----------------------------------------------------------X SUPERIOR COURT OF NEW JERSEY
: LAW DIVISION: MERCER COUNTY
Estate of ROBERT FRANKL, deceased, : DOCKET NO. L-003052-99
By Administratrix of the Estate, :
LORI FRANKL, ERIC FRANKL, :
ASHLEY FRANKL and BRIAN FRANKL, :
Individually, and Estate of KAREN BUDIAN, :
Deceased, by Administrator of the Estate, :
GEROLF O. BUDIAN, and GEROLF O. :
BUDIAN, Individually, GARRY E. SITZE and:
TOMMYE SITZE, his wife :
:
Plaintiffs, :
v. :
:
GOODYEAR TIRE AND RUBBER :
COMPANY, et al., :
:
Defendants. :
:
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______________________________________________________________________________
CONSUMERS FOR AUTOMOBILE RELIABILITY AND SAFETY (“CARS”) BRIEF IN RESPONSE TO GOODYEAR’S SUPPLEMENTAL BRIEF
______________________________________________________________________________
WILENTZ, GOLDMAN & SPITZER
A Professional Corporation
90 Woodbridge Center Drive
P.O. Box 10
Woodbridge, New Jersey 07095-0958
(732) 636-8000
Attorneys for Proposed Intervenors, CARS
ROBERT T. HAEFELE, ESQ.
REBECCA EPSTEIN, ESQ.
On the Brief
INTRODUCTION
CARS is compelled to submit this Brief and accompanying Affidavit in response to Goodyear’s Supplemental Brief. Goodyear’s recent Brief is troubling in several respects. Before addressing those defects in detail, however, CARS considers it essential to address the central, erroneous theme of Goodyear’s Brief: that Goodyear can prevent CARS and the public from learning the truth about its tires simply because it has agreed to compensate Plaintiffs for their injuries, and offered them a settlement they could not refuse.
As a legal matter, Goodyear’s settlement with Plaintiffs has no effect whatsoever on CARS’ Motion. Contrary to Goodyear’s arguments, CARS still has a right to intervene. The umbrella protective order, which was entered without any showing of good cause, still must be vacated or modified. The pleadings filed under seal without the required legal showing still must be made public. Most importantly, the contested deposition and documents still must be disclosed unless Goodyear has met the good cause standard by proving with particularized evidence that its interest in secrecy outweighs the extraordinary public interest in determining whether Goodyear’s tires are safe. Goodyear, however, has not produced any evidence to this effect, and it does not even claim to have met the good cause standard.
Goodyear also makes factual misstatements. Goodyear claims that, as a part of the resolution of this case, Plaintiffs have withdrawn their objections to Goodyear’s designation of the challenged documents as confidential. That claim is false. As the attached Affidavit of Plaintiffs’ counsel Adam Shea attests, neither Plaintiffs nor their counsel agreed to withdraw their objections to Goodyear’s attempt to treat the contested documents as confidential. Moreover, attorneys across the nation who represent victims of tread separation of the same model Goodyear tires, as well as the Attorney General of California, currently have sealed copies of the documents CARS seeks to unseal. These copies are sealed under the terms of the Protective Order in this case, which was entered without a showing of good cause.
Regardless, the claim that Plaintiffs withdrew their objections would make no difference even if it were true, because Goodyear still must prove good cause for secrecy no matter how much it pays the Plaintiffs to resolve the case.
Ultimately, Goodyear’s settlement of the case in no way undercuts CARS’ Motion. To the contrary, it underscores the need for a swift and favorable ruling. For although Goodyear’s willingness to compensate the families of its tires’ alleged victims is admirable, the attempt to use that settlement to keep the truth secret, and possible create more victims as a result, should not be countenanced by this Court. Thus, CARS urges the Court to grant its Motion to Intervene; vacate or modify the Protective Order to comply with the law; and determine whether Goodyear has good cause to keep the disputed documents hidden from the public eye.
