UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

100REPORTERS LLC, :

:

Plaintiff, : Civil Action No.: 14-1264 (RC)

:

v. : Re Document Nos.: 13, 17

:

UNITED STATES DEPARTMENT :

OF JUSTICE, :

:

Defendant. :

MEMORANDUM OPINION

GRANTING SIEMENS’S MOTION TO INTERVENE; GRANTING DR. WAIGEL’S 

MOTION TO INTERVENE

I. INTRODUCTION

In this Freedom of Information Act (“FOIA”) lawsuit, Plaintiff 100Reporters LLC 

(“100Reporters”) seeks to compel the United States Department of Justice (“DOJ”) to produce 

six categories of information related to the compliance monitoring program established by 

Siemens Aktiengesellschaft (“Siemens”) in connection with its plea agreements in 2008 for 

violations of the Foreign Corrupt Practices Act (“FCPA”). Now before the Court are separate 

motions to intervene filed by Siemens and Dr. Theo Waigel (“Dr. Waigel” or the “Monitor”), 

who served for four years as the independent corporate compliance monitor to Siemens 

following resolution of the FCPA investigation. For the reasons set forth below, the Court will 

grant both motions to intervene.
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II. BACKGROUND

A. The Siemens Monitorship

In December 2008, Siemens entered into a plea agreement with the DOJ and a consent 

decree with the U.S. Securities and Exchange Commission (“SEC”) to resolve criminal and civil 

allegations that Siemens and three of its subsidiaries committed certain violations of the FCPA. 

See Notice Regarding Corporate Monitorship, United States v. Siemens Aktiengesellschaft, No. 

08-367 (D.D.C. Dec. 18, 2012), ECF No. 23 (“Monitorship Notice”), at ¶¶ 1-4; Plea Agreement, 

id., (D.D.C. Dec. 15, 2008), ECF No. 14 (“Plea Agreement”); Consent of Defendant Siemens,

SEC v. Siemens Aktiengesellschaft, No. 08-2167 (D.D.C. Dec. 12, 2008), ECF No. 1-3 

(“Consent”). As required by those agreements, Siemens engaged Dr. Waigel to serve as the 

independent corporate monitor. See, e.g., Plea Agreement ¶ 12; Consent ¶ 3. The DOJ required 

that the Monitor evaluate

the effectiveness of the internal controls, record-keeping and financial reporting 

policies and procedures of Siemens as they relate to Siemens’[s] current and 

ongoing compliance with ... provisions of the FCPA and other applicable anticorruption laws ... and take such reasonable steps as, in his or her view, may be 

necessary to fulfill the foregoing mandate.

Monitorship Notice ¶ 6; Statement of Offense as to Defendant Siemens, Attach. 2, United States 

v. Siemens Aktiengesellschaft, No. 08-367 (D.D.C. Dec. 15, 2008), ECF No. 15 (“Statement of 

Offense”), at ¶ 1.

In furtherance of the Monitor’s mandate, the DOJ required that Siemens provide the 

Monitor with broad access to Siemens’s confidential and commercially-sensitive information, 

documents, and records. See Statement of Offense ¶ 2. The DOJ also expressly authorized 

Siemens to share privileged information with the Monitor subject to a non-waiver arrangement. 

See id. Similarly, Siemens was obligated to ensure that the Monitor could inspect all relevant 

documents, conduct on-site observations of Siemens’s internal controls and internal audit 
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procedures, meet with and interview employees, officers, and directors, and analyze and test 

Siemens’s compliance programs and controls. See id. ¶ 7. 

Further, the settlement agreements directed the Monitor to conduct an initial review of 

Siemens’s anticorruption compliance program and to prepare an initial report, followed by up to 

three subsequent reviews and reports. See id. ¶ 3. The agreements required that each report 

“set[] forth the Monitor’s assessment and mak[e] recommendations reasonably designed to 

improve the effectiveness of Siemens’[s] program for ensuring compliance with the anticorruption laws.” Id. ¶ 4. At the conclusion of each follow-up review, the Monitor also was 

required to “certify whether the compliance program of Siemens, including its policies and 

procedures, [was] reasonably designed and implemented to detect and prevent violations within 

Siemens of the anti-corruption laws.” Id. ¶ 6. Finally, the agreements directed the Monitor to 

provide regular communications to the DOJ and the SEC by requiring the Monitor to submit a 

work plan to the agencies for comment prior to each review, see id. ¶ 3, to provide the agencies

with the Monitor’s written reports following completion of each review, see id. ¶ 4, and to report 

any improper activities or violations of law discovered during the monitorship. See id. ¶ 8. 

Although the plea agreement contemplated a four-year term for the monitorship, the 

agreement also provided that the term could be shortened or lengthened at the discretion of the 

DOJ. See id. ¶ 6. After four years, the DOJ authorized the termination of the monitorship, 

concluding that Siemens had “satisfied its obligations under the plea agreement with respect to 

the corporate compliance monitorship.” Monitorship Notice ¶ 11. The DOJ specifically 

determined that Siemens had granted the Monitor broad access to its documents, projects, and 

employees:

Over the course of those four years, the Monitor conducted on-site or remote 

reviews of Siemens’[s] activities in 20 countries; conducted limited or issue-
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specific reviews in or relating to an additional 19 countries; reviewed over 51,000 

documents...; conducted interviews of or meetings with 2,300 Siemens 

employees; observed over 180 regularly scheduled company events; and spent the 

equivalent of over 3,000 auditor days conducting financial studies and testing.

Id. ¶ 7. Indeed, the Monitor had incorporated this information into, among other things, the four 

annual reports that the Monitor submitted to the DOJ, which described Siemens’s confidential

business information and contained detailed findings and recommendations relating to a number 

of topics, including third-party risks, financial controls, and Siemens’s compliance policies and 

programs. See id. ¶¶ 7-9.

B. 100Reporters’ FOIA Request

By letter dated July 23, 2013, 100Reporters, a not-for-profit news media organization, 

submitted a FOIA request to the DOJ seeking all records relating to the Siemens plea agreement 

and monitorship. See Compl. ¶¶ 18-19. The DOJ denied this request on the basis that the 

materials 100Reporters sought were exempt from disclosure under FOIA Exemption 7(A), see

id. ¶ 21, and the DOJ later affirmed its denial in response to 100Reporters’ appeal. See id. ¶ 23. 

Thus, on July 24, 2014, 100Reporters commenced the instant lawsuit against the DOJ seeking to 

compel the production of six specific categories of information relating to the Siemens plea 

agreement and monitorship, including the four annual reports that the Monitor submitted to the 

DOJ during the course of the monitorship. See id. ¶ 22. 

C. Motions To Intervene

The DOJ did not notify Siemens or the Monitor regarding 100Reporters’ FOIA request 

during the pendency of the proceedings before the agency. See Siemens’s Motion to Intervene 4; 

Monitor’s Motion to Intervene 5. Instead, Siemens first became aware of the FOIA request 

when it learned of 100Reporters’ lawsuit on October 1, 2014, see Siemens’s Motion to Intervene 

4, and the Monitor became aware of the FOIA request on October 15, 2014, when the DOJ 
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contacted the Monitor’s counsel by telephone to provide notice of the FOIA request and civil 

action. See Monitor’s Motion to Intervene 5. On October 20, 2014, Siemens and the Monitor 

each filed a motion to intervene in the lawsuit as a matter of right under Federal Rule of Civil 

Procedure 24(a) or, alternatively, to intervene under Rule 24(b)’s permissive intervention 

standard.

