[00:00:00] Speaker 02:
Thank you, counsel.

[00:00:01] Speaker 02:
Sorry for the change-ups, the audibles.

[00:00:04] Speaker 04:
Good morning, Your Honor.

[00:00:05] Speaker 04:
Sean Unger for the appellant Nike.

[00:00:07] Speaker 04:
I have with me my colleague Daniel Prince.

[00:00:09] Speaker 04:
We're not going to chop up time, but he handled the matter in the district courts.

[00:00:13] Speaker 04:
I wanted to introduce him to all of you.

[00:00:16] Speaker 04:
I'd like to reserve five minutes for rebuttal, and I'll do my best.

[00:00:20] Speaker 04:
These two appeals ask important questions to which the district courts below need answers.

[00:00:26] Speaker 04:
They ask questions about standards.

[00:00:28] Speaker 04:
They ask questions about protections, and they ask questions about power.

[00:00:33] Speaker 04:
Unfortunately, but respectfully, we think the district court got the answer to those questions wrong.

[00:00:39] Speaker 04:
As to sealing, under this court's law, the district court below misunderstood the impact of Chrysler.

[00:00:48] Speaker 04:
This circuit follows a dispositive versus a non-dispositive test for determining the standard on sealing.

[00:00:56] Speaker 02:
It kind of does, but it follows a dispositive versus non-dispositive test that has been modified in Judge Owen's opinion, clarified in Judge Owen's more recent opinion.

[00:01:06] Speaker 02:
I read your briefing a little bit, like you just really didn't like that decision, but it's binding on us, correct?

[00:01:14] Speaker 04:
So I think that Chrysler informs the dispositive versus the non-dispositive test.

[00:01:19] Speaker 04:
In ground zero, after Chrysler, you can look to this court pointing back and using the non-dispositive language as the test.

[00:01:26] Speaker 04:
But we don't dispute that Chrysler informs when something can be dispositive.

[00:01:30] Speaker 04:
And that is the tangentially related to the merits test.

[00:01:34] Speaker 04:
But it's important to view that question through the lens of the dispositive versus the non-dispositive, because what Judge Owens' fractured decision for the court did

[00:01:42] Speaker 02:
Let me start then on that issue of, you know, as I read your briefing, you say case laws crystal clear that class action, you know, the class cert decision is separate from the merits inquiry.

[00:02:00] Speaker 02:
And there's a sense in which that's true, and as I understand it,

[00:02:03] Speaker 02:
And I used to do class action work.

[00:02:05] Speaker 02:
So there's a sense in which that's not true.

[00:02:07] Speaker 02:
Part of the reason why courts have stressed that so much is because, as no doubt you're aware, there was some confusion where courts at the Rule 23 stage thought they couldn't address any issue that might overlap with the merits.

[00:02:20] Speaker 02:
Are you following me?

[00:02:21] Speaker 02:
And then the Supreme Court came in and said, no, no, you can address those issues just because they overlap with the merits.

[00:02:27] Speaker 02:
It doesn't mean you can't address them.

[00:02:31] Speaker 02:
But you don't need to decide more than you need to decide.

[00:02:34] Speaker 02:
And in fact, when you get to the merits, you're not even necessarily bound by what you decided through Rule 23.

[00:02:40] Speaker 02:
Seems like your argument, as I read your argument, you're sort of ignoring the fact that it doesn't have to, but the Rule 23 inquiry can overlap with the merits.

[00:02:49] Speaker 02:
You would agree with that, that it can.

[00:02:51] Speaker 02:
Put aside this case, but that it can.

[00:02:53] Speaker 02:
There can be merits issues in a case that are also relevant to predominance, commonality, typicality, those type of things.

[00:03:02] Speaker 04:
I was with you and now I'm going to quibble with you if I may.

[00:03:06] Speaker 04:
The point coming out of Walmart and the other decisions that allow the court to address factual issues that speak to the merits in the class certification motion was only to inform the court that in ruling on class certification, you're not precluded from ruling on certain facts.

[00:03:25] Speaker 02:
What kind of facts?

[00:03:26] Speaker 02:
We say certain facts.

[00:03:27] Speaker 04:
Facts that speak to the class certification standard.

[00:03:30] Speaker 04:
They may also later speak to the merits, but as you rightly recognized.

[00:03:34] Speaker 02:
Okay, that's why I was asking that, because that's what I'm characterizing as overlapping with the merits.

[00:03:38] Speaker 02:
In fact, they may be exactly the same on that slice.

[00:03:43] Speaker 04:
But your question was right to recognize they're not binding later and in that context they're not serving the merits.

[00:03:50] Speaker 04:
In the same way that if I file a motion to compel in discovery and I say here's a relevant fact.

[00:03:56] Speaker 02:
They don't decide the merits.

[00:03:57] Speaker 02:
I would agree with you on that.

