Delashaw v. Seattle Times Company

District Court, W.D. Washington·Decided August 3, 2020·No. 2:18-cv-00537·Unknown

Opinion

1 The Honorable James L. Robart 2 3 4 5 6 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON g AT SEATTLE 9 || JOHNNY B. DELASHAW, JR., Case No. 2:18-cv-00537-JLR 10 Plaintiff, STIPULATED MOTION AND ORDER RE: LIMITED 11 v. INTERVENTION BY DR. ROD OSKOUIAN 12 || SEATTLE TIMES COMPANY, and CHARLES 13 COBBS, NOTE ON MOTION CALENDAR: Defendants. July 27, 2020 14 15 Dr. Rod Oskouian (“Dr. Oskouian”) respectfully requests that this Court allow him to 16 || intervene in this action under Fed R. Civ. P. 24 as in interested party solely for the limited 17 || purpose of addressing the potential use of materials Dr. Oskouian designated as confidential 18 || under the stipulated protective order in this case. Dkt. 45-1; 46. Dr. Cobbs has filed two 19 || motions to seal that include materials Dr. Oskouian designated as confidential: (1) Motion to 20 || Seal in conjunction with Dr. Cobbs’s Second Motion for Summary Judgment (Dkt. 205); and (2) 21 |} Motion to Seal in Conjunction with Dr. Cobbs’s Motions in Limine (Dkt. 214). Dr. Oskouian 22 || seeks to intervene at this time only to address those motions. Counsel for all parties have 23 || conferred and stipulated to Dr. Oskouian’s request for limited intervention. In so stipulating, 24 || counsel for the parties here stipulate only to Dr. Oskouian’s request for limited intervention to be 25 || heard on Dr. Cobbs’ motion to seal, not to any arguments made about keeping any documents 26 || out of the open court file. Dr. Delashaw, Dr. Cobbs, and the Seattle Times expressly state, and

STIPULATED MOTION AND ORDER - RE: LIMITED INTERVENTION BY DR. ROD OSKOUIAN - 1 POLSINELLI (Case No. 2:18-cv-00537-JLR) 1000 SECOND AVENUE, SUITE 3500 SEATTLE, WA 98104 * (206) 393-5400

1 || Dr. Oskouian acknowledges, that nothing in this stipulated motion is intended to impact any 2 || arguments the parties might have with respect to Dr. Cobbs’s motion to seal. 3 ARGUMENT 1. The Fed. R. Civ. P. 24(a) Standard for Intervention. 5 Under Fed. R. Civ. P. 24(a), the Court “must permit anyone to intervene who claims an 6 || interest relating to the property or transaction that is the subject of the action, and is so situated 7 || that disposing of the action may as a practical matter impair or impede the movant’s ability to 8 || protect its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 9 || 24(a)(2). A motion must be granted if: (1) the application is timely; (2) the applicant has a 10 || “significantly protectable” interest relating to the property or transaction that is the subject of the 11 |} action; (3) the applicant is so situated that the disposition of the action may, as a practical matter, 12 || impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest is 13 || not adequately represented by the existing parties in the lawsuit. Southwest Center for 14 || Biological Diversity v. Berg, 268 F.3d 810, 817 (9th Cir. 2001). The Court’s evaluation is 15 || “guided primarily by practical considerations,” not technical distinctions. Jd. Dr. Oskouian 16 || asserts that his motion meets each of the four requirements. 17 |} 2. Dr. Oskouian is entitled to limited intervention to protect his confidentiality interest. 18 a. Timeliness 19 The Seattle Times subpoenaed Dr. Oskouian to provide deposition testimony. Dr. 20 |} Oskouian was deposed pursuant to that subpoena on June 12, 2020. At the conclusion of that 21 || deposition, Dr. Oskouian’s counsel designated the transcript as confidential, as provided under 22 || the stipulated protective order. On July 9, 2020, after discussion with defendants’ counsel, Dr. 23 || Oskouian confirmed by page and line a more specific list of portions of the transcript to be 24 || designated as confidential. 25 The protective order and this Court’s rules require a party filing confidential material to 26 || confer with the designating party to determine whether the designating party will withdraw the

STIPULATED MOTION AND ORDER - RE: LIMITED INTERVENTION BY DR. ROD OSKOUIAN — 2 POLSINELLI (Case No. 2:18-ev-00537JLR) SEATTLE, WA 98 104 (306) 398-5400

1 || confidential designations before filing. Dr. Cobbs’s counsel and Dr. Oskouian’s counsel had 2 || several conversations regarding confidentiality designations, but were unable to resolve their 3 || differences. 4 Dr. Cobbs then filed on July 13, 2020, his motion to seal in conjunction with his Second 5 || Motion for Summary Judgment. (Dkt. 205). Dr. Oskouian now timely seeks to intervene to 6 || protect his confidentiality interest just two weeks after the motion to seal was filed. 7 b. Significant Protectable Interest. 8 An applicant for intervention has a “significant protectable interest” in an action if (1) it 9 || asserts an interest that is protected under some law, and (2) there is a “relationship” between its 10 || legally protected interest and the plaintiff's claims. Donnelly v. Glickman, 159 F.3d 405, 409 11 |} (th Cir. 1998) (citing Northwest forest Resource Council v. Glickman, 82 F.3d 825, 837 (9th 12 |} Cir. 1996)). “An applicant generally satisfies the ‘relationship’ requirement only if the 13 || resolution of the plaintiff's claims actually will affect the applicant.” Donnelly, 159 F.3d at 410 14 |} (citing Montana vy. United States Envtl. Protection Agency, 137 F.3d 1135, 1141-42 (9th Cir. 15 || 1998)). 16 Dr. Oskouian contends that he “asserts an interest that is protected under some law” 17 || because he argues that the materials he designated as confidential implicate his constitutionally- 18 || protected rights and his due process rights under the stipulated protective order entered under 19 || Fed. R. Civ. P. 26. 20 Likewise, Dr. Oskouian contends there is a “relationship” between Dr. Oskouian’s legally 21 || protectable confidentiality interest and the claims and defenses in the suit because Dr. Cobbs has 22 || relied on material Dr. Oskouian designated as confidential in support of his Second Motion for 23 |} Summary Judgment. This Court’s LCR 5(g) actually provides that it is incumbent upon the party 24 || designating materials as confidential under a stipulated protective order to satisfy this Court’s 25 || local rules to confirm that the material should be sealed from the public record. See LCR 26 || 5(g)(3)(B) Cwhere parties have entered a. . . stipulated protective order . . . the party who

STIPULATED MOTION AND ORDER - RE: LIMITED INTERVENTION BY DR. ROD OSKOUIAN - 3 POLSINELLI (Case No. 2:18-ev-00537JLR) SEATTLE, WA 98 104 (306) 398-5400

1 || designated the document confidential must satisfy subpart 3(B) in its response to the motion to 2 || seal or in a stipulated motion.”). Dr. Oskouian therefore respectfully submits that LCR 5(g) 3 || firmly establishes that there is a relationship between Dr. Oskouian’s confidentiality interest and 4 || the claims and defenses at issue here, specifically including Dr. Cobbs’s Second Motion for 5 || Summary Judgment. 6 c. Effect of Disposition on Dr. Oskouian’s Ability to Protect His Interest. 7 Although Dr.

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