III. ANALYSIS: INTERVENTION AS OF RIGHT

“The right of intervention conferred by Rule 24 implements the basic jurisprudential 

assumption that the interest of justice is best served when all parties with a real stake in a 

controversy are afforded an opportunity to be heard.” Hodgson v. United Mine Workers of 

Am.,473 F.2d 118, 130 (D.C. Cir. 1972). Specifically, Rule 24(a) provides that

[u]pon timely application anyone shall be permitted to intervene in an action ...

when the applicant claims an interest relating to the property or transaction which 

is the subject of the action and the applicant is so situated that the disposition of 

the action may as a practical matter impair or impede the applicant’s ability to 

protect that interest, unless the applicant’s interest is adequately represented by 

existing parties.

As the D.C. Circuit has explained, the right to intervene under Rule 24(a) depends on the 

applicant’s ability to satisfy four factors: (1) the timeliness of the motion to intervene; (2) 

whether the applicant claims an interest relating to the property or transaction that is the subject 

of the action; (3) whether the applicant is so situated that the disposition of the action may as a 

practical matter impair or impede the applicant’s ability to protect that interest; and (4) whether 

the applicant’s interest is adequately represented by existing parties. See Fund for Animals, Inc. 

v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (citations omitted); see also Jones v. Prince 

George’s Cnty., Md., 348 F.3d 1014, 1017 (D.C. Cir. 2003) (listing the four elements of Rule 

24(a) as “timeliness, interest, impairment of interest, and adequacy of representation”). In 
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addition, an applicant seeking to intervene as of right under Rule 24(a) must possess Article III 

standing to participate in the lawsuit. See Jones, 348 F.3d at 1017; Fund for Animals, 322 F.3d 

at 731-32. The Court addresses each of these issues below.

A. Timeliness

The timeliness of a motion to intervene must “‘be judged in consideration of all the 

circumstances.’” Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting United States v. 

AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)). “Though the time elapsed since the inception of 

the suit is relevant, measuring the length of time passed is not in itself the determinative test 

because [courts] do not require timeliness for its own sake.” Roane v. Leonhart, 741 F.3d 147, 

151 (D.C. Cir. 2014) (internal citations, quotations, and alterations omitted). “Instead, the 

requirement of timeliness is aimed primarily at preventing potential intervenors from unduly 

disrupting litigation, to the unfair detriment of the existing parties.” Id. (citations omitted). 

“Thus, even where a would-be intervenor could have intervened sooner, in assessing timeliness a 

court must weigh whether any delay in seeking intervention unfairly disadvantaged the original 

parties.” Id. (internal citations, quotations, and alterations omitted).

1. Siemens

Siemens filed its motion to intervene on October 20, 2014, which was just a few weeks 

after it first learned of 100Reporters’ lawsuit against the DOJ. See Siemens’s Motion to 

Intervene 6. Further, though 100Reporters’ complaint was filed on July 24, 2014, three months 

before Siemens’s motion, the DOJ did not submit its first responsive pleading until October 14, 

2014, which was only days before Siemens filed its motion. See generally DOJ’s Answer. To 

date, no substantive progress has occurred in this action, and the Court finds that allowing 

Siemens to intervene at this time would not unduly disrupt the litigation or pose an unfair 
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detriment to the existing parties. See Roane, 741 F.3d at 151. Indeed, this Court routinely has

held that intervention applications are timely when a party seeks to intervene under 

circumstances similar to those here. See, e.g., Navistar, Inc. v. Jackson, 840 F. Supp. 2d 357, 

361 (D.D.C. 2012) (finding intervention application timely when it was filed “less than two 

weeks after Defendants filed their responsive pleadings, and before any discovery or substantive 

progress had been made in the case”); Appleton v. FDA, 310 F. Supp. 2d 194, 197 (D.D.C. 2004) 

(“Appleton II”) (finding intervention applications timely when they were filed within two months 

of the agency notifying the intervenors about the lawsuit). The Court therefore finds that 

Siemens’s motion to intervene was timely.

2. The Monitor

Like Siemens, the Monitor filed his motion to intervene on October 20, 2014, which was 

just a few days after both when he learned of 100Reporters’ lawsuit against the DOJ and when

the DOJ filed its first responsive pleading. See Monitor’s Motion to Intervene 7. Accordingly, 

the Court finds that the Monitor’s motion to intervene was timely for the same reasons that

Siemens’s motion was timely.

B. Interests

Rule 24(a) requires that a prospective intervenor “must demonstrate a legally protected 

interest in the action.” SEC v. Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998). This 

“test operates in large part as a ‘practical guide,’ with the aim of disposing of disputes with as 

many concerned parties as may be compatible with efficiency and due process.” Wildearth 

Guardians v. Salazar, 272 F.R.D. 4, 12-13 (D.D.C. 2010) (quoting United States v. Morten, 730 

F. Supp. 2d 11, 15-16 (D.D.C. Aug. 4, 2010)).
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1. Siemens

The Court finds, and 100Reporters does not dispute, that Siemens possesses a clear 

interest in the subject of this action because 100Reporters has requested that the DOJ release 

materials relating to the Siemens monitorship that very likely contain Siemens’s confidential and 

proprietary information, including sensitive commercial information about Siemens’s

compliance programs, business operations, and internal controls. See Compl. ¶ 22; Siemens’s

Motion to Intervene 6-7. Indeed, preventing the disclosure of commercially-sensitive and 

confidential information is a well-established interest sufficient to justify intervention under Rule 

24(a). See, e.g., Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 900 (D.C. Cir. 1999) 

(when plaintiff filed FOIA request to the FDA seeking documents relating to abandoned drug 

applications, corporation that had submitted five such drug applications was allowed to intervene 

because applications potentially contained confidential commercial information protected by 

FOIA Exemption 4); Appleton II, 310 F. Supp. 2d at 197 (intervenor-companies whose new drug 

applications to the FDA allegedly contained trade secrets and confidential information had 

interest in FOIA lawsuit seeking release of materials from the FDA’s review of those 

applications); Airline Pilots Ass’n, Int’l. v. U.S. Postal Serv., No. 03-cv-2384, 2004 WL 

5050900, at *1, 3 (D.D.C. June 24, 2004) (FedEx permitted to intervene when FOIA request to 

U.S. Postal Service sought release of FedEx’s confidential commercial and financial information 

potentially protected under FOIA Exemption 4); see also Minute Order, Pub. Citizen v. U.S. 

Dep’t of Health and Human Servs., No. 11-cv-1681 (D.D.C. Nov. 18, 2011) (granting Pfizer’s 

unopposed motion to intervene when plaintiff’s FOIA request sought documents containing 

Pfizer’s commercial information, including information about its sales activities, customers, and 

compliance program, and it was important to Pfizer’s commercial and compliance activities that 
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this information remained confidential). The Court therefore concludes that Siemens has a 

proper interest in this action.

