Alex Rosas et al v. Leroy Baca et al

Filing 279

ORDER RE MOTIONS TO INTERVENE AMD UNSEAL, 268 , 269 by Judge Dean D. Pregerson: The motions to intervene are, therefore, GRANTED, pursuant to Rule 24(b). A separate Order shall issue with respect to Movants motions to unseal the Sealed Materials. At argument, Movants indicated that they would not object to redactions of certain information in the Videos. Defendants, for their part, indicated that they would not object to the unsealing of at least one of the Videos. With that understanding , the court is inclined to grant Movants motionsto unseal, subject to the following: Defendants shall, within 21 days of the date of this Order, lodge with the court a set of edited Videos pixelated, cropped, or otherwise redacted to the minimum ex tent necessary to address any privacy or security concerns (the Edited Videos). Such alterations shall not obscure or diminish any depictions of uses of force. Plaintiffs and Defendants may lodge, along with the set of Edited Videos, a Joint Stateme nt providing additional contextual information about any or all of the Videos. Although the court prefers that Plaintiffs and Defendants agree on any such commentary, the parties may, if necessary, submit separate additional statements. The court then anticipates issuing an Order releasing the Edited Videos shortly thereafter. IT IS SO ORDERED. (shb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALEX ROSAS and JONATHAN
GOODWIN, on behalf of
themselves and of those
similarly situated,
Plaintiff,
v.
LEROY BACA, Sheriff of Los
Angeles County Jails; PAUL
TANAKA, Undersheriff, Los
Angeles Sheriff's
Department; CECIL RHAMBO,
Assistant Sheriff, Los
Angeles Sheriff's Department
and DENNIS BURNS, Chief of
Custody Operations Division,
Los Angeles Sheriff's
Department,

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Case No. CV 12-00428 DDP (SHx)

ORDER RE: MOTIONS TO INTERVENE
AND UNSEAL

[Dkt. 268,269]

Defendants.
___________________________

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Presently before the court are two separate Motions to

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Intervene and Unseal, filed by Los Angeles Times Communications LLC

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(“LA Times) (Dkt. 268) and WitnessLA (Dkt. 269) (collectively,

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“Movants”).

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exhibits, and references thereto, concerning use of force incidents

The motions seek intervention to unseal six video

in Los Angeles County Jail facilities.

All six videos depict

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incidents that occurred before Sherriff Luna, the current

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Sheriff’s, administration.

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the parties and heard oral argument, the court grants the motions

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to intervene and adopts the following Order.

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the motions to unseal shall issue separately.

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I.

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Having considered the submissions of

An order regarding

Background
In 2012, Plaintiffs filed a putative class action complaint

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alleging a pervasive pattern of excessive force being utilized

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against inmates in Los Angeles County jail facilities in downtown

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Los Angeles.

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shortly thereafter, and facilitated several settlement discussions

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for approximately two years.

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Settlement Agreement, under which an independent panel of experts

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(“the Monitors) would formulate an implementation plan to address

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use of force issues within the jails and issue periodic reports

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regarding Defendants’ progress toward implementation.

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This Court approved the settlement in April 2015, and retained

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jurisdiction to enforce the Settlement Agreement.

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(Dkt. 32.)

The court certified a plaintiff class

Those discussions culminated in a

(Dkt. 110).

(Dkt. 135.)

Progress toward implementation of the Settlement Agreement

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proceeded more slowly than hoped, and in September 2017, Plaintiffs

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filed a Motion to Enforce Settlement Agreement, primarily seeking

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access to documents that Defendants were already producing to the

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Monitors.

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reached a mutually agreeable resolution, and Plaintiffs withdrew

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their Motion to Enforce (Dkt. 194).

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Stipulated Protective Order, which this Court entered in May 2018

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upon a finding of good cause.

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Protective Order provided that Defendants would provide Plaintiffs

(Dkt. 152).

