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State Farm's memorandum in opposition to intevenors' motion to intervene and motion to unseal is an astonishing document. First, State Farm does not contend or even attempt to argue that the sealing of the record in this case was legal. Instead, it attempts to justify the secrecy in this case on the sole basis it bought and paid for the secrecy. This argument is invalid under the law. Moreover, defendant attempts to further bolster this argument by pointing out that there are other cases in this Court and other courts that were similarly settled in secret and also apparently expunged from the public record. There may be other cases where similar questions should be raised.

A. Defendant's argument that unsealing the record would unravel the settlement in this case is without merit because the sealing provision and order are illegal and should not be enforced.

State Farm's sole substantive argument against unsealing the record is that it would upset the settlement of this and a number of other unspecified cases. Defendant's argument does not militate against granting intervenors' motion, however, because a settlement term that violates the law cannot be enforced. See In re Airline Ticket Commission Antitrust Litigation, 953 F.Supp. 280, 284 (D.Minn 1997) (refusing to approve a term in a settlement agreement that would violate antitrust laws, holding that an illegal term renders the settlement invalid, no matter how much the parties wanted it). An illegal act, even entered as an order by the Court, cannot be justified by defendant's willingness to pay the plaintiff. To protect the law, the integrity of the court system and the public's right to know, the Court should grant Intervenors' motions and unseal the records in this case.

B. Intervenor's and the public's First Amendment and common-law presumptive right to access to the courts outweighs any prejudice to the parties.

Defendant's argument that the settlement was predicated on the court's order sealing the file reflects its ardent desire that no trace be left of this case. But the fact that the parties chose to settle the case in secret and seal the records of the case is insufficient to rebut the presumption of public access to the court's files. Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9^th Cir. 1995). Materials on file with the court belong to the public, and once placed in the public record, they cannot be removed merely by stipulation of the parties; instead, the Court must recognize and articulate a "compelling reason" to seal the file, and in the absence of such reasoning, the closure of the Court's file is reversible error. Id. at 1434-35.

State Farm argues that granting intervenors' motions will unfairly prejudice the parties by requiring them and the Court to "shoulder the burden" of actually examining the specific documents in the Court's file to determine which documents should, in their view, continue to remain under seal. But this modest burden, like State Farm's other arguments, is an entirely insufficient ground for rebutting the public's presumptive right of access to the court records in this case. Hagestad v. Tragesser, 49 F.3d at 1434. That the parties might incur some costs in seeking protection for specific documents if they attempted to continue to keep them secret is not grounds for denial of intervenors' motion. Intervenors cannot be faulted for any time and expense the parties incur in attempting to enforce an illegal agreement or court order.

None of the cases State Farm cites supports its argument that unsealing the record would prejudice the parties in any way. Empire Blue Cross & Blue Shield v. Janet Greeson's, 62 F.3d 1217 (9^th Cir. 1995) is distinguishable from this case in several ways. First, that case involved only a confidentiality stipulation with respect to discovery exchanged between the parties, not documents filed with the court, which, unlike discovery documents, are entitled to the presumptive right of access. See, e.g., Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir. 1993). The settlement agreement in Janet Greeson's therefore did not implicate an illegal agreement to seal court records, as the settlement agreement did here. Second, the parties in Janet Greeson's had arguments as to why the discovery documents should be kept confidential, such as patient confidentiality and attorney-client privilege. 62 F.3d at 1220. State Farm makes no assertion of such privacy or privilege concerns here. Finally, in that case, Aetna, the intervenor, knew about the case while it was pending for almost two years before the case settled. Id. at 1219. In contrast, in this case, intervenors did not learn of the case until after it settled. See Affidavit of Sarah Posner, para. 2, attached to Intervenors' Memorandum in Support of Motion to Unseal.

State Farm's citation to United States v. State of Oregon, 913 F.2d 576 (9^th Cir. 1990) is similarly entirely off the point. In that case, the intervenor, a Native American tribe, was an interested party which sought to obtain substantive relief through intervention. Id. at 588. It sought to intervene in a case that had been pending for 20 years, and in which the settlement agreement, which involved regulation of the harvest of salmon and steelhead in the Columbia River, took four years to negotiate. Id. Because the relief the tribe sought would entirely disrupt the substantive terms of the settlement, the court denied the request to intervene. Id. In contrast, intervenors in this case seek to vindicate the public's right of access to court records by challenging a court order that illegally violates that right. Moreover, the delay of four months from the time intervenors' counsel discovered that no record of the case existed on PACER, or the two months from the time they confirmed that the Court had sealed the record, and the time they filed their motions is not the type of delay with which the court was concerned in that case.

Defendant has offered no rational argument as to why it or the other parties would be prejudiced or harmed by the unsealing of the record in this case.

C. Defendant's technical arguments do not defeat intervenors' motions.

Unable to contend that sealing the record in this case was legal, defendant resorts to two technical and non-legal arguments why the Court should deny the Motion to Intervene: that intervenors failed to "meet and confer" pursuant to local rule before filing their motions and that intervenors' motions are not. None have merit and intervenors' motions should be granted.

