Advance Local Media, LLC v. Commissioner, Alabama Department of Corrections , 918 F.3d 1161 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12402
________________________
D.C. Docket No. 2:17-cv-02083-KOB
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
HOLMAN CF WARDEN,
DONALDSON CF WARDEN,
Defendants - Appellants,
versus
ADVANCE LOCAL MEDIA, LLC,
d.b.a. Alabama Media Group,
MONTGOMERY ADVERTISER,
THE ASSOCIATED PRESS,
Intervenors - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 18, 2019)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
WILSON, Circuit Judge:
This appeal concerns the common law right of access to documents upon
which a court has relied to decide issues in a case. In the underlying suit, death
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row inmate Doyle Lee Hamm brought an as-applied challenge under 42 U.S.C.
§ 1983, arguing that Alabama’s attempt to execute him via lethal injection would
violate the Eighth Amendment. During the litigation, Alabama submitted its lethal
injection protocol to the district court. The protocol was never formally filed with
the court, but was subjected to expert testimony, debated at hearings, and relied
upon by the court in denying both Alabama’s motion for summary judgment and
Hamm’s request for a preliminary injunction. After Hamm’s case was dismissed,
members of the press intervened, seeking access to the protocol. The district court
granted these intervenors access to a redacted version of the protocol. The
Commissioner of the Alabama Department of Corrections now appeals, arguing
that the court erred in (1) allowing the press to intervene and (2) determining that
the protocol was a judicial record subject to the common law right of access. After
careful consideration and the benefit of oral argument, we affirm.
I. Factual and Procedural Background
Doyle Lee Hamm was sentenced to death in 1987 and, after a series of
unsuccessful direct and collateral challenges to his sentence, was set to be executed
in February 2018. In December 2017, Hamm filed an action in the Northern
District of Alabama under 42 U.S.C. § 1983, challenging the constitutionality of
Alabama’s lethal injection protocol as applied to him, because he suffered from
“severely compromised veins” due to drug use, Hepatitis C, and cancer. Hamm v.
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Dunn, 302 F. Supp. 3d 1287 (N.D. Ala. 2018), vacated and remanded sub nom. by
Hamm v. Comm’r, Ala. Dep’t of Corr., No. 18-10473 (11th Cir. Feb. 13, 2018).
Hamm sought to enjoin Alabama from using the protocol to perform his execution.
In January 2018, Alabama moved for summary judgment. The district court
ordered expedited briefing and scheduled an evidentiary hearing for January 31 to
address Alabama’s dispositive motions and Hamm’s request for injunctive relief.
After the court entered a protective order to keep the lethal injection protocol
confidential, Alabama provided a copy of the protocol to the court for in camera
review and gave Hamm a redacted copy of the protocol. Likewise, the portion of
the evidentiary hearing that focused on the protocol was conducted in camera.
Both parties and the court discussed the contents of the lethal injection protocol,
but neither party moved to admit the protocol into evidence or attach it as an
exhibit to any motion or pleading.
Less than three weeks before Hamm was set to be executed, the district court
denied Alabama’s motion for summary judgment and temporarily stayed Hamm’s
execution. In its publicly available orders denying summary judgment, the district
court summarized Alabama’s lethal injection protocol and discussed how the
protocol applied to Hamm’s specific medical conditions. This Court vacated the
district court’s stay but directed the court to obtain an independent medical
examination and make any concomitant factual findings by February 20—two days
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before Hamm’s execution date. The district court held another in camera hearing
on February 16 to hear testimony from the independent medical examiner. The
examiner testified that Hamm had accessible and usable veins in his lower
extremities.
Four days later, the district court denied Hamm’s request for a preliminary
injunction, summarizing the contents of the February 16 hearing and reasoning that
Alabama’s lethal injection protocol, as applied to Hamm, did not present
“sufficiently imminent dangers” and was not likely to result in serious illness or
needless suffering that would violate the Eighth Amendment. Hamm appealed.
This Court affirmed the district court but ordered Alabama to have ultrasound
technology and a doctor at the execution.
