August 04, 2015 Top Story

"Generalized Interest" Sufficient to Intervene to Unseal Records

Public's interest in court records is enough to allow intervention

Andrew J. Kennedy

When can a third party intervene in a case to challenge a district court’s order sealing court records? A decision by the U.S. Court of Appeals for the Eight Circuit suggests that the public’s Constitutional interest in whether court records should be confidential or not is sufficient that third parties—without any other particularized interest—should be allowed to freely intervene in cases.

Prisoners Challenge Missouri’s Execution Procedures

The issue arose after two Missouri death row inmates filed lawsuits against the Missouri Department of Corrections in the U.S. District Court for the Western District of Missouri. They asserted that Missouri’s execution protocol violated the Controlled Substances Act, the Food, Drug and Cosmetics Act and the Eighth Amendment. In both cases several court records were sealed and hidden from public view. In one of the cases, even docket entries were sealed. There was no indication from the public record what documents were under seal or why they were under seal.

Enter Larry Flynt, a publisher and First Amendment activist. He moved to intervene and unseal the court records and docket entries. Flynt argued that he had an interest in the case as a publisher. He also argued that he had a heightened interest because one of the prisoner-plaintiffs had confessed to shooting Flynt, leaving him paralyzed. The district court denied Flynt’s motion, reasoning that a “generalized interest in a subject of litigation does not justify intervention.”

Eighth Circuit Embraces Permissive Intervention

Flynt appealed to the Eighth Circuit. Sixteen amici—mostly organizations supporting the press—filed amicus briefs. On appeal, the appellees argued that since Flynt could have filed a separate lawsuit that he should not be permitted to intervene. The Eighth Circuit disagreed, saying: “Rule 24(b) intervention [is] an appropriate vehicle for parties seeking to intervene for the purpose of obtaining judicial records.”

The Court of Appeals explained that persons moving for permissive joinder usually must show an independent ground for jurisdiction, a timely motion, and a question of law or fact in common. But when a party is seeking to intervene only to modify a protective order or to unseal documents, an independent basis for jurisdiction is not required. Indeed, the court reasoned that intervention was preferable (for reasons of judicial efficiency) to require a separate action. Accordingly, the appellate court reversed and remanded the case to the district court.

Eighth Circuit’s Holding Provides a Clear Path for the Public to Intervene

Although Flynt focused on his heightened interest as grounds to allow him to intervene, that was not the key to the decision. “Flynt had what the Eighth Circuit called a ‘heightened interest,’ because one of the plaintiffs in the underlying suit was the man who shot Flynt in 1978,” observes Jonathan Peters, Lawrence, Kansas, chair of the First Amendment Subcommittee of the Civil Rights Litigation Committee of the ABA Section of Litigation. “He has also been,” says Peters, “a First Amendment activist since the 1970’s.”

“But that didn't decide this case,” notes Peters. “The court didn't focus on it. Instead, the Eighth Circuit said more broadly that a third party doesn't have to meet a high burden in federal civil litigation to intervene and argue for First Amendment rights of access.”

The Eighth Circuit’s decision clears the path for others to intervene on similar grounds. “Where a party intervenes, generally the party must make a claim that shares with the main action some common question of law or fact,” Peters explains. “In this case, the lower court said Flynt had only a generalized interest, implying that it was not enough, but the Eighth Circuit disagreed. It said that where a party intervenes to unseal judicial records, there's no reason to require a strong nexus of fact or law. Rather, the public’s interest in the openness of judicial records is the question of law in common."

That broad reading suggests that the public itself might have enough of an interest to intervene where court records are sealed, offers Peters: “I don't read the opinion as limited to journalists or publishers. An interested citizen could do what Larry Flynt did, because the public's interest in the openness of judicial records doesn't vary according to the intervenor's identity or business.”

Another Section leader, however, takes a more cautionary reading of the decision. “The Court of Appeals allowed to Flynt intervene,” observes Thad A. Davis, San Francisco, chair, Corporate Prosecution Subcommittee of the Criminal Litigation Committee of the Section of Litigation. “But it sent the case back to the district court for Flynt to make a showing.”

The Court of Appeals itself cautioned that it was not pre-judging the merits of Flynt’s argument. But, Davis points out, allowing the public to freely intervene could have serious effects on litigants: “Intervention like this necessarily raises issues of privilege and confidentiality,” Davis observes. He suggests freely allowing such intervention “is of greater concern [to parties] where there are parallel proceedings taking place, like regulatory cases pending with civil cases pending at the same time.”


Andrew J. Kennedy is an associate editor for Litigation News.

Keywords: First Amendment, intervention, Rule 24, sealed, court records

Related Resources

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).