From today’s order by Judge John Woodcock (D. Me.) in Doe vs. Smith; Sigmund D. Schutz and Alexandra A. Harriman of PretiFlaherty and I represent those in the media, and my student Timon Amirani worked on our motion. (Please note that our motion to unseal is still pending.)
In addition to the plaintiff’s objection, the Court grants a motion to intervene filed by a trust representing an independent news and media network to seek to open the docket entries and potentially de-pseudonymize the plaintiff depending on the contents of the documents if opened….
On November 14, 2023, John Doe, acting under an alias, filed a civil action in this Court against Sara Smith, another alias, alleging that she violated a nondisclosure agreement and caused harm to the plaintiff. 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 nondisclosure agreement to “promote safety and security by John Doe, [herself]and their daughter” and to avoid “the irreparable harm of allowing the media or the general public to discover, Moreoverthe identity, physical location, and assets of John Doe.” Mr. Doe has filed several motions to seal the documents filed in this case based on his belief that disclosure of his name will cause him irreparable harm, and the Court has accepted these motions….
On February 20, 2024, the Maine Trust for Local News (Maine Trust) filed a motion to intervene to file motions to unseal documents currently under seal and potentially to depseudonymize the case in the future. In its motion, the Maine Trust describes itself as “an independent news and media network serving the entire 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 documents in four docket entries. On February 21, 2024, Sara Smith quickly responded and stated that not only did she not oppose the Maine Trust’s motion to intervene, but that she had opposed various motions to seal John Doe. On March 6, 2024, John Doe filed his opposition to the Maine Trust’s motion to intervene….
The intervention “constitutes an effective mechanism to claim third-party access to information generated through judicial proceedings”. Preliminarily, the Court concludes that Maine Trust’s motion to intervene falls under the permissive intervention provisions of Federal Rule of Civil Procedure 24(b), not the equitable intervention provisions of Federal Rule of Civil Procedure 24(a).
Under this provision, the proposed intervenor must demonstrate “that (1) it has timely moved to intervene; (2) it has an interest in the property or transaction that forms the basis of the pending lawsuit; (3) that the provision such action risks creating a practical obstacle to its ability to protect[] his interest; and (4) no existing party adequately represents its interests.”…
“When the party seeking to intervene does so for a limited purpose and does not seek to become a party to the litigation, the requirement of factual or legal nexus is relaxed, and[s]specificity, for example it is not necessary for the interveners’ argument to involve the same legal argument relied on in the main proceedings.”
[1.] Regarding timeliness, as the Maine Trust points out, news outlets and others “seeking access to court documents can also intervene to open court documents after the judgment.” In support of its position, Maine Trust cites Public Citizen v. Liggett Group, Inc. (1st Circle 1988). The Court finds Public citizen instructive. In Public citizen…the First Circuit cited with approval [an earlier decision’s] observation that”[t]or the entity [a right of access] it exists, it exists today for the documentation of cases decided a hundred years ago with the same certainty as me[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 enforce the public’s right of access to judicial documents. However, if the timeliness requirement applies, 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 respond to the complaint until December 19, 2023. Mr. Doe points out that as early as November 20, 2023, the Portland Press Herald published an article about the lawsuit. It is true that the Maine Trust could then have filed a motion to depseudonymize the lawsuit. But it is also true that the Maine Trust did not realize at the time that the lawsuit would prove controversial.
Nor could the Maine Trust have known to what extent future records would be sealed. As the Maine Trust points out, Ms. Smith stored all of her documents unsealed until January 19, 2024. Initially, Ms. Smith publicly filed a motion for sanctions on February 7, 2024, and after Mr. Doe filed a motion emergency for the seal On February 7, 2024 and February 7, 2024 the Court granted it. The Maine Trust traces its knowledge that the parties would not protect her interest in open access to January 19, 2024, when Ms. Smith began storing her records under seal. Regardless of the date 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 of Mr. Doe’s contention that granting the 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 apart…. With the Court’s granting of the motion to intervene, the briefing of the Maine Trust’s motion to unseal is expected to proceed as usual, and there is no reason to believe that the Maine Trust’s motion will cause delays.
It is true that the Maine Trust suggests that, depending on what it learns if the registry entries are opened, it may also proceed to depseudonymize the complainant. Maine But this motion, if made, should be handled as normal by the parties, the Maine Trust, and the Court, and Mr. Doe suggests no otherwise. Therefore, the Court does not conclude that granting the motion to intervene will delay these proceedings….
[3.] Mr. Doe points out that Ms. Smith objected to the seal and therefore argues that Ms. Smith is able to adequately represent the interests of the Maine Trust. However, Ms. Smith represents her own private interest. The Maine Trust, by contrast, “searches[s] to claim [its] and the public’s common law and First Amendment right of access to judicial proceedings, and that interest is not currently represented by [either] of the parties.” “[T]his consideration weighs in favor of the concession, and not the denial, of the intervention.”…