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Estate of ROBERT FRANKL, SUPERIOR COURT OF NEW

deceased, by Administratrix of JERSEY LAW DIVISION:

the Estate, LORI FRANKL, and MERCER COUNTY

LORI FRANKL, ERIC FRANKL,

ASHLEY FRANKL, and BRIAN FRANKL

Individually, and Estate of

KAREN BUDIAN, deceased, by :DOCKET NO. MER-L-003052-99

Administrator of the Estate,

GEROLF O. BUDIAN, and GEROLF O.

BUDIAN, Individually, GARRY E.

SITZE and TOMMYE SITZE, his

wife,

Plaintiffs,

GOODYEAR TIRE AND RUBBER

COMPANY, et al,

Defendants.

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______________________________________________________________________________

BRIEF OF CONSUMERS FOR AUTO RELIABILITY AND SAFETY IN SUPPORT OF MOTION TO INTERVENE, VACATE OR MODIFY PROTECTIVE ORDER, AND SEEK PUBLIC ACCESS TO DOCUMENTS

______________________________________________________________________________

WILENTZ, GOLDMAN & SPITZER

90 Woodbridge Center Drive

P.O. Box 10

Woodbridge, New Jersey 07095

(908) 636-8000

TRIAL LAWYERS FOR

PUBLIC JUSTICE

1717 Massachusetts Ave., N.W., Ste. 800

Washington, D.C. 20036

(202) 797-8600

- and -

One Kaiser Plaza, Suite 275

Oakland, California 94612

(510) 622-8200

REBECCA E. EPSTEIN, ESQ.

ARTHUR H. BRYANT, ESQ. Attorneys for Intervenors

ROBERT T. HAEFELE, ESQ.

On The Brief

I. TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

THE PROPOSED INTERVENOR’S INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

I. CARS’S MOTION TO INTERVENE SHOULD BE GRANTED

PURSUANT TO NEW JERSEY COURT RULE 4:33-2. . . . . . . . . . . . . . . . . . . . . . . . . .7

II. THE COURT SHOULD VACATE OR, IN THE ALTERNATIVE, MODIFY THE UMBRELLA PROTECTIVE ORDER IN THIS CASE. . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. The Court Should Vacate the Umbrella Protective Order in its Entirety. . . . . . . 10

1. Goodyear Did Not Make the Required Showing of Good Cause
Necessary for the Entry of the Umbrella Protective Order. . . . . . . . . . . .10

2. Goodyear Cannot Make the Required Showing of “Good Cause”
Necessary for the Continuation of the Umbrella Protective Order. . . . . . 12

B. If the Umbrella Protective Order is Not Vacated in its Entirety,
Paragraphs Five and Six of the Order Need to be Modified. . . . . . .. . . . . . . . . 15

III. THE COURT SHOULD GRANT PUBLIC ACCESS TO THE DEPOSITION TRANSCRIPT AND DOCUMENTS CURRENTLY CONTESTED IN THIS CASE AND REJECT GOODYEAR’S EFFORTS TO KEEP THEM SECRET. . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

CARS seeks to intervene in this case to make sure that this gruesome scenario is not repeated here. The Goodyear tires at issue in this case are reportedly in use on millions of vehicles throughout the world. Plaintiffs’ counsel - who has seen the sealed pleadings and documents - sincerely believes that they do not contain trade secrets, that “the public has a strong interest in disclosure because of the public safety issues,” and that “this is a case that demands action to prevent further injuries and death.” See Certification of Rosemary Shahan (hereinafter “Shahan Cert.”) ¶ 16, Exhibit A, at 2, 3. The Los Angeles Times has reported that, five years ago, one of Goodyear’s engineers noted an “alarming” problem with the tires and made a design change to make them stronger - but did not recall the millions already out on the road. Shahan Cert. ¶ 11, 17(b), Exhibit C, at 1. And numerous newspaper articles report varying numbers of deaths and injuries related to the tires. Shahan Cert. ¶¶ 13-14, 17(a)-(e), Exhibits B-F. Yet neither the public nor the government can determine the truth about these tires, because the pleadings and discovery in this case are sealed by a protective order.