After extensive discussions, the parties

Key to that resolution was a

(Dkt. 193.)

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In essence, the

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with certain information, including videos, with the proviso that

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such information would remain confidential and filed before the

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court, if at all, under seal.

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right to seek a court determination whether confidential

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information could be publicly filed.

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Several years passed.

Plaintiffs retained, however, the

Although the Los Angeles County

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Sheriff’s Department made some headway in implementing the

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Settlement Agreement, progress toward certain key provisions

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stalled under former County and Sheriff’s Department leadership.

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Accordingly, in May 2023, Plaintiffs filed a Motion to Modify

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Implementation Plan (Dkt. 252.)

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Plaintiffs filed a total of six video exhibits (“the Videos”).

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accordance with the Protective Order, Plaintiffs filed the Videos,

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as well as various references thereto (collectively, “the Sealed

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Materials”) in Plaintiffs’ supporting materials, under seal.

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Movants now seek to intervene in this case for the sole

In support of that motion,

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purpose of unsealing the Sealed Materials.

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II.

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In

Legal Standard
Under Federal Rule of Civil Procedure 24, a court must allow

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intervention by any movant who “claims an interest relating to the

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property or transaction that is the subject of the action, and is

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so situated that disposing of the action may as a practical matter

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impair or impede the movant’s ability to protect its interest,

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unless existing parties adequately represent that interest.” Fed.

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R. Civ. P. 24(a)(2).

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intervene as of right, if (1) the motion is timely; (2) the

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applicant has a “significant protectable” interest relating to the

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action; (3) disposition of the action may, as a practical matter,

An applicant meets these criteria, and may

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impair or impede the applicant’s ability to protect that interest;

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and (4) the applicant’s interest is inadequately represented by the

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parties to the action.

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States, 450 F.3d 436, 440 (9th Cir. 2006).

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requirements, courts are guided by “practical and equitable

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considerations,” and generally construe the Rule to apply “broadly

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in favor of proposed intervenors.”

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Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (quoting United States

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v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir. 2002))

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California ex rel. Lockyer v. United
When evaluating these

Wilderness Soc. v. U.S. Forest

(internal quotation omitted).
Alternatively, when an intervenor cannot satisfy the four-part

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test for intervention as of right, courts may allow any applicant

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who “has a claim or defense that shares with the main action a

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common question of law or fact” to intervene.

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24(b)(1)(B).

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however, where an applicant shows, in addition to a common question

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of law or fact, “(1) independent grounds for jurisdiction; [and

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that] (2) the motion is timely.”

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U.S. Dist. Ct.--N. Dist. (San Jose), 187 F.3d 1096, 1100 (9th Cir.

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1999).

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on the merits, but rather seeks only to challenge a protective

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order, that party need only satisfy the timeliness requirement.

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See Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473-74

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(9th Cir. 1992); Cosgrove v. Nat’l Fire & Marine Ins. Co., 770 F.

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App’x 793, 795 (9th Cir. 2019) (unpublished disposition).

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evaluating motions to intervene, courts must “take all

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well-pleaded, nonconclusory allegations in the motion to intervene,

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the proposed complaint or answer in intervention, and declarations

Fed. R. Civ. P.

Courts may only grant such permissive intervention,

San Jose Mercury News, Inc. v.

Where, as here, a party does not seek to litigate a claim

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In

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supporting the motion as true.”

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v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).

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III. Discussion

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A.

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Sw. Ctr. for Biological Diversity

Permissive Intervention
The parties agree that the only disputed issue as to whether

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Movants should be permitted to intervene is the timeliness of their

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attempts to do so.

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determining whether a motion for intervention is timely, a court

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must consider three factors: (1) the stage of the proceeding at

See Beckman, 966 F.2d at 473-74.

“In

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which an applicant seeks to intervene; (2) the prejudice to other

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parties; and (3) the reason for and length of the delay.”

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Mercury News, 187 F.3d at 1100–01 (internal quotation marks

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omitted).