On the day of his execution—February 22, 2018—Hamm petitioned the
Supreme Court for a stay and writ of certiorari. His petition was denied. Alabama
then attempted to execute Hamm, but after several unsuccessful efforts to insert a
needle, called off the execution an hour before its midnight deadline. The botched
execution attempt received national media coverage.
Hamm filed a second amended complaint describing Alabama’s failed
efforts to execute him, but both parties agreed to dismiss these claims (some with
prejudice and some without prejudice) on the same day that the claims were filed.
Two days later, the district court dismissed the action. On March 28, the same day
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the court dismissed the action, Alabama Media Group,1 the Montgomery
Advertiser, and the Associated Press (collectively, Intervenors) moved to intervene
in Hamm’s case under Rule 24 of the Federal Rules of Civil Procedure to unseal
the records, transcripts, and briefs discussing Alabama’s execution protocol. On
March 30, the court granted intervention as a matter of right under Rule 24(a),2 but
reserved ruling on the request for access to the protocol and related documents. In
response to the request for access, Alabama asked the court to reconsider its
decision to allow intervention and, alternatively, argued that the request for access
should be denied because (1) the lethal injection protocol was not a publicly
accessible judicial record, and (2) the Intervenors had no common law right of
access to the protocol.
The district court denied Alabama’s request to reconsider intervention and
granted Intervenors’ motion to unseal the protocol and related records. The court
emphasized that Hamm’s case had occurred under rushed circumstances, and
concluded that failure to formally file the protocol did not make it a non-judicial
record because the court “needed and relied upon the protocol to resolve [the
State’s] motion for summary judgment and Mr. Hamm’s request for injunctive
1
Advance Local Media, an Intervenor in this case, does business as the Alabama Media Group.
2
The district court noted that permissive intervention was proper under Rule 24(b) as well.
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relief,” and other judicial records referred to the protocol.3 The court also found
that Alabama failed to show interests sufficient to overcome the public’s common
law right of access to the protocol.
The district court issued two orders. The first order clarified what it
unsealed, including redacted versions of (1) the protocol, (2) the sealed transcript
of the January 31 in camera evidentiary hearing, (3) the sealed transcript of the
February 16 closed medical examiner hearing, and (4) Hamm’s motion for leave to
supplement his first amended complaint. The second order instructed Alabama to
file, under seal, a redacted copy of the protocol for the court to review before
releasing it. Alabama appealed and moved to stay the release of the protocol
pending this appeal. The district court granted Alabama’s motion to stay; we now
consider the state’s appeal.
II. The Common Law Right of Access to Judicial Records
Whether a document is a “judicial record” subject to the common law right
of access is a question of law we review de novo. Accord In re U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013). We
review a decision to unseal documents for abuse of discretion. FTC v. AbbVie
Prods., LLC, 713 F.3d 54, 61 (11th Cir. 2013). Under the abuse of discretion
3
For example, Hamm’s sealed motion for leave to supplement his first amended complaint
quotes both the protocol and the January 31 hearing discussing the protocol.
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standard, a court has a range of choices available to it. See McLane Co., Inc. v.
EEOC, 137 S. Ct. 1159, 1169 (2017); United States v. Frazier, 387 F.3d 1244,
1259 (11th Cir. 2004) (en banc).
“It is clear that the courts of this country recognize a general right to inspect
and copy public records and documents, including judicial records and
documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306,
1312 (1978). The media and public presumptively have a right to access judicial
records. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1311
(11th Cir. 2001) (per curiam). The common law right of access to judicial records
“‘establish[es] a general presumption that criminal and civil actions should be
conducted publicly’ and ‘includes the right to inspect and copy public records and
documents.’ It is ‘an essential component of our system of justice’ and ‘is
instrumental in securing the integrity of the process.’” AbbVie Prods., LLC, 713
F.3d at 62 (quoting Chicago Tribune, 263 F.3d at 1311). 4 Access to public and
judicial records protects “the citizen’s desire to keep a watchful eye on the
workings of public agencies, and . . . a newspaper publisher’s intention to publish
information concerning the operation of government.” Nixon, 435 U.S. at 597–98,
4
In the past, we have recognized that both judicial proceedings and judicial records are
presumptively available to the public because “[j]udges deliberate in private but issue public
decisions after public arguments based on public records. . . . Any step that withdraws an
element of the judicial process from public view makes the ensuing decision look more like fiat
and requires rigorous justification.” Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1235
(11th Cir. 2013) (quoting Hicklin Eng’g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006)).
