In the absence of explicit guidance on this issue, the

court looks to the underlying rationale for distinguishing between

dispositive and non-dispositive motions. The Ninth Circuit imposes

a heightened standard for dispositive motions because “the

resolution of a dispute on the merits, whether by trial or summary

judgment, is at the heart of the interest in ensuring the ‘public’s

understanding of the judicial process and of significant public

events.’” Kamakana, 447 F3d 1172, 1179 (quoting Valley

Broadcasting, 798 F2d at 1294. See also Foltz, 331 F3d at 1135-36

(supporting access to motions for summary judgment because they

“adjudicate[] substantive rights and serve[] as a substitute for

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trial.” (quoting Rushford v The New Yorker Magazine, 846 F2d 249,

252 (4th Cir 1988)). By contrast, the Ninth Circuit asserts that

the public’s interest in non-dispositive motions is comparatively

modest because “those documents are often ‘unrelated, or only

tangentially related, to the underlying cause of action.’” 

Kamakana, 447 F3d 1172, 1179 (citing Seattle Times co v Rhinehart,

467 US 20, 33 (1984)). 

According to the media entities, the rationale

articulated in Kamakana compels the inference that a preliminary

injunction is dispositve because such a motion “inevitably

involve[s] consideration of the merits of a dispute.” Doc #133 at

5. But this argument misconstrues the discussion in Kamakana,

which emphasizes the “resolution of a dispute on the merits,” not

the mere “consideration” of the merits. The media entities

similarly place undue emphasis on the Kamakana court’s

characterization of non-dispositive motions (that such motions “are

often unrelated, or only tangentially related, to the underlying

cause of action.”). Disregarding the term “often,” the media

entities proclaim that plaintiffs’ preliminary injunction motion

must be dispositive because it is not “tangentially related to the

underlying cause of action.” Id. The court rejects this attempt

to forge an independent requirement out of the Kamakana court’s

dicta. 

In view of the Ninth Circuit’s reasoning, the court

concludes that a preliminary injunction motion is not dispositive

because, unlike a motion for summary adjudication, it neither

resolves a case on the merits nor serves as a substitute for trial. 

Accordingly, due to the court’s prior finding, the usual

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presumption of the public’s right of access is rebutted and the

media entities must present “sufficiently compelling reasons” why

the court should reconsider its May 17, 2006, order, maintaining

the status quo regarding sealing. 

Two considerations weigh against unsealing the documents

at the present juncture in the litigation: first, the parties

already released redacted versions of the documents at issue. 

Although the media entities understandably seek unbridled access,

the disclosure in part vindicates the interests they assert in

their motions to unseal. Second, the present posture of the case

warrants caution. In certifying the Hepting order for appeal

pursuant to 28 USC § 1292(b), the court recognized that its order

posed issues for which “there is a substantial ground for

difference of opinion.” See Doc #308 at 70, 06-672. In view of

this uncertainty, the court declines to disturb the existing

compromise between the parties. The court nevertheless recognizes

the distinct perspective the media entities offer to this

litigation. Because the court may revisit this issue at a later

point in the litigation, the court grants the media entities’

motions to intervene. 

//

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III

In sum, the court GRANTS the media entities’ motions to

intervene for the purpose of unsealing judicial records in MDL 1791

but DENIES their motions to unseal documents at the present time. 

IT IS SO ORDERED.

 

VAUGHN R WALKER

United States District Chief Judge

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