1. Intervenors had no duty to "meet and confer."

First, LR 7.1 applies to "parties." The proposed intervenors are not parties, and will not be true parties regardless of the disposition of their motion to intervene. Second, proposed intervenors have no obligation to confer with plaintiff and defendant when plaintiff and defendant have no power to give intervenors the relief they seek. Intervenors seek modification of the Court's order, not a change in the parties' position. While a change in the parties position would be helpful, this dispute is not like a discovery dispute, the resolution of which would make filing a motion unnecessary. In other words, the parties' cooperation would not reverse the Court's order. Third, the substance of the parties' opposition to Intervenors' Motion to Unseal makes their position clear. The law does not require intervenors to walk through a futile procedure.

2. Intervenors' motion is timely.

State Farm acknowledges Beckman Industries, Inc., v. International Ins. Co., 966 F.2d 470 (9^th Cir. 1992), but does not acknowledge that its holding on timeliness controls this case. It does: Beckman held that a protective order could be modified--against the wishes of the original parties--even after dismissal of the underlying action. This is the same situation. A motion to intervene is not untimely just because it is filed after settlement or judgment.

It is bizarre to argue, as State Farm does, that the "timeliness clock" was started by the Oregon Supreme Court's decision on certified questions. Intervenors would have to be clairvoyant to know in January of 1998, the date of the Oregon Supreme Court's ruling, that the federal court would enter an order sealing the court's file some eleven months later. It is this Court's Order sealing the file which prompted intervention in the first place, an Order which could not be anticipated from the Oregon Supreme Court's decision. State Farm apparently mistake intervenors' intent. Intervenors would not have moved to intervene in the underlying action, but have only made their motions in response to the Court's extraordinary action in sealing the entire file.

If intervenors' timeliness must be measured, it can only be measured by the intervenors' actual notice that the harm complained of actually took place. That date could conceivably run from attorney's Sarah Posner's abortive computer search, which could have been the result of a computer glitch or other error. More accurately, timeliness could be measured from confirmation of the file's sealing. Counsel's attempt to view the court's physical file was rebuffed on April 2, 1999. See Affidavit of Matthew Whitman, attached to Intervenor's Motions. It was not until that date, when intervenors' viewed the Court's Minute Orders, that intervenors could fully understand the substance and timing of the Court's action.

Last, the cases cited by the parties on the timeliness issue all involved attempts to intervene as a matter of right and litigate claims on the merits, and all involved far greater lapses than in this case.⁽¹⁾ Intervenors do not seek such relief from the limited-purpose intervention they seek. Intervenors only want the Court to reverse its Order illegally restricting the public's right to view the record of this case. Intervenors do not seek to alter any substantive terms of the settlement which the parties were free to enter into. To the extent that the parties agreed that obtaining such an order would be a term of their settlement, such an agreement is illegal and should not be enforced. The Court's reversal of its Order therefore will not work a prejudice on the parties, but rather would vindicate the rights of the public and the integrity of the courts.

For all the foregoing reasons, and the reasons set forth in intervenors' opening papers, intervenors request that their motions be granted.

DATED this 30^th day of June, 1999.

By:

Lawrence Baron, OSB No. 81144
Matthew Whitman, OSB No. 98376
Law Office of Lawrence Baron, P.C.
621 S.W. Morrison, Suite 950
Portland, Oregon 97205
Phone: (503) 417-1117
 

Kathryn Clarke, OSB No. 79189
921 S.W. Washington, Suite 764
Portland, Oregon 97205
Phone: (503) 224-7963
 

Sarah Posner
Trial Lawyers for Public Justice, P.C.
1717 Massachusetts Ave. N.W., Suite 800
Washington, D.C. 20036
Phone: (202) 797-8600
 
Attorneys for Intervenors

ENDNOTE

1. U.S. v. State of Washington, 86 F.3d 1499 (9th Cir. 1996) (in case involving competing shellfish-harvesting interests of state of Washington, commercial fishing associations, and fifteen Indian tribes, application for intervention on merits by three more commercial fishing groups at "stage of final implementation" of settlement of 25-year litigation, deemed untimely); U.S. v. State of Oregon, 913 F.2d 576 (9th Cir. 1990) (in case involving allocation of harvest of Columbia River salmon and steelhead, seven of nine original parties had moved for approval of fishery management plan; Makah Tribe's petition to intervene on merits rejected because intervention would expand the scope of the original case and was made after 20 years of litigation and four years of settlement negotiations); County of Orange v. Air California, 799 F.2d 535 (9th Cir. 1986) (City of Irvine's motion to intervene on the merits after settlement of environmental quality challenges to proposed expanded use of John Wayne Airport denied; Irvine "should have realized" that well-publicized negotiations, after five years of high-profile litigation, might not fully protect its interests).