CARS urges this Court to remove this unjustified shield, which prevents public access to these important documents. CARS respectfully submits that Goodyear cannot make the required evidentiary showing that its need for secrecy outweighs the public interest in access to the contested pleadings and documents in this case.

THE PROPOSED INTERVENOR’S INTEREST

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. ¶ 4. CARS seeks to intervene, vacate or modify the protective order, and obtain public access to the key pleadings and documents in this case so CARS, the public, and the government can determine whether the tires at issue here pose a danger to drivers and passengers and, if so, take appropriate action.

CARS’s interest in both this case and the potential danger of the Goodyear tires at issue here stems directly from CARS’s public interest mission. The Board and Advisory Board of CARS include victims of automobile-related injuries, as well as some of the nation's leading consumer protection experts, including Jean Ann Fox (Consumer Director of the Consumer Federation of America), Pamela Gilbert (Executive Director of the Consumer Product Safety Commission), and Steven Taterka (former Deputy Attorney General of Indiana and member of the National Association of Attorneys General Task Force on Autos.). Shahan Cert. ¶¶ 4, 5. CARS regularly works to expose illegal practices, improve auto safety technology, and ensure that unsafe and defective automobile-related products are recalled and fixed before people are hurt. Shahan Cert. ¶ 6.

One of the means CARS uses to reduce the risk of injury is to obtain information and make it available for the public to use to make educated decisions about how to avoid risks of auto-related injury or harm. For example, each year, thousands of individual consumers contact CARS for auto safety information and assist with auto sales and service problems. Numerous government agencies and other consumer groups routinely refer consumers to CARS to obtain information regarding auto safety information. Shahan Cert. ¶¶ 6, 7.

CARS seeks to intervene in this matter because the protective order currently keeps secret important auto safety information. This information could have a great impact on the public interest that CARS serves to foster and protect. CARS seeks public access to this interest to assist individuals in making informed decisions about how to avoid risks of vehicular injury or harm. Shahan Cert. ¶¶ 8, 14. It strongly believes that the public has a right to know whether these Goodyear tires are a threat to drivers, passengers, and pedestrians.

STATEMENT OF FACTS

CARS’s knowledge of the underlying facts of this litigation is necessarily limited because key documents and pleadings have been sealed. Nevertheless, certain information about the case can be determined from the October 18, 2000 certification of Plaintiffs’ counsel, the complaint filed in the case, and recent accounts in the media.

Plaintiffs filed suit against Defendant Goodyear alleging injuries arising out of a July 1997 accident that occurred when the tire tread on a Goodyear Wrangler light truck tire separated. The accident involved six Air Force officers riding in a 1996 GM Suburban. The vehicle rolled over, killing three and injuring the remaining occupants. Certification of Christine Spagnoli in Support of Motion to Modify Confidentiality Order (hereinafter “Spagnoli Cert.”), at ¶ 2.

In her certification to this Court, Plaintiffs’ counsel, Christine Spagnoli, identified a number of similar accidents that correlate with tread separation of the same type of Goodyear tires. For example, Attorney Spagnoli previously represented an individual in a suit, Mathews v. Goodyear Tire and Rubber Co., Inc., Case No. PC018776 W (Cal. Sup. Ct. 1997), that involved remarkably similar allegations about the same Goodyear tires. Attorney Spagnoli has also identified seven other deadly or catastrophic accidents concerning the same Goodyear tires. According to the information in her certification, the nine identified accidents that related to tread separation on Goodyear tires involved a total of 28 occupants, seven deaths and several other catastrophic injuries, including a three-year comatose farm worker and a school teacher whose arm was amputated when the student-filled school van in which he was traveling rolled over. See Spagnoli Cert. ¶¶ 3, 9, 10.