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first became aware that its interests would no longer be adequately

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protected by the parties.”

San Jose

The inquiry into any delay “looks to when the intervenor

Id.

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(1)

Prejudice

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With respect to prejudice, Defendants contend that publication

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of the Sealed Materials would impair their ability to conduct

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investigations related to the use of force inside the jails, and

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would compromise inmate and deputy safety.

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12; Declaration of Larry Alva ¶¶ 6,8.)

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their agreement to provide the Sealed Materials to Plaintiffs was

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conditioned on the expectation that those materials would, absent

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some affirmative action by Plaintiffs, remain confidential.

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at 11.)

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Defendants assert, impair their ability to cooperate and share

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information with Plaintiffs in the future, and by extension impair

(County Opposition at

Moreover, Defendants argue,

(Opp.

The unsealing of the confidential materials will,

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Defendants’ ability to comply with the Settlement Agreement, thus

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affecting the interests of both Plaintiffs and Defendants.1

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The Ninth Circuit has, at times, concluded that where a

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party’s agreement to settle a matter is premised upon

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confidentiality, intervention to challenge that confidentiality can

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so substantially prejudice a party that denial of leave to

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intervene may be appropriate.

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F. App’x 563, 567 (9th Cir. 2018).

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to the circumstances here.

See Brunson v. Lambert Firm PLC, 757
Brunson is somewhat analogous

Although the LA Times argues that the

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sealing of the materials at issue here “was not a bargained-for

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aspect of the parties’ settlement agreement,” that is only true in

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a narrow sense.

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Settlement Agreement by several years.

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Order, however, was the product of extensive, protracted, and

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ultimately successful negotiations between the parties, and was key

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to the resolution of Plaintiffs’ Motion to Enforce Settlement

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Agreement.

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To be sure, the Protective Order postdated the
The stipulated Protective

As Movants also highlight, Brunson differed from the instant

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case in that the former involved a dispute between two private

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parties, whereas this case has been litigated by a public entity

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and a class of plaintiffs.

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occasionally found prejudice involving similar parties.

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County v. Air California, 799 F.2d 535, 538 (9th Cir. 1986), for

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example, involved a municipality’s attempt to intervene in

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litigation between a county government and a collection of

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citizens’ groups and private businesses.

The Ninth Circuit has, however, also
Orange

799 F.2d at 536-37.

In

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The court notes that Plaintiffs have not taken any position
on the instant motions.
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light of the district court’s observation that intervention “would

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be the undoing of five years of protracted litigation,” the Orange

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County Air court concluded that intervention “clearly [] would

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prejudice the parties involved,” and therefore affirmed the

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district court’s denial of permissive intervention, notwithstanding

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that such denial preceded the district court’s final court approval

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of a negotiated settlement involving a public entity.

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California, 799 F.2d at 538, 539.

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Air

Air California, however, involved an attempt to intervene on

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the merits, not a narrower effort to unseal confidential materials.

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Air California, 799 F.2d at 537.

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Circuit has taken a more limited view of prejudice, at least in the

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context of relatively limited motions to intervene for the purpose

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of gaining access to sealed court records.

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News, government entity defendants argued, as do Defendants here,

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that they might have litigated the case differently if they had

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known that materials subject to a protective order might later

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become public.

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rejected that argument, holding that any reliance on the protective

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order was unreasonable, as the government defendants could not

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bargain away the public’s right to access court documents.

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The court further observed that, by the defendants’ logic, any

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post-hoc attempt to intervene would necessarily be untimely, and

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concluded instead that any burdens or inequities resulting from a

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party’s efforts to obtain records “should affect not the right to

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intervene but, rather, the court”s evaluation of the merits of the

In more recent years, the Ninth

In San Jose Mercury

San Jose Mercury News, 187 F.3d at 1101.

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The court

Id.

