Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc.

139 F.R.D. 102, 21 Fed. R. Serv. 3d 364, 1991 U.S. Dist. LEXIS 18844, 1991 WL 208057
CourtDistrict Court, E.D. Michigan
DecidedSeptember 12, 1991
DocketCiv. A. No. 85-CV-40448-FL
StatusPublished
Cited by4 cases

This text of 139 F.R.D. 102 (Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kerasotes Michigan Theatres, Inc. v. National Amusements, Inc., 139 F.R.D. 102, 21 Fed. R. Serv. 3d 364, 1991 U.S. Dist. LEXIS 18844, 1991 WL 208057 (E.D. Mich. 1991).

Opinion

MEMORANDUM OPINION AND ORDER

NEWBLATT, District Judge.

Before the Court is a Motion to Intervene by American Multi-Cinema, Inc. (“AMC”), for the limited purpose of modifying any relevant protective orders. Defendant, National Amusements, Inc. (“National”), opposes AMC’s intervention. Plaintiff, Kerasotes Michigan Theatres, Inc., takes no position with respect to this Motion. For the following reasons, the Motion is GRANTED.

This Motion arises out of similar antitrust litigation filed by AMC against National, MGM/UA Entertainment Co., and Orion Pictures Corp., which is pending in the United States District Court for the Northern District of Ohio, No. C 88-7104 (“the Toledo litigation”). AMC seeks access to deposition transcripts (and all exhibits thereto) generated in this long-settled case (“the Flint litigation”) as a result of any of National’s employees, motion picture distributors’ employees or expert witnesses being deposed. To the extent that these specified transcripts are subject to any protective orders,1 AMC seeks intervention for the limited purpose of modifying such protective orders to provide that, subject to the continuing terms of such protective orders, AMC shall be granted access to specified deposition transcripts generated in the Flint litigation.

In the Sixth Circuit, permissive intervention under Fed.R.Civ.P. 24(b) has been held to be a proper method for a non-party to challenge a protective order by limited intervention for discovery purposes. Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823 F.2d 159,162 (6th Cir.1987) (citing In re Upjohn Co. Antibiotic Cleocin Products Liability Litigation, 664 F.2d 114,118 (6th Cir.1981)). Furthermore, when intervention for purposes of discovery is thus sought, and the two actions involve the same defendants charged with anti-competitive conduct, no stringent showing of a strong nexus of common fact or law is required. Meyer Goldberg, 823 F.2d at 164.

In Meyer Goldberg, May Department Stores Company (“May”) moved to intervene in a settled antitrust action (“the Goldberg litigation”) which involved the same defendants and many of the same issues as a subsequent action initiated by May. May requested intervention in order to discover certain tape recordings from the Goldberg litigation in which conspiracy was allegedly discussed. These tape re[104]*104cordings had been previously placed under protective order in the Goldberg litigation which had since been settled and dismissed with prejudice. The district court denied May’s motion to intervene in the Goldberg litigation, holding that: “May Company has failed to show, as a threshold matter, that their [sic] claim and the main action ‘have a question of law or fact in common.’ Therefore, intervention in the above-captioned case is not warranted.” Id. at 161.

May appealed from the district court’s decision. The Sixth Circuit, in analyzing the requested modification, cited the following standard:

Given that proceedings should normally take place in public, imposing a good cause requirement on the party seeking modification of a protective order is unwarranted. If access to protected fruits can be granted without harm to legitimate secrecy interests, or if no such interests exist, continued judicial protection cannot be justified. In that case, access should be granted even if the need for the protected materials is minimal. When that is not the case, the court should require the party seeking modification to show why the secrecy interests deserve less protection than they did when the order was granted. Even then, however, the movant should not be saddled with a burden more onerous than explaining why his need for the materials outweighs existing privacy concerns.

Id. at 163 (citations omitted) (emphasis added).

The Court concluded that a strong nexus of common law and fact is not required where intervention is for the purpose of discovery, Id. at 164, and the Court remanded the case to the district court for lack of “consideration of the strong underlying tradition of open records, and that only compelling reasons justify denial or continued denial of access to records of the type sought by appellant May,” Id. The Meyer Goldberg decision thus indicates that, in the balancing of the harm to legitimate secrecy interests in granting access to the protected material against the strong traditional public interest in open records, the presumption favors the latter.

The first question this Court must answer is whether access to the protected deposition transcripts can be granted without harm to existing legitimate secrecy interests. Therefore, to engage in the appropriate balance, we must determine what secrecy interests are at stake in this case.

The question of whether to grant access to protected material for discovery purposes in a collateral action is explored in depth by the Tenth Circuit in United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir.1990). That Court provides us with the following instructive discussion:

The protective order in this case was entered by stipulation of the parties and designated all materials produced in discovery as confidential. The order restricted use and disclosure unless a party challenged the confidentiality of a particular item. These stipulated “blanket” protective orders are becoming standard practice in complex cases. They allow the parties to make full disclosure in discovery without fear of public access to sensitive information and without the expense and delay of protracted disputes over every item of sensitive information, thereby promoting the overriding goal of the Federal Rules of Civil Procedure, “to secure the just, speedy, and inexpensive determination of every action.” Fed. R.Civ.P. 1.
No doubt such an order makes the discovery process in a particular case operate more efficiently; the assurance of confidentiality may encourage disclosures that otherwise would be resisted. Allowing modification of protective orders for the benefit of collateral litigants tends to undermine the order’s potential for more efficient discovery. But when a collateral litigant seeks access to discovery produced under a protective order, there is a counter-veiling efficiency consideration—saving time and effort in the collateral case by avoiding duplica-tive discovery. In striking this balance, some circuits have adopted a presumption in favor of the continued integrity of [105]*105the protective order, see, e.g., In re “Agent Orange” Prod. Liab. Litig., 821 F.2d 139, 147-48 (2d Cir.), cert. denied, 484 U.S. 953, 108 S.Ct. 344, 98 L.Ed.2d 370 (1987) (protective orders modifiable only under extraordinary circumstances),2

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139 F.R.D. 102, 21 Fed. R. Serv. 3d 364, 1991 U.S. Dist. LEXIS 18844, 1991 WL 208057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerasotes-michigan-theatres-inc-v-national-amusements-inc-mied-1991.