When the case in this Court was initiated in New Jersey, Attorney Spagnoli again requested the documents and Goodyear again sought and obtained an order keeping any information or document that Goodyear labels “confidential” secret. Spagnoli Cert. ¶ 7. The order provides that, if Plaintiffs’ counsel contests Goodyear’s designation of any document or information as confidential, then Goodyear has an affirmative obligation to file an application within a reasonable time to justify the protection. Stipulated Confidentiality Order, at 3, ¶ 7. The order further requires that all pretrial “writings submitted to or filed with the Court ... which contain, set forth, summarize, or otherwise refer to” any information or document labeled confidential by Goodyear must be filed under sealed and kept secret from the public. Id. at 3, ¶ 5. As a result, the documents produced by Goodyear in this case, as well as Goodyear’s pleadings relating to them, remain under seal. Neither the public nor government officials can currently see them, even though Plaintiffs’ counsel - who has seen them - sincerely believes that they do not contain trade secrets, that “the public has a strong interest in disclosure because of the public safety issues,” and that “this is a case that demands action to prevent further injuries and death.” Shahan Cert. ¶ 16, Exhibit A, at 2, 3.

Media accounts provide strong support for Attorney Spagnoli’s concern for the public safety issues presented by the secrecy in this case. For example, the Los Angeles Times has reported that one of Goodyear’s own engineers identified an “alarming” rate of increase in liability claims against the company five years ago, predominantly due to problems with the same tires. Shahan Cert. ¶ 11, 17(b), Exhibit C. Although Goodyear strengthened the design of the tire, it never recalled the tire or warned safety regulators of the hazards. Id. As a result, millions of the tires are reported to remain in use on the road today. Id.

In light of the multiple incidents involving tread separation of Goodyear tires and the possibility of many more incidents as yet unknown, there is a strong public interest in access to the pleadings and key discovery documents in this case. Unless the protective order entered in this case is vacated or modified and public access is granted, the public and the government will be hindered in their efforts to determine whether the tires in this case pose a serious danger to drivers and passengers throughout the nation and the world.

CARS’s limited intervention would, moreover, meet the Rule’s requirement that it share common questions of law and fact with the main action. The issue presented in both the main action and CARS’s motion is whether Goodyear can and will demonstrate good cause sufficient to defeat motions to dissolve or modify the existing protective order. Similarly, in both the main action and in this motion, the strength of Goodyear’s need for confidentiality must be weighed against the interest of the public and other litigants in disseminating the protected materials to protect health and safety interests. Indeed, Plaintiffs have raised these issues on their own behalf. See Plaintiffs’ Motion to Vacate or Modify the Protective Order.

Finally, intervention will not prejudice the rights of the original parties. Plaintiffs seek a remedy similar to that sought by CARS and do not oppose CARS’s intervention. Goodyear will not be prejudiced by the intervention because it must, nonetheless, make similar showings to oppose Plaintiffs’ Motion to Vacate or Modify the Protective Order. Further, Goodyear will still have to make a showing of good cause to resist the application from Plaintiffs to dissolve the protective order at the conclusion of the case. For all of these reasons, CARS’s limited motion to intervene should be granted.

II. THE COURT SHOULD VACATE OR, IN THE ALTERNATIVE, MODIFY THE UMBRELLA PROTECTIVE ORDER IN THIS CASE.

CARS’s motion to vacate the protective order should also be granted. The umbrella protective order entered in this case should be vacated in its entirety because Goodyear never made the showing of “good cause” required for its entry and, in any event, cannot make such a showing now. If Goodyear believes there are documents that are truly deserving of secrecy, it should be required to show good cause for keeping those specific documents secret, not allowed to rely on an overbroad umbrella protective order that allows Goodyear to unilaterally label documents “confidential” and automatically file pleadings and documents under seal. In the alternative, if the Court finds that Goodyear has shown good cause for the entry of an umbrella protective order, it should still modify the terms of the order to bar Goodyear from routinely filing nondiscovery pleadings under seal, prohibit Goodyear from sealing entire pleadings when redaction is possible, and order Goodyear to preserve all documents that may be returned to it at the end of the case.

A. The Court Should Vacate the Umbrella Protective Order in its Entirety.

1. Goodyear Did Not Make the Required Showing of Good Cause Necessary for the Entry of the Umbrella Protective Order.

Rule 4:10-3 governs the issuance of a protective order. The Rule provides:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court may make any order which justice requires... including, but not limited to . . .

(g) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way. . . .

R. 4:10-3 (emphasis added). Thus, no protective order can be entered pursuant to Rule 4:10-3 unless there is “good cause shown”.