I. GOODYEAR CONTINUES TO BELITTLE THE PUBLIC INTEREST IN THIS CASE AND ITS OWN LEGAL DUTY TO PROVE GOOD CAUSE FOR KEEPING DISCOVERY DOCUMENTS SECRET.
A. The Public Interest in this Case is Potentially a Matter of Life or Death.
In an extraordinary attempt to diminish the significance of the pattern of Goodyear’s tire tread separation generally, and the deaths and injuries of six people on its tires in particular, Goodyear twice states with inexplicable nonchalance that “CARS does not explain how a case involving an alleged tire failure on a specially equipped military vehicle in the desert of Saudi Arabia . . . would involve matters of health, [or] safety . . . .” Goodyear’s Supplemental Brief, (“Goodyear Br.”), at 9, 11. Tire failure is obviously a matter of public safety, especially when one incident is linked to a pattern of similar incidents resulting in fatalities and other serious injuries.
Moreover, Goodyear’s claim that CARS has relied “merely” on newspaper articles to obtain evidence of this pattern of tire failure, Goodyear Br. at 9-10, misleadingly suggests that the articles are baseless simply because the information was obtained from Plaintiffs’ counsel. However, the information from Plaintiffs’ counsel is valid. It is based on independent research that revealed seven similar incidents on the same model of Goodyear tires. Plaintiffs’ Cross-Motion, Spagnoli Cert., at 9. Moreover, contrary to Goodyear’s contention, at least one of those newspaper articles reported that the National Highway Traffic Safety Administration (“NHTSA”) opened a preliminary evaluation into Goodyear tires, as a result of the number of complaints the agency had received about them. See CARS’ Letter Brief to Judge Shuster, February 7, 2001, at page 3. Finally, only last week, CARS submitted its own independent research that shows some of the most recent complaints filed about these tires with NHTSA. If the Court were to require even more evidence of the pattern, CARS could also point to the similar litigation pending against Goodyear. See Goodyear Br., at 3; Shea Affidavit, at 5. Thus, Goodyear’s request for an explanation as to how these mounting complaints – and the three deaths and three injured people at issue in the underlying litigation – affect public health and safety is disingenuous at best. In light of the public interest in this case, Goodyear does not have good cause to keep its documents presumptively secret, and the Court should vacate or modify the Protective Order.
B. Goodyear Continues to Fail to Prove Good Cause For Keeping Documents Secret.
Goodyear attempts to throw dust in the eyes of the Court by continuing to focus on the First Amendment, and by making arguments relying on its supposed “presumption of privilege,” instead of shouldering its legal burden to prove good cause. Preliminarily, CARS again respectfully notes that it has never relied on the First Amendment to seek access. Instead, CARS’ main argument relies on whether Goodyear has proven good cause under Rule 4:10-3.
Rule 4:10-3's requirement that parties must show good cause for secrecy reveals that there is a rule-based presumption of access to those documents. As CARS has often repeated, Rule 4:10-3 sets forth categories of information that may be kept secret, upon the trial court’s finding of good cause and its discretionary decision to issue a protective order. Goodyear, however, instead creates an entirely new rule that “entitles” it to keep items from public view as long as they are:
secret, proprietary, affect the operation of their business, formulae, marketing strategy, reveal a company’s logic, and/or other information if disclosure would affect defendants with their respective competitors or in conjunction with the day to day operation of their business.
Goodyear Br., at 16-17. Goodyear fails to cite a single case in support of this misstatement of law, because of course none exists; the relevant plain language of Rule 4:10-3 lists only “trade secret[s] or other confidential research, development, or commercial information” as material appropriate for protective orders. Goodyear’s designation of documents as confidential has been challenged by Plaintiffs, Shea Aff. at 2, and Potential Intervenors, and the Court must make findings as to whether Goodyear has indeed met the good-cause requirement established by Rule 4:10-3.