[00:04:00] Speaker 02:
But if our inquiry is whether something is wholly separate from the merits under Chrysler, if that's our inquiry and maybe you dispute that, but if that's our inquiry

[00:04:10] Speaker 02:
It seems to me that it would be a case-specific inquiry.

[00:04:13] Speaker 02:
It seems to me like you want to make an argument that class cert is just never like a, you know, a right-line rule that class cert never reaches the merits.

[00:04:21] Speaker 02:
And since class cert and the merits can overlap, it seems to me like we just have to look in an individual case.

[00:04:30] Speaker 04:
So I disagree, which won't surprise you, but I'm going to disagree for a couple of reasons in different directions.

[00:04:36] Speaker 04:
First, I want to go practically for the district courts.

[00:04:37] Speaker 04:
The rule of dispositive versus non-dispositive is actually quite helpful to district courts and litigants to know the standard they're supposed to meet.

[00:04:45] Speaker 04:
And so enabling a rule that allows for a lot more case by case doesn't tell the litigants what they're supposed to do beforehand.

[00:04:53] Speaker 04:
It only tells them they failed after the end if they applied the wrong standard.

[00:04:56] Speaker 04:
So for this court, thinking about it, bright line rules are much more helpful.

[00:05:00] Speaker 04:
Second, on the overlap, there can be overlap on non-dispositive motions as well.

[00:05:07] Speaker 04:
I think the court would agree that a motion to compel discovery typically is a non-dispositive motion.

[00:05:13] Speaker 04:
And even post-Chrysler would be a non-dispositive motion.

[00:05:16] Speaker 04:
A motion to intervene, non-dispositive motion.

[00:05:19] Speaker 04:
Court has already held that.

[00:05:20] Speaker 04:
We cited that in the brief.

[00:05:22] Speaker 04:
Lower standard applies.

[00:05:24] Speaker 04:
In both of those contexts, court can make factual findings.

[00:05:27] Speaker 04:
Those factual findings may also later go to the merits.

[00:05:30] Speaker 04:
So instead of asking where something goes, we should be asking, what's the motion doing?

[00:05:34] Speaker 04:
That's really what Chrysler was looking at.

[00:05:36] Speaker 04:
What's the motion doing in practical effect?

[00:05:39] Speaker 04:
And the motion on class certification is not ruling on the merits.

[00:05:42] Speaker 04:
It's barred from ruling on the merits.

[00:05:44] Speaker 04:
Can't grant relief in class certification.

[00:05:47] Speaker 04:
That's a later question.

[00:05:49] Speaker 04:
There's whole rules.

[00:05:50] Speaker 04:
The rule against one-way intervention is informing the litigants that we've decided class certification, but we haven't decided the merits yet.

[00:05:58] Speaker 04:
So it's not stacking the deck in one way,

[00:06:00] Speaker 04:
or the other, so that if there is certification, the absent class member isn't told you're going to win, you're going to lose.

[00:06:06] Speaker 04:
They're just told you're now a member if you choose to be.

[00:06:09] Speaker 05:
It doesn't seem like maybe the line is as bright as it seems.

[00:06:12] Speaker 05:
We've carved out preliminary injunctions.

[00:06:15] Speaker 05:
Chrysler talks about motions in limine and Daubert motions.

[00:06:19] Speaker 05:
Um, why isn't it a better understanding to think that by referring to dispositive and non-dispositive, we were discussing about the difference between discovery motions and materials, which may not ever reach any dispositive issue in a case versus the whole range of other proceedings where the presumption of public access applies.

[00:06:42] Speaker 04:
So I think we have to take the law as we find it.

[00:06:44] Speaker 04:
We take the law from comma comma, Phillips, Foltz, et cetera, dispositive versus non-dispositive.

[00:06:50] Speaker 04:
as the test informed by Chrysler tangentially related to the merits.

[00:06:54] Speaker 04:
But we look at what Chrysler did in that analysis.

[00:06:57] Speaker 04:
It said preliminary injunctions is granting substantive relief.

[00:07:02] Speaker 04:
And what it's saying on the motion in limine is that we've been in trials before and you can make a motion in limine to exclude all evidence on a particular claim.

[00:07:11] Speaker 04:
If you win, that claim is out.

[00:07:14] Speaker 04:
I'm sure

[00:07:14] Speaker 04:
Your colleague has ruled on motions like that.

[00:07:18] Speaker 04:
If you rule on a doubt or a motion.

[00:07:21] Speaker 05:
Well, okay.

[00:07:21] Speaker 05:
So you are seeking the benefit of a good cause standard.

[00:07:28] Speaker 04:
I'm trying to track the question.

[00:07:29] Speaker 04:
We're saying the good cause standard.

[00:07:30] Speaker 05:
So the good cause standard is derived from Rule 26, no?

[00:07:35] Speaker 04:
The good cause standard derived in this case's case law, recognizing that the court wanted to promote efficient promotion, to promote, I said promotion twice.

