Petition for Writ of Mandamus to Review anOrder Entered by the United States District Courtfor the Northern District of CaliforniaJames Ware, District Judge, PresidingArgued and SubmittedJuly 16, 1999--San Francisco, CaliforniaFiled August 13, 1999Before: Mary M. Schroeder, Betty B. Fletcher, andCynthia Holcomb Hall, Circuit Judges.Opinion by Judge B. Fletcher
_____________________________COUNSEL Edward P. Davis, Jr., Gray, Cary, Ware & Friedenrich, PaloAlto, California, for the petitioner.Gregory E. Stubbs and H. Christopher Hittig, Stubbs, Hittig& Leone, San Francisco, California, for the City of MountainView, real party in interest.Vanessa A. Zecher, San Jose, California, for Lora Saldivarand Shannon Calby, real parties in interest.
_____________________________OPINION B. FLETCHER, Circuit Judge:The San Jose Mercury News, Inc. ("Mercury News") peti-tions for mandamus in an effort to gain access to an investiga-tory report commissioned by the City of Mountain View("Mountain View") in connection with a sexual harassmentsuit brought by two female police officers ("Plaintiffs")against Mountain View and its police department("Defendants"). In order to obtain the report, the MercuryNews sought permissive intervention in the action before thedistrict court. The district court denied the motion, promptingthe newspaper's petition for mandamus relief. We grant thewrit, vacate the district court's order denying the MercuryNews' motion to intervene, and remand for further proceed-ings.I.The relevant facts are undisputed. In early 1996, the Plain-tiffs filed discrimination charges with the EEOC against theDefendants. After receiving "right to sue" letters from theEEOC, the Plaintiffs filed the underlying suits alleging,among other things, that the Mountain View Police Depart-ment maintained a work environment hostile to its femaleemployees in violation of state and federal law.In response to the discrimination charges, the Defendantsretained an independent expert, Geraldine Randall, to investi-gate the allegations and produce a report detailing her find-ings ("Report"). During discovery, the Plaintiffs soughtproduction of the Report. This set off an extended series ofdiscovery disputes between the parties, spanning almost sixmonths. In the end, the Defendants lost the fight -- the dis-trict court ordered the Report produced. The parties, however,stipulated to a protective order that kept the Report frombecoming public.1 The district court entered the protectiveorder on February 18, 1998.Mercury News coverage of the discrimination suit appar-ently began in January 1998, with a story detailing the Plain-tiffs' allegations and the Defendants' efforts to withhold theReport. On May 14, 1998, the Mercury News filed a motionseeking permissive intervention and an order modifying theprotective order so as to unseal the Report. The district courtdenied the motion on July 27, 1998, holding that neither theFirst Amendment nor federal common law provides a right ofpublic access to court records in civil cases prior to final judg-ment. On January 22, 1999, the Mercury News filed theinstant petition for mandamus relief, invoking our jurisdictionpursuant to the All Writs Act, 28 U.S.C. S 1651.II.[1] Mandamus is a "drastic" remedy, "to be invoked onlyin extraordinary situations." Kerr v. United States DistrictCourt,
426 U.S. 394, 402
(1976); Calderon v. United StatesDistrict 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, commonlyknown as the "Bauman factors," that are the analytic startingpoint in determining whether mandamus should issue: (1)whether the party seeking the writ has no other adequatemeans, such as a direct appeal, to attain the relief he or shedesires; (2) whether the petitioner will be damaged or preju-diced in a way not correctable on appeal; (3) whether the dis-trict court's order is clearly erroneous as a matter of law; (4)whether the district court's order is an oft-repeated error, ormanifests a persistent disregard of the federal rules; and (5)whether the district court's order raises new and importantproblems, or issues of law of first impression. See PhoenixNewspapers v. United States District Court, 156 F.3d 940,951-52 (9th Cir. 1998); Bauman v. United States , 557 F.2d650, 654-55 (9th Cir. 1977). A petitioner need not satisfy allfive factors. "The considerations are cumulative and properdisposition will often require a balancing of conflictingindicators." Bauman, 557 F.2d at 655. Mandamus review is atbottom discretionary -- even where the Bauman factors aresatisfied, 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 isappropriate because the district court's denial of the motion tointervene was based on an erroneous legal principle -- thatthe public has no right of access to court records in civil casesbefore judgment. We agree, concluding that a right of accessto such records can be derived from at least two independentsources: the federal common law and the Federal Rules ofCivil Procedure. This legal conclusion notwithstanding, wemust evaluate whether, in light of the Bauman factors, manda-mus relief is warranted.A.[2] With respect to the first Bauman factor -- the availabil-ity of alternate avenues of relief -- we note that a directappeal was available to the Mercury News here. The prece-dents of this court make it clear that a denial of a motion forpermissive intervention in a civil case is directly appealable.See League of United Latin Amer. Citizens v. Wilson, 131F.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 gen-eral matter, "[m]andamus is not to be used as a substitute foran appeal." Calderon v. United States District Court, 137F.3d 1420, 1421 (9th Cir. 1998); see also Moses H. ConeMem'l Hosp. v. Mercury Constr. Co.,
460 U.S. 1
, 8 n.6(1983).[3] Here, however, the second Bauman factor offsets thefirst to some degree. Because of the perishable nature ofnews, a direct appeal might not be an entirely adequate rem-edy here. In cases involving a request by the press for accessto judicial records, this court has recognized that the delayentailed 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] cannotattain the requested relief because the tapes it seeks to copywill lose much of their newsworthiness during the pendencyof the trial."). At the same time, we are troubled by the factthat the Mercury News waited almost six months to bring thispetition for mandamus.2 Nevertheless, the Mercury News'willingness to seek the writ, even if belatedly, suggests thatthe case was once again "newsworthy" in January 1999. Tothe extent this is true, the decay of newsworthiness wouldconstitute an injury better addressed by a writ of mandamusthan by a direct appeal.Accordingly, we find that the first Bauman factors tipsagainst mandamus relief, while the second tips in favor.B.[4] As a general matter, the third Bauman factor demandsthat a petitioner seeking mandamus relief show that "the dis-trict court's order is clearly erroneous as a matter of law." SeeCalderon v. United States District Court, 134 F.3d at 983.Where a petition for mandamus raises an important issue offirst impression, however, a petitioner need show only"ordinary (as opposed to clear) error." Id. at 984. The instantcase raises an important issue of first impression -- whetherthe public has a pre-judgment right of access to judicialrecords in civil cases -- and we conclude that the districtcourt erred in resolving it.[5] Nonparties seeking access to a judicial record in a civilcase may do so by seeking permissive intervention under Rule24(b)(2). See, e.g., EEOC v. National Children's Ctr., 146F.3d 1042, 1045 (D.C. Cir. 1998) (collecting cases); Hagestadv. Tragesser, 49 F.3d 1430, 1432 (9th Cir. 1995) (permissiveintervention granted to nonparty pressing federal common lawright of access); Beckman Indus. v. International Ins. Co., 966F.2d 470, 473 (9th Cir. 1992) (approving permissive interven-tion as method for challenging protective order under Rule26(c)); Philippines v. Westinghouse Elec. Corp., 949 F.2d653, 657 (3d Cir. 1991) (permissive intervention granted tononparty newspaper pressing both First Amendment and com-mon law right of access). A motion for permissive interven-tion pursuant to Rule 24(b) is directed to the sound discretionof 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 denovo review. See Beckman, 966 F.2d at 472; accord Pansy v.Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994).[6] In this circuit, there are three necessary prerequisites forallowing permissive intervention pursuant to Rule 24(b)(2):"[A] court may grant permissive intervention where the appli-cant for intervention shows (1) independent grounds for juris-diction; (2) the motion is timely; and (3) the applicant's claimor defense, and the main action, have a question of law or aquestion of fact in common." League of United Latin Amer.Citizens, 131 F.3d at 1308. Here, the Defendants do not chal-lenge the first or third of these prerequisites. See Beckman,966 F.2d at 473-74 (holding that independent jurisdictionalbasis and strong nexus of fact or law are not required whereintervenor merely seeks to challenge a protective order). TheDefendants do, however, argue that the Mercury News'motion was untimely, and that the district court thus did notabuse its discretion in denying it.1.Generally, a district court's determination of timeliness inconnection with a motion to intervene pursuant to Rule24(b)(2) is reviewed for an abuse of discretion. See League ofUnited Latin Amer. Citizens, 131 F.3d at 1302. Here, how-ever, the district court did not expressly base its decision ontimeliness grounds and did not make any factual findingsregarding timeliness. As a result, we review de novo. See id.[7] In determining whether a motion for intervention istimely, a court must consider three factors: "(1) the stage ofthe proceeding at which an applicant seeks to intervene; (2)the prejudice to other parties; and (3) the reason for andlength of the delay." Id. In measuring any delay in seekingintervention, the inquiry looks to when the intervenor firstbecame aware that its interests would no longer be adequatelyprotected by the parties. See Public Citizen v. Liggett Group,Inc., 858 F.2d 775, 785 (1st Cir. 1988).[8] Here, until the filing of the stipulated protective orderon February 18, 1998, the interests of the Mercury News werebeing effectively represented by the Plaintiffs, who had per-sistently sought production of the Report. After the protectiveorder was entered, the Mercury News waited 12 weeks beforeseeking to intervene. The Defendants do not argue that thelength of this delay itself renders the intervention untimely.Indeed, delays measured in years have been tolerated wherean intervenor is pressing the public's right of access to judi-cial records. See, e.g., Beckman, 966 F.2d at 471 (affirmingintervention 2 years after settlement); Public Citizen, 858 F.2dat 785 (collecting cases). Instead, the Defendants contend thatthe delay was prejudicial because they would not have agreedto the stipulated protective order had they known that theReport would become public. The Defendants argue that theypassed up their opportunity to seek reconsideration of the dis-trict court's order to produce the Report in exchange for theconfidentiality provisions of the stipulated protective order. Intheir view, permitting the Mercury News to intervene nowwould upset their bargained-for expectations.[9] The Defendants' argument is unavailing. First, on thisview, any intervention after the entry of the stipulated protec-tive order would be untimely, as it would upset the bargained-for expectations of the parties. It was, however, only uponentry of the stipulated protective order that the injury to thepublic's right of access became clear. Second, to the extentthe Defendants relied on the stipulated protective order inmaking the decision to forgo a motion for reconsideration,such reliance was unreasonable. The right of access to courtdocuments belongs to the public, and the Plaintiffs were in noposition to bargain that right away. Third, if a motion to inter-vene is denied as untimely, it is likely that subsequentmotions to intervene will also be held untimely, stymying thepublic's right of access altogether. Consequently, courts haverecognized that, assuming an intervenor does assert a legitimate, pre- sumptive right to open the court record of a particu- lar dispute, the potential burden or inequity to the parties should affect not the right to intervene but, rather, the court's evaluation of the merits of the applicant's motion to lift the protective order. Public Citizen, 858 F.2d at 787 (quoting Mokhiber v. Davis,537 A.2d 1100, 1106 (D.C. 1988)).[10] We conclude that the motion to intervene was timely.2.This brings us to the heart of the petition: does the publichave a pre-judgment right of access to judicial records in civilcases? The Mercury News answers this question in the affir-mative, relying on three independent bases: the First Amend-ment, the federal common law, and the Federal Rules of CivilProcedure.3 For our purposes here, it is enough that we agreewith the Mercury News as to the latter two bases. SeeHagestad, 49 F.3d at 1434 n.6. We leave for another day thequestion of whether the First Amendment also bestows on thepublic a prejudgment right of access to civil court records.[11] In Nixon v. Warner Communications,