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98 S. Ct. at 1312 (citations omitted); see also Romero v. Drummond Co., Inc., 480
F.3d 1234, 1246 (11th Cir. 2007) (finding that these public concerns were at the
“heart of the interest protected by the right of access”). Judges should exercise
discretion in deciding to release judicial records and should exhibit a “sensitive
appreciation of the circumstances that led to their production.” Nixon, 435 U.S. at
603, 98 S. Ct. at 1315. 5
A. Judicial Records
To determine whether Alabama’s lethal injection protocol is subject to the
common law right of access, we must first determine whether the protocol
constitutes a judicial record. Citing our prior decisions in Chicago Tribune and
AbbVie Products, Alabama argues that its lethal injection protocol is not a judicial
record because its protocol was never formally filed with the district court and is
not in the electronic docket. Alabama’s interpretation is foreclosed by precedent in
Newman v. Graddick, and thus we reject Alabama’s argument.
In both Chicago Tribune and AbbVie Products, materials accompanying
motions were filed with a district court during the course of litigation. Both
decisions acknowledged the filed status of the materials while emphasizing a
5
Courts retain jurisdiction to unseal judicial records and may allow parties to intervene well after
judgment in a dispute. See, e.g., AbbVie Prods., LLC, 713 F.3d at 58 (affirming district court
determination to modify protective order after three years); cf. Brown v. Advantage Eng’g, Inc.,
960 F.2d 1013, 1015–16 (11th Cir. 1992) (recognizing that a district court had jurisdiction to
decide a motion to intervene to unseal records that had been sealed more than six months prior).
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distinction between documents filed with discovery motions and those filed with
substantive motions requiring judicial action. See AbbVie Prods., LLC, 713 F.3d at
63–64 (“[W]hether a document is a judicial record depend[s] on the type of filing it
accompanied. A complaint and its exhibits, which are integral to the ‘judicial
resolution of the merits’ of any action, are surely ‘subject to the common-law
right.’”); Chicago Tribune, 263 F.3d at 1312 (“[M]aterial filed with discovery
motions is not subject to the common-law right of access, whereas discovery
material filed in connection with pretrial motions that require judicial resolution of
the merits is subject to the common-law right.”).
In the present case, unlike in AbbVie Products and Chicago Tribune, the
Intervenors are seeking access to materials that did not accompany motions filed in
the district court. The specific language in AbbVie Products and Chicago Tribune
regarding materials filed with motions to the court, then, does not clearly apply to
the facts before us. Our decision in Newman v. Graddick, 696 F.2d 796 (11th Cir.
1983), is more instructive. In Newman, a district court approved a consent decree
under which state officials would reduce overcrowding in county jails; the court
later ordered the state to submit lists of prisoners least deserving of incarceration as
overcrowding worsened. 696 F.2d at 798–99. In response to requests from the
press, the district court then unsealed these lists. Although the prisoner lists were
not formally filed with the district court and did not appear on the court’s docket,
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we held on appeal that the lists had become “part of the court proceedings in the
case” and thus considered them subject to the common law right of access. Id. at
803. In light of Newman’s result, we hold that materials submitted by litigants—
whether or not they are formally filed with the district court—that are “integral to
the ‘judicial resolution of the merits’” in any action taken by that court are subject
to the common law right of access and the necessary balancing of interests that the
right entails. See AbbVie Prods., LLC, 713 F.3d at 64 (quoting Chicago Tribune
Co., 263 F.3d at 1312).
