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Daniel J. O’Connor, Jr., Bar No. 010081

Travis B. Hill, Bar No. 021133

O'CONNOR & DYET, P.C.

7955 South Priest Drive

Tempe, Arizona 85284

daniel.oconnor@occlaw.com

travis.hill@occlaw.com

(602) 241-7000

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Mussalina Muhaymin as Personal 

Representative of the Estate of 

Muhammad Abdul Muhaymin Jr.,

Plaintiff,

vs.

City of Phoenix, an Arizona Municipal

Corporation; Antonio Tarango; Officer 

Oswald Grenier; Officer Kevin 

McGowan; Officer Jason Hobe; Officer 

Ronaldo Canilao; Officer David Head; 

Officer Susan Heimbinger; Officer James 

Clark; Officer Dennis Lerous; Officer 

Ryan Nielson; Officer Steven Wong; and 

Doe Supervisors 1-5,

Defendants.

Case No.: 17-cv-04565-PHX-DLR

DEFENDANTS’ RESPONSE TO 

PUTATIVE INTERVENOR THE 

ASSOCIATED PRESS’ MOTION TO 

INTERVENE

Assigned to the 

Honorable Douglas L. Rayes

Defendants City of Phoenix, Antonio Tarango, Officer Oswald Grenier, Officer 

Kevin McGowan, Officer Jason Hobel, Officer Ronaldo Canilao, Officer David Head, 

Officer Susan Heimbigner, Officer James Clark, Officer Dennis Leroux, Officer Ryan 

Nielsen, and Sgt. Steven Wong (collectively, the “Phoenix Defendants”) submit their 
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response to Putative Intervenor The Associated Press’ Motion to Intervene [Doc. 358] (the 

“Motion”). 

I. INTRODUCTION

The Associated Press seeks permissive intervention under Rule 24(b), Federal Rules 

of Civil Procedure, for purposes of challenging the Stipulated Protective Order entered by the 

Court more than two (2) and half years ago on May 8, 2019 [See Doc. 72]. The Associated 

Press further seeks to challenge Court Orders that sealed pleadings/materials filed in 

connection with various motions by the parties. Although the Motion includes request for the 

Court’s recent ruling on Defendants’ Motion for Summary Judgment, and related materials, 

the bulk of Associated Press’ Motion clearly concerns “non-dispositive” matters that do not 

concern the merits of this case – or confer standing upon the Associated Press to intervene in 

this matter. 

II. LEGAL ARGUMENT

A. The Court’s Ruling on Defendants’ Motion for Summary Judgment 

The Associated Press argues standing pursuant to a constitutional right under the First 

Amendment of the United States Constitution for access to judicial records. The United States 

Supreme Court held that the First Amendment affords the press a right of judicial access to 

criminal trials. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604-05, 102 S. Ct. 

2613 (1982)(emphasis added); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 55, 100 S. 

Ct. 2814 (1980). This case, however, is a civil matter. 

The Phoenix Defendants acknowledge that a federal common law right of judicial 

access exists in civil proceedings. However, the federal common law right is limited, not 

“absolute” and, moreover, is not subject to the same level of protection afforded a 

constitutional right. San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F. 3d 1096, 1102 

(9th Cir. 1999), citing Valley Broadcasting Co. v. U.S. Dist. Court, 798 F. 2d 1289, 1293 (9th

Cir. 1986). 
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The common law right creates a presumption in favor of press access to court records 

under limited circumstances and with respect to “dispositive” rulings by the court. Foltz v. 

State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003); Kamakana v. City and 

County of Honolulu, 447 F. 3d 1172, 1179 (9th Cir. 2006); Phillips v. General Motors Corp., 

307 F. 3d 1206, 1213 (9th Cir. 2002). The presumption of press access to court records in civil 

proceedings does not exist and, in fact, is “rebutted” with respect to “non-dispositive” matters. 

Id. The Ninth Circuit has made clear that there are “good reasons to distinguish between 

dispositive and non-dispositive” rulings and, specifically, a district court that grants a 

protective order to seal documents during discovery has already determined that “good cause” 

exists to support the need for confidentiality. Foltz, 331 F.3d at 1135; Kamakana, 447 F. 3d 

at 1179-80, citing Phillips, 307 F.3d at 1213. Afterall, protective orders entered pursuant to 

Rule 26(c), Federal Rules of Civil Procedure, are intended to facilitate discovery in the case 

and the Rule expressly gives the district court much flexibility in balancing and protecting the 

interest of private parties in discovery. Id. at 1180. 