Goodyear attempts to deny the existence of any good-cause challenge by claiming that Plaintiffs have withdrawn their objections to the designation of discovery documents. This is simply untrue. Plaintiffs have not withdrawn their objections. Shea Aff. at 2. Thus, even if the Protective Order is not vacated, under the Protective Order’s own terms, Goodyear must prove the basis for secrecy or be deemed to have waived confidentiality. Id. at 2.
Regardless, Plaintiffs or Plaintiffs’ counsel supposed withdrawal of their objection to Goodyear’s designation of the contested documents as confidential is irrelevant to the merits of CARS’ challenge. According to Rule 4:10-3, protective orders must be based on the Court’s finding of good cause, regardless of the parties’ positions on the subject. Indeed, by well-established procedure, non-parties may seek permissive intervention to seek access or challenge the good-cause basis for protective orders, as CARS has done here. See San Jose Mercury News, Inc. v. United States Dist. Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (“Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2).”); In re Associated Press, 162 F.3d 503, 506 (7th Cir. 1998) (holding that “the most appropriate procedural mechanism by which to accomplish this task [of ensuring the right of access] is by permitting those who oppose the suppression of the material to intervene for that limited purpose,” and citing other circuit cases in accord); Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470, 472 (9th Cir.) (noting “wide approval” of practice and holding that Rule 24(b) permits limited intervention for purpose of modifying protective order), cert. denied, 506 U.S. 868 (1992); Public Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783-85 (1st Cir. 1988) (holding that intervention is proper course for third parties to challenge protective order), cert. denied, 488 U.S. 1030 (1989); Anderson v. Cryovac, Inc., 805 F.2d 1, 3-4 (1st Cir. 1986) (noting permission of intervention by media to challenge protective order); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (permitting third party to intervene to challenge order sealing court documents); FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982) (permitting intervention to challenge stipulated confidentiality order); In re Beef Indus. Antitrust Litig., 589 F.2d 786, 789 (5th Cir. 1979) (holding that intervention is “the procedurally correct course” for third-party challenges to protective orders).
Goodyear similarly tries to evade its duty to prove good cause by insinuating that settlement has rendered the issue moot. See Goodyear Br., at 10. Yet the fact of settlement does not affect the legitimacy of CARS’ Motion, which was filed at least eight months before settlement was reached. A live controversy still exists because of CARS’ and the public’s continued inability to access documents that remain under seal with the Court, the California Attorney General’s office, and other attorneys with similar litigation against Goodyear. See Shea Aff. at 3, 4, 5, 6. Thus, the Protective Order continues to have an effect despite settlement in this case, and its modification is not a moot issue.
Finally, Goodyear attempts to avoid its good-cause burden by arguing that modifying the Protective Order or granting access to particular documents would chill the free exchange of discovery. This argument, of course, is irrelevant to this particular case, which is now settled. Further, Goodyear’s threat of an end to future cooperation between litigants is an empty specter, because CARS seeks only to hold Goodyear to existing law: that is, to require Goodyear to prove good cause for the umbrella protective order under Rule 4:10-3; to challenge certain provisions of the Protective Order under Rule 4:10-3 and the common law right of access; and to require Goodyear to prove good cause for keeping specific documents secret under the terms of the Protective Order.
Because Goodyear has not proven good cause for the Protective Order or for keeping the
disputed documents secret, the Court should grant CARS’ Motion to Vacate or Modify the
Protective Order, and grant access to the documents.
II. CARS HAS SATISFIED THE ELEMENTS OF 4:33-2.
A. CARS Need Not Set Forth a Pleading for the Court to Grant Permissive Intervention for CARS’ Limited Purpose.
Goodyear argues that CARS has violated Rule 4:33-2 by failing to set forth in a pleading
the claim or defense in which intervention is sought and in which the proposed intervenor has in
common with the main action. This argument is without merit. Federal courts have squarely
rejected arguments similar to Goodyear’s, holding that such technicalities are not fatal to motions
to permissively intervene.
