From today's order by Judge John Woodcock (D. Me.) in Doe v. Smith; Sigmund D. Schutz and Alexandra A. Harriman of PretiFlaherty and I represent the media intervenors, and my student Timon Amirani worked on our motion. (Note that our motion to unseal is still pending.)
Over the plaintiff's objection, the Court grants a motion to intervene filed by a trust representing a network of independent news and media outlets to seek to unseal docket entries and potentially to depseudonymize the plaintiff depending on the contents of the filings if unsealed….
On November 14, 2023, John Doe, acting under a pseudonym, filed a civil action in this Court against Sara Smith, another pseudonym, asserting that she breached a Non-Disclosure Agreement and caused the Plaintiff damages. The Plaintiff also sought equitable relief, including an injunction against Ms. Smith. In the complaint, Mr. Doe alleges that he was the winner of the Maine State Lottery, that Ms. Smith is the mother of his minor daughter, and that Ms. Smith entered into a Non-Disclosure Agreement to "promote the safety and security of John Doe, [herself], and their daughter" and to avoid "the irreparable harm of allowing the media or the public in general to discover, inter alia, John Doe's identity, physical location, and assets." Mr. Doe filed several motions to seal documents filed in this case based on his view that the revelation of his name will cause him irreparable harm, and the Court has granted those motions….
On February 20, 2024, the Maine Trust for Local News (Maine Trust) filed a motion to intervene to file motions to unseal the documents currently docketed under seal and potentially to depseudonymize the case in the future. In its motion, Maine Trust describes itself as "a network of independent news and media outlets serving the entirety of the state of Maine," a description the Court accepts for purposes of this motion. [Note that despite the court's admirable caution in its description, there's little controversy about the Maine Trust's role; it includes, among others, the Portland Press Herald and Maine Sunday Telegram, as well as many other smaller mainstream publications. -EV]
On the same day, the Maine Trust filed a motion to unseal the documents in four docket entries. On February 21, 2024, Sara Smith quickly responded and stated that not only did she not object to Maine Trust's motion to intervene but that she had objected to various motions to seal by John Doe. On March 6, 2024, John Doe filed his opposition to Maine Trust's motion to intervene….
Intervention "is an effective mechanism for third-party claims of access to information generated through judicial proceedings." Preliminarily, the Court concludes that Maine Trust's motion to intervene falls within the permissive intervention provisions of Federal Rule of Civil Procedure 24(b), not the intervention of right provisions of Federal Rule of Civil Procedure 24(a).
Under this provision, a proposed intervenor must show "that (1) it timely moved to intervene; (2) it has an interest relating to the property or transaction that forms the basis of the ongoing suit; (3) that the disposition of the action threatens to create a practical impediment to its ability to protect[] its interest; and (4) no existing party adequately represents its interests." …
"When the party moving to intervene does so for a limited purpose and does not seek to become a party to the litigation, the nexus-of-fact-or-law requirement is loosened, and '[s]pecificity, e.g. that the intervenors' claim involve the same legal theory that was raised in the main action, is not required.'" …
[1.] Regarding timeliness, as Maine Trust points out, press entities and others "seeking access to court records may intervene to unseal court records even after judgment." In support of its position, Maine Trust cites Public Citizen v. Liggett Group, Inc. (1st Cir. 1988). The Court finds Public Citizen instructive. In Public Citizen, … the First Circuit quoted with approval [an earlier decision's] observation that "[t]o the extent [a right of access] exists, it exists today for the records of cases decided a hundred years ago as surely as i[t] does for lawsuits now in the early stages of litigation."
Based on Public Citizen, the Court is not at all certain that the ordinary timeliness requirements apply when the media moves to intervene to assert the right of public access to court documents. Nevertheless, if the timeliness requirement does apply, the Court concludes that Maine Trust's motion to intervene is timely.
Although Mr. Doe filed the lawsuit on November 14, 2023, Ms. Smith did not answer the complaint until December 19, 2023. Mr. Doe points out that as early as November 20, 2023, the Portland Press Herald published a news article about the lawsuit. It is true that Maine Trust could have filed a motion to depseudonymize the lawsuit then. But it is also true that Maine Trust did not then realize that the lawsuit would prove contentious.
Nor could Maine Trust have known the extent to which future filings would be sealed. As Maine Trust points out, Ms. Smith filed all her documents without sealing until January 19, 2024. Initially, Ms. Smith publicly filed a motion for sanctions on February 7, 2024, and after Mr. Doe filed an emergency motion for seal on February 7, 2024, and on February 7, 2024, the Court granted it. Maine Trust dates its awareness that the parties would not protect its interest in open access to January 19, 2024, when Ms. Smith began to file her documents under seal. Whichever date is used, January 19, 2024 or February 7, 2024, the Court concludes that Maine Trust's February 20, 2024 motion to intervene is timely….
[2.] The Court is skeptical about Mr. Doe's contention that granting Maine Trust's motion to intervene will delay the case…. The current discovery deadline is August 27, 2024 and a notice of intent to file dispositive motions is not due until September 6, 2024—both several months away…. With the Court granting the motion to intervene, the briefing of Maine Trust's motion to unseal should proceed in the ordinary course and there is no reason to believe that Maine Trust's motion will cause delay.
It is true that Maine Trust suggests that, depending on what it learns if the docket entries are unsealed, it may also move to depseudonymize Plaintiff. Maine But this motion, if made, should be handled in the ordinary course by the parties, Maine Trust, and the Court, and Mr. Doe does not suggest otherwise. Accordingly, the Court does not conclude that granting the motion to intervene will delay these proceedings….
[3.] Mr. Doe makes the point that Ms. Smith opposed sealing and therefore argues that Ms. Smith is able to adequately represent Maine Trust's interest. However, Ms. Smith represents her own private interest. Maine Trust, by contrast, "seek[s] to vindicate [its] and the public's common law and First Amendment rights of access to judicial proceedings, and that interest is not currently represented by [either] of the parties." "[T]his consideration weighs in favor of granting, not denying, intervention." …
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