Both Foltz and Kamakana concerned motions to unseal records filed by intervenors 

after the lawsuits were settled. This case, unlike Foltz and Kamakana, has not settled. The 

Court’s ruling on Defendant’s Motion for Summary Judgment [Doc. 352] was also not 

“dispositive” inasmuch as this case is proceeding to trial on April 25, 2022. Moreover, neither 

Phoenix Defendants nor Plaintiff appealed the Court’s ruling. Accordingly, this is an active 

case that has not settled and there has not been any finality on the merits which, in turn, will 

be decided by a jury at trial beginning in less than seven (7) months. The parties, including 

Phoenix Defendants, retain an active interest in the confidentiality protections afforded under 

Rule 26(c) and the terms of the Protective Order with respect to the voluminous amount of 

materials and testimony produced throughout the course of discovery in this lawsuit. 

Once this case proceeds to a trial in April 2022, the Associated Press and other media 

outlets will likely have access to that trial, subject to such terms and conditions as the Court 
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finds appropriate. At such time, the material evidence in this case will be presented in a court 

of law, before judge and jury, and the press will likely be in position to cover the trial on 

behalf of the public’s interest. 

B. Court Records for “Non-Dispositive” Matters Under Seal 

The Associated Press seeks a plethora of court sealed records, including many that the 

Associated Press cannot argue, and does not attempt to argue, are related to any “dispositive” 

ruling resulting in finality on the merits of this case. For example, the Motion seeks pleadings 

and supporting materials on Motions for Sanctions, Motions to Exclude (i.e., Daubert

motions), Plaintiff’s Proposed Second Amended Complaint, Plaintiff’s Demand Letters and 

even “Materials Related to Decedent’s Minor Child”. See Motion, pp. 6-9. 

None of these matters are “dispositive” or, even related to the merits of this case --

except possibly records relating to Mr. Muhaymin’s minor child (which would be subject to 

protection due to the child’s status as a minor). Moreover, the Court has not ruled on the 

parties’ Daubert motions or the motion for sanctions. Under the Ninth Circuit holdings in 

Foltz, Phillips, and Kamakana, the presumption of press access to these sealed court records

does not apply and, in fact, the presumption is that the press is not entitled to access these 

records. Foltz, 331 F. 3d. at 1135; Phillips, 307 F.3d at 1213; Kamakana, 447 F. 3d at 1179-

80.1

The Court’s recent ruling on the Motion for Summary Judgment did not result in

finality of this case as evidenced by the fact that trial commences in April 2002. As held by 

1 The Ninth Circuit more recently addressed the “carve-out” for “non-dispositive” motions 

and held that some non-dispositive matters may be so “strongly correlative to the merits of 

a case” as to require the presumption of judicial access absent compelling reasons. The 

Center for Auto Safety v. Chrysler Group, LLC, 809 F. 3d 1092, 1099 (9th Cir. 2016). 

However, unlike Chrysler Group, which concerned a motion for preliminary injunction that 

was directly related to the merits of the case, the non-dispositive matters sought by the 

Associated Press are not “strongly correlative to the merits” and, in fact, not even remotely 

related to the merits of this case (with possible exception of materials related to Mr. 

Muhaymin’s minor child and for which compelling reasons exist to retain the seal). 
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Kamakana, public access to sealed records, not directly relevant to the merits of the case, 

“would eviscerate the ‘broad power of the district court to fashion protective orders’”. 

Kamakana, 447 F. 3d at 1180, citing Phillips, 307 F. 3d. at 1213. For these reasons, the 

Phoenix Defendants respectfully submit that the Motion filed by the Associated Press should 

be denied. 