2. The Monitor

The Monitor asserts that he has a protectable interest in the subject of this action because

100Reporters seeks the disclosure of reports and other materials that were authored by the 

Monitor during the Siemens monitorship and submitted by him to the DOJ and the SEC under 

the terms of the settlement agreements, and in turn, these documents “contain highly confidential 

information relating to Siemens’s financial controls, compliance policies and procedures, and 

business operations,” which potentially is protected by FOIA Exemption 4. See Monitor’s 

Motion to Intervene 8. The Monitor also asserts that when submitting the reports and making 

related communications with the DOJ, he asked the DOJ to preserve the confidentiality of the 

documents, and “it is only by protecting these materials from disclosure that the Monitor could 

ensure that it would have unfettered access to Siemens’s sensitive information and to 

communicate the Monitor’s findings in detail to the DOJ and the SEC.” Id. 

In response, 100Reporters disputes the validity of the Monitor’s Rule 24(a) interest as 

part of the plaintiff’s broader argument that the Monitor has not suffered an injury sufficient for

Article III standing. Courts in this circuit generally treat the standing analysis for intervention as 

of right as equivalent to determining whether the intervenor has a “legally protected” interest 

under Rule 24(a). See, e.g., Jones, 348 F.3d at 1018 (“Article III’s ‘gloss’ on Rule 24 requires an 

intervenor to have a ‘legally protectable’ interest.” (quoting S. Christian Leadership Conference 

v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984))); WildEarth Guardians, 272 F.R.D. at 13 n.5 

(“[W]hen a putative intervenor has a ‘legally protected’ interest under Rule 24(a), it will also 

meet constitutional standing requirements, and vice versa.” (citations omitted)); see also Roeder 
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v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003) (“With respect to intervention as 

of right in the district court, the matter of standing may be purely academic.”). Because these 

issues overlap significantly, the Court finds it appropriate to address here 100Reporters’

arguments about the Monitor’s lack of an Article III injury insofar as those arguments also touch 

upon the Rule 24(a) interest analysis.

Specifically, in opposition to the Monitor’s motion to intervene, 100Reporters argues that 

future disclosure of the requested materials will not injure the Monitor’s general interest in being

“the Monitor” because the monitorship ended in 2012. See Pl.’s Mem. Opp’n Motions to 

Intervene 13. In addition, 100Reporters suggests that the Monitor asserts a generalized and 

abstract injury because he claims only that disclosure would injure future compliance monitors at 

large by failing to protect the confidentiality of their official reports and communications with 

government agencies. See id. Finally, 100Reporters asserts that the Monitor cannot create a 

private interest under FOIA Exemption 5 — which authorizes the withholding of inter-agency or 

intra-agency documents, including agency records containing comments solicited from 

nongovernmental parties, see McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 

335-36 (D.C. Cir. 2011) (discussing 5 U.S.C. § 552(b)(5)) — or FOIA Exemption 7(A) — which 

applies to “records or information compiled for law enforcement purposes,” 5 U.S.C. § 552(b)(7) 

— because these two Exemptions were intended to establish protectable interests only for the 

government, not for private individuals working outside the government like the Monitor. See 

Pl.’s Mem. Opp’n Motions to Intervene 14-16.

Despite 100Reporters’ criticism, the Court is satisfied that the Monitor has a proper

interest in the subject of this action. Indeed, this Court routinely has recognized that the

submitter of documents to a government agency has a cognizable interest in maintaining the 
11

confidentiality of those documents that is sufficient under Rule 24(a). See, e.g., Pub. Citizen v. 

U.S. Dep’t of Health & Human Servs., 975 F. Supp. 2d 81, 91-92 (D.D.C. 2013) (Pfizer allowed 

to intervene when plaintiff sought disclosure of Pfizer’s annual reports, which Pfizer was 

required to submit to the Department of Health and Human Services as part of complying with 

settlement agreements arising from the illegal off-label promotion of drugs); Appleton II, 310 F. 

Supp. 2d at 194 (applicant companies had interest in protecting trade secrets and confidential 

information that might be contained in the companies’ new drug applications to the FDA when 

FOIA requestor sought documents related to the FDA’s review of those applications); Air Line 

Pilots Ass’n, Int’l v. FAA, 552 F. Supp. 811, 812 (D.D.C. 1982) (McDonnell Douglas allowed to 

intervene when plaintiff sought records relating to the FAA’s certification of an aircraft 

manufactured by McDonnell Douglas, where those FAA records included McDonnell Douglas’s 

engineering drawings, change orders, flight test data, and narrative and non-narrative reports, all 

of which were submitted to the FAA during the certification process).

This interest in confidentiality often arises at least in part through FOIA Exemption 4, 

which protects against the disclosure of “trade secrets and commercial or financial information 

obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(5). In fact, as the 

Monitor points out, 100Reporters makes no argument as to why Exemption 4 might not, at least 

in theory, protect the confidentiality of the Monitor’s own reports and communications with the 

DOJ, which were submitted by the Monitor to the agency as part of the Siemens monitorship and 

in which there was a mutual expectation that the DOJ would keep the Monitor’s documents 

confidential. See Monitor’s Reply Supp. Motion to Intervene 5, 8; Waterkeeper Alliance v. U.S. 

Coast Guard, No. CV 13-289, 2014 WL 5351410, at *15 (D.D.C. Sept. 29, 2014) (explaining 

that FOIA intervenor “intervened here because it wanted to protect its own documents and 
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prevent the exposure of trade secrets and confidential information that would cause it substantial 

harm if released to the public,” and then granting intervenor’s motion for summary judgment to 

withhold documents under Exemption 4). The Court, moreover, need not determine at this time 

whether Exemption 4 actually does prevent the release of the Monitor’s reports and 

communications in order to find that the Monitor has an interest under Rule 24(a). Cf. Pub. 

Citizen Health Research Grp. v. FDA, No. CIV.A. 99-0177, 2000 WL 34262802, at *1-3 

(D.D.C. Jan. 19, 2000) (applicant permitted to intervene to protect alleged interest in trade 

secrets and confidential information, but ultimately denying in part intervenor’s motion for 

summary judgment to withhold certain categories of information under Exemption 4).

Furthermore, outside the FOIA litigation context, federal courts regularly have

recognized preserving confidentiality as a sufficient interest under Rule 24(a), both when a 

statutory privilege is at stake or, more relevantly, when there exists a general interest in 

protecting the confidentiality of information without relation to a specific statutory right. See, 

e.g., SEC v. Goldstone, No. CIV 12-0257, 2013 WL 6920854, at *28 (D.N.M. Dec. 13, 2013) 

(allowing intervention as of right for applicant KPMG when, in underlying litigation, defendants 

sought production of materials containing testimony by KPMG witnesses, and KPMG claimed 

that PCAOB Privilege prevented public disclosure of those materials, thus giving KPMG an 

opportunity to protect its interest in “a privilege Congress created”); Oberoi v. Telluride Asset 

Mgmt. LLC, No. 06-58, 2006 WL 2268455, at *1 (D. Minn. Aug. 8, 2006) (finding interest when 

intervenor “has demonstrated that discovery of the requested information [in civil litigation] 

could potentially adversely affect [its] interest in maintaining the confidentiality of its trade 

secrets and the confidential settlement agreement”); Torah Soft Ltd. v. Drosnin, No. 00 CIV. 