[00:07:44] Speaker 04:
efficient exercise of discovery and allow the protective order to more broadly encourage discovery so that concerns about producing information that may be on the edge of cases could be covered, and not worry that then that information would become public in a public forum without a heightened standard

[00:08:03] Speaker 04:
and speaking to the mayor.

[00:08:05] Speaker 05:
So it's just common law all the way down.

[00:08:08] Speaker 05:
This isn't rooted somehow in our obligations under the federal rules of civil procedure to govern discovery.

[00:08:15] Speaker 04:
I'm not going that far.

[00:08:17] Speaker 04:
I would agree with you that the federal rules inform the analysis as well, but it's a synergy between the federal rules and the common law.

[00:08:27] Speaker 04:
I wouldn't dispute with you on that.

[00:08:31] Speaker 05:
I guess maybe we should turn to the second case.

[00:08:41] Speaker 05:
We'll have similar questions, I think, for your friends on the other side.

[00:08:44] Speaker 05:
But as I read Nike's motion with respect to, well, I guess let me ask, for me, one last question on the first case.

[00:08:56] Speaker 05:
Nike says, well, we shouldn't have to put in declarations.

[00:08:58] Speaker 05:
We shouldn't have to get specific about who the people are.

[00:09:00] Speaker 05:
But in reading the arguments you made to satisfy whatever standard it was,

[00:09:05] Speaker 05:
There's really no evidence at all.

[00:09:08] Speaker 05:
It appeals to common sense.

[00:09:10] Speaker 05:
You focus on a particular example of conduct where attaching the names would be particularly detrimental to the party's interest, but there's actually no citation to that either.

[00:09:23] Speaker 05:
It's just the fact that it's been that we don't even know whether the people involved are themselves claiming a privacy interest in that.

[00:09:32] Speaker 05:
Why should that be enough when the district courts seem to require a little bit more to carry your burden of proof?

[00:09:39] Speaker 04:
So I would disagree with you that the district courts do require more to meet the burden of proof.

[00:09:44] Speaker 04:
And I assume implicit in your question is, if the compelling interest standard applies, have we met it, regardless?

[00:09:51] Speaker 04:
I'd point to Volkswagen and Hunt as district court cases as demonstrating that courts recognize that names, and it's really important here, we're only talking about names,

[00:10:02] Speaker 04:
And we're talking about names of non litigants.

[00:10:05] Speaker 04:
We're not talking about the plaintiffs.

[00:10:07] Speaker 04:
And we're talking about Nike.

[00:10:09] Speaker 04:
Nike has allowed the conduct

[00:10:11] Speaker 04:
to come in.

[00:10:12] Speaker 05:
Right, but you see, like, given the cases, if we were to adopt this bright line rule that you're discerning from the cases, that names of non-litigants are always enough to overcome a disclosure, that could be a little sweeping given the presumption we're operating under.

[00:10:34] Speaker 04:
So I point your honors defaults I point your honors to the 10th circuit in Brigham that this court and other courts have recognized that there are some types of information personal information about non litigants that the court can look at and say.

[00:10:48] Speaker 04:
You don't need the names to be public.

[00:10:50] Speaker 04:
That's a privacy interest.

[00:10:51] Speaker 05:
But did Nike make any distinction between, for example, the executives and people who might have been more at the center of the allegations with respect to harassment and less at the center?

[00:11:04] Speaker 05:
There was just no names whatsoever.

[00:11:06] Speaker 05:
There was no attempt to kind of parse that to figure out, well,

[00:11:08] Speaker 05:
there might actually be a little more of an interest in disclosure of some of the higher-ups, and maybe a little less for the people who got kind of mixed up in reporting that they thought might be confidential.

[00:11:22] Speaker 04:
So, Your Honor, I don't believe that, and I dug into this question, as you might imagine, that any manager, direct manager, was implicated.

[00:11:31] Speaker 04:
And in a pay equity case, that person who makes that decision, and that might

[00:11:37] Speaker 04:
We will acknowledge it would lead to a different analysis.

[00:11:39] Speaker 04:
But if what you're saying is there should have been more parsing, that too would lead to a remand for consideration under that standard.

[00:11:46] Speaker 04:
Now, switching to the second appeal recognizing I've got three minutes to try to reserve for that rebuttal, we think the district court got the question wrong on its question of power.

[00:11:57] Speaker 04:
And we acknowledge that the First Amendment looks like a spectrum.

[00:12:00] Speaker 04:
And we're arguing we're not in the spectrum.

[00:12:03] Speaker 04:
Zemmell says there's no First Amendment right to gathering.

[00:12:07] Speaker 04:
Seattle Times says there's no prior constraint concerns when enforcing a protective order.

[00:12:12] Speaker 04:
There's Bartnicki.

[00:12:13] Speaker 04:
Bartnicki is when the press gets a document from a stranger, the prior restraint

[00:12:19] Speaker 04:
doctrine applies.