Alabama asserts that, under AbbVie Products and Chicago Tribune,
materials must be formally filed with a court to constitute judicial records. If these
cases truly did impose such a formal filing requirement, they would conflict with
our decision in Newman. To the extent that Alabama’s interpretation of AbbVie
Products and Chicago Tribune conflicts with Newman, Newman controls. “When
we have conflicting case law, we follow our oldest precedent.” United States v.
Madden, 733 F.3d 1314, 1319 (11th Cir. 2013); see also Arias v. Cameron, 776
F.3d 1262, 1273 n.8 (11th Cir. 2015) (“When circuit authority is in conflict, a
panel should look to the line of authority containing the earliest case because a
decision of a prior panel cannot be overturned by a later panel.”).
The mere filing of a document does not transform it into a judicial record.
See Chicago Tribune, 263 F.3d at 1312. For example, we have determined that
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when documents have been filed in discovery, they only constitute judicial records
if they are filed with pretrial motions “that require judicial resolution of the merits”
of an action. Id. Courts generally should not permit public access to discovery
materials that are not filed with substantive motions because discovery is
“essentially a private process” meant to “assist trial preparation.” United States v.
Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986). Filed or unfiled materials
unearthed during discovery may be private, and a large portion of discovery
materials will not assist a court in resolving matters in a case. We have never held,
however, that filing is required in order to turn a document into a judicial record—
especially when that document may help a court to resolve the merits of an action.
Instead, we have attempted to apply “a more refined approach” that accounts for
“the tradition favoring access.” Chicago Tribune, 263 F.3d at 1312. Other courts
have taken similar approaches. Accord United States v. Wecht, 484 F.3d 194, 208
(3d Cir. 2007), as amended (July 2, 2007) (“In general, the common law right
attaches to any document that is considered a judicial record, which depends on
whether the document has been filed with the court, or otherwise somehow
incorporated or integrated into a district court’s adjudicatory proceedings.”
(internal quotation marks omitted)); Bond v. Utreras, 585 F.3d 1061, 1073–75 (7th
Cir. 2009) (holding that “the public has a presumptive right to access discovery
materials that are filed with the court, used in a judicial proceeding, or otherwise
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constitute ‘judicial records,’” and noting that even discovery documents “used in a
court proceeding” which “consequently . . . could influence or underpin [a] judicial
decision” should be “presumptively open to public inspection unless they meet the
definition of trade secret or other categories of bona fide long-term confidentiality”
(emphasis added) (citations and internal quotation marks omitted)); In re Cendant
Corp., 260 F.3d 183, 192 (3d Cir. 2001) (“[A] document may still be construed as
a judicial record, absent filing, if a court interprets or enforces the terms of that
document, or requires that it be submitted to the court under seal.”); cf. FTC v.
AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he
overwhelming majority of documents disclosed during discovery are likely
irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by
the court or other judicial officer,’” but public access is presumed for “materials
that invoke ‘judicial resolution of the merits’” (citations omitted)).
This appeal arose under a unique set of circumstances, and thus we keep our
holding narrow in comporting with our own precedent. Alabama’s lethal injection
protocol may not have been formally filed under the rushed timeline of Hamm’s
approaching execution, but the protocol constitutes a judicial record subject to the
common law right of access because it was submitted to the district court to
resolve disputed substantive motions in the litigation, was discussed and analyzed
by all parties in evidentiary hearings and arguments, and was unambiguously
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integral to the court’s resolution of the substantive motions in Hamm’s as-applied
challenge to the protocol.6
B. Common Law Right of Access
After establishing that Alabama’s protocol is a judicial record, we must now
determine whether the district court abused its discretion in unsealing the protocol
after finding it subject to the common law right of access. Generally, “the
common-law right of access standard as it applies to particular documents requires
the court to balance competing interests of the parties,” Chicago Tribune, 263 F.3d
at 1312, in light of “the relevant facts and circumstances of the particular case,”
Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). Where a
party seeks to protect material under Rule 26 of the Federal Rules of Civil
Procedure, and the material is then admitted in connection with a substantive
motion, “confidentiality imposed by Rule 26 is [not] automatically forgone”;
rather, courts still conduct a balancing test to compare the respective interests of
the parties. Chicago Tribune, 263 F.3d at 1313.