0676, 2001 WL 1425381, at *2 (S.D.N.Y. Nov. 14, 2001) (finding that applicant “John Doe” had 
13

“established an interest in the subject matter of the current action” when he sought to prevent 

disclosure during discovery in underlying litigation of a memorandum that potentially contained 

his identity and other allegedly “confidential information” about him); Blum v. Schlegel, 150 

F.R.D. 38, 39 (W.D.N.Y. 1993) (allowing intervention as of right by professor “for the limited 

purpose of protecting her interest in the confidentiality of the information contained in 

[documents from the law school’s tenure review files] requested by plaintiff during ... 

discovery”). 

Indeed, though the confidentiality interest in some of these cases appears similar to the 

personal privacy interest protected by FOIA Exemption 6 — which permits the government to 

withhold “personnel and medical files and similar files the disclosure of which would constitute 

a clearly unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(6) — 100Reporters does 

not cite to any case holding that in a FOIA action, a Rule 24(a) interest must relate to a specific 

personal privacy interest enumerated by a FOIA Exemption. Such a requirement would, in fact, 

be putting the cart before the horse because a ruling on the merits of an intervenor’s right to 

withhold information under a certain FOIA Exemption clearly would be premature at this 

embryonic stage of the litigation. 

Rather, the Court finds that it is sufficient for purposes of Rule 24(a) that the Monitor has 

an interest in maintaining the confidentiality of his reports and communications, as the DOJ 

indicated it would — whether under Exemption 4 or otherwise — and in turn, the Monitor

should have an opportunity to litigate the merits of his interest, including whether the interest 

actually is covered by a FOIA Exemption, in a single proceeding involving all interested parties. 

See Wildearth Guardians, 272 F.R.D. at 12-13 (explaining that Rule 24(a)’s “interest”

requirement operates “with the aim of disposing of disputes with as many concerned parties as 
14

may be compatible with efficiency and due process” (citation omitted)); see also Forest 

Guardians v. U.S. Dep’t of Interior, No. CIV-02-1003, 2004 WL 3426413, at *7-8 (D.N.M. Jan. 

12, 2004) (finding interest under Rule 24(a) without citing to specific FOIA Exemption when 

applicant Livestock Associations argued that plaintiff’s FOIA request sought the release of 

information regarding the identity of participating financial institutions and aggregate loan 

amounts, which, if released, might jeopardize the financial well-being of the associations’

members and “have a chilling effect” by preventing members from obtaining necessary financing 

in the future). The Court therefore finds that the Monitor has a direct and personal interest in this 

action.

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C. Impairment Of Interests

In determining whether an applicant’s interests will be impaired, courts in this circuit 

look to the “practical consequences” that the applicant may suffer if intervention is denied. See 

Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977); Am. Horse Prot. Ass’n, 

Inc. v. Veneman, 200 F.R.D. 153, 158 (D.D.C. 2001). One such consequence that frequently

qualifies as impairment is when the disclosure of materials following the disposition of a FOIA 

action “could impair the applicants’ ability to protect their trade secrets or confidential 

 1 Because the Court finds that the Monitor has an interest in this action, it does not 

address 100Reporters’ separate argument that Exemptions 5 and 7(A) do not apply, nor need the 

Court address 100Reporters’ argument that the Monitor incorrectly attempts to assert only a 

generalized interest on behalf of all future compliance monitors. The Court points out, however, 

that FOIA is a disclosure statute, and the Government can voluntarily disclose information even

if that information is covered by a FOIA Exemption. See Stone v. FBI, 727 F. Supp. 662, 666 

(D.D.C. 1990) (“Whereas the FOIA specifies when agencies must disclose certain information, 

the FOIA does not prevent agencies from voluntarily disclosing information that would 

otherwise be covered by one of the statutory exemptions.” (citing Mead Data Central, Inc. v. 

U.S. Dep’t of the Air Force, 566 F.2d 242, 258 (D.C. Cir. 1977)). Thus, if the Government 

decides to voluntarily disclose materials and that disclosure is not otherwise prohibited by law

(e.g., by the Trade Secrets Act or the Privacy Act), it is not clear that a private party such as 

Siemens or the Monitor could oppose disclosure.
15

information.” Appleton II, 310 F. Supp. 2d at 197. Indeed, impairment appears especially 

obvious in FOIA litigation because if the plaintiff succeeds, the public release of the requested 

materials is both imminent and irreversible. Cf. Fund For Animals, 322 F.3d at 735 (finding 

impairment in part because “there is no question that the task of reestablishing the status quo if 

the [plaintiff] succeeds in this case will be difficult and burdensome”); Swan v. SEC, 96 F.3d 

498, 500 (D.C. Cir. 1996) (“FOIA directs agencies to make information ‘available to the 

public.’... Once records are released, nothing in FOIA prevents the requester from disclosing 

the information to anyone else. The statute contains no provisions requiring confidentiality 

agreements or similar conditions.” (internal citation omitted)). 

1. Siemens

Siemens argues that 100Reporters seeks materials provided to the DOJ during the 

monitorship that contain commercially-sensitive information, the disclosure of which “would 

result in significant harm to Siemens.” See Siemens’s Motion to Intervene 7. In addition, 

Siemens provides that the Monitor’s reports catalog and describe in detail all aspects of 

Siemens’s compliance program, and public disclosure of those details would impair Siemens’s

ability to detect and prevent compliance issues moving forward, which also would substantially

impair Siemens’s interests. See id. at 7-8. In response, 100Reporters does not challenge 

Siemens’s impairment analysis. Regardless, the Court finds that Siemens’s interests potentially 

could be impaired if the materials sought by 100Reporters are released. See, e.g., Pub. Citizen, 

975 F. Supp. 2d at 116-17 (disclosure of materials containing an “extensive, probing” review of 

“confidential business systems and policies,” as well as company’s “internal structure and 

operations,” would result in competitive harm to the company if disclosed); Appleton II, 310 F. 
16

Supp. 2d at 197 (“[D]isclosures resulting from the disposition of this action could impair the 

applicants’ ability to protect their trade secrets or confidential information.”).

2. The Monitor

The public release of the Monitor’s reports and related communications also might impair 

the Monitor’s interest in maintaining the confidentiality of those materials for the same reasons 

that publication might impair Siemens’s interest in confidentiality. 100Reporters does not 

challenge the Monitor’s impairment claim, and the Court thus finds that the Monitor has satisfied 

this requirement.

D. Adequate Representation Of Interests

The Supreme Court has explained that the adequate representation “requirement of [Rule 

24(a)] is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; 

and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine 

Workers, 404 U.S. 528, 538 n.10 (1972); see also Fund for Animals, 322 F.3d at 735-36. 

Similarly, the D.C. Circuit has described this requirement as “not onerous.” Dimond v. District 

of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986); see also AT&T, 642 F.2d at 1293 (stating that 

an applicant “‘ordinarily should be allowed to intervene unless it is clear that the party will 

provide adequate representation for the absentee’” (quoting 7A Charles Alan Wright & Arthur R. 

Miller, Federal Practice and Procedure § 1909 (1st ed. 1972))).

Although the intervenor and the government entity involved in the litigation frequently 

may agree on a legal position or course of action, the D.C. Circuit nonetheless “often [has] 

concluded that governmental entities do not adequately represent the interests of aspiring 

intervenors.” Fund for Animals, 322 F.3d at 736. This is primarily because the government 

entity’s overarching “obligation is to represent the interests of the American people,” while the 
17

intervenor’s obligation is to represent its own interests. Id. The divergence of interests, 

moreover, is especially evident in FOIA litigation, where this Court has recognized that the 

“plaintiff’s interest lies in disclosure,” the government entity’s “interest lies in responding 

appropriately to the plaintiff’s request,” and the intervenor’s interest lies “in protecting [its] trade 

secrets and confidential information.” Appleton II, 310 F. Supp. 2d at 197.