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applicant’s motion to lift the protective order.”2

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Accordingly, this Court cannot conclude that any prejudice to the

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parties warrants the denial of intervention.

Id.

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(2)

Stage of Proceedings

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“The stage of the proceeding at which an applicant seeks to

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intervene” is also relevant to the timeliness inquiry.

San Jose

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Mercury News, 187 F.3d at 1100.

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a very late stage of this settled, but ongoing, proceeding.

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case was filed, and a plaintiff class subsequently certified, over

Here, Movants seek to intervene at
This

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eleven years ago.

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conferences with the court, the parties entered into the Settlement

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Agreement over eight years ago.

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public hearing and approved the settlement shortly thereafter.

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(Dkts. 134, 135.)

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Monitors have issued publicly-available status reports for over

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seven years.

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contentious, collaborative, and productive discussions regarding

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implementation of the settlement agreement for nearly as long.

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(Dkts. 152, 194.)

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stipulated to, and the court entered, the Protective Order, which

(Dkts. 1, 54.)

After numerous settlement

(Dkt 110.)

The court held a

Pursuant to the Settlement Agreement, the

(E.g. Dkt. 141.)

The parties have engaged in

As part of those discussions, the parties

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WitnessLA appears to suggest that a motion to intervene for
the purpose of unsealing can never be untimely, citing the San Jose
Mercury News court’s statement that “if a motion to intervene is
denied as untimely, it is likely that subsequent motions to
intervene will also be held untimely, stymying the public’s right
of access altogether.” San Jose Mercury News, 187 F.3d at 1101.
The court made this pronouncement, however, in the course of
rejecting the defendants’ specific, prejudice-based “upset
expectations” argument. Id. As the court observed, the defendants
did not, unlike Defendants here, contend that a delay rendered the
attempt to intervene untimely. Id.
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the instant motions seek to circumvent or modify, over five years

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ago.

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(Dkt. 193.)
The advanced stage of the litigation, alone, however, does not

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render untimely a motion to intervene to challenge confidentiality

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orders, even if made “long after a case has been terminated.”

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v. Merrill Lynch Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353

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(9th Cir. 2013) (internal quotation marks omitted).

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circuit have, therefore, regularly concluded that a motion to

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intervene is not necessarily untimely simply for being filed late

Blum

Courts in this

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in the game, even after settlement, trial, or an appeal.

See,

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e.g., Hernandez v. Cnty. of Monterey, No. 13-CV-02354-BLF, 2023 WL

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5418753, at *1 (N.D. Cal. Aug. 21, 2023) Morizur v. SeaWorld Parks

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& Ent., Inc., No. 15-CV-02172-JSW, 2023 WL 1111501, at *1 (N.D.

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Cal. Jan. 30, 2023); Mendez v. City of Gardena, 222 F. Supp. 3d

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782, 788 (C.D. Cal. 2015).

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case is not, therefore, dispositive of Movants’ motions.

The late stage of proceedings in this

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(3)

Reasons for and Extent of Delay

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This is not to say that any delay in seeking intervention is

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inconsequential.

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intervenor first knew, or should have known, that intervention

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might have been necessary to protect the intervenor’s interest.

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San Jose Mercury News, 187 F.3d at 1101; see also Alaniz v. Tillie

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Lewis Foods, 572 F.2d 657, 659 (9th Cir. 1978).

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The court still must determine when a proposed

There can be no dispute that that media outlets such as

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Movants have an interest in “publish[ing] information concerning

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the operation of government.”

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Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).

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Defendants argue that Movants had notice that their interests

Kamakana v. City & Cnty. of

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Nevertheless,

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diverged from Plaintiffs’ no later than May 2018, when Plaintiffs

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stipulated to the entry of the Protective Order and withdrew their

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Motion to Enforce.

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Plaintiffs to safeguard Movants’ interests, and that Movants only

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realized that such reliance was misplaced in May 2023, when

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Plaintiffs failed to exercise the right, retained under the

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Protective Order, to seek to file the Sealed Materials publicly.