While New Jersey case law under Rule 4:10-3 is limited, Federal Rule of Civil Procedure 26 (c) has similar wording. Thus, New Jersey Courts routinely turn to the federal courts for assistance in interpreting the rule. Hammock, 142 N.J. at 369 (noting the purposes of the federal and state rules are “substantially the same”); Kerr v. Able Sanitary and Envtl. Servs., Inc., 295 N.J. Super. 147, 156 (N.J. Super. Ct. App. Div. 1996) (“Because Rule 4:10-3 follows the text of Fed. R. Civ. P. 26(c), federal decisions construing the corresponding federal rule offer some insight into the issue.”) (citing Hammock). And the federal cases make clear that the “good cause” requirement applies fully to a party seeking the entry of an umbrella protective order. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 n.17 (3^rd Cir. 1994) (citing Cipollone v. Liggett Grp., 785 F.2d 1108, 1122 (3^rd Cir. 1986), cert. denied, 484 U.S. 976 (1987)).

This is not a casual requirement. The “good cause” standard requires a particularized showing that disclosure of a given document will work a clearly defined and serious injury to the party seeking closure. Pansy, 23 F.3d at 786-87 (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3^rd Cir 1984)). The party must articulate particularized reasons that secrecy is justified for each document; the claims must be more than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning”. Cipollone, 785 F.2d at 1121; accord Anderson v. Cryovac, 805 F.2d 1, 7 (1^st Cir. 1986); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8^th Cir. 1973), cert. denied, 414 U.S. 1162 (1974); Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 1998 U.S. Dist. LEXIS 22198, Civ No. 96-5416 (D.N.J. May 7, 1998). As a federal district court in New Jersey stated in finding that a party failed to meet the good cause burden:

While this Court recognizes that umbrella-type protective orders, such as submitted by defendants here, are valid, nonetheless, the movant still is required to make a threshold showing of good cause. But as illustrated by the broad and conclusory allegations in Aetna's brief, . . . there is a total absence of specificity from which this Court can find that these documents are confidential and if so what harm will result from their disclosure.

Nestle Foods Corp. v. Aetna Casualty and Surety Co., 129 F.R.D. 483, 486 (D.N.J. 1990) (internal citations omitted); accord Glenmede Trust Co. v. Hutton, 56 F.3d 476, 484 (3^rd Cir. 1995) (stating it is party’s burden to demonstrate that it will sustain specific injury from public dissemination).

Since the umbrella order was first entered, there have been two dramatic changes in circumstances. First, when Goodyear first sought secrecy, neither Plaintiffs’ counsel nor this Court was aware of the numerous other crashes involving the same type of tires at issue in this case. Pl.s’ Brief in Supp. of Cross-Mot. to Modify Confidentiality, at 6. Consequently, neither Plaintiffs’ counsel nor the Court recognized the public safety implications of Goodyear’s desire for secrecy. Since that time, however, Plaintiffs’ counsel has discovered -- and informed the Court of -- numerous other instances of similar crashes. See id. In addition, new evidence published in the media indicates that the problem may be more widespread than even Plaintiffs recognize. Shahan Cert. ¶¶ 9-13. For example, according to the Los Angeles Times, Goodyear received an “alarming” increase in liability complaints five years ago regarding the tires at issue in the case and changed the tire design to strengthen it, but never recalled the tire or warned safety regulators or the public of the hazards. Shahan Cert. ¶ 11. As a result, millions of the tires apparently remain in use on the road today. Id. This newly-revealed evidence alone justifies vacating the protective order. See In re Agent Orange Product Liability Litigation, 821 F.2d 139, 146 (2^d Cir.) (regarding filing requirement of Federal Rule 5(d) and interpretation of Rule 26(c), citing letter to editor of New York Times by Chairman of the Advisory Committee on Civil Rules, which stated that “should the public importance of the material not appear until after filing has been excused, it is expected that the judge, upon motion of the press or other interested persons, would order the parties to file the documents for inspection”), cert. denied, Dow Chemical Co. v. Ryan, 484 U.S. 953 (1987).