[00:12:19] Speaker 05:
Well, those are limitations on the district court's power.

[00:12:22] Speaker 05:
Could you speak to the power in the first instance, whether either under inherent power by the status of intervention or via the protective order incorporation, any of those things provide the power in the first instance for the district court to do what you'd asked it to do?

[00:12:40] Speaker 04:
So you're singing my tune.

[00:12:42] Speaker 04:
I think, Your Honor, that- Come a few more bars.

[00:12:45] Speaker 04:
Here I go.

[00:12:46] Speaker 04:
The media interveners subjected themselves to the jurisdiction of the court, and for nearly a century, the Supreme Court has recognized that if you're in for a penny, you're in for a pound.

[00:12:59] Speaker 04:
If you subject yourself to the jurisdiction of the court, you're subject to the jurisdiction of the court.

[00:13:06] Speaker 02:
You know, so I hear your arguments on that.

[00:13:09] Speaker 02:
And most of the time, you think of somebody getting the documents through some sort of mistake related to discovery, right?

[00:13:16] Speaker 02:
You send over your privileged documents.

[00:13:18] Speaker 02:
You're like, I want them back, and the court can order them back.

[00:13:21] Speaker 02:
Or maybe you send them to the wrong party, and the court can order them back.

[00:13:24] Speaker 02:
But here, it was kind of a, they did give them to another party, but they gave them to another party

[00:13:31] Speaker 02:
Excuse me.

[00:13:32] Speaker 02:
It's not even like they were trying to give them to a party.

[00:13:35] Speaker 02:
They just showed up and it turns out that they happen to be another party.

[00:13:39] Speaker 02:
Does that make any difference?

[00:13:41] Speaker 02:
In other words, they gave them to a reporter, but the reporter happens to work for another party.

[00:13:47] Speaker 04:
I have a yes and a no answer to that.

[00:13:49] Speaker 04:
Yes, it matters in that it strengthens our argument.

[00:13:53] Speaker 04:
No, it doesn't matter in that it's not required.

[00:13:56] Speaker 04:
That's what no, it doesn't matter in that.

[00:13:58] Speaker 04:
It's not required.

[00:14:00] Speaker 04:
So yes, it is helpful that it was given to another party.

[00:14:03] Speaker 04:
The court and grounds in this court and ground zero recognized the fact that the

[00:14:07] Speaker 02:
uh... one of the parties was a party status allowed greater flexibility under the first amendment and bringing in your second uh... thing will rely on that and turning along the on the second circuit case the aiding and abetting but but there there were some eight minutes the facts in that case there was some aiding and abetting it looked like this this big thing they'd set up in order to try to to get the documents to the new york times uh... and uh...

[00:14:33] Speaker 02:
Here, I guess, there's not the same sort of, at least, reading it.

[00:14:37] Speaker 02:
Now, I think your response to that might be like, we were never given a chance to do discovery, to find out if there was any aiding and vetting, so.

[00:14:44] Speaker 04:
So hum in my tune again on the discovery point.

[00:14:47] Speaker 04:
But what I would also point, as independent of that, is that the press here is going to a litigant.

[00:14:52] Speaker 04:
And they're going to the litigant's counsel as a source.

[00:14:56] Speaker 04:
So are the facts as extreme as in-ray zyprexa?

[00:15:01] Speaker 02:
I'm not sure that you need to have this to win because they are a party, but your argument is that even if they weren't a party, if the press goes to a party who has the documents because the court basically said you've got to give them this other party, and they turn it over, then that's just not covered.

[00:15:26] Speaker 04:
I would think, Your Honor, on the doctrine of judicial restraint, you would probably rule in the first instance that they had the power because they were a litigant.

[00:15:35] Speaker 04:
If you went beyond that, we win under Zyprexa and Lilly.

[00:15:39] Speaker 04:
That's my argument.

[00:15:39] Speaker 04:
You probably don't have to get there for me to win.

[00:15:43] Speaker 04:
But if you get there, Nike wins.

[00:15:46] Speaker 04:
That's the premise of the argument.

[00:15:47] Speaker 02:
Well, I don't know if my colleagues have a lot of interesting issues here, and I'm sure we'll be able to get to them.

[00:15:52] Speaker 02:
But do you want to save your time?

[00:15:54] Speaker 02:
I do.

[00:15:54] Speaker 02:
Thank you, Your Honor.

[00:16:00] Speaker 03:
Thank you, Your Honor.

[00:16:01] Speaker 03:
Grace and Clary for the media interveners.

[00:16:04] Speaker 03:
And plaintiffs' counsel asked me to inform the court that they're resting on their brief on the unsealing issues, but the plaintiffs' counsel is available to the extent the panel has any questions that are specific to the plaintiffs.

[00:16:15] Speaker 03:
On the district court's unsealing order, any practice guide would tell you, and the Supreme Court likewise pointed out in deposit guarantee, class certification is typically the most important moment in any period of class action.