“The common law right of access may be overcome by a showing of good
cause, which requires balanc[ing] the asserted right of access against the other
6
The parties discussed the protocol with the district court in an in camera hearing, and the
district court noted that substantive motions in this case incorporated and referred to the protocol.
The court relied upon—and cited to—the protocol in denying Alabama’s motion for summary
judgment “as to the merits of Mr. Hamm’s as-applied claim”; the court also relied upon the
protocol in denying Hamm’s request for a preliminary injunction.
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party’s interest in keeping the information confidential.” Romero v. Drummond
Co., Inc., 480 F.3d 1234, 1246 (11th Cir. 2007) (internal quotation marks omitted).
Courts determine whether good cause exists by looking to the nature and character
of the information in question. See id. When evaluating good cause, a court
should consider relevant factors including “whether the records are sought for such
illegitimate purposes as to promote public scandal or gain unfair commercial
advantage, whether access is likely to promote public understanding of historically
significant events, and whether the press has already been permitted substantial
access to the contents of the records.”7 Newman v. Graddick, 696 F.2d 796, 803
(11th Cir. 1983). A court should also consider the consistency of a party’s reliance
where the party files a document subject to a protective order. AbbVie Prods.,
LLC, 713 F.3d at 68.
To determine whether the district court abused its discretion in granting
public access to Alabama’s protocol, we look to its analysis of these factors. The
district court considered the nature and character of the information in the lethal
injection protocol, finding that the protocol and its related records “clearly concern
a matter of great public concern, i.e., how Alabama carries out its executions.”
7
In Nixon v. Warner Communications, Inc., the Supreme Court described examples of “public
scandal” as “publication of the painful and sometimes disgusting details of a divorce case,” or
“reservoirs of libelous statements for press consumption.” 435 U.S. 589, 598, 98 S. Ct. 1306,
1312 (1978).
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The court noted that “[c]apital punishment is a hotly contested issue that involves
an irrevocable punishment for prisoners convicted of terrible crimes. The public
has a great interest in understanding how the State carries out its punishment.”
The district court rejected Alabama’s argument that the Intervenors sought
the protocol for an improper purpose, concluding that “public discussion is not the
same as public scandal. . . . And the fact that the Intervenors may take a position
about the death penalty does not make their intent to publish factual matter about
how Alabama conducts its executions ‘scandalous.’” The court also considered
whether access to the protocol would likely promote understanding of a historically
significant event. The court found that this factor weighed in favor of unsealing
the documents because “access to the lethal injection protocol may help the public
to understand the context of the State’s efforts to execute [Hamm]. It may also
help the public to understand how the same scenario might be repeated or avoided
under the protocol as it currently stands.”
The district court went on to say that the press already had access to some
information about the protocol because the court had referred “in broad terms [to]
aspects of the protocol in its memorandum opinion about Defendants’ motion for
summary judgment.” Alabama argues that the press will not gain any new
significant information from the protocol because the only portion of the protocol
at issue in Hamm’s case—the procedure for venous access—has already been
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discussed by the district court and Hamm’s counsel, and is therefore accessible to
the public. The court concluded, however, that currently available information
about the protocol was not an adequate replacement for the actual protocol. The
court explained that, “in an attempt to avoid sealing or redacting the memorandum
opinion, the court kept its summary of the protocol deliberately vague, highlighting
what the protocol does not contain instead of what it does provide.” Furthermore,
“[Alabama] will keep the lethal injection protocol secret from the public unless the
court unseals it. And the court’s vague summary of portions of the lethal injection
protocol and its gaps cannot truly substitute for the document itself.”
The district court also evaluated whether Alabama relied on the protective
order issued to keep the protocol confidential. The court acknowledged that
Alabama has always sought to keep the protocol confidential, but ultimately
decided that “the fact that [Alabama] zealously guard[s] information about a matter
of great public concern does not tip the scales against disclosure. The court
concludes that the considerations in favor of unsealing the records greatly
outweigh [Alabama’s] interest in maintaining secrecy.” Finally, the court
considered Alabama’s contention that its lethal injection protocol contains
sensitive security information. The court recognized that certain parts of the lethal
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injection protocol should remain sealed due to these potentially valid concerns and
noted that these parts of the protocol could be easily redacted.8
After considering and weighing all these factors, the district court held that
“the public’s common law right of access mandates the release of the lethal
injection protocol and related court records.” The court added, however, that it
would not unseal the protocol in full—rather, “[a]ny information that could be used
to track the locations of personnel before, during, and after the execution, or that
could be used to identify the people involved in the execution, will be redacted.”
The court then resolved to consult with Alabama to determine which parts of the
protocol needed to be redacted. The district court’s thorough analysis of the
factors listed in our precedent, and its tailored conclusion—allowing for redaction
of information that implicated Alabama’s proffered security concerns—did not
constitute an abuse of discretion.
III. Intervention
We review the grant of a motion for permissive intervention for abuse of
discretion, and the grant of a motion to intervene as of right de novo. See Georgia
v. U.S. Army Corps of Eng’rs, 302 F.3d 1242, 1249 (11th Cir. 2002). We review
8
Alabama has not provided any other concrete security concerns, either in the district court or on
appeal, beyond concern for protecting the identities of individual participants in the execution
process. Redaction of identifying information in the protocol will eliminate this concern. At the
time of oral argument, Alabama still had not taken the district court’s offer to redact the protocol.
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subsidiary factual findings for clear error. Id. We review a court’s determination
of timeliness for intervention for abuse of discretion. Walters v. Atlanta, 803 F.2d
1135, 1151 n.16 (11th Cir. 1986).
“The press has standing to intervene in actions to which it is otherwise not a
party in order to petition for access to court proceedings and records.” In re
Petition of Tribune Co., 784 F.2d 1518, 1521 (11th Cir. 1986). Under Rule 24(a)
of the Federal Rules Civil Procedure, a court must allow timely intervention by
anyone who “claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may as a
practical matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2). Rule
24(b) allows courts to permit timely intervention by anyone with “a claim or
defense that shares with the main action a common question of law or fact,” id. at
24(b)(1)(B), but courts must exercise discretion and consider whether the
intervention will “unduly delay or prejudice the adjudication of the original parties’
rights,” id. at 24(b)(3).
The district court granted intervention under Rule 24(a) for the Intervenors
here, but the court also recognized that intervention would be proper under Rule
24(b). Intervention under either Rule 24(a) or 24(b) must be timely filed.
Intervention may be timely filed even if it occurs after a case has concluded;
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timeliness depends on the circumstances of each case. Cf. Salvors, Inc. v.
Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1294 (11th Cir. 2017)
(finding intervention timely even though the contested order was entered 33 years
earlier); Chicago Tribune, 263 F.3d at 1308 (noting timely intervention by
members of the media “in the months following settlement” of the original case).
Courts consider four factors in assessing timeliness: (1) the length of time
during which the would-be intervenor knew or reasonably should have known of
his interest in the case before petitioning for leave to intervene; (2) the extent of the
prejudice that existing parties may suffer as a result of the would-be intervenor’s
failure to apply for intervention as soon as he actually knew or reasonably should
have known of his interest; (3) the extent of the prejudice that the would-be
intervenor may suffer if denied the opportunity to intervene; and (4) the existence
of unusual circumstances weighing for or against a determination of timeliness.
Salvors, 861 F.3d at 1294. Mere knowledge that an action is pending, without
appreciation of the potential adverse effect an adjudication of that action may have
on one’s interests, does not preclude intervention. Walters v. City of Atlanta, 803
F.2d 1135, 1151 n.16 (11th Cir. 1986). “The most important consideration in
determining timeliness is whether any existing party to the litigation will be
harmed or prejudiced by the proposed intervenor’s delay in moving to intervene.
In fact, this may well be the only significant consideration when the proposed
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intervenor seeks intervention of right.” McDonald v. E. J. Lavino Co., 430 F.2d
1065, 1073 (5th Cir. 1970) (citations omitted).9
Alabama argues that the Intervenors did not make a timely motion to
intervene because the Intervenors knew that they had an interest in Hamm’s case as
early as January 18, when a reporter associated with Alabama Media Group
reported on the case filings. Alabama did not submit a proposed confidentiality
order until January 30, and did not produce the protocol until the hearing on
January 31, which is when the district court imputed an interest to the Intervenors.
The Intervenors did not seek to intervene until March 28. Using the district court’s
chosen date, we still find that this factor cuts slightly against timeliness of
intervention.
Alabama also argues that it was prejudiced by the Intervenors’ untimely
intervention for two reasons. First, had Alabama known that the press would seek
9
Though the former Fifth Circuit recognized in McDonald that “intervention after judgment is
unusual and not often granted,” it also noted that “[t]he most important consideration in
determining timeliness is whether any existing party to the litigation will be harmed or
prejudiced by the proposed intervenors; delay in moving to intervene.” 430 F.2d at 1073
(citations omitted). McDonald binds us. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir. 1981) (en banc) (holding that all Fifth Circuit decisions handed down prior to close of
business on September 30, 1981, are binding precedent in the Eleventh Circuit). Moreover, other
circuits have recognized that timeliness concerns may be less significant when intervention is
“not on the merits, but for the sole purpose of challenging a protective order.” United Nuclear
Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (allowing intervention three
years after a case was settled); see also Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712
F.3d 1349, 1353–54 (9th Cir. 2013); Pansy v. Borough of Stroudsburg, 23 F.3d 772, 779 (3d Cir.
1994) (“[T]he growing consensus among the courts of appeals [is] that intervention to challenge
confidentiality orders may take place long after a case has been terminated.”)
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access to the protocol, it would not have voluntarily turned over the protocol
during the case, and would have challenged any court decision requiring
disclosure. Second, if the press had intervened earlier, Alabama could have taken
a different approach to the joint dismissal of the case and the finalized settlement
agreement with Hamm. 10 The district court rejected these arguments, finding first
that if Alabama did not voluntarily produce the protocol, the court would have
ordered Alabama to do so—thus, Alabama ultimately would have had to turn over
the protocol. The court then found that Alabama and Hamm could not have
reached any agreement about unsealing records in their settlement because neither
party sought to unseal the records.11
Alabama argues that the Intervenors will not suffer prejudice if they cannot
intervene in Hamm’s case because the Intervenors will not lose the opportunity to
access the protocol in other ongoing or future lethal injection cases. This argument
is unpersuasive. The mere fact that members of the press could attempt—in future
or ongoing cases—to intervene and seek access to Alabama’s execution protocol
does not mean that the Intervenors are not prejudiced in this case. The Intervenors
claim that they have a common law right to access the lethal injection protocol
10
Alabama did not provide any details about how it might have changed its settlement agreement
with Hamm had members of the press sought to intervene before settlement.
11
We also note that Alabama and Hamm could not have bound third parties or the court as to
sealing issues.
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included as a judicial record in Hamm’s case. Denial of this right constitutes an
injury even if the press might have another opportunity to obtain a copy of
Alabama’s protocol in a different case. Even if a copy of the protocol were
available in the future, Intervenors may be prejudiced by delay in gaining access to
that record. Cf. Neb. Press Ass’n v. Stuart, 423 U.S. 1327, 1329, 96 S. Ct. 251,
254 (1975) (in analyzing a prior restraint in the First Amendment context, holding
that “each passing day” may constitute a separate and cognizable harm where “a
direct prior restraint is imposed upon the reporting of news by the media”).
Moreover, there is no way to ensure that other copies of this same protocol—as
applied in Hamm’s case—will be available in future cases. Alabama could change
its protocol at any time, which would render the protocol used in Hamm’s case
unnecessary for future death penalty litigation. In addition, challenges to the
protocol are sometimes barred by the statute of limitations, and there is no
evidence that Alabama regularly files this protocol in litigation.
Finally, no unusual circumstances appear to militate for or against the
Intervenors’ intervention in Hamm’s case. In considering the totality of the
circumstances and evaluating the alleged prejudice to each party, the district court
reasonably concluded that the Intervenors timely intervened in Hamm’s case. The
district court’s conclusion did not constitute an abuse of discretion. This
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determination of timeliness was necessary to meet the requirements for
intervention under either Rule 24(a) or Rule 24(b).
Alabama also challenges the intervention based on other requirements of
Rule 24. Alabama first argues that intervention under Rule 24(a) was improper
because the Intervenors are not “so situated that disposition of the action, as a
practical matter, may impede or impair [their] ability to protect that interest.”
Alabama claims that the Intervenors’ asserted interest in accessing the protocol—
informing the public as to whether the failure to execute Hamm was due to a
problem with the protocol—is not impaired by the disposition of Hamm’s case.
Alabama presumes that the Intervenors may have other opportunities to access the
protocol, regardless of what happens in this case. We previously addressed this
argument above in evaluating timeliness, and we reject it for the same reasons
here. Thus, we conclude that intervention as of right was appropriate under Rule
24(a). 12
12
Moreover, it would not have been an abuse of discretion for the district court to grant
intervention under Rule 24(b). Many circuits recognize that parties “seeking to intervene in a
case for the limited purpose of unsealing judicial records” need not show a “strong nexus of fact
or law” to the issues in the original case. Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015)
(quoting Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992)); see also
Jessup v. Luther, 227 F.3d 993, 997–99 (7th Cir. 2000) (“[A]lthough there is ample justification
for the common fact or law requirement when the proposed intervenors seek to become a party to
the action, [t]here is no reason to require such a strong nexus of fact or law when a party seeks to
intervene only for the purpose of modifying a protective order.” (internal quotation marks
omitted)); EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (“[C]ourts
have been willing to adopt generous interpretations of Rule 24(b) because of the need for ‘an
effective mechanism for third-party claims of access to information generated through judicial
proceedings.’” (quoting Public Citizen v. Liggett Grp., Inc., 858 F.2d 775, 783 (1st Cir. 1988)));
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V. Conclusion
Our own precedent in Newman compels us to find that Alabama’s lethal
injection protocol—submitted to the court in connection with a litigated dispute,
discussed in proceedings and motions by all parties, and relied upon by the court to
dispose of substantive motions—is a judicial record. Judicial records provide
grounds upon which a court relies in deciding cases, and thus the public has a valid
interest in accessing these records to ensure the continued integrity and
transparency of our governmental and judicial offices. This public right of access,
based in the common law, may only be overcome when a court determines—after
balancing the respective competing interests of all parties—that the party seeking
to keep the information confidential has shown good cause. Here, the district court
did not abuse its discretion. The court properly balanced the interests of Alabama
and the Intervenors, concluding that Alabama had not shown good cause sufficient
to overcome the common law right of access. The court also properly granted
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3rd Cir. 1994) (“By virtue of the fact that
the Newspapers challenge the validity of the Order of Confidentiality entered in the main action,
they meet the requirement of Fed. R. Civ. P. 24(b)(2) that their claim must have ‘a question of
law or fact in common’ with the main action.”). The Intervenors here seek to determine whether
the district court’s protective order preventing disclosure of the protocol was justified. They
want to access the protocol in order to analyze what role, if any, the protocol played in
Alabama’s failed execution of Hamm. The district court did not abuse its discretion in deciding
that the Intervenors’ asserted interests for intervening—for the limited purpose of unsealing
judicial records—provided an adequate nexus for intervention under Rule 24(b).
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intervention under Rule 24 for Intervenors seeking to assert their common law
right of access to the lethal injection protocol. Accordingly, we affirm.
AFFIRMED.
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