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As private citizens, Plaintiffs certainly possess some

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Movants suggest that they relied upon

interest in keeping a “watchful eye” on public agencies.

Kamakana,

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447 F.3d at 1178 (quoting Nixon v. Warner Communications, Inc., 435

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U.S. 589, 598 (1978)).

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Plaintiffs seek to protect through this litigation — the right

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under the Eighth and Fourteenth Amendments “to reasonable

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protection from violence and excessive force” — is distinct from

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Movants’ interest in publishing information concerning the workings

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of government agencies.

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cases, however, a plaintiff’s interest may overlap with distinct

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press interests.

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plaintiffs brought employment discrimination claims against a

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public entity.

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Notwithstanding the private nature of the plaintiffs’ interests,

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the court held, upon a motion by a newspaper to obtain a sealed

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report produced, over the defendants’ objection, in discovery, that

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“the interests of the Mercury News were being effectively

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represented by the Plaintiffs, who had persistently sought

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production of the Report.”

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that that confluence of interests persisted only “until the filing

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of the stipulated protective order,” at which point “the injury to

Strictly speaking, however, the interest

(First Amended Complaint ¶ 3.)

In some

In San Jose Mercury News, for example, two

San Jose Mercury News, 187 F.3d at 1101.

Id.

Granted, the court also concluded

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the public’s right of access became clear.”

Id.

Here, however,

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the filing of the Protective Order did not give Movants similar

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notice.

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broad categories of documents, not specifically to the Sealed

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Materials themselves.

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seek access to the entire universe of materials subject to the

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Protective Order, but rather only to the limited set of Sealed

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Materials, which did not exist at the time the Protective Order was

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entered.

The Protective Order applied (and continues to apply) to

Movants have made clear that they do not

Movants had no indication of the existence of those

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materials until Plaintiffs recently filed them, at which point it

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also became clear that Plaintiffs would not seek a court

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determination that the Sealed Materials could be filed publicly.

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Movants sought to intervene approximately two months later.

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modest delay does not warrant a finding of untimeliness.

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IV.

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Conclusion
For the reasons stated above, the court determines that

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Movants’ motions to intervene are timely.

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are, therefore, GRANTED, pursuant to Rule 24(b).3

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This

The motions to intervene

A separate Order shall issue with respect to Movants’ motions

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to unseal the Sealed Materials.

At argument, Movants indicated

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that they would not object to redactions of certain information in

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the Videos.

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not object to the unsealing of at least one of the Videos.

Defendants, for their part, indicated that they would
With

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The LA Times, but not Witness LA, also seeks intervention as
of right under Rule 24(a). WitnessLA, but not the LA Times, also
asserts a First Amendment right to intervene. Having granted
permissive intervention to Movants, however, the court need not
address these additional arguments.
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that understanding, the court is inclined to grant Movants’ motions

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to unseal, subject to the following:

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Defendants shall, within 21 days of the date of this Order,

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lodge with the court a set of edited Videos pixelated, cropped, or

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otherwise redacted to the minimum extent necessary to address any

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privacy or security concerns (the “Edited Videos”).4

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alterations shall not obscure or diminish any depictions of uses of

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force.

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Edited Videos, a Joint Statement providing additional contextual

Such

Plaintiffs and Defendants may lodge, along with the set of

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information about any or all of the Videos.

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prefers that Plaintiffs and Defendants agree on any such

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commentary, the parties may, if necessary, submit separate

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additional statements.

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Although the court

The court then anticipates issuing an Order releasing the
Edited Videos shortly thereafter.
IT IS SO ORDERED.
Dated: September 12, 2023

DEAN D. PREGERSON
United States District Judge

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To the extent Defendants believe that any of the written
references to the Videos in the Sealed Materials implicate these
concerns, Defendants shall also lodge proposed versions of those
references redacted to the minimum extent necessary.
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