Second, after the protective order was entered, public interest in the issue of tire tread separation exponentially increased - primarily because the government and public learned of the danger of the Bridgestone/Firestone tires. In August 2000, Bridgestone/Firestone recalled over 6 million tires after reports of the tire tread separations on tires used on sports utility vehicles. Van Etten v. Bridgestone/Firestone, Inc., No. CV-298-69, slip op. at 6 (S.D. Ga., Sept. 27, 2000) (unpublished opinion) (Exhibit A) (attached). Many federal class action and personal injury cases were filed against Bridgestone/Firestone over the recalled tires. On September 27, 2000, one federal court lifted the seal on a case involving tread separation of Bridgestone/Firestone tires, Van Etten, No. CV-298-69, slip op. at 21, thereby further revealing to the public the extent to which this problem affects Americans across the country. Significantly, the court cited recent media coverage and public interest, as well as the recall of tires and the resulting congressional hearings on the issue, in its opinion holding that the documents in that case should be unsealed. Van Etten, No. CV-298-69, slip op. at 5-6. It stated: “Thus, the public and media interest in cases such as the Van Etten case involving allegedly defective . . . tires . . . is substantial, and deservedly so, because the use of defective automobile tires linked to numerous deaths raises serious public health and safety concerns.” Id.

Partly in response to the Bridgestone/Firestone debacle, the media has already expressed interest in the case at bar. It has published articles about the case and sought to intervene to seek access to pleadings and documents, too. See Shahan Cert. ¶ 17(a)-(e), Exhibits B-F; Los Angeles Daily Journal’s and Los Angeles Times’ Motion to Modify Protective Order, filed Oct. 27, 2000. This Court should not allow the potential dangers of the tires in this case to be hidden any longer. In light of the new evidence that reveals the extent of the potential impact of this case on the public and future litigants, as well as the recent increase in the media and public awareness and interest in the issue of tire tread separation, Goodyear cannot prove current justification for the umbrella protective order.

For all of the foregoing reasons, the umbrella protective order should be vacated. If Goodyear believes secrecy is justified for specific documents, it should be required to make a good cause showing in regard to those specific documents and should not be allowed to rely on an umbrella protective order.

B. If the Umbrella Protective Order is Not Vacated in its Entirety, Paragraphs Five and Six of the Order Need to be Modified.

Even if an umbrella protective order could somehow be justified in this case, the order entered here must be modified. It is fatally overbroad in three respects.

Third, paragraph six of the protective order should be modified because it provides that Plaintiffs’ counsel must return all documents unilaterally designated by Goodyear as confidential after the litigation has been resolved, without requiring Goodyear to preserve the documents. This provision runs the risk that the designating party will destroy these documents after the current litigation has concluded, thereby preventing future litigants from obtaining them.[7] The American Bar Association has formally recommended that provisions requiring the return of documents should be conditioned on prohibiting the producing party from destroying the documents after they are returned. Recommendations 10-12 of the American Bar Association Action Commission to Improve the Tort Liability System (adopted by the House of Delegates, February 1987) (recommending that the opposing party should be required not to “destroy any such documents so that they will be available, under appropriate circumstances, to government agencies or to other litigants in future cases”). Because of the potential for other similarly situated litigants to bring actions against Goodyear after this case has been resolved, if the protective order is not vacated in its entirety, paragraph six should be modified to prohibit the destruction of any documents or information returned to Goodyear after the case is resolved.

III. THE COURT SHOULD GRANT PUBLIC ACCESS TO THE DEPOSITION TRANSCRIPT AND DOCUMENTS CURRENTLY CONTESTED IN THIS CASE AND REJECT GOODYEAR’S EFFORTS TO KEEP THEM SECRET.

The standard for a party to establish good cause under Rule 26(c) is high.[8] Good cause is established when a party shows -- and a court finds[9] -- that disclosure will work a clearly defined and serious injury to the party seeking closure. Pansy, 23 F.3d at 786-87 (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3^rd Cir 1984)). The party must articulate particularized reasons that secrecy is justified for each document; the claims must be more than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning”. Cipollone, 785 F.2d at 1121; accord Anderson v. Cryovac, 805 F.2d 1, 7 (1^st Cir. 1986) (“A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements.”) (citing 8 C. Wright & A. Miller, Federal Practice and Procedure § 2035, at 264-65 (1970)); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1212 (8^th Cir. 1973) (“The burden is . . . upon the movant to show . . . a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements”) (quoting C. Wright & A. Miller, Federal Practice and Procedure: Civil §§ 2035, at 264-65), cert. denied, 414 U.S. 1162 (1974); Cooper Hosp./Univ. Med. Ctr. v. Sullivan, 1998 U.S. Dist. LEXIS 22198, Civ No. 96-5416 (D.N.J. May 7, 1998) (holding party failed to show good cause under Federal Rule 26(c)(7) where it failed to identify adequately what type of information could be misappropriated by competitors). Goodyear cannot meet this heavy burden with generalized claims of trade secrets or confidentiality.

