San Jose Mercury News v. U.S. Dist. Ct., 99-70062

Citation187 F.3d 1096
Decision Date16 July 1999
Docket NumberNo. 99-70062,99-70062
Parties(9th Cir. 1999) SAN JOSE MERCURY NEWS, INC.,Petitioner, v. U.S. DISTRICT COURT -- NORTHERN DISTRICT (SAN JOSE),Respondent, LORA SALDIVAR; SHANNON CALBY; CITY OF MOUNTAIN VIEW,Real Parties in Interest
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
OPINION

B. FLETCHER, Circuit Judge:

The San Jose Mercury News, Inc. ("Mercury News") petitions for mandamus in an effort to gain access to an investigatory report commissioned by the City of Mountain View ("Mountain View") in connection with a sexual harassment suit brought by two female police officers ("Plaintiffs") against Mountain View and its police department ("Defendants"). In order to obtain the report, the Mercury News sought permissive intervention in the action before the district court. The district court denied the motion, prompting the newspaper's petition for mandamus relief. We grant the writ, vacate the district court's order denying the Mercury News' motion to intervene, and remand for further proceedings.

I.

The relevant facts are undisputed. In early 1996, the Plaintiffs filed discrimination charges with the EEOC against the Defendants. After receiving "right to sue" letters from the EEOC, the Plaintiffs filed the underlying suits alleging, among other things, that the Mountain View Police Department maintained a work environment hostile to its female employees in violation of state and federal law.

In response to the discrimination charges, the Defendants retained an independent expert, Geraldine Randall, to investigate the allegations and produce a report detailing her findings ("Report"). During discovery, the Plaintiffs sought production of the Report. This set off an extended series of discovery disputes between the parties, spanning almost six months. In the end, the Defendants lost the fight -- the district court ordered the Report produced. The parties, however, stipulated to a protective order that kept the Report from becoming public.1 The district court entered the protective order on February 18, 1998.

Mercury News coverage of the discrimination suit apparently began in January 1998, with a story detailing the Plaintiffs' allegations and the Defendants' efforts to withhold the Report. On May 14, 1998, the Mercury News filed a motion seeking permissive intervention and an order modifying the protective order so as to unseal the Report. The district court denied the motion on July 27, 1998, holding that neither the First Amendment nor federal common law provides a right of public access to court records in civil cases prior to final judgment. On January 22, 1999, the Mercury News filed the instant petition for mandamus relief, invoking our jurisdiction pursuant to the All Writs Act, 28 U.S.C. S 1651.

II.

Mandamus is a "drastic" remedy, "to be invoked only in extraordinary situations." Kerr v. United States District Court, 426 U.S. 394, 402 (1976); Calderon v. United States District Court, 134 F.3d 981, 983 (9th Cir.) (quoting Kerr), cert. denied sub nom. Calderon v. Taylor, 119 S. Ct. 274 (1998). This court has recognized five factors, commonly known as the "Bauman factors," that are the analytic starting point in determining whether mandamus should issue: (1) whether the party seeking the writ has no other adequate means, such as a direct appeal, to attain the relief he or she desires; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft-repeated error, or manifests a persistent disregard of the federal rules; and (5) whether the district court's order raises new and important problems, or issues of law of first impression. See Phoenix Newspapers v. United States District Court, 156 F.3d 940, 951-52 (9th Cir. 1998); Bauman v. United States , 557 F.2d 650, 654-55 (9th Cir. 1977). A petitioner need not satisfy all five factors. "The considerations are cumulative and proper disposition will often require a balancing of conflicting indicators." Bauman, 557 F.2d at 655. Mandamus review is at bottom discretionary -- even where the Bauman factors are satisfied, the court may deny the petition. See Kerr, 426 U.S. at 403; Phoenix Newspapers, 156 F.3d at 952.

The Mercury News contends that mandamus relief is appropriate because the district court's denial of the motion to intervene was based on an erroneous legal principle -- that the public has no right of access to court records in civil cases before judgment. We agree, concluding that a right of access to such records can be derived from at least two independent sources: the federal common law and the Federal Rules of Civil Procedure. This legal conclusion notwithstanding, we must evaluate whether, in light of the Bauman factors, mandamus relief is warranted.

A.

With respect to the first Bauman factor -- the availability of alternate avenues of relief -- we note that a direct appeal was available to the Mercury News here. The precedents of this court make it clear that a denial of a motion for permissive intervention in a civil case is directly appealable. See League of United Latin Amer. Citizens v. Wilson, 131 F.3d 1297, 1307-08 (9th Cir. 1997); see generally 7C WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE S 1923 (2d ed. 1986) (recognizing this as the general rule). As a general matter, "[m]andamus is not to be used as a substitute for an appeal." Calderon v. United States District Court, 137 F.3d 1420, 1421 (9th Cir. 1998); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 8 n.6 (1983).

Here, however, the second Bauman factor offsets the first to some degree. Because of the perishable nature of news, a direct appeal might not be an entirely adequate remedy here. In cases involving a request by the press for access to judicial records, this court has recognized that the delay entailed by a direct appeal can constitute an irreparable injury. See Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289, 1292 (9th Cir. 1986) ("[Petitioner] cannot attain the requested relief because the tapes it seeks to copy will lose much of their newsworthiness during the pendency of the trial."). At the same time, we are troubled by the fact that the Mercury News waited almost six months to bring this petition for mandamus.2 Nevertheless, the Mercury News' willingness to seek the writ, even if belatedly, suggests that the case was once again "newsworthy" in January 1999. To the extent this is true, the decay of newsworthiness would constitute an injury better addressed by a writ of mandamus than by a direct appeal.

Accordingly, we find that the first Bauman factors tips against mandamus relief, while the second tips in favor.

B.

As a general matter, the third Bauman factor demands that a petitioner seeking mandamus relief show that "the district court's order is clearly erroneous as a matter of law." See Calderon v. United States District Court, 134 F.3d at 983. Where a petition for mandamus raises an important issue of first impression, however, a petitioner need show only "ordinary (as opposed to clear) error." Id. at 984. The instant case raises an important issue of first impression -- whether the public has a pre-judgment right of access to judicial records in civil cases -- and we conclude that the district court erred in resolving it.

Nonparties seeking access to a judicial record in a civil case may do so by seeking permissive intervention under Rule 24(b)(2). See, e.g., EEOC v. National Children's Ctr., 146

F.3d 1042, 1045 (D.C. Cir. 1998) (collecting cases); Hagestad v. Tragesser, 49 F.3d 1430, 1432 (9th Cir. 1995) (permissive intervention granted to nonparty pressing federal common law right of access); Beckman Indus. v. International Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992) (approving permissive intervention as method for challenging protective order under Rule 26(c)); Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 657 (3d Cir. 1991) (permissive intervention granted to nonparty newspaper pressing both First Amendment and common law right of access). A motion for permissive intervention pursuant to Rule 24(b) is directed to the sound discretion of the district court. See League of United Latin Amer. Citizens, 131 F.3d at 1307; Beckman, 966 F.2d at 472. Where, as here, the district court's decision turns on a legal question, however, its underlying legal determination is subject to de novo review. See Beckman, 966 F.2d at 472; accord Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994).

In this circuit, there are three necessary prerequisites for allowing permissive intervention pursuant to Rule 24(b)(2): "[A] court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim or defense, and the main action, have a question of law or a question of fact in common." League of United Latin Amer. Citizens, 131 F.3d at 1308. Here, the Defendants do not challenge the first or third of these prerequisites. See Beckman, 966 F.2d at 473-74 (holding that independent...

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