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New standard for intervenor to challenge protective orders

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  1. Court Access

    NMU         OHIO         Secret Courts         Jun 7, 2001    

New standard for intervenor to challenge protective orders

  • A court of appeals ruling creates a balancing test to permit intervention, a change from when the press and public had little difficulty gaining access.

The Court of Appeals of Ohio on June 1, issued two opinions discussing when a member of the public may intervene in a case to challenge a protective order.

The first opinion involved a lawsuit against the rock band Metallica. Randy Adams, who was injured at a Metallica concert, moved to intervene in a similar case to challenge an order sealing depositions. Adams hoped to obtain copies of the depositions. The trial court denied his motion to intervene.

On appeal, the court reasoned that depositions are generally not available to the public and may be sealed if “good cause” is shown. The main question, however, was whether Adams was entitled to intervene to challenge the sealing order.

Prior to the Metallica case, members of the press or public had no difficulty intervening for the purpose of challenging a sealing order. Lou Colombo, a media law practitioner at Baker & Hostetler in Cleveland, Ohio, said, “I never had any difficulty trying to intervene in a case where access was an issue. Historically, it hasn’t been a problem.” The Metallica case, however, seems to indicate that a court may deny intervention in some circumstances, denying the public the ability to argue against a sealing order, he said.

The court noted that “there is among federal courts a ‘forming consensus’ that permissive intervention is the appropriate procedural device to use when a litigant who is not an original party to an action seeks to challenge protective orders entered in that action.” However, the court also noted that the decision whether to permit intervention is within the trial court’s discretion.

The court decided that a trial court should employ a balancing test to determine whether intervention should be permitted. The factors to be considered are the avoidance of repetitive discovery; the nature of the order; whether and to what extent the parties relied on the order; the ability to access the information in other ways; the nature of the material for which protection was sought; the need for secrecy; the public interest involved; the similarity between the two lawsuits; and the merits of the second suit when weighed against the interests underlying the protective order.

The court concluded that the trial court did not abuse its discretion in denying intervention because Metallica had a sufficient privacy interest in keeping the deposition sealed, “presumably upon the basis that the depositions contain material that might be out of character for the public image of the band.” The court also reasoned that Adams could pursue discovery on his own and did not need the prior deposition.

In the second case, however, the court came to a different conclusion. In Doe v. American Cancer Society, the University of Cincinnati moved to intervene to obtain a sealed deposition. Again, the court of appeals stated that the trial court had discretion to grant or deny intervention, but stated that the trial court should rely on the factors discussed in Adams v. Metallica, Inc.

The trial court had failed to explain why it denied intervention, and therefore, the court of appeals remanded the case and ordered the trial court to determine whether to grant the university’s motion for intervention based on the Metallica case.

(Adams v. Metallica, Inc.; Doe v. American Cancer Society) AG

© 2001 The Reporters Committee for Freedom of the Press

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