1. Siemens

Siemens asserts that none of the existing parties in the underlying litigation shares its 

same incentive to protect its confidential and commercially-sensitive information from 

disclosure. See Siemens’s Motion to Intervene 8. 100Reporters argues, on the other hand, that 

Siemens and the DOJ currently hold “identical legal positions,” in large part because the DOJ 

“has never repudiated its blanket denial of 100Reporters’ FOIA Request.” Pl.’s Mem. Opp’n 

Motions to Intervene 8. Thus, 100Reporters suggests that so long as the DOJ continues to seek 

the withholding of all documents responsive to the FOIA request, including by asserting FOIA 

Exemption 4, Siemens and the DOJ will share a “perfect harmony of interests,” and there is “no 

reason to think” that the DOJ would not adequately represent Siemens’s interests. Id. The Court 

disagrees. 

100Reporters’ analysis is inconsistent with the jurisprudence in this circuit regarding the 

adequate representation prong of Rule 24(a) in FOIA litigation. First, as the Court just 

explained, Siemens’s position is fully consistent with Appleton II’s holding that by the very 

nature of FOIA litigation, the government entity and the private intervenor will possess 

fundamentally different interests — the government is interested in fulfilling its FOIA 

obligations; the intervenor is interested in preventing disclosure of its confidential materials —

such that the government entity is quite unlikely to provide “adequate representation.” See
18

Appleton II, 310 F. Supp. 2d at 197. Second, the fact that Siemens and the DOJ presently agree 

on a litigation posture does not mean that the DOJ necessarily will adequately represent 

Siemens’s interests throughout this action, as the DOJ remains free to change its strategy during 

the course of litigation. See Wildearth Guardians, 272 F.R.D. at 19-20 (finding inadequate 

representation when, “although there are certainly shared concerns, it is not difficult to imagine 

how the interests of [the intervenor] and the other [federal] defendant[] ‘might diverge during the 

course of litigation’” (citation omitted)). Requiring Siemens to monitor the DOJ’s litigation 

posture from the sidelines until Siemens disagrees with a decision by the agency is inefficient 

and impractical; indeed, Siemens likely would have limited, if any, insight into the DOJ’s 

strategy during the litigation, and once Siemens did learn of a hypothetical shift in the DOJ’s 

position, such as a decision to release a specific category of materials, it might be too late for 

Siemens to undue any damage done.2

In addition, even if the DOJ always maintains its present position that all materials sought 

by 100Reporters must be withheld, that “does not mean that [the DOJ] would afford the same 

primacy to [Siemens’s] interests” during the litigation such that adequate representation exists. 

See id. at 20 (“The mere fact that other defendants might hypothetically take [the intervenor’s]

interests into account when shaping their arguments does not mean that they would afford the 

same primacy to [the intervenor’s] interests[.]”). This is especially true when the intervenor 

intends to raise an argument under FOIA Exemption 4 because, as this Court has explained, 

“[c]ourts have repeatedly rejected competitive harm claims [under Exemption 4] when they are 

advanced solely by the defendant agencies.” Newry Ltd. v. U.S. Customs and Border Prot. 

Bureau, No. Civ. 04-2110, 2005 WL 3273975, at *3-4 (D.D.C. July 29, 2005) (rejecting 

 2 It also might be too late for Siemens to intervene at all, as both Rule 24(a) and 

Rule 24(b) require a timely motion to intervene.
19

competitive harm argument advanced solely by agency), reconsideration granted (D.D.C. Mar. 

30, 2006) (upholding competitive harm argument following agency’s submission of 

supplemental declarations, including one from submitter); see also Wiley Rein & Fielding v. U.S. 

Dep’t of Commerce, 782 F. Supp. 675, 676-77 (D.D.C. 1992) (rejecting competitive harm 

argument, ordering disclosure, and emphasizing that “no evidence” was provided to indicate that 

submitters objected to disclosure); Brown v. U.S. Dep’t of Labor, No. 89-1220, 1991 U.S. Dist. 

LEXIS 1780, at *7 (D.D.C. Feb. 15, 1991) (denying competitive harm claim, ordering 

disclosure, and noting failure of submitters to object to disclosure); DOJ Guide to the Freedom of 

Information Act: Exemption 4 at 308 (“Courts have repeatedly rejected competitive harm claims 

— and even have ordered disclosure — when those claims were advanced by agencies on their 

own.” (citing cases)).3

 Thus, Siemens’s presence in this litigation will ensure that, at the very 

least, its Exemption 4 argument is asserted as strongly as possible because Siemens is in a unique 

position to articulate the need to withhold its own confidential materials under that FOIA 

Exemption.

In sum, the DOJ has neither the incentives nor the information necessary to represent 

fully Siemens’s commercial and competitive interests during this FOIA litigation. Accordingly, 

even though such interests may indeed overlap at times, the Court finds that Siemens has 

satisfied the inadequate representation requirement. See, e.g., Fund for Animals, 322 F.3d at 737 

(explaining that “partial congruence of interests ... does not guarantee the adequacy of 

representation”); Hardin v. Jackson, 600 F. Supp. 2d 13, 16 (D.D.C. 2009) (“[P]rivate companies 

can intervene on the side of the government, even if some of their interests converge[.]”

(citations omitted)); Am. Horse Protection Ass’n, 200 F.R.D. at 159 (“[M]erely because parties

 3 Available at http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/

exemption4_0.pdf. 
20

share a general interest in the legality of a program or regulation does not mean their particular

interests coincide so that representation by the agency alone is justified[.]” (citation omitted)).

2. The Monitor

100Reporters asserts essentially the same arguments regarding the Monitor as it did about 

Siemens, namely that the DOJ’s blanket refusal to disclose any documents demonstrates that the 

Monitor’s interests are “fully encompassed within [the] DOJ’s current position.” Pl.’s Mem. 

Opp’n Motions to Intervene 17. Although the Monitor asserts a slightly different confidentiality 

interest than Siemens, the preceding analysis regarding inadequate representation still applies in 

full. Indeed, like with Siemens, the Monitor and the DOJ presently share a common position as 

to 100Reporters’ FOIA request: no materials should be released. That alone, however, does not 

mean the DOJ will adequately represent the Monitor’s interests as contemplated by Rule 24(a), 

especially when the Monitor intends to assert arguments under FOIA Exemption 4. Thus, the 

Court finds that the Monitor has satisfied this “minimal” requirement. See Trbovich, 404 U.S. at 

538 n.10.

E. Standing And Ripeness

Having concluded that Siemens and the Monitor satisfy the four elements necessary for 

intervention as of right under Rule 24(a), the Court next turns to whether the proposed 

intervenors also have standing under Article III. See Fund for Animals, 322 F.3d at 731-32; 

Bldg. & Constr. Trades Dep’t v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994). As the Court 

touched on above, the standing analysis for intervention as of right generally is treated as 

equivalent to determining whether the intervenor has a “legally protected” interest under Rule 

24(a). See, e.g., Jones, 348 F.3d at 1018 (“Article III’s ‘gloss’ on Rule 24 requires an intervenor 

to have a ‘legally protectable’ interest.” (quoting S. Christian Leadership Conference, 747 F.2d 
21

at 779)); WildEarth Guardians, 272 F.R.D. at 13 n.5 (“[W]hen a putative intervenor has a 

‘legally protected’ interest under Rule 24(a), it will also meet constitutional standing 

requirements, and vice versa.”). 