The Ninth Circuit, for example, reasoned as follows:
[Defendant] charges that intervenors’ failure to submit such a pleading is fatal to their claim. . . . Courts, including this one, have approved intervention motions without a pleading where the court was otherwise apprised of the grounds for the motion. In Shores v. Hendy Realization, 133 F.2d 738, 742 (9th Cir. 1943), we construed an earlier version of Rule 24 and found that although the literal terms of Rule 24 were not met, the petition fully stated the legal and factual grounds for intervention. We therefore rejected the type of technical objection [defendant] makes here. Our decision in Smith v. Pangilinan, 651 F.2d 1320, 1325-26 (9th Cir. 1981), was similar. The intervenor had sought permission to intervene under both Fed. R. Civ. P. 24(a) and (b). The latter was referenced only in one sentence in the intervenor's motion . . ., but the court held that this one sentence was sufficient to satisfy the requirements of 24(c). Id. at 1326. See also Shevlin v. Schewe, 809 F.2d 447, 450 (7th Cir. 1987) (applying strict interpretation of Rule 24(c) to the case at hand, but recognizing that it would not do so in all circumstances); Spring Construction Co., Inc. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980) (proper approach is to disregard non- prejudicial technical defects); Beef Industry Antitrust Litigation, 589 F.2d 786, 788-89 (5th Cir. 1979) (discussing Fifth Circuit's lenience regarding compliance with 24(c)). . . .
[W]here, as here, the movant describes the basis for intervention with sufficient specificity to allow the district court to rule, its failure to submit a pleading is not grounds for reversal.
Beckman, 966 F.2d at 474-75. The First Circuit rejected a similar argument in Public Citizen, holding that even where a non-party public interest organization failed formally to move to intervene, the district court should have “granted Rule 24 intervenor status before [it] acted on its motion for access to the discovery materials.” Public Citizen, 858 F.2d at 783-84.
Another example of such successful permissive intervention is Public Citizen’s
intervention in Hammock, where it “generally sought to secure public access to the pleadings,
deposition transcripts, documents and exhibits filed with the court and to unseal the records so it
could obtain evidence that might shed light on the hazards posed by Accutane.” Hammock, 142
N.J. at 364; see also, e.g., In re Franklin National Bank Securities Litigation, 92 F.R.D. 468
(E.D.N.Y.1981) (allowing permissive intervention by nonprofit consumer organization to
intervene to set aside confidentiality order), aff’d 677 F.2d 230 (2d Cir. 1982). Similar to Public
Citizen’s interest in the Hammock case, CARS’ interest ultimately lies in the safety of Goodyear
tires. As stated in CARS’ original Motion, CARS is a national non-profit automobile and
consumer safety organization that advances the public interest by promoting automobile safety
and preventing motor vehicle-related deaths, injuries, and economic losses. See Shahan Cert., at
¶ 4. CARS works to educate the public about avoiding risks of auto-related injury, improve auto
safety technology, and ensure that unsafe and defective automobile-related products are recalled
and fixed before people are hurt. Id. at ¶¶ 6-7. CARS therefore is an appropriate candidate for
permissive intervention and has met the requirements of Rule 4:33-2 for the limited purposes for
which it seeks to intervene.
B. Cars’ Motion Is Timely.
CARS filed its Motion on November 1, 2001, at least eight months before settlement was reached, and only weeks after Plaintiffs’ counsel alerted CARS to the issue. Goodyear’s argument that CARS’ motion is untimely appears to rely on the false premise that CARS’ motion was filed after settlement between the parties was reached. As revealed by Goodyear’s failure to cite any case law to the contrary, even if the Motion had been filed after settlement, it would not necessarily be untimely, since resolution of the underlying litigation does not render such a motion moot. See Chesterbrooke Ltd. Partnership v. Planning Bd., 237 N.J. Super. 118, 124 (App. Div.) (holding that intervention was proper after final adjudication where intervention sought for limited purpose of taking appeal), cert. denied, 118 N.J. 234 (1989). As the First Circuit has stated:
It is . . . important to note that postjudgment intervention is not altogether rare. . . . [Intervenor’s] motion pertains to a particularly discrete and ancillary issue, as demonstrated by the fact that the merits of the case have been already concluded and are no longer subject to review. Because Public Citizen sought to litigate only the issue of the protective order, and not to reopen the merits, we find that its delayed intervention caused little prejudice to the existing parties in this case . . . .