Moreover, even if the Court determines that Goodyear has cause to claim secrecy, this Court must then engage in a balancing process to weigh the public interest in disclosure against Goodyear’s confidentiality concerns. Id. at 787 (setting forth balancing test under Federal Rule 26 weighing harm to party seeking protection against importance of disclosure to public); see Payton, 148 N.J. at 545 (describing courts’ “exquisite weighing process” to determine whether to order disclosure of sensitive documents and the “rare circumstances” under which self-critical privilege applies) (citations omitted); Wylie, 195 N.J. Super. at 337 (for privilege to apply, party must show public need for confidentiality that outweighs the public need for disclosure); see also, e.g., CPC Int’l Inc. v. Hartford Accident and Indemnity Co., 262 N.J. Super. 191, 202 (1992) (rejecting privilege and ordering disclosure to adverse party because the public interest weighs heavily in favor of disclosure).

The public safety issue presented by this case tilts the balance heavily in favor of public disclosure of the contested documents. “[A]ccess is particularly appropriate when the subject matter of the litigation is of especial public interest . . . .” In re Agent Orange, 821 F.2d at 146. New Jersey courts have expressed particular concern about public access in cases involving public safety. See Hammock, 142 N.J. at 378 (“Independent of the interests of the parties and their attorneys in the litigation that comes before our courts, there is a profound public interest when matters of health, safety and consumer fraud are involved.”); CPC Int’l, 262 N.J. Super. at 202 (holding information discoverable in light of public interest in preventing and remediating environmental pollution). The Third Circuit, moreover, has expressly held:

It is important to note that CARS’s argument in regard to the contested deposition transcript and discovery documents is grounded in the requirements of Rule 4:10-3, rather than the common law right of access. The First Circuit found this distinction to be critical when it reviewed a decision concerning a similar motion to modify a protective order under Rule 26(c): “[It is] very significant that [the intervenor] has not asserted a common law or first amendment right of access. . . . Rather, . . . [the intervenor] asks for no more than compliance with the legislative scheme embodied in the federal rules.” Public Citizen, 858 F.2d at 788. The First Circuit distinguished cases in which courts rejected disclosure motions based on the common law right of access. It noted that, unlike common-law arguments regarding access, a rules-based argument does not demand that the common law trump the application of the federal rules. Instead, arguments based on the rules of civil procedure merely ask that the courts comply with the rules and the high good-cause standard they set for issuing protective orders. Thus, because the access claim in Public Citizen was based on the rules of civil procedure, the court stated that “the merits of the claim must be judged by the text of the rules and the applicable cases interpreting the rules.” Id. at 789.

The Third Circuit cited the same distinction when deciding a similar motion to allow public access to discovery motions. Leucadia, 998 F.2d at 165. The motion before the Leucadia court, unlike Public Citizen, was based on the common law. It strongly indicated that it would have granted the motion, if it had been brought under the Rules:

[W]e see little need to extend the federal common law to discovery motions at this time when there is in existence a source of law for the normative rules governing public access to discovery materials, that is Rules 5(d) and 26(c) of the Federal Rules of Civil Procedure. It is significant that the First Circuit, . . . holding there is no common law of access to discovery motions, held two years later . . . that Rules 5(d) and 26(c) . . . provide a basis pursuant to which a district court may lift its protective order precluding a party from making public unfiled discovery materials.

Id. (emphasis added) (citations omitted). In this case, as in Public Citizen, CARS merely asks the Court to apply Rule 4:10-3 to the case at bar, and allow public access to the discovery documents unless appropriate proof of good cause is shown. Because Goodyear cannot make such a showing, the documents should not be kept secret.

