Mokhiber v. Davis

Decision Date17 February 1988
Docket NumberNo. 86-89.,86-89.
Citation537 A.2d 1100
PartiesRussell MOKHIBER, Appellant, v. Leonard DAVIS, et al., Appellees.
CourtD.C. Court of Appeals

Cornish F. Hitchcock, with whom Alan B. Morrison, Washington, D.C., was on the brief, for appellant.

Jeffrey C. Slade, with whom Ronald W. Meister, Brenda Wright and Sidney S. Rosdeitcher, New York City, were on the brief, for appellee Colonial Penn Corp., Inc. and related appellees.

Salvatore A. Romano, with whom Robert B. Hirsch and Michael L. Sibarium, Washington, D.C., were on the brief for Association Parties.

Before PRYOR, Chief Judge, and FERREN and STEADMAN, Associate Judges.


Russell Mokhiber, an investigative reporter, filed a motion to intervene in a suit settled by the original parties four years earlier. He was trying to remove protective orders that barred public access to various documents held by the court. The trial court denied his motion, and Mokhiber now appeals. This case, therefore, requires us to consider under what circumstances the public enjoys the right to view different sorts of court records in a civil case.

The trial court ruled, first, that Mokhiber's motion was untimely because of the long passage of time between settlement of the suit and his motion to intervene. The court went on, however, to observe that, even had it been timely, Mokhiber's motion did not meet the other requirements for intervention either as of right or by permission, for he had "failed to establish that there exists a common law or constitutional right of access to documents which were the products of pretrial discovery in cases which never went to trial." We conclude that, on the facts of this case, the trial court erred in ruling that Mokhiber's application was untimely. As to the court's alternative ground for denying intervention, we affirm in part and reverse in part. The trial court failed to distinguish between pretrial discovery materials and other sealed documents—two classes of records which the law accords different treatments. Mokhiber has no common law or constitutional right of access to pretrial discovery materials, and he therefore has no standing to challenge either the protective orders themselves or the sealed discovery materials in the court's possession. He does, however, have a presumptive right of access under the common law to view documents, such as motions and oppositions, that the parties submitted to the court for decision but the court placed under seal. With respect to this latter class of records, we remand for the trial court to grant Mokhiber's motion to intervene. The trial court must then exercise its discretion to determine whether Mokhiber is entitled to access or whether, instead, there are sufficient countervailing reasons to retain the protective orders.


Russell Mokhiber is writing a commentary on several recent examples of corporate misconduct in America. Among the case studies that have drawn his interest is the relationship formed in the mid-1950s and consolidated over the next twenty years between Colonial Penn Group, Inc. (CPG), an insurance company, and two associations for retired persons, the American Association of Retired Persons (AARP) and the National Retired Teachers Association (NRTA) (collectively, the Associations). A number of lawsuits arose out of this relationship, among them an action brought in 1978 in the District of Columbia by Harriet Miller, who had been fired from the executive directorships of both Associations. Miller v. Davis, Civil Action No. 4367-78 (D.C.Super.Ct. May 2, 1978); American Ass'n of Retired Persons v. Miller, Civil Action No. 5569-78 (D.C.Super.Ct. May 31, 1978). See also Malchman v. Davis, 706 F.2d 426 (2d Cir. 1983), on remand, 588 F.Supp. 1047 (S.D.N.Y. 1984), affd as modified, 761 F.2d 893 (2d Cir. 1985), cert. denied, 475 U.S. 1143, 106 S.Ct. 1798, 90 L.Ed.2d 343 (1986). Miller alleged that the Associations had fired her at the instigation of Leonard Davis, the founder and director of CPG, who, she charged, over the years had gained de facto control of the Associations. According to Miller, Davis had moved against her when he came to fear she would interfere with the exclusive and lucrative contracts he had established between CPG and the Associations to provide health insurance for Association members.

During the course of discovery in Miller's suit, the trial court issued protective orders that barred the parties from disclosing information gained in discovery to third persons. The protective orders created two classes of protected documents. "Produced Information" included all interrogatory answers, admissions, deposition testimony, and any other record obtained in discovery. The parties were forbidden to use "Produced Information" for any purpose other than preparation for trial. "Confidential Material" included material produced by CPG that revealed trade secrets, as well as documents containing personnel information or minutes of each Association's Board of Directors, Executive Committee, or Trustees. "Confidential Material" was to be filed with the court under seal.

The parties settled the suit in 1980, before trial began. Pursuant to a stipulation of the parties, the trial court signed a "consent order and decree" deeming the settlement agreement an order and decree of the court, specifically enjoining the parties to adhere to their settlement agreement, and retaining jurisdiction over any dispute that might arise over the consent decree. Among other provisions, the settlement required that Miller return to CPG and to the Associations all documents gained through discovery, and that only Miller's attorneys retain transcripts and depositions obtained during the lawsuit. The settlement also called for Miller to withdraw her pending motion to modify the existing protective orders and to refrain from challenging the orders in the future.

Miller had filed a motion seeking modification of the protective orders, as well as her pretrial brief, under seal; and CPG and the Associations had filed several opposition papers under seal (in addition to the discovery documents they considered confidential). Presumably, these pleadings contained "Confidential Material" under the terms of the protective orders. At present, then, the trial court still holds under seal a variety of documents that include: (1) materials produced during discovery and filed under the "Confidential Materials" provisions of the protective orders, (2) Miller's "motion" to modify the protective orders, (3) the defendants' oppositions to this motion, (4) the Associations' oppositions to two of Miller's discovery motions, and (5) the Association's opposition to Miller's motions for a continuance and for a modification of her claim for damages. Thus, the protective orders continue both to bar the parties from disseminating any information they gained during the discovery process (including any depositions or transcripts they still have in their possession), and to retain the seals on those documents filed under seal with the court.