Public Citizen, 858 F.2d at 786.
Indeed, examples of courts’ permitting third parties to intervene for the limited purpose of litigating a protective order after a case has been resolved are legion. E.g. Beckman, 966 F.2d at 471 (approving intervention two years after settlement reached); Public Citizen, 858 F.2d at 785 (approving intervention for limited purpose of vacating protective order four years after judicially-approved consent decree and noting that “to the extent [a right of access] exists, it exists today for the records of cases decided a hundred years ago as surely as is does for lawsuits now in the early stages of motions litigation. . . .”)); Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (permitting third party to intervene after judicially approved settlement to challenge order sealing court documents); FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982) (allowing third party to intervene to challenge stipulated confidentiality order two years after judicially-approved settlement); see also In re Agent Orange Product Liab. Litig., 597 F. Supp. 740, 769 (E.D.N.Y. 1984) (“The court has the power to order documents released even though they were sealed as part of a settlement”), aff’d, 818 F.2d 145 (2d Cir. 1987), cert. denied, 484 U.S. 1004 (1988).
Because CARS moved long before settlement was reached, and because it seeks only to unseal the trial record to vindicate the public interest, rather than to re-litigate the merits of the underlying case, the timing of the proposed intervention is proper. The Court should grant the Motion.
III. GOODYEAR’S “PROPOSED PROCEDURE” IS YET ANOTHER UNFAIR, DILATORY TACTIC THAT THE COURT SHOULD REJECT.
Goodyear “proposes” that the Court delay consideration of whether Goodyear has shown good cause for secrecy until some unspecified date, ruling now only on the issue of whether CARS may intervene and continue to pursue public access. Goodyear Br., at 4-7. The Court should reject this dilatory tactic, especially in light of the extensive briefing the Court has allowed on the issues, as well as Goodyear’s extraordinary and legally indefensible attempt to manipulate the passage of time and the settlement of this case to its advantage.
As the Court is aware, CARS first filed its Motion to Intervene and Vacate or Modify the Protective Order on November 1, 2000. Briefing on all issues concluded months ago. The parties also wrote interim letters to the Court, and recently were given an additional opportunity to file supplemental briefs. Yet, eleven months after CARS’ initial Brief was filed, Goodyear now attempts to avoid a decision by submitting its “proposal” that would drag out these proceedings even further. Goodyear has had sufficient opportunity to present its arguments for good cause, and it has repeatedly failed to do so. Goodyear’s “proposal” would result in wholly unjustified delay and, possibly, avoidable deaths and injuries. The Court should not accept Goodyear’s “proposal”. Instead, it should act swiftly to uphold the law and protect the public interest.
CONCLUSION
For the reasons presented in this Brief, CARS requests that the Court grant its Motion to Intervene and Vacate or Modify the Protective Order. CARS respectfully requests that the Court decline to delay proceedings further, and rule on all issues as they already have been briefed.
Respectfully submitted,
_________________________
CHRISTOPHER M. PLACITELLA, ESQ.
ANGELO J. CIFALDI, ESQ.
ROBERT T. HAEFELE, ESQ.
WILENTZ, GOLDMAN & SPITZER
A Professional Corporation
90 Woodbridge Center Drive
P.O. Box 10
Woodbridge, New Jersey 07095
(732) 636-8000
Attorneys for Intervenors
REBECCA EPSTEIN, ESQ.
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave., N.W., Suite 800
Washington, D.C. 20036
(202) 797-8600
ARTHUR BRYANT, ESQ.
Trial Lawyers for Public Justice, P.C.
One Kaiser Plaza, Suite 275
Oakland, California 94612
(510) 622-8150
Attorneys for Intervenors
cc: All Counsel of Record