435 U.S. 589
(1978), the Supreme Court recognized a federal common lawright "to inspect and copy public records and documents." Id.at 597. Federal appellate courts have uniformly concludedthat this common law right extends to both criminal and civilcases. See, e.g., Leucadia, Inc. v. Applied Extrusion Tech.,Inc., 998 F.2d 157, 161 (3d Cir. 1993); Smith v. United StatesDistrict Court, 956 F.2d 647, 650 (7th Cir. 1992); EEOC v.Erection Co., 900 F.2d 168, 169 (9th Cir. 1990); FTC v. Stan-dard Fin. Mgt., 830 F.2d 404, 408 n.4 (1st Cir. 1987); In reContinental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.1984); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d1165, 1179 (6th Cir. 1983). We have expressly recognizedthat the federal common law right of access extends to pretrialdocuments filed in civil cases, see Hagestad, 49 F.3d at 1434,and that the right of access applies prior to judgment in thecriminal context, see Valley Broadcasting, 798 F.2d at 1291n.2. Other circuits have expressly recognized that the commonlaw right reaches documents filed in connection with motionsfor summary judgment. See Westinghouse, 949 F.2d at 660-61; Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982); see alsoLeucadia, 998 F.2d at 164 (holding that common law right ofaccess applies to all pretrial motions of a nondiscovery natureand the material filed in connection therewith). While wehave never squarely held that the federal common law rightof public access extends to materials submitted in connectionwith motions for summary judgment in civil cases prior tojudgment, we conclude that the unbroken string of authoritiesnoted above leaves little doubt as to the answer. What doubtremains, we dispel for the Ninth Circuit today. 4[12] That such a federal common law right exists, however,does not mandate disclosure in all cases. The federal commonlaw right of access is not absolute, and is not entitled to thesame level of protection accorded a constitutional right. SeeValley Broadcasting, 798 F.2d at 1293. Thus, although thecommon law right creates a strong presumption in favor ofaccess, the presumption can be overcome by sufficientlyimportant countervailing interests. See Hagestad, 49 F.3d at1434 (noting factors to weigh). Where the district court con-scientiously undertakes this balancing test, basing its decisionon compelling reasons and specific factual findings, its deter-mination will be reviewed only for abuse of discretion. Id.Here, however, the district court never undertook this analy-sis, having barred the doors to the Mercury News by denyingit leave to intervene. Insofar as the decision was based on afailure to recognize the existence of a pre-judgment federalcommon law right of access to civil court documents, it wasclearly erroneous.[13] The Mercury News also contends that it is entitled tointervene in order to press the public's right of access to dis-covery materials pursuant to Federal Rule of Civil Procedure26(c). It is well-established that the fruits of pretrial discoveryare, in the absence of a court order to the contrary, presump-tively public. See Citizens First Nat'l Bank v. Cincinnati Ins.Co., No. 98-3534, 1999 WL 342772 at *1, _______ F.3d _______ (7thCir. May 28, 1999); Public Citizen, 858 F.2d at 789; In reAgent Orange Product Liability Litig., 821 F.2d 139, 145-46(2d Cir. 1987). Rule 26(c) authorizes a district court to over-ride this presumption where "good cause" is shown.[14] In the instant case, the district court entered a blanketstipulated protective order pursuant to Rule 26(c). Such blan-ket orders are inherently subject to challenge and modifica-tion, as the party resisting disclosure generally has not madea particularized showing of good cause with respect to anyindividual document. See Beckman, 966 F.2d at 476; PublicCitizen, 858 F.2d at 790. Here, the Mercury News sought tointervene in order to modify the stipulated blanket protectiveorder so as to unseal the Report. This circuit has held that anonparty may seek permissive intervention in order to testwhether the "good cause" requirements of Rule 26(c) havebeen met with respect to a particular item of discovery. SeeBeckman, 966 F.2d at 473, 476; accord Pansy, 23 F.3d at783-92; Public Citizen, 858 F.2d at 787-90. Because the dis-trict court here denied the Mercury News' motion to inter-vene, it never reached the question of good cause under Rule26(c). In light of Beckman and Public Citizen, this ruling wasclearly erroneous.