Rocky Mountain Bank -v- Google, Inc.

Filing 47

MOTION for Leave to File Motion for Reconsideration filed by MediaPost Communications. (Attachments: # 1 Exhibit A)(Craven-Green, Erica) (Filed on 12/9/2009)

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ERICA L. CRAVEN-GREEN (Bar No. 199918) Email: [e-mail] Law Offices of Erica L. Craven-Green P.O. Box 460367 San Francisco, California 94146-0367 Telephone: [phone] PAUL ALAN LEVY Email: [e-mail] DEEPAK GUPTA Email: [e-mail] Public Citizen Litigation Group 1600 20th Street NW Washington, DC 20009 Telephone: [phone] Facsimile: [phone] Attorneys for MediaPost Communications UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ROCKY MOUNTAIN BANK, a Wyoming Corporation, v. Plaintiff, ) ) ) ) ) ) ) ) ) ) Case No. 5:09-CV-04385 JW MOTION FOR RECONSIDERATION AND SUPPORTING MEMORANDUM F. R. Civ. P. 24, 59

GOOGLE INC., a Delaware corporation, Defendant.

Pursuant to Rules 24 and 59 of the Federal Rules of Civil Procedure, the First Amendment, and the common law, MediaPost Communications seeks reconsideration of this Court's denial of MediaPost's motion for leave to intervene and motion to unseal the Report that Google lodged with the Court in chambers explaining its compliance with the Temporary Restraining Order issued in this case on September 23, 2009. As explained below, clear Ninth Circuit law allows intervention to seek unsealing even after the underlying case is over. In response to MediaPost's motions for leave to intervene and to unseal Google's Report on its compliance with the Court's Temporary Restraining Order, the Court denied the motion for leave to intervene on the ground that, once the parties dismissed the action, there was no longer any action

No. 5:09-CV-04385-JW, MOTION AND MEMORANDUM SUPPORTING MOTION TO RECONSIDER

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into which MediaPost could intervene; the Court then denied the motion to unseal as moot. This ruling was error. It is settled Ninth Circuit law that a third party, and particularly a media company, is entitled to intervene to seek the unsealing of court records. San Jose Mercury News v. United States District Court, 187 F.3d 1096 (9th Cir. 1999). The law is sufficiently clear that denial of leave to intervene is not simply appealable -- as in San Jose Mercury itself, mandamus lies to order the Court to allow intervention. Nor does the right to intervene to seek unsealing expire with the litigation in which the documents were filed. In Beckman Industries v. International Ins. Co., 966 F.2d 470, 472-473 (9th Cir. 1992), the Ninth Circuit allowed a third party to intervene to seek unsealing two years after the parties had settled the case. Other circuits similarly allow intervention for unsealing after the underlying case is over. Jessup v. Luther, 227 F.3d 993, 998-999 (7th Cir. 2000); Public Citizen v. Liggett Group, 858 F.2d 775, 783-84 (1st Cir. 1988) (intervention sought months after case was dismissed). Several Ninth Circuit unsealing cases arose out of motions for leave to intervene and to unseal that were filed after the underlying case had either been settled or dismissed. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003); Phillips v. General Motors Corp., 289 F.3d 1117 (9th Cir. 2002). In the one case that the Court cited in support of its ruling, Mutual Produce v. Penn Cent. Transp. Co., 119 F.R.D. 619, 621 (D. Mass.1988), the would-be intervenors had an interest in the claims that the plaintiffs voluntarily dismissed, and the trial court held that the movants could not revive the claims by intervening. The case had nothing to do with the right to intervene to seek unsealing. Moreover, because the District of Massachusetts is within the First Circuit, the First Circuit's ruling in Public Citizen, 858 F.2d at 783-784, which was issued several months after Mutual Produce, is controlling authority within that Circuit on the right to intervene to seek unsealing after the underlying case has been dismissed. Finally, regardless of how this Court rules on the motion for reconsideration, the Court is requested to file the Google Report -- which both sides agree is a judicial record even if they disagree about whether it should be unsealed after redaction -- on the docket, under seal, so that during an appeal or mandamus proceeding the Court of Appeals will be able to conduct an in camera -2No. 5:09-CV-04385-JW, MOTION AND MEMORANDUM SUPPORTING MOTION TO RECONSIDER

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examination of the document if it chooses to do so. CONCLUSION The motion to reconsider should be granted. MediaPost should be allowed to intervene to seek the filing on the docket and unsealing of the Google Report, and that document should be unsealed after redaction of the Doe's personally identifying information. /s/ Erica L. Craven-Green Erica L. Craven-Green (Bar No. 199918) Email: [e-mail] Law Offices of Erica L. Craven-Green P.O. Box 460367 San Francisco, California 94146-0367 Telephone: [phone] /s/ Paul Alan Levy Paul Alan Levy (DC Bar No. 946400) Deepak Gupta (DC Bar No. 495451) Public Citizen Litigation Group Email: [e-mail] 1600 - 20th Street, N.W. Washington, D.C. 20009 Telephone: [phone] Facsimile: [phone] December 9, 2009 Attorneys for MediaPost Communications

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