In regard to the standing of an applicant seeking to intervene as a defendant, an additional 

wrinkle arises, namely that requiring standing for a proposed defendant-intervenor “runs into the 

doctrine that the standing inquiry is directed at those who invoke the court’s jurisdiction,” which, 

of course, defendants traditionally do not. Roeder, 333 F.3d at 233 (citation omitted). 

Nonetheless, whereas Roeder merely highlighted this curiosity in passing, the D.C. Circuit 

recently took up the question more directly in Deutsche Bank National Trust Co. v. FDIC, 717 

F.3d 189 (D.C. Cir. 2013), and held that the standing requirement for intervention as of right 

does not distinguish between plaintiff-intervenors and defendant-intervenors.4

 Id. at 193. As 

such, this Court must determine whether Siemens and the Monitor have standing to intervene as 

defendants, as well as whether the motions to intervene are fit for resolution under the related 

ripeness doctrine.

1. Siemens

100Reporters argues that Siemens’s motion to intervene is “premature,” and the Court 

therefore should deny the motion, or at least hold the motion in abeyance, on both standing and 

ripeness grounds. See Pl.’s Mem. Opp’n Motions to Intervene 6-11. Specifically, 100Reporters 

asserts that until the DOJ finishes its review of the requested documents and completes its

withholding analysis, Siemens presents only an “abstract” disagreement that requires further 

 4 See also Deutsche Bank Nat. Trust, 717 F.3d at 195-96 (Silberman, J., concurring) 

(“Opening participation to parties without standing would be quite troublesome in direct review 

in the court of appeals,... but intolerable at the district court level, where individual parties have 

substantial power to direct the flow of litigation and affect settlement negotiation[s]. Our rule 

requiring all intervenors to demonstrate Article III standing prudently guards against this 

possibility.” (internal citation omitted)).
22

factual development to become ripe. Id. at 7-9. For this same reason, 100Reporters also asserts 

that it remains unclear whether the DOJ actually will release documents that implicate Siemens’s

confidentiality interests such that Siemens cannot demonstrate a particularized and imminent 

injury at this time. See id. at 10-11. Although ripeness is “closely akin to the standing 

requirement,” Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999), 

the Court addresses these two jurisdictional questions separately. 

a. Ripeness

“The ripeness doctrine generally deals with when a federal court can or should decide a 

case.” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012). In assessing the 

ripeness of a case, courts focus on two aspects: the “fitness of the issues for judicial decision,”

and the extent to which withholding a decision will cause “hardship to the parties.” Abbott Labs.

v. Garner, 387 U.S. 136, 149 (1967). Under the ripeness test, “if the interests of the court and 

agency in postponing review outweigh the interests of those seeking relief, settled principles of 

ripeness squarely call for adjudication to be postponed.” State Farm Mutual Auto. Ins. Co. v. 

Dole, 802 F.2d 474, 480 (D.C. Cir. 1986).

As a general matter, 100Reporters fails to cite any prior FOIA case in which a motion to 

intervene was denied on ripeness grounds. See Pl.’s Mem. Opp’n Motions to Intervene 6-9. In 

fact, following 100Reporters’ approach to ripeness would place the proposed intervenor in a 

precarious position under Rule 24(a), which demands the timely filing of motions to intervene, as 

generally measured from the commencement of the action and when the first responsive 

pleadings are filed. See Roane, 741 F.3d at 151 (discussing timeliness under Rule 24(a)). Thus, 

if, as 100Reporters suggests, Siemens were forced to wait until the DOJ completes its document 

review and withholding analysis — which in some cases takes many months or even years —
23

Siemens would risk the Court denying its Rule 24(a) motion as untimely. Ripeness, then, 

immediately appears an unsuitable tool for resolving motions to intervene as of right in FOIA 

cases.

Second, as to the merits of the ripeness question, 100Reporters’ analysis focuses 

exclusively on the fitness requirement, which “turns on whether a court’s consideration of the 

case ‘would benefit from further factual development.’” Amerijet Int’l, Inc. v. Pistole, 753 F.3d 

1343, 1353 (D.C. Cir. 2014) (quoting Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 

733 (1998)). 100Reporters appears to suggest that this case will not be fit until the DOJ finishes

its review of the requested documents, determines the exact scope of the document universe in 

dispute, completes its analysis of which documents must be withheld, and consults with 

100Reporters to determine whether the plaintiff disagrees with the DOJ’s arguments for 

withholding information. See Pl.’s Mem. Opp’n Motions to Intervene 7-9. Simply put, 

100Reporters’ argument asks for far too much before a motion to intervene could become fit.

5

In particular, 100Reporters’ analysis relies heavily on this Court’s opinion in Appleton v. 

FDA, 254 F. Supp. 2d 6 (D.D.C. 2003) (“Appleton I”), which held in abeyance in part the 

defendant’s motion to stay the plaintiff’s FOIA claim and denied without prejudice the motions 

to intervene from five pharmaceutical manufactures. Id. at 7. The Appleton I Court reached this 

conclusion when it was “clear that there [was] some confusion between the parties as to the 

scope of the plaintiff’s [FOIA] request,” which, in turn, caused similar confusion within the 

motions to intervene because the applicants did not know exactly what records the plaintiff 

sought in the first place. Id. at 10-11. The Court therefore directed the parties to confer and 

 5 In fact, if 100Reporters’ analysis were adopted, the Court posits whether a Rule 

24(a) motion to intervene in a FOIA action ever would be fit before the action is settled or 

disposed of on the merits.
24

clarify the scope of the FOIA request, after which the applicants could file renewed motions to 

intervene. Id. at 11. And after the scope of the FOIA request was clarified, the Court granted the 

applicants’ motions. See Appleton II, 310 F. Supp. 2d at 197.

Appleton I is not persuasive to the Court’s analysis today for at least two reasons. First, 

that case did not even mention standing or ripeness, so it offers no guidance on such 

jurisdictional questions, despite 100Reporters’ suggestion to the contrary. And second, unlike 

Appleton I, the contours of this case — especially “the scope of the plaintiff’s [FOIA] request,” 

Appleton I, 254 F. Supp. 2d at 10 — were abundantly clear from the moment the complaint was 

filed: 100Reporters seeks the production of six specific categories of documents relating to the 

corporate monitorship imposed on Siemens in 2008, see Compl. ¶ 22, and the DOJ has asserted 

that all materials within those categories are exempt from disclosure. See DOJ Answer ¶ 6. 

Though the DOJ may continue to develop its legal arguments against disclosure and further 

refine the document universe, the essential facts of this case are settled, well-defined, and fit for 

judicial review. As such, the Court rejects 100Reporters’ ripeness challenge.