CONCLUSION

For the foregoing reasons, the Proposed Intervenor, CARS, respectfully submits that this Court should grant its motion in full. CARS should be permitted to intervene for the limited purpose of vacating or modifying the stipulated blanket protective order entered in this case. Furthermore, because Goodyear did not and cannot prove the necessary good cause exists to warrant the blanket protective order, the order should be vacated. In the alternative, the Court should modify the protective order to allow public access to all nondiscovery pleadings, permit sealing of only those portions of pleadings for which secrecy is justified, and require Goodyear to preserve all information and documents returned to it at the conclusion of this case. Finally, the Court should grant public access to the deposition transcript and discovery documents that

Plaintiffs have contested and deny Goodyear’s motion to keep them secret.

Respectfully submitted,

Christopher Placitella

Robert Haefele

Wilentz, Goldman & Spitzer, P.C.

90 Woodbridge Center Drive

P.O. Box 10

Woodbridge, New Jersey 07095

(732) 636-8000

Rebecca Epstein

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave. N.W., Suite 800

Washington, D.C. 20036

(202) 797-8600

Arthur Bryant

Trial Lawyers for Public Justice, P.C.

One Kaiser Plaza, Suite 275

Oakland, California 94612

(510) 622-8150

Attorneys for Proposed Intervenor

[1] In conjunction with a motion to intervene, Court Rule 4:33-3 requires the service of a supplemental pleading setting forth the claim or defense for which intervention is sought. However, because CARS seeks to intervene for the limited purpose of vacating or modifying the protective order and to seek access to certain discovery materials, it appears that such a pleading is unnecessary. If the Court deems the additional pleading necessary, CARS respectfully requests the opportunity to so file.

[2] Courts have widely recognized that the correct procedure for a nonparty to challenge a protective order is through permissive intervention for that purpose. See, e.g., United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10^th Cir. 1990), cert. denied, 111 S. Ct. 799 (1991); Hammock, 142 N.J. at 359; see also Beckman Indus., Inc. v. International Ins. Co., 966 F.2d 470 (9^th Cir. 1992), cert. denied, 113 S. Ct. 197 (1992); Public Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783-784 (1^st Cir. 1988), cert. denied, 109 S. Ct. 838 (1989); Meyer Goldberg v. Fisher Foods, 823 F.2d 159, 162 (6^th Cir. 1987); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 294 (2^nd Cir. 1979); In re Beef Industry Antitrust Litigation, 589 F.2d 786, 789 (5^th Cir. 1979).

An independent jurisdictional basis is not required to grant the motion to intervene, because CARS does not seek to litigate a claim on the merits or to become a party generally to the action. CARS asks only that the Court exercise power that it already has, namely, the power to modify the protective order. Beckman, 966 F.2d at 473; see Pansy v. Borough of Stroudsburg, 23 F.3^rd 772 (3^rd Cir. 1994).

[3] Plaintiffs’ counsel entered into the agreement in the earlier case before she learned that the tread on this model of tire had separated in other incidents. Spagnoli Cert. ¶ 8.

[4] Claims of reliance on the protective order should not prevent the Court from modifying the protective order. The Third Circuit has expressly held that reliance does not insulate orders from subsequent modification. Pansy, 23 F.3d at 790. More specifically, the Third Circuit also stated that parties will be presumed to have relied less on a protective order when it is blanket order, like the one issued in this case, which are usually entered for the sake of expediency in a complex case. Id., 23 F.3d at 790 n.26, (citing Public Citizen, 858 F.2d at 790). Similarly, parties cannot claim to have relied on protective orders regarding pretrial stages of litigation because they are, by virtue of their limited scope, impermanent documents. In re Agent Orange Product Liability Litigation, 821 F.2d 139, 147 (2^d Cir.), cert. denied, Dow Chemical Co. v. Ryan, 484 U.S. 953 (1987).

[5] The burden of proof remains the same, regardless of whether a party challenges a confidentiality designation or a non-party moves to intervene for the limited purpose of modifying the order. Leucadia, 998 F.2d at 166.

