Filed: Aug. 27, 2018
Latest Update: Aug. 27, 2018
Summary: MEMORANDUM AND ORDER PATRICIA A. SULLIVAN , Magistrate Judge . Pending before the Court 1 is the motion to intervene for the limited purpose of requesting modification of the protective order filed by Valerie C. Santilli, individually and as executrix of the estate of John C. Chakalos, Elaine Chakalos and Charlene Gallagher ("Intervenors"). ECF No. 73. Intervenors are petitioners in a suit pending in the probate court in New Hampshire, while Defendant in this case (Nathan Carman) is the re
Summary: MEMORANDUM AND ORDER PATRICIA A. SULLIVAN , Magistrate Judge . Pending before the Court 1 is the motion to intervene for the limited purpose of requesting modification of the protective order filed by Valerie C. Santilli, individually and as executrix of the estate of John C. Chakalos, Elaine Chakalos and Charlene Gallagher ("Intervenors"). ECF No. 73. Intervenors are petitioners in a suit pending in the probate court in New Hampshire, while Defendant in this case (Nathan Carman) is the res..
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MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, Magistrate Judge.
Pending before the Court1 is the motion to intervene for the limited purpose of requesting modification of the protective order filed by Valerie C. Santilli, individually and as executrix of the estate of John C. Chakalos, Elaine Chakalos and Charlene Gallagher ("Intervenors"). ECF No. 73. Intervenors are petitioners in a suit pending in the probate court in New Hampshire, while Defendant in this case (Nathan Carman) is the respondent in the New Hampshire probate case. In the New Hampshire probate case, Intervenors contend that Mr. Carman should be barred from inheriting from or through his grandfather or mother because he is responsible for their deaths, by shooting his grandfather and by causing his mother's disappearance (and presumed death) at sea by deliberately sinking the vessel on which he took her out fishing. These factual claims align with the factual claims in issue in this case, in which Plaintiff (National Liability & Fire Insurance Company) alleges that Mr. Carman should be barred from recovering insurance proceeds in connection with the total loss at sea of the insured vessel because he intentionally caused it to sink as part of a scheme to inherit his grandfather's wealth by causing his grandfather's and mother's deaths.
For several months, in the New Hampshire probate court, Intervenors have aggressively sought to compel Mr. Carman to produce transcripts of his testimony, interrogatory answers, responses to requests to admit and related materials that were provided in discovery in this case (collectively, the "Discovery"). Mr. Carman, somewhat disingenuously, has asserted that this Court's Protective Order (ECF No. 35) is a barrier to his compliance with such discovery requests despite its plain language, which clearly is binding only on Plaintiff, leaving Mr. Carman unconstrained. Put differently, this Court's Protective Order does not bar Mr. Carman from producing the Discovery in the New Hampshire probate court proceeding. Nevertheless, faced with Mr. Carman's arguments, the New Hampshire probate court (understandably) declined to compel Mr. Carman to produce the Discovery because it would be "simply inappropriate to exercise its discretion to order discovery produced if it is under a protective order from another jurisdiction." ECF No. 73-1 at 109. Instead, the probate court twice directed Intervenors to intervene in this case to request that the Protective Order be modified. Id. at 106-09; see also id. at 85. Their emergency motion to intervene was filed within one week of the second such ruling.
Mr. Carman objects. He argues that Intervenors have not established the elements for intervention as of right pursuant to Fed. R. Civ. P. 24(a) and that permissive intervention pursuant to Fed. R. Civ. P. 24(b) is limited to the assertion of claims or defenses as to which the court has independent jurisdiction. He also contends that Intervenors lack standing in this admiralty action and lack standing to modify the Protective Order.2
Since the First Circuit's seminal decision in Public Citizen v. Liggett Grp., Inc., 858 F.2d 775 (1st Cir. 1988), it has been well settled in this Circuit that the district court has the inherent power to modify discovery-related protective orders when circumstances justify, as well as that "the procedurally correct course" for third-party challenges to protective orders is intervention pursuant to Fed. R. Civ. P. 24. Id. at 782-83; see Massachusetts v. Mylan Labs., Inc., 246 F.R.D. 87, 91 (D. Mass. 2007) ("correct course for third parties to seek access to the protected material in this case is through Rule 24 intervention"). In exercising its discretion whether to permit third-party intervention to gain access to discovery shielded by a protective order, the court must consider the commonality of the facts between the two actions, the timeliness of the motion, prejudice to existing parties due to any delay that intervention might cause, prejudice to the proposed intervenors if intervention is denied and the existence of extraordinary circumstances militating for or against intervention. Public Citizen, 858 F.2d at 785-87. Public Citizen echoes the same holding adopted by every circuit that has considered the issue. Importantly, these cases not only endorse flexibility in permitting intervention for the limited purpose of procuring discovery, but also uniformly hold that a motion to intervene for such a limited purpose falls into a narrow exception to the normal requirement that the intervenor's claim must have an independent jurisdictional basis. E.E.O.C. v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998). "An independent jurisdictional basis is simply unnecessary when the movant seeks to intervene only for the limited purpose of obtaining access to documents covered by seal or by a protective order, because the third party does not ask the court to rule on the merits of a claim or defense." Id.
I find that Intervenors have easily satisfied all of the requirements for a limited purpose Fed. R. Civ. P. 24(b) permissive intervention pursuant to Public Citizen. First, the factual questions central in this case and the New Hampshire probate case — whether Mr. Carman concocted and carried out a scheme resulting in the death of his grandfather and mother and in the loss at sea of the insured vessel — are identical, readily meeting the Fed. R. Civ. P. 24(b)(1)(B) requirement of a common question of fact. Second, the motion is unambiguously timely, following by just one week the ruling of the New Hampshire probate court.3 Third, this limited intervention will not cause delay nor inflict any discernable prejudice on the parties in this case, apart from the potential negative impact on Mr. Carman if his aunts have access to this highly relevant information. Relatedly, the prejudice to Intervenors arising from the denial of intervention would be substantial in that they would be deprived of access to prior sworn statements by Mr. Carman regarding the precise factual matters in issue in the New Hampshire probate court, particularly with their deposition of him before a referee in the New Hampshire probate court scheduled for August 27 and 28, 2018.4 Finally, in light of the importance of discovery to the orderly disposition of cases on their merits, to the extent that extraordinary circumstances exist, they militate in favor of intervention so that the Discovery can flow into the New Hampshire probate case. In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 317 (D. Conn. 2009) (listing cases reflecting presumption in favor of access in cases where intervening party involved in bona fide collateral litigation seeks access to protected discovery materials).
Based on the foregoing, as memorialized in a Text Order entered on August 24, 2018, the Fed. R. Civ. P. 24(b) motion to intervene (ECF No. 73) is granted and the Modified Protective Order, essentially as proposed by Intervenors,5 shall issue immediately.
So ordered.