6

b. Standing

“It is axiomatic that Article III requires a showing of injury-in-fact, causation, and 

redressability.” Deutsche Bank Nat. Trust, 717 F.3d at 193. In Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992), the Supreme Court described the injury-in-fact element as requiring a 

showing of an invasion of a legally protected interest that is (a) concrete and particularized, and 

 6 Taking 100Reporters’ ripeness argument a step further, if this theory were 

accepted, the Court also might be required to dismiss the underlying complaint on ripeness 

grounds as well. 100Reporters suggests that at this point in the litigation, there exists only an 

“abstract disagreement,” Pl.’s Mem. Opp’n Motions to Intervene 7, and that it remains unclear if 

100Reporters “would actually disagree with [the DOJ’s assertion of] any particular Exemption 

for any particular document.” Id. at 10. If true, further factual development appears critical 

before judicial resources should be spent on this case, thus potentially making the entire 

litigation unfit.
25

(b) actual or imminent, not conjectural or hypothetical. Id. at 560. For similar reasons as its 

ripeness argument, 100Reporters asserts that Siemens’s injury in the potential disclosure of its 

confidential documents is speculative and not imminent, mainly because 100Reporters still may 

agree with the DOJ’s withholding claims such that Siemens’s documents might not actually be 

released. See Pl.’s Mem. Opp’n Motions to Intervene 7-8. Once again, 100Reporters demands

far too much. 

When, as here, it is clear that the FOIA requestor seeks the release of documents that are 

likely to contain the intervenor’s confidential information, the intervenor’s injury is both 

particularized and sufficiently imminent. It is not surprising, then, that 100Reporters cannot cite 

a single FOIA case in which a court denied on standing grounds the application of a prospective 

intervenor whose own confidential materials were the clear subject of the FOIA request.7

 

Instead, though there always exists significant overlap between Rule 24(a)’s interest requirement 

and Article III’s injury-in-fact requirement, see Fund for Animals, 322 F.3d at 735, that likely 

never is truer than in a situation such as this, where the imminent and concrete risk of the 

proposed intervenor’s confidential materials being released through a successful FOIA action is 

obvious. See Appleton II, 310 F. Supp. 2d at 197 (concluding that “[a]s for standing, the 

applicants have shown that FDA’s disclosure of their trade secrets or confidential information 

would cause them to suffer an injury-in-fact that intervention to defend against disclosure could 

 7 100Reporters cites to Schoenman v. FBI, 263 F.R.D. 23 (D.D.C. 2009), as an 

example of a court denying a motion to intervene as of right on standing grounds. See Pl.’s 

Mem. Opp’n Motions to Intervene 6. Schoenman, however, offers nothing helpful to the Court’s 

present analysis. There, the district court denied the pro se inmate’s motion to intervene under 

Rule 24(a) and on Article III standing grounds (and under Rule 24(b) as well) because, among 

other things, the motion was filed five years after the suit commenced and the inmate offered no 

explanation about his own interest in the case that might satisfy Rule 24(a) or Article III. Id. at 

25-26 (applicant “has not set forth any specific interest with respect to the instant FOIA action” 

and has “made no effort to demonstrate that he has standing under Article III”). Clearly, 

Siemens and the Monitor have offered such arguments here.
26

redress”); cf. Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 367 (D.C. Cir. 2005) 

(“Venetian has standing, because it has demonstrated that there is a substantial probability that 

the alleged disclosure policy will harm its concrete and particularized interest in retaining the 

confidentiality of protected information.”). The Court therefore finds that Siemens has

established Article III standing to intervene as a defendant in this litigation.

8

2. The Monitor

In its Rule 24(a) analysis, the Court addressed most of 100Reporters’ standing arguments

as to the Monitor, and little additional consideration is required here for two reasons.9 First, like 

Siemens, the Monitor has a concrete and particularized interest in maintaining the confidentiality 

of the reports and related communications that 100Reporters seeks from the DOJ. And second,

again like Siemens, the risk of injury to the Monitor’s interest is imminent given the well-defined

scope of 100Reporters’ FOIA request and the clear possibility of the Monitor’s materials being 

released if 100Reporters is successful in this litigation. The Court therefore finds that the 

Monitor also has standing to intervene.

F. Proposed Limitations On Siemens’s Participation

Finally, “[e]ven where the Court concludes that intervention as a matter of right is 

appropriate, its inquiry is not necessarily at an end: district courts may impose appropriate 

conditions or restrictions upon the intervenor’s participation in the action.” Wildearth 

Guardians, 272 F.R.D. at 20; see also Fed. R. Civ .P. 24(a) advisory comm.’s note on 1966 

 8 100Reporters does not challenge Article III’s redressability and causation 

requirements, and the Court finds that such elements are clearly satisfied by both Siemens and 

the Monitor.

9 100Reporters’ argument as to the Monitor appears to rely only on standing, not 

ripeness. Such arguments overlap, however, and to the extent 100Reporters is suggesting that 

the Monitor’s motion to intervene also is not ripe, the Court rejects that claim for the same 

reasons as were applied to Siemens.
27

amend. (“An intervention of right under the amended rule may be subject to appropriate 

conditions or restrictions responsive among other things to the requirements of efficient conduct 

of the proceedings.”). Here, 100Reporters argues that even if the Court were to permit Siemens 

to intervene as of right, the Court should limit Siemens’s involvement in this action to arguing its 

interests under FOIA Exemption 4 only. See Pl.’s Mem. Opp’n Motions to Intervene 11-12. 

100Reporters makes this argument in reliance on Rule 24(c)’s requirement that the motion to 

intervene “must state the grounds for intervention,” and 100Reporters then offers that Siemens’s

motion only asserts an interest in preventing disclosure of its confidential and sensitive 

commercial information, which is an interest specifically protected by Exemption 4, regardless if 

Siemens also pleads other defenses in its answer. See id. (citing Siemens’s Motion to Intervene

1). 

But the cases on which 100Reporters relies are inapplicable to the present issue here, as 

those cases do not address Rule 24(c), or even intervention in general. Cf. id. at 12 (citing David 

v. District of Columbia, 436 F. Supp. 2d 83, 90 n.2 (D.D.C. 2006) (arguments not raised in 

defendants’ motion for judgment as a matter of law cannot be raised in defendants’ reply brief); 

Gold v. Wolpert, 876 F.2d 1327, 1333 (7th Cir. 1989) (refusing to hear “unanalyzed and 

undeveloped claims” raised in party’s appellate brief)). Rather, the correct approach, in this 

Court’s view, is to follow the general rule that “[i]n this circuit ... an intervenor participates on 

equal footing with the original parties to a suit,” United States v. Philip Morris USA Inc., 566 

F.3d 1095, 1146 (D.C. Cir. 2009) (internal citation and quotation omitted), with the exception 

being that the Court may impose restrictions on an intervenor that are “reasonable and ... of a 

housekeeping nature.” 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and 

Procedure § 1922 at 630 (“It seems very doubtful ... that the court has the right to make 
28

significant inroads on the standing of an intervenor of right; in particular, it should not be 

allowed to limit the intervenor in the assertion of counterclaims or other new claims.” (footnotes 

omitted)); see also Beauregard v. Sword Servs. LLC, 107 F.3d 351, 352-53 (5th Cir. 1997) 

(“Although not without some controversy, it is now a firmly established principle that reasonable 

conditions may be imposed even upon one who intervenes as of right” (citations omitted)).