[00:16:29] Speaker 03:
And the evidence that we're talking about in this appeal is not just submitted by the plaintiffs in connection with their motion for class certification.

[00:16:35] Speaker 03:
It was specifically addressed by the district court in its class certification decision.

[00:16:39] Speaker 03:
And the district court, intimately familiar with the record and the role that these records had played in the judicial process, concluded that Nike had not carried its burden to justify redacting that evidence.

[00:16:50] Speaker 05:
What more would it have needed to do?

[00:16:52] Speaker 05:
Did it need to submit declarations, expert witness report?

[00:16:56] Speaker 05:
What was missing?

[00:16:57] Speaker 03:
So I think there are a few kinds of evidence that could have been sufficient.

[00:17:00] Speaker 03:
And so, contrary to my colleague, I don't think this case asked the court whether they needed declarations from the third parties in particular.

[00:17:09] Speaker 03:
I think the question is actually whether they needed something rather than nothing.

[00:17:12] Speaker 03:
So a couple of examples.

[00:17:14] Speaker 03:
Nike could have submitted evidence, for instance, that any of the individuals who have already been very prominently associated with misconduct at Nike, whether in press reporting or by Nike itself, have

[00:17:26] Speaker 03:
in fact, confronted harassment or issues like that.

[00:17:30] Speaker 03:
I think in other cases, litigants trying to show a privacy interest have suggested, for instance, that they face a concrete danger that they'll face employment consequences.

[00:17:41] Speaker 05:
Well, how do they do that given that the media is out in front of this case without worrying that they'd actually kind of further

[00:17:52] Speaker 05:
be at risk of further disclosure.

[00:17:54] Speaker 05:
How do they come forward?

[00:17:56] Speaker 05:
Are you aware of any processes in the district court?

[00:17:58] Speaker 05:
I think you're probably the one to answer this where they can.

[00:18:01] Speaker 05:
take account of individualized privacy interests without that itself being swept up in the unsealing or disclosure.

[00:18:09] Speaker 03:
Certainly.

[00:18:10] Speaker 03:
So I've seen a couple of examples in my personal practice, and then I'd point you to a few others from the court's case law.

[00:18:16] Speaker 03:
So there in fact are cases, I don't believe it's cited in the briefing, but this court's decision in the Roman Catholic Archbishop of Portland matter, where the court has received pseudonymous declarations from third parties,

[00:18:30] Speaker 03:
in exactly the kind of context that Nike says it's impossible to provide that showing.

[00:18:36] Speaker 03:
That case likewise involved accusations of sexual misconduct.

[00:18:39] Speaker 03:
I've also seen district courts have the party litigant relay the positions of third parties.

[00:18:47] Speaker 03:
So as Your Honors may know, this court recognizes a presumption of access

[00:18:53] Speaker 03:
to warrant materials after they're unsealed.

[00:18:56] Speaker 03:
Warrant materials constantly implicate third-party privacy interests, but you also wouldn't be able to make any sense of them if you didn't have some public access to allegations about what third parties have done.

[00:19:07] Speaker 03:
Typically, what U.S.

[00:19:07] Speaker 03:
attorney's offices will do is they'll be the ones to contact the third parties, and then they'll relay to the district court what position those parties take.

[00:19:15] Speaker 03:
So I think there were a lot of options here.

[00:19:18] Speaker 03:
Nike could have, if it wanted to substantiate the claim that there'd be a chilling effect on the complainants, even though most of these names are not complainants, they could have presented evidence that there's already been such a chilling effect, again, in light of all the public attention that these starfish surveys have already received.

[00:19:37] Speaker 03:
And I think the issue here is that not only was there no evidentiary showing, there was, as your questioning was drawing out earlier, not even an effort to link Nike's specific claims of harm to the specific information at issue.

[00:19:53] Speaker 03:
Nike talks a lot about how stigmatizing it is to be accused of sexual misconduct.

[00:19:58] Speaker 03:
But some of the redacted names are just in the context of claims about pay inequities, which aren't nearly as stigmatizing.

[00:20:05] Speaker 03:
Nike talks a lot about complainants and witnesses, but many of these documents don't even have a complainant name on them to redact.

[00:20:13] Speaker 05:
There's a possibility of a more tailored request below, but Nike didn't request any such tailoring in terms of disclosure or nondisclosure.

[00:20:22] Speaker 03:
I think Nagy had a lot of options available to it in terms of how it could have gone about trying to offer something.

[00:20:29] Speaker 03:
And that's true whether we look at this as a good cause or a compelling reasons case.

[00:20:35] Speaker 05:
Should we worry about, set aside the mechanics of the Chrysler and other rules about what side of the line a class certification falls?

[00:20:46] Speaker 05:
Class certifications almost by their nature involve vast numbers of persons who are non-litigants and are otherwise potentially quite remotely attached.