[15] For the reasons discussed above, we conclude that thethird Bauman factor tips in favor of granting mandamus relief.C.[16] It has been noted that the fourth and fifth Bauman fac-tors are often mutually exclusive. See Calderon v. UnitedStates District Court, 134 F.3d at 983 n.4. The MercuryNews' petition does not implicate the fourth factor -- therehas been no showing of oft-recurring error on the part of thedistrict courts of this circuit. However, as is plain from thediscussion above, the fifth Bauman factor is implicated. Thepetition presents an important question that has not yet beendirectly addressed by this circuit -- whether the federal com-mon law right of access extends to documents filed in civilcases that have not yet gone to judgment. Thus, we concludethat the fifth Bauman factor weighs in favor of granting thepetition for mandamus.III.[17] We conclude that mandamus relief is appropriate. Wevacate the district court's order denying the Mercury News'motion for permissive intervention pursuant to Rule 24(b)(2),and remand to the district court for further proceedings. Weexpress no opinion on whether the Mercury News should ulti-mately prevail in its motion to intervene; this is a questionproperly addressed to the discretion of the district court. SeeEEOC v. National Children's Ctr., 146 F.3d at 1048 (districtcourt has considerable discretion in ruling on a motion forpermissive intervention, even where all the prerequisites aremet). We simply hold that the district court erred to the extentit premised its denial of the motion on a belief that the publichad no prejudgment right of access to judicial records in civilcases.The petition for writ of mandamus is GRANTED. The dis-trict court's order denying the Mercury News' motion tointervene is VACATED and this matter is REMANDED forfurther proceedings. the end
___________________________FOOTNOTES 1 Apparently the Plaintiffs preferred this compromise to the delays,uncertainty, and costs attendant on an appeal or motion for reconsidera-tion.2 This extended delay also precludes this court from construing the peti-tion as a direct appeal. See Calderon, 137 F.3d at 1422 (where petition isfiled within the time permitted for appeal, the court may construe it as adirect appeal, but this course is not available where the petition is filedoutside the appeal period).3 Citing United States v. Mindel, 80 F.3d 394, 398 (9th Cir. 1996), theDefendants contend that the Mercury News, as a nonparty intervenor, onlyhas standing to press its First Amendment theory. In Mindel, the court wascalled on to decide whether a crime victim had standing to challenge a dis-trict court's order rescinding a defendant's obligation to make criminalrestitution payments to the victim. Id. at 395. After finding that the victimdid not have standing to bring an appeal, the opinion went on to hold thatthe victim was also barred from obtaining mandamus relief. Id. at 398. Inso holding, the court noted that it had granted mandamus standing to newsorganizations that had been denied access to criminal proceedings, not-withstanding their inability to bring a direct appeal, but declined to extendthis rule beyond the First Amendment context. Id.The Defendants' reliance on Mindel is misplaced for at least two rea-sons. First, we have permitted news organizations to seek mandamus reliefin order to vindicate the federal common law right of access to court pro-ceedings. See Valley Broadcasting, 798 F.2d at 1297. Second, as discussedabove, the Mercury News has standing to bring a direct appeal, thus takingthis case completely outside the rationale of Mindel. See League of United4 In resisting the unanimous authorities, the Defendants offer only In reReporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir.1985), in support of their position that the common law right does notapply to civil cases prior to judgment. That reliance is misplaced, as thatopinion limits its attention to the First Amendment right of access andexpresses no opinion regarding the reach of the federal common law right.See id. at 1340.