Ultimately, then, the Court must ensure “that any conditions imposed should be designed 

to ensure the fair, efficacious, and prompt resolution of the litigation,” while also being 

consistent with the “two conflicting goals of intervention: [] to achieve judicial economies of 

scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from 

becoming fruitlessly complex or unending.” Wildearth Guardians, 272 F.R.D. at 20 (internal 

citation and quotation omitted). Thus, 100Reporters is mistaken to rely on unrelated cases in an 

attempt to construe Rule 24(c) as imposing some form of draconian use-it-or-lose-it pleading

standard on prospective intervenors before they even formally join the litigation. Cf. Butler v. 

White, No. CV 11-574, 2014 WL 4436301, at *2 (D.D.C. Sept. 8, 2014) (“‘[T]he spirit of the 

Federal Rules [is to] facilitate a proper decision on the merits’ rather than making ‘pleading a 

game of skill in which one misstep by counsel may be decisive to the outcome.’” (quoting 

Foman v. Davis, 371 U.S. 178, 181-12 (1962)). To the contrary, a more functional and practical 

approach is required, and fatally, 100Reporters fails to offer any concrete or realistic 

consequences to this litigation from Siemens’s (or the Monitor’s) intervention that might require 

the Court to impose a limitation on the scope of the defenses that an intervenor may raise as this 

case, which still is in its infancy, proceeds to the merits. Cf. Dacotah Chapter of Sierra Club v. 

Salazar, No. 1:12-CV-065, 2012 WL 3686742, at *3 (D.N.D. Aug. 27, 2012) (refusing to impose 

limits on intervenor, such as a joint filing requirement, a preemptive restriction on the 
29

intervenor’s ability to present issues to the court, and page limitations for briefs, because such 

restrictions would be “arbitrary and unnecessarily punitive”). Accordingly, the Court denies 

100Reporters’ request to impose limitations on any intervenor at this time.10 See The Wilderness 

Soc. v. Babbitt, 104 F. Supp. 2d 10, 18 (D.D.C. 2000) (“Because the Court agrees that the 

purposes of Rule 24 are best served by permitting the prospective intervenors to engage in all 

aspects of this litigation, both motions to intervene will be granted without limitation.”).

* * *

In sum, the Court finds that both Siemens and the Monitor have filed timely motions to 

intervene, that both applicants possess interests in the subject of this action that would be

impaired if intervention were denied, and that these interests are not adequately represented by 

the DOJ. Further, Siemens and the Monitor have standing to represent their interests in this 

litigation as intervenor-defendants, and the motions to intervene are not premature or unripe. 

Accordingly, the Court concludes that Siemens and the Monitor have satisfied the requirements 

under Rule 24(a) and Article III, and both applicants therefore are entitled to intervene as a 

matter of right and without limitation.11

IV. ANALYSIS: PERMISSIVE INTERVENTION

Alternatively, the Court finds that both Siemens and the Monitor also are entitled to 

intervene under the permissive intervention standard in Rule 24(b), which gives the Court 

 10 To the extent 100Reporters believes that the intervenors are causing actual delays 

or other hardships as this litigation moves forward, the plaintiff may raise such concerns then.

11 The Court again emphasizes that many FOIA Exemptions appear to protect 

governmental interests only. Thus, although the Court of course will entertain all parties’ 

arguments regarding each potentially applicable FOIA Exemption, it remains uncertain that a 

private party can prevent disclosure by asserting a governmental interest that the Government 

itself does not assert, such as Exemption 7(A). 
30

discretion, on a timely motion, to “permit anyone to intervene who ... has a claim or defense that 

shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). When 

exercising this discretion, the Court “must consider whether the intervention will unduly delay or 

prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). Here, it is 

clear that Siemens and the Monitor raise common questions of fact and law in their motions to 

intervene and their proposed answers to 100Reporters’ complaint. Indeed, given the similarities 

between the issues presented by Siemens and those raised by the DOJ, 100Reporters has asserted 

that the “DOJ and Siemens currently hold identical legal positions.” Pl.’s Mem. Opp’n Motions 

to Intervene 8. The same holds true for the Monitor, whose “position against disclosure is fully 

encompassed with [the] DOJ’s current position.” Id. at 17.

100Reporters also suggests that the Monitor’s permissive intervention would unduly 

delay the litigation because the DOJ is “aggressively representing each of the interests that Dr. 

Waigel has asserted in his intervention motion.” Id. at 18. Given this overlap, 100Reporters 

offers that the “addition of another party to this lawsuit to assert cumulative defenses would only 

delay the proceedings, multiply the litigation burdens on 100Reporters, and hinder any prospect 

of settlement.”12 Id. Though the Court agrees that the DOJ can represent capably many of the 

interests asserted by the Monitor, the Court also has found that, first, the strength of the DOJ’s 

position will be enhanced by the assistance of the Monitor (and Siemens) in asserting FOIA 

 12 Here, 100Reporters cites Environmental Defense Fund, Inc. v. Costle, 79 F.R.D. 

235 (D.D.C. 1978), for the proposition that the Court should deny permissive intervention when 

the intervenor will present “cumulative arguments.” See Pl.’s Mem. Opp’n Motions to Intervene 

18. Environmental Defense Fund, however, addressed the adequate representation prong of 

intervention as a matter of right under Rule 24(a), not permissive intervention under Rule 24(b). 

See Environmental Defense Fund, 79 F.R.D. at 243 (explaining that the proposed intervenor’s 

“arguments directed at the subject matter of this case will be cumulative of the arguments 

advanced by the other defendants,” and the Court therefore “is of the opinion that [the proposed 

intervenor] is adequately represented in this case, and the motion to intervene as of right is 

accordingly denied.” (emphasis added)).
31

withholding arguments generally and Exemption 4 withholding arguments specifically, and 

second, the DOJ does not share the same fundamental interest in preventing disclosure that the 

Monitor (and Siemens) possesses because the DOJ’s primary loyalty lies in carrying out its 

requirements under FOIA, not blocking the release of materials. 

Finally, the Court finds no basis to conclude that the presence of either intervenor will 

“delay or unduly complicate” the proceedings in this relatively standard FOIA litigation, “which 

is progressing in orderly fashion towards probable cross-motions for summary judgment.” Agee 

v. CIA, 87 F.R.D. 350, 352 (D.D.C. 1980) (granting motion to intervene under Rule 24(b)). The 

proper approach, rather, is to allow all interested parties to present their arguments in a single 

case at the same time, especially when the intervenors have timely moved to join this litigation at 

such a nascent stage — before the Court even has held a status conference to discuss whether to 

set a briefing schedule for dispositive motions, let alone the actual filing of the dispositive 

motions themselves. Cf. Atl. Refinishing & Restoration, Inc. v. Travelers Cas. & Sur. Co. of 

Am., 272 F.R.D. 26, 30 (D.D.C. 2010) (finding, in the alternative, that permissive intervention is 

proper when “the plaintiff does not argue nor does this court conclude that the timing of the 

petitioner’s motion to intervene, filed before the scheduling of the initial status hearing, has 

prejudiced its case”). The Court therefore concludes that both Siemens and the Monitor are 

entitled to permissive intervention under Rule 24(b) as well.

V. CONCLUSION

For the foregoing reasons, Siemens’s and the Monitor’s motions to intervene are 

granted. An order consistent with this Memorandum Opinion is separately and 

contemporaneously issued.
32

Dated: December 3, 2014 RUDOLPH CONTRERAS

United States District Judge