[00:20:58] Speaker 05:
And of course, because it's class certification, the litigants, the parties, their council don't necessarily have the same tools at their disposal to identify those people for clearance, right?

[00:21:11] Speaker 05:
They don't really have a stake in the matter until after we get past that point.

[00:21:16] Speaker 05:
Should we be worried that class certification is a different animal altogether with respect to this vast disclosure of non-litigants names?

[00:21:26] Speaker 03:
I'm not sure I see why, especially since the evidence at issue in this case is pretty tractable.

[00:21:31] Speaker 03:
The actual documents at issue only occupy something like 50 pages in the excerpts of record, and within that we're only talking about the redactions of a couple dozen names.

[00:21:41] Speaker 05:
But you're asking us to draw a bright light.

[00:21:46] Speaker 05:
I mean, the way as I understand are at least the assignment of the burden is categorical.

[00:21:53] Speaker 05:
And so there could be cases in which there are 10,000 or more even in employment class actions or health care class actions or other class actions.

[00:22:06] Speaker 05:
There just be vast numbers of non litigants whose information is potentially exposed to this closure of maybe no practical way to assert those interests.

[00:22:16] Speaker 02:
I don't think that's a kind of a piggyback on that.

[00:22:20] Speaker 02:
I want to make sure are you asking us to draw sort of a bright line rule about class cert that basically class cert will always be compelling reasons or are you saying that class cert can be compelling reasons because it will overlap with the merits under Chrysler but not necessarily and I guess your argument would be in this case it does but

[00:22:44] Speaker 02:
But it's a case-by-case inquiry.

[00:22:46] Speaker 02:
What are you asking for there?

[00:22:48] Speaker 03:
I'll take your question first, if I can, Judge Van Dyke, and then get back to Judge Johnstone.

[00:22:52] Speaker 03:
So I think this court has used both lenses without making either one of them exclusive.

[00:22:57] Speaker 03:
And our position is that either one would be satisfied here.

[00:23:00] Speaker 03:
So if you look at Center for Auto Safety, for instance, in concluding that the presumption of access attached, this court canvassed the range of things that preliminary injunctions can do, from a separation of powers case to a death penalty cases, in concluding that that was something the public needed to be able to understand.

[00:23:15] Speaker 03:
By comparison, if you look at the Midland case on Daubert motions.

[00:23:19] Speaker 03:
at this court looked at the specific Daubert motion at issue, and its stakes for the individual litigation.

[00:23:26] Speaker 03:
I think you get the same result here through either lens.

[00:23:30] Speaker 03:
And I think- In this case.

[00:23:31] Speaker 02:
In this case.

[00:23:32] Speaker 03:
In this case.

[00:23:33] Speaker 02:
And I think the reason goes back to- Because I'm envisioning, and I'm sorry, but I'm envisioning that, so I've kind of jumped on your question, but I'm envisioning, like, class cert could, in theory, go off on typicality, right?

[00:23:44] Speaker 02:
Like you just say, you know, the name plaintiff is just not typical at all.

[00:23:48] Speaker 02:
And there was a ton of discovery into this named plaintiff's typicality.

[00:23:52] Speaker 02:
And in theory, that wouldn't go to the merits of the class cert.

[00:23:56] Speaker 02:
It could go to all kinds of issues that would really be kind of relevant.

[00:24:00] Speaker 02:
And maybe the newspaper would want to write an article about this named plaintiff, but they don't necessarily go to the merits.

[00:24:05] Speaker 02:
So it seems like under the underlying basis for this rule, which is the public has an interest in the merits of the matter,

[00:24:13] Speaker 02:
Maybe it wouldn't be met in a case like that and it wouldn't necessarily be compelling reasons under the logic of Chrysler building on these other cases.

[00:24:23] Speaker 02:
So that's why I thought it would be more of a case by case, at least as I'm reading the logic of how Chrysler arguably extended our

[00:24:33] Speaker 02:
despositive nondispositive.

[00:24:34] Speaker 02:
Does that sound right to you, or am I missing something?

[00:24:38] Speaker 03:
Well, so you won't be shocked to hear that we would like the broader rule even better, even as we think that both of them resolve this case in the media intervener's favor.

[00:24:47] Speaker 03:
Let me offer you a reason for thinking that it'll be typical and not just occasional that class certification will overlap with the merits in the way that brings that presumption of public access into play.

[00:24:59] Speaker 03:
Realize I'm running low on time, but I will try to get back to judge John stones question as well.

[00:25:04] Speaker 02:
Well, I don't think you need to I agree with you that based on class search stuff.

[00:25:08] Speaker 02:
I've done it probably more often than not almost always.

[00:25:12] Speaker 02:
There's some overlap with the merits and that'll just be an inquiry.

[00:25:15] Speaker 02:
I'm trying to get

[00:25:16] Speaker 02:
like a view of whether you're saying, yeah, regardless though, even if it's an issue that's very much not related to the merits of the matter, that we still think that class, anything that's relevant to class search is, because class search is, because as I read your briefings, because class search is really important, and I don't disagree with you about that, but really important doesn't seem to me to be the standard.