In the event the Court orders that any ruling, pleadings and/or materials should be

unsealed, Phoenix Defendants respectfully submit it should not be a “blanket” unsealing 

for several reasons and, therefore, request a Hearing and/or an opportunity to brief the 

Court to determine necessary redactions of private/confidential information prohibited 

from disclosure, i.e., information related to the minor child and private/confidential 

information that cannot be disclosed. Because the Court previously ordered the briefing 

and exhibits filed under seal in their entirety, the parties did not redact private/confidential 

information at the time of filing. Moreover, Phoenix Defendants respectfully renews their 

objection and motion to strike exhibits that Plaintiff included in her Separate/Controverting 

Statement of Facts, including entire deposition transcripts of numerous parties and 

witnesses that are not and should not be part of a public record.

C. The Motion is Untimely

In addition to the issue of standing, the Associated Press’ Motion is untimely. In 

determining whether a motion for intervention is timely, a court must consider three factors: 

(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to 

other parties; and (3) the reason for and length of delay. San Jose Mercury News, 187 F.3d 

at 1100-01. In measuring delay, the inquiry looks to when the intervenor first became aware 

that its interests would no longer be protected by the parties. Id., citing Public Citizen v. 

Liggett Group, Inc., 858 F.2d 775, 785 (1st Cir. 1988). In cases such as here where the parties 

agreed to the terms of a Stipulated Protective Order, thereby limiting what materials and 
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information were generally available to the public, the intervenor knew or should have known 

that public access was restricted once that Order was entered. Id. 

In this case, the Stipulated Protective Order was entered on May 8, 2019 (See Doc. 

072) – more than two (2) and a half years ago. Moreover, the sealed court records sought by 

the Associated Press, including those related to the Motion for Summary Judgment, were filed 

long ago (i.e., motion for sanctions filed in September 2020, motion for summary judgment 

filed in December 2020, Daubert motions filed in April 2021). The Associated Press offers 

no reason for such lengthy period of delay in seeking to intervene in this matter. 

Furthermore, there is prejudice. This is a case where discovery is closed, pleadings are 

closed, motion practice is closed (except for motions in limine) and trial begins in a few 

months in April 2022. Phoenix Defendants’ efforts should be dedicated to preparing for trial 

rather than responding to an untimely motion to intervene filed by the Associated Press. 

III. CONCLUSION

For reasons set forth above, Phoenix Defendants respectfully request that the Motion 

to Intervene by the Associated Press be denied. It was premature for the Associated Press 

to file a Motion to Unseal Records without first obtaining an Order allowing intervention. 

Accordingly, the Motion to Unseal Records should be summarily denied on grounds that 

the Associated Press lacks standing to intervene in this matter and such other grounds set 

forth herein in denying the Associated Press’ Motion to Intervene. 

In the event the Court permits intervention by the Associated Press, and despite the 

premature filing of the Motion to Unseal Records without an Order allowing intervention 

in this matter, Phoenix Defendants have responded to the Motion to Unseal Records in a 

separately filed response [Doc. 366], incorporated herein by this reference. 

/ / /

/ / /

/ / /
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RESPECTFULLY SUBMITTED this 1st day of October, 2021.

O’CONNOR & DYET, P.C.

By: /s/ Travis B. Hill

Daniel J. O’Connor, Jr.

Travis B. Hill

Attorneys for Defendants

CERTIFICATE OF SERVICE

I hereby certify that on October 1, 2021, I electronically filed the foregoing with the 

Clerk of the Court for the U.S. District Court, District of Arizona, using the CM/ECF 

System. A Notice of Electronic Filing will be served to the following registered 

participants:

David A. Chami

PRICE LAW GROUP, APC 

8245 N. 85th Way

Scottsdale, AZ 85258

Attorney for Plaintiff 

Haytham Faraj

LAW OFFICES OF HAYTHAM FARAJ 

1935 W Belmont Ave. 

Chicago, IL 60657

Attorney for Plaintiff

Brian J. Theut

THEUT, THEUT & THEUT

5150 North 16th Street

Phoenix, AZ 85016

Guardian Ad Litem and Statutory 

Representative for A. M. 

Gregg P. Leslie

Tayler Brown

First Amendment Clinic

Public Interest Law Firm

Arizona State University 

Sandra Day O’Connor College of Law

111 E. Taylor St., Mail Code 8820

Phoenix, AZ 85004

Attorneys for Intervenor

By: /s/ Dara J. Wilson