Zenith Electronics Corp. v. Ballinger

• Court: Arizona Court of Appeals
• Writing for the Court: SHELDON H. WEISBERG.
• Decision Date: 05 March 2009
• Docket Number: 1 CA-SA 08-0282
• Citation: Zenith Electronics Corp. v. Ballinger, 1 CA-SA 08-0282 (Ariz. App. Mar 05, 2009)
• Parties: ZENITH ELECTRONICS CORPORATION, Petitioner, v. THE HONORABLE EDDWARD BALLINGER, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge, PUBLIC CITIZEN, BARBARA CASSIDY, Real Parties in Interest

ZENITH ELECTRONICS CORPORATION, Petitioner, v. THE HONORABLE EDDWARD BALLINGER Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of Maricopa, Respondent Judge PUBLIC CITIZEN, BARBARA CASSIDY Real Parties in Interest

1 CA-SA 08-0282

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT D

Dated: March 5, 2009

OPINION

Appeal from the Superior Court in Maricopa County

Cause No. CV 2005-053526

The Honorable Eddward Ballinger, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

Quarles & Brady LLP

by Brian R. Booker

Attorneys for Petitioner

Osborn Maledon, P.A.

by David B. Rosenbaum

Attorneys for Public Citizen

Richard L. Langerman

Attorney for Barbara Cassidy

WEISBERG, Judge

¶ This special action concerns the granting of a post-judgment motion for permissive intervention, filed by a nonparty public interest organization, in a wrongful death lawsuit brought by Barbara Cassidy against Zenith Electronics Corporations ("Zenith") that has been settled and dismissed. Cassidy's lawsuit involved allegations that a defective Zenith television caused a fire that killed Barbara Cassidy's father, Robert Cassidy. During the litigation, Zenith produced a number of documents through discovery subject to a very broad protective order. After the case was dismissed by stipulation, Public Citizen learned of the lawsuit and filed a motion to intervene for the limited purpose of gaining access to certain materials that Zenith had produced to Cassidy pursuant to the protective order.

¶ Because the superior court granted the motion to intervene, Zenith seeks special action relief and asserts that the court abused its discretion in granting an untimely motion to intervene to a stranger to the Cassidy litigation, particularly when the discovery materials were subject to a protective order that applied to the materials both during and after the lawsuit. For reasons that follow, we accept specialaction jurisdiction of the narrow question of the propriety of post-judgment intervention but deny relief without prejudice to Zenith's right to seek review of a possible subsequent order modifying the pre-existing protective order.

BACKGROUND

¶ In June 2007, during litigation of Cassidy's lawsuit, the superior court ordered Zenith to produce product design documents and other materials. After Zenith unsuccessfully sought agreement with Cassidy on the terms of a protective order, it produced more than 22,000 pages of documents. In July, however, Zenith filed a motion for a protective order, contending that the disclosed documents were sensitive and confidential, that Cassidy should be barred from "disseminating . . . information to parties unrelated to this case," and that restricted use of the discovery materials properly balanced the needs of the plaintiff, Zenith, and the public. Cassidy's response argued not only waiver and lack of good cause but that the public interest outweighed Zenith's interest in confidentiality and that the proposed order was overbroad and would not "permit collaboration among[] similarly situated litigants." Zenith's reply clarified that it sought protection of information relating solely to product design and development, "including communications with the Consumer ProductSafety Commission [("CPSC")] that relate to design and development."

The Protective Order

¶ In February 2008, Judge Michael D. Jones signed a protective order drafted by Zenith covering discovery materials produced under prior court orders. The protective order was issued to "provide a means for limiting access to, and disclosure of, Confidential Information" produced during discovery, pre-trial and trial proceedings. It allowed disclosure to the court, the parties and their attorneys, their support staff and legal assistants, and to experts and consultants "to the extent reasonably necessary for purposes of prosecuting or defending this lawsuit."

¶ In addition, the order stated, "At the conclusion of this lawsuit, each document designated as Confidential Information, and all copies thereof, shall be returned upon request to the person who provided it." The restrictions were "applicable only to the use or disclosure of Confidential Information by the recipient" and the parties' obligation would "survive the termination of this lawsuit unless otherwise modified by the Court." Specifically, the court directed that it would "retain jurisdiction, even after termination of this lawsuit, to enforce this Protective Order and to make suchamendments and modifications to this Order as may be appropriate."