[6] Redaction is particularly relevant if Goodyear has asserted claims of privilege. The New Jersey Supreme Court has prescribed a document-by-document approach to determine the applicability of such claims. Hammock, 142 N.J. at 382. This analysis allows the portions of a given document that are not privileged to be available to the public. For example, if a document that contained self-evaluative analysis also contained non-privileged factual information, the factual information should not be protected. Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 545-48 (1997); see also Wylie v. Mills, 195 N.J. Super. 332, 337 (1984).

[7] This case provides an instructive illustration of the possibly narrow avoidance of just such a problem. Plaintiffs’ counsel was involved in previous litigation against Goodyear, Mathews v. Goodyear Tire and Rubber Co., Inc., Case No. PC018776 W (Cal. Super. Ct. 1997). Ultimately, that case was settled. Plaintiffs’ counsel returned the documents pursuant to the protective order in that case. At the time she settled Mathews, however, she knew she was going to file the instant case. Anticipating that lawsuit, she specifically requested that Goodyear not destroy the documents that she had just returned. Spagnoli Cert. at 2-3, ¶¶ 4-5. This circumstance, however, is unusual. Without a provision prohibiting destruction, future litigants who file suit against Goodyear after the resolution of current litigation could risk Goodyear’s destroying the documents that were produced -- and returned - in this case. Instead, Goodyear should be preventively required not to destroy the documents.

[8] One of the reasons for a high standard to establish good cause for a protective order is that “such materials are sometimes of interest to those who may have no access to them, such as members of a class, litigants similarly situated, or the public generally”. Ex rel. Stinson, Lyons, Gerlin & Bustamante v. The Prudential Ins. Co., 944 F.2d 1149, 1159 (3^rd Cir. 1991) (citing Fed. R. Civ. P. 5(d) advisory committee note to 1980 amendment); In re Agent Orange, 821 F.2d at 146.

Another reason for the high standard is the presumptive statutory right of access to discovery materials. Federal courts have held that the obverse of Rule 26(c)’s good cause requirement is that, when there is no showing of good cause, there is a presumed right of access. In re Agent Orange, 821 F.2d at 146 (“Any other conclusion effectively would negate the good cause requirement of rule 26(c): Unless the public has a presumptive right of access to discovery materials, the party seeking to protect the materials would have no need for a judicial order since the public would not be allowed to examine the materials in any event.”); accord Public Citizen, 858 F.2d at 790 (“It is implicit in Rule 26(c)'s ‘good cause’ requirement that ordinarily (in the absence of good cause) a party receiving discovery materials might make them public.”); see also Leucadia, 998 F.2d at 165 (in context of declining to extend common law to apply to discovery motions, indicating that the Federal Rules would provide the relief sought).

[9] The Court must make specific findings of good cause as to each document. Hammock, 142 N.J. at 382. This requirement is not eviscerated by the need to preserve confidentiality: “Where the secrecy is sought based on trade secrets, privileges, proprietary information or the like, the trial court must nonetheless state with particularity the facts, without disclosing the secrets sought to be protected that currently persuade the court to seal the document or continue it under seal.” Id.

[10] Of course, due to the nature of the protective order in this case, CARS has no access to Goodyear’s pleading in which it ostensibly argues the basis for its confidentiality designation. CARS therefore cannot analyze Goodyear’s particular arguments. If the Court finds it necessary to address these arguments, CARS respectfully requests access to all relevant pleadings so that it might do so. E.g. Hammock, 142 N.J. at 384-85 (noting that intervenors were permitted to examine documents to assist with preparation for motion to modify protective order, suggesting all intervenors should have been allowed equal access). CARS notes that the protective order allows other litigants against Goodyear to have access to the confidential documents at issue. This provision indicates that Goodyear’s interest in secrecy is not so overwhelming that it would be unduly prejudiced by CARS accessing the same documents.

I. TABLE OF CONTENTS

A. The Court Should Vacate the Umbrella Protective Order in its Entirety. . . . . . . 10

B. If the Umbrella Protective Order is Not Vacated in its Entirety, Paragraphs Five and Six of the Order Need to be Modified. . . . . . .. . . . . . . . . 15

B. If the Umbrella Protective Order is Not Vacated in its Entirety,
Paragraphs Five and Six of the Order Need to be Modified. . . . . . .. . . . . . . . . 15