[00:25:37] Speaker 03:
My only reason for sort of resisting the suggestion that the narrower lens is exclusive is the point Judge Johnstone was raising earlier about dispositive versus non-dispositive is the language this court has really used to distinguish discovery and non-discovery motions.

[00:25:52] Speaker 03:
So I think what this court has really used the not more than tangentially related to the merits to the case standard to say.

[00:25:59] Speaker 03:
is the fact that discovery material is, according to one party, relevant, even though it might turn out not to be, isn't enough of a nexus to the merits to justify bringing that presumption of public access into play.

[00:26:15] Speaker 03:
But this court has really only applied it

[00:26:17] Speaker 03:
at least in precedential decisions to discovery material.

[00:26:21] Speaker 03:
Foltz's discovery, Phillips's discovery, more recently this court's decision in United States v. Slough, third party criminal discovery material, and Center for Auto Safety I think strongly suggests that the mirror image of more than tangentially related to the merits is just discovery motions and materials unrelated to the merits.

[00:26:39] Speaker 03:
So I think if you take that view of what the court's precedent says, and we think it's the best reading of it, then that would imply that class certification motions in general as non-discovery motions are subject to a presumption of access.

[00:26:54] Speaker 05:
All right.

[00:26:55] Speaker 05:
Well, I guess, yeah, just briefly.

[00:26:56] Speaker 05:
And then consequences.

[00:26:58] Speaker 05:
Yes, back to my question.

[00:27:00] Speaker 03:
Yes.

[00:27:01] Speaker 03:
So if can I if I can I try to restate your question to make sure I recall what it is.

[00:27:08] Speaker 03:
You're asking if we're asking for a class certification specific rule.

[00:27:12] Speaker 03:
on the second stage of the analysis in terms of whether or not the presumption is overcome, where Judge Van Dyke was asking about our position on the first stage, whether the presumption of access attaches.

[00:27:22] Speaker 03:
So I don't think we're asking for a rule that plays any differently in class certification, because this Court has dealt on a number of occasions with very voluminous redactions to other judicial records.

[00:27:35] Speaker 03:
Summary judgment can draw in quite a lot.

[00:27:39] Speaker 03:
but has always insisted that that compelling reasons showing be specific to the redaction sought.

[00:27:46] Speaker 03:
I think the best example of this is this court's decision in Kamakana, the city and county of Honolulu.

[00:27:51] Speaker 03:
You had a very large body of material there, which is why, understandably, the United States had tried to economize on justifying its redactions by just listing the interests that were at stake, privacy, third party, that kind of thing.

[00:28:06] Speaker 03:
But this court still said not good enough.

[00:28:09] Speaker 03:
The showing needs to be specific to the material you want to keep under seal.

[00:28:14] Speaker 03:
And I do think in large cases with a lot of information, that means more of a burden on the parties.

[00:28:20] Speaker 03:
But that's what this court has consistently demanded.

[00:28:23] Speaker 03:
And so I think the issue in this case is Nike, a lot like the parties in Kamikana, simply listed the interest it thought was at stake.

[00:28:32] Speaker 03:
It didn't provide evidence of any kind to back that claim up.

[00:28:35] Speaker 03:
And so either under the common law presumption of access or under a good cause standard, we think the district court got the question right.

[00:28:45] Speaker 02:
All right.

[00:28:45] Speaker 02:
Well, thank you, counsel.

[00:28:46] Speaker 02:
We'll hear from Mr. Hardin.

[00:28:50] Speaker 01:
Yes, thank you, Your Honor.

[00:28:51] Speaker 01:
I'm Ed Harndon.

[00:28:52] Speaker 01:
I represent Advanced Publications, which is the Oregonian newspaper, at least in part.

[00:28:56] Speaker 01:
It's very clear that the district court judge, two judges, Judge Rousseau and Judge Hernandez got it right.

[00:29:05] Speaker 01:
In the February 28th, 2024 order from Judge Rousseau, she found that there was in fact a prior restraint.

[00:29:14] Speaker 01:
It was an unlawful prior restraint that all the qualifications and that there were absolutely no specific circumstances to

[00:29:24] Speaker 01:
allow for extraordinary circumstances to allow for a prior restraint.

[00:29:29] Speaker 05:
Why doesn't Seattle Times control?

[00:29:32] Speaker 01:
Seattle Times doesn't control for several reasons.

[00:29:34] Speaker 01:
Number one, it involves parties.

[00:29:38] Speaker 01:
In this case, I'll come back to it, the Oregonian was not a party.

[00:29:43] Speaker 01:
The Seattle Times also has circumstances which relate to several things.

[00:29:51] Speaker 01:
the litigant, primary litigant in the case, the Seattle Times.