Settlement Occurs

¶ On April 10, 2008, Cassidy filed a notice of settlement. On May 1, Judge Jones signed an order dismissing the case with prejudice.¹

Public Citizen's Motion to Intervene

¶ On June 11, Public Citizen moved to intervene pursuant to Arizona Rule of Civil Procedure ("Arizona Rule") 24(b)² in order to obtain "modification of the protective order precluding public disclosure of documents produced." In support of itsmotion, Public Citizen largely relied upon a number of federal cases concerning intervention by parties involved in collateral litigation. Public Citizen attached a proposed Motion to Modify, which asserted a public right of access to all documents produced by Zenith in the absence of court findings that the need for confidentiality outweighed the public interest in those materials. The Motion to Intervene argued that the discovery materials covered by the protective order "will help the public learn of any dangers caused by the projection televisions at issue in the 1998 and 2003 recalls and . . . will shed light on the [CPSC's] conduct during those recalls." The motion did not assert that any other litigation was pending in which the documents would be useful.

¶ In its response, Zenith argued that Public Citizen's request was untimely and that no common question of law or fact existed between the Cassidy suit and Public Citizen. Zenith cited Weaver v. Synthes, Ltd., 162 Ariz. 442, 446, 784 P.2d 268, 272 (App. 1989), a case interpreting Arizona Rule 24(a), which governs intervention as of right. Weaver held that the trial court has discretion to determine timeliness, that the most important consideration is whether delay in seeking to intervene would "prejudice the existing parties" in the case, that "[a] motion to intervene after judgment is considered timely only inextraordinary and unusual circumstances," and that such motions, though not per se untimely, are disfavored. Id. (citations omitted). Weaver cited In re One Cessna 206 Aircraft, 118 Ariz. 399, 577 P.2d 250 (1978), which acknowledged that in some situations post-judgment intervention could be proper, citing John F. Long Homes, Inc. v. Holohan, 97 Ariz. 31, 34, 396 P.2d 394, 396 (1964) (intervention to prosecute appeal); Schuster v. Schuster, 75 Ariz. 20, 22, 251 P.2d 631, 632 (1952) (intervention by contingent trust beneficiary in suit to dissolve trust); and Pellegrino v. Nesbit, 203 F.2d 463, 465 (9th Cir. 1953) (intervention to preserve a right that could not otherwise be protected). Nonetheless, One Cessna held that post-judgment motions are "looked upon with a jaundiced eye" and intervention should be permitted "only in very special circumstances." 118 Ariz. at 401, 577 P.2d at 252. Thus, such "motions . . . will be granted only upon a strong showing of entitlement and of justification for failure to request intervention sooner." Id. at 402, 577 P.2d at 253. See also State Farm Mut. Auto. Ins. Co. v. Paynter, 118 Ariz. 470, 471, 577 P.2d 1089, 1090 (App. 1978) (timeliness is required under either Rule 24(a) or (b) and is left to trial court's discretion, considering the stage of proceedings and whether the intervenor could have sought intervention earlier).

¶ Zenith also cited State ex rel. Napolitano v. Brown & Williamson Tobacco Corp., 196 Ariz. 382, 383, ¶¶ 1-2, 998 P.2d 1055, 1056 (2000), which upheld the denial of a motion to intervene filed by Arizona counties seeking part of the funds the State had obtained in settling a tobacco-related suit. The counties moved to intervene more than two years after suit had been filed and fifteen days after entry of a consent decree and final judgment. Id. at ¶ 2. Our supreme court found that intervention "would cause delay, if not the unraveling of an historic settlement" and was "especially likely to prejudice the parties." Id. at 384, ¶ 5, 998 P.2d at 1057. The court did not mention a particular section of Rule 24, but it appears that the counties had cited Rule 24(a) as authority.

¶ Here, and without explicitly addressing the factors listed in Rule 24, the court found that because of noncompliance with Rule 26(c),³ it would grant Public Citizen's motion tointervene. It then directed Zenith and Public Citizen to meet and confer to see if they could settle their dispute.⁴ Although the court set a continued hearing on the requested relief for December 15, 2008, Zenith filed both this special action petition and a notice of appeal on December 5. We emphasize that at this stage of the proceedings, the sole issue is the superior court's grant of Public Citizen's request to intervene because that court has not ordered disclosure of any documents purportedly within the scope of the prior protective order. We also do not imply any particular resolution of Public Citizen's request to modify the protective order, and our ruling is without prejudice to Zenith's right to seek additional relief atan appropriate time. We note, however, that one factor identified in Rule 26(c) that a court may consider in determining whether to issue a protective order, and presumably when determining whether to modify that order, is "possible risk to the public health, safety or financial welfare to which such information or materials may relate or reveal."

Zenith's Petition for Special Action

¶ Zenith urges us to accept special action jurisdiction and to reverse the order granting intervention to Public Citizen because if it is forced to release...