Nearly four years after the court ratified the settlement, Mokhiber sought intervention in order to challenge the protective orders. By removing the protective orders, or at least by lifting their protections from some of the discovery material and court papers they now screen from public view, Mokhiber hopes to obtain documents shedding further light on CPG's relationship with the Associations. Specifically, Mokhiber has asked the trial court to remove the protective order on "Produced Information" and open the sealed documents unless one of the parties could "show cause" that the documents should remain closed because they contain business secrets or privileged information. Mokhiber bases his claim to intervene and to lift or alter the protective orders on asserted common law and first amendment rights of public access to judicial records.


To intervene, either as of right or by permission, one must make "timely application" for intervention. Super.Ct.Civ.R. 24. The trial court denied Mokhiber's application as untimely because Mokhiber sought to enter the suit only after the parties had reached settlement and because a long period of time had passed between settlement of the case and the filing of his motion. The determination of timeliness lies within the sound discretion of the trial court. Vale Properties, Ltd. v. Canterbury Tales, Inc., 431 A.2d 11, 15 (D.C. 1981). We conclude, nonetheless, that the trial court misapplied the standard for timely intervention; we therefore reverse the trial court's ruling on this point. We base this conclusion primarily on our view that, because of the peculiar characteristics of the public's right of access to judicial records, considerations of timeliness should not generally bar intervention to litigate such a claim.

In determining the timeliness of an application for intervention, the trial court ordinarily must consider a number of factors: (1) the time that has passed since the applicant knew or should have known of his or her interest in the suit; (2) the reason for the delay; (3) the stage to which the litigation has progressed; and (4) the prejudice the original parties would suffer from granting intervention and the applicant would suffer from denial. Emmco Ins. Co. v. White Motor Corp., 429 A.2d 1385, 1387 (D.C. 1981). The individual factors are significant, for they establish the relative burdens the applicant, the parties, and the court must bear and thus allow the court to evaluate the justice and efficiency of permitting intervention in a particular lawsuit. As this case illustrates, however, application of these factors may depend in part on the particular kind of claim an intervenor seeks to litigate. See, e.g., United States v. American Telephone & Telegraph Co., 206 U.S.App.D.C. 317, 326, 642 F.2d 1285, 1294 (1980).

The trial...

To continue reading

Request your trial
46 cases
  • Pansy v. Borough of Stroudsburg
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 2 Mayo 1994
    ...they are by nature overinclusive and are, therefore, peculiarly subject to later modification.").27 But see Mokhiber v. Davis, 537 A.2d 1100, 1116 n. 15 (D.C.1988) ("[I]t is quite proper for the trial court to place upon the attacking party the burden of showing that no such 'good cause' in......
  • Rosado v. Bridgeport Roman Catholic
    • United States
    • Connecticut Supreme Court
    • 2 Junio 2009
    ...from those supporting public access to court documents. Anderson v. Cryovac, Inc., 805 F.2d 1, 12 (1st Cir.1986); Mokhiber v. Davis, 537 A.2d 1100, 1109 (D.C.1988). Parties are obligated to disclose a wide range of information in the course of discovery to support the disposition of their u......
  • Public Citizen v. Liggett Group, Inc.
    • United States
    • U.S. Court of Appeals — First Circuit
    • 10 Junio 1988
    ...after the underlying litigation had terminated), cert. denied, 379 U.S. 900, 85 S.Ct. 186, 13 L.Ed.2d 175 (1964); Mokhiber v. Davis, 537 A.2d 1100, 1104-06 (D.C.1988) (third party permitted to intervene four years after a judicially-approved consent decree in order to challenge a protective......
    • United States
    • Connecticut Supreme Court
    • 15 Noviembre 2005
    ...three years after settlement of case because intervention was solely for purpose of challenging protective order); Mokhiber v. Davis, 537 A.2d 1100, 1105 (D.C.App.1988) (reversing denial of intervention when intervenor sought to challenge protective orders barring public access to court doc......
  • Request a trial to view additional results
2 books & journal articles
  • Public Access to Judicial Proceedings and Records in Maine: Worth Protecting
    • United States
    • Maine State Bar Association Maine Bar Journal No. 27-4, September 2012
    • Invalid date
    ...A.2d 1236, 1247 (N.H. 2005). 32. NBC Subsidiary (KNBC-TV), Inc. v. Superior Court, 980 P.2d 337, 358 (Cal. 1999). 33. Mokhiber v. Davis, 537 A.2d 1100, 1107 n.4 (D.C. 1988). 34. Press-Enterprise Co. v. Superior Court (Press-Enterprise II), 478 U.S. 1, 13-14 (1986); see also Press-Enterprise......
  • Confidentiality in Civil Proceedings: Public Access Versus Litigants' Privacy
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-10, October 1993
    • Invalid date
    ...Litigation, 92 F.R.D. 468 (E.D.N.Y. 1981). 11. Supra, note 1. 12. 467 U.S. 20 (1984). 13. 846 F.2d 249, 253 (4th Cir. 1988). 14. 537 A.2d 1100, 1108 (D.C.App. 1988). 15. See In re San Juan Star Co., 662 F.2d 108 (1st Cir. 1981); Chicago Counsel of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 19......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT