Anderson et al v. SeaWorld Parks and Entertainment

Filing 613

ORDER GRANTING, IN PART, AND DENYING, IN PART, EARTH ISLAND INSTITUTE'S MOTION TO INTERVENE FOR PURPOSES OF UNSEALING DOCUMENTS by Judge Jeffrey S. White granting 604 Motion to Intervene; denying 604 Motion to Unseal Document. (kkp, COURT STAFF) (Filed on 1/30/2023)

Case 4:15-cv-02172-JSW Document 613 Filed 01/30/23 Page 1 of 4

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JULIETTE MORIZUR, et al.,
Plaintiffs,

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United States District Court
Northern District of California

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Case No. 15-cv-02172-JSW
ORDER GRANTING, IN PART, AND
DENYING, IN PART, EARTH ISLAND
INSTITUTE'S MOTION TO
INTERVENE FOR PURPOSES OF
UNSEALING DOCUMENTS

v.
SEAWORLD PARKS AND
ENTERTAINMENT, INC.,
Defendant.

Re: Dkt. No. 604

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Now before the Court for consideration is the motion to intervene filed by Earth Island
Institute (“EII”). The Court has considered the papers’, relevant legal authority, and the record in
this case, and (it finds the motion suitable for disposition without oral argument. See N.D. Civ.
L.R. 7-1(b). The Court VACATES the hearing scheduled for February 3, 2023 and HEREBY
GRANTS, IN PART, AND DENIES, IN PART, EII’s motion.
BACKGROUND
The procedural history and facts underlying this dispute, including EII’s involvement in
the litigation, have been recounted in prior orders and will not be repeated here. See, e.g., Morizur
v. SeaWorld Parks and Entm’t, Inc., No. 15-cv-2172-JSW, 2020 WL 6044043 (N.D. Cal. Oct. 13,
2020); Dkt. Nos. 188-189, 590. Before trial, Plaintiffs designated four testimonial experts: Dr.
Ingrid Visser, Dr. Javier Gallego, Dr. E.C.M. Parsons, Dr. David Duffus. They also designated
EEI officers Mark Palmer and David Phillips as consulting experts. (Dkt. No. 604-2, Declaration
of David Phillips (“Phillips Decl.”), ¶ 3.)
SeaWorld moved to exclude testimony from each of the testifying experts (“Daubert
motions”) and filed motions to seal in conjunction with their Daubert motions, arguing there was

Case 4:15-cv-02172-JSW Document 613 Filed 01/30/23 Page 2 of 4

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good cause to seal portions of the briefs and supporting exhibits. The Court granted each motion

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to seal finding “good cause” to do so. (Dkt. Nos. 387-388, 403-404 (the “Report Redactions”).)

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The Court never ruled on the Daubert motions, because it bifurcated the issue of standing

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from the merits, held a bench trial, and found the Plaintiffs lacked standing. Morizur, 2020 WL

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6044043, at 2.

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The Court will address additional facts as necessary in the analysis.
ANALYSIS

United States District Court
Northern District of California

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EII seeks to intervene in the case, pursuant to Federal Rule Civil Procedure 24(b)(2), for

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the limited purpose of asking the Court to unseal the Report Redactions. See San Jose Mercury

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News, Inc. v. District Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (“Mercury News”) (“Nonparties

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seeking access to a judicial record in a civil case may do so by seeking permissive intervention

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under Rule 24(b)(2).”). Rule 24(b) generally requires a movant to show “(1) an independent

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ground for jurisdiction; (2) a timely motion; and (3) a common question of law and fact between

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the movant’s claim or defense and the main action.” Blum v. Merrill Lynch Pierce Fenner &

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Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013). However, when a third party seeks to intervene

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solely to unseal a court record, they do “not need to demonstrate independent jurisdiction or a

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common question of law or fact.” Cosgrove v. Nat’l Fire & Marine Ins. Co., 770 Fed. Appx. 793,

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795 (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992)).

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SeaWorld argues EII’s motion is untimely. Local Rule 79-5(g)(3) permits a motion to

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unseal to be made at any time, but Rule 24 requires a court to consider “(1) the stage of the

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proceeding at which an applicant seeks to intervene; (2) the prejudice to other parties; and (3) the

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reason for and length of the delay.” Mercury News, 187 F.3d at 1001. EII relies solely on the

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provisions of the Local Rule to explain why it is seeking relief now. This case is now closed and

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SeaWorld’s appeal has been resolved. Thus, permitting EII to intervene at this stage poses no

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prejudice in terms of delaying the proceedings. The Court will not deny the motion on the basis

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that it is untimely, but for reasons discussed below, the Court finds that EII has not acted in an

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expeditious manner.

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When a non-party seeks to intervene to unseal, the Court “must evaluate whether the
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countervailing interests opposing public disclosure can overcome the [strong] presumption in

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favor of” public access. Id. (citing Mercury News, 187 F.3d at 1102). “[P]ublic access to filed

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motions and their attachments … will turn on whether the motion is more than tangentially related

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to the merits of case.” Ct’r for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th Cir.

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2016). Where that is the case, a court applies the “compelling reasons” standard. Kamakana v.

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City & Cty. of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006).

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[C]ompelling reasons sufficient to outweigh the public’s interest in
disclosure and justify sealing court records exist when such court
files might have become a vehicle for improper purposes, such as
the use of records to gratify private spite, promote public scandal,
circulate libelous statements, or release trade secrets. … The mere
fact that the production of records may lead to a litigant’s
embarrassment, incrimination, or exposure to further litigation will
not, without more, compel the court to seal its records.

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United States District Court
Northern District of California

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Id. at 1179.

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EII was involved in the search for plaintiffs, focused the search in the Bay Area because it

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perceived it to be a favorable venue, and had the right to be consulted on litigation strategy. (See,

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e.g., Dkt. No. 609-1, Declaration of John Simpson, ¶¶ 3, 8; Dkt. No. 612-1 (Deposition of Mark

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Palmer (“Palmer Depo.”) at 16:15-18:5, 59:1-16, 61:4-15, 101:1-102:8); Dkt. No. 612-2, Simpson

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Decl., Ex. F. (Engagement Letter).) The Court reiterates its conclusions from prior Orders that

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SeaWorld has not demonstrated that counsel’s or EII’s conduct is sanctionable. Yet, those facts

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demonstrate that EII is no stranger to this litigation. Mr. Palmer testified that EII was motivated to

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obtain documents from SeaWorld and that EII hoped at some point the Court would unseal the

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materials, he also testified that EII was precluded from disclosing the documents to the public.

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(Palmer Depo. at 267:20-22, 269:12-270:3.)
The terms of the Stipulated Protective Order provide that “the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing

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or a court order otherwise directs.” (Dkt. No. 121, Stipulated Protective Order, ¶ 4; see also Dkt.

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No. 191 at ECF p. 27; Palmer Depo. at 254:19-255:2, 262:9-24, 264:10-21.)1 The terms of the

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Mr. Phillips attests he has not seen any of the documents at issue. (Phillips Decl., ¶ 4.)
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Protective Order also provide that “all documents and information produced in discovery … shall

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only be used for purposes of litigating this case.” (Id., ¶ 1.) EII states that its purpose in moving

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to unseal the documents is so that it may “properly examine expert testimony regarding the health

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of SeaWorld’s orcas and SeaWorld’s practices regarding its care of captive orcas, and further

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inform the public on the condition” of those orcas. (Mot. at 2:3-6; see also Phillips Decl., ¶¶ 6, 11,

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16-17.)2
It is true that each of the experts reports went to the merits of Plaintiffs’ case and the

United States District Court
Northern District of California

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motions to which they were attached can be considered “more than tangentially related” to the

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merits, which would favor public access to the documents. However, the Court did not consider,

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let alone rule on, the motions to determine whether or not the Plaintiffs had standing. It did refer

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to the experts’ qualifications when it ruled on the motion for attorneys’ fees, but those portions of

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the report were not sealed. Therefore, lifting the seal would not further the “public interest in

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understanding the judicial process … and the bases or explanations for a court’s decision.” Id. at

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1102 (internal citations and quotations omitted); cf. In re iPhone Application Litig., No. 11-MD-

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02250-LHK, 2013 WL 12335013, at *2 (N.D. Cal. Nov. 25, 2013). In addition, the Court

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concludes that SeaWorld has demonstrated there are compelling reasons to maintain the

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documents under seal by attesting they contain information such as non-public business

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information and veterinary records.
Accordingly, although the Court grants EII’s request to intervene, it concludes that any

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interest in public access is outweighed by the interests in maintaining the Report Redactions under

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seal and denies EII’s motion to unseal those documents.
IT IS SO ORDERED.

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Dated: January 30, 2023
______________________________________
JEFFREY S. WHITE
United States District Judge

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EII has published redacted versions of the expert reports on its website. (Simpson Decl., ¶
11, Ex. I.)
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