[00:29:57] Speaker 01:
So in this case, we're not a litigant, the Oregonian was not.

[00:30:00] Speaker 01:
Second, what was it?

[00:30:01] Speaker 05:
Well, I think we've, maybe to cut to the central question I have about your position, we've often referred to interveners as litigants.

[00:30:13] Speaker 05:
For example, I think your friends on the other side make the point that

[00:30:18] Speaker 05:
if you'd suffered an adverse judgment on any of these issues, presumably you would have claimed the right that interveners often claim to appeal or to do other things that parties get to do as litigants.

[00:30:32] Speaker 05:
So why are you not in for a penny and for a pound once you decide to intervene, at least in this instance, where the subject matter of the information

[00:30:47] Speaker 05:
is, even if you're an intervener for a limited scope, goes directly to that scope.

[00:30:53] Speaker 01:
Well, first of all, the imposition of a pretrial order, which was what the ruling in Seattle Times was, it dealt with whether they could impose a pretrial order.

[00:31:06] Speaker 05:
In this case... But did you think when you intervened you would not be subject to scheduling orders, protective orders, everything else that the court had entered before?

[00:31:16] Speaker 05:
Sure.

[00:31:16] Speaker 01:
Well, absolutely yes in this case because

[00:31:21] Speaker 01:
The court allowed the intervention to, as a non-party, very specific on that, and second, the Oregonian, advanced publications, never had the ability to get any of the pleadings that were filed in the court.

[00:31:38] Speaker 01:
There was a specific exclusion.

[00:31:40] Speaker 01:
of them being able to get any.

[00:31:42] Speaker 01:
So they could not be subject to them because they couldn't see them.

[00:31:45] Speaker 02:
So let me ask you a little, because I'm trying to, so I'm not talking, I don't want to ask questions about whether protective order covers you, because that's one argument would be that you're covered by protective order and you're saying not.

[00:31:56] Speaker 02:
But I just want to go to the inherent powers of the court over litigants in front of it.

[00:32:04] Speaker 02:
It seems to me that your argument, if accepted, could create some real problems for when courts make mistakes, since courts have humans and they make mistakes.

[00:32:17] Speaker 02:
Let's say you had three parties in a case, but you're not supposed to give certain materials to the one party because of confidentiality concerns.

[00:32:28] Speaker 02:
And the clerk of the court just screws up and gives the materials to the party it wasn't supposed to.

[00:32:34] Speaker 02:
There's two parties against one, but you've shared the materials between, so kind of like this case.

[00:32:39] Speaker 02:
But the clerk is the one that makes the mistake.

[00:32:42] Speaker 02:
And the clerk was supposed to send some materials out.

[00:32:45] Speaker 02:
maybe some non-redacted order that had, and sent it to the wrong party.

[00:32:51] Speaker 02:
Do you think that the court's inherent powers would allow it to say return those materials that the clerk inadvertently gave to you because you're a party in the case?

[00:33:00] Speaker 02:
And do you think that, and so just that circumstance.

[00:33:03] Speaker 01:
I think because you're a party in a party

[00:33:06] Speaker 01:
litigant, which are the cases cited by Nike, refer to, which is where you are an active party litigant.

[00:33:13] Speaker 01:
Can the court say get those back?

[00:33:15] Speaker 01:
And I believe the answer is yes.

[00:33:16] Speaker 02:
OK.

[00:33:16] Speaker 02:
So you do agree that if there was a party that wasn't supposed to get these materials and the clerk messes up and gives those materials to you, then the court can claw back those materials.

[00:33:26] Speaker 02:
And you don't have a First Amendment right to say that's a prior restraint.

[00:33:31] Speaker 02:
Because under these cases, it says you only got those materials because you were a party in the case.

[00:33:36] Speaker 01:
only if you're a party to the case and an active party.

[00:33:39] Speaker 02:
I understand, because you are a party in this case, but you're saying you're a different kind of party.

[00:33:43] Speaker 02:
I mean, it's a semantics, but you're saying, I mean, you're obviously a party for some purposes.

[00:33:48] Speaker 02:
You're a party you could have appealed as, and so, but you're saying, but I'm just trying to get a feel for what your, where your argument would lead to.

[00:34:00] Speaker 02:
What about taking my hypothetical and

[00:34:03] Speaker 02:
Parties are sharing materials between each other, right?

[00:34:08] Speaker 02:
And a party screws up and sends materials, not through a reporter at a clandestine coffee shop meeting, but actually to the wrong party, just sends these materials to the wrong party.

[00:34:19] Speaker 02:
And there's multiple parties and some of them are not supposed to, and instead of the clerk making the mistake, a party does.

[00:34:25] Speaker 02:
So can the court say, this party in the litigation needs to send those materials back and you can't go public with them, et cetera?

[00:34:32] Speaker 01:
I don't believe so.

[00:34:33] Speaker 01:
And here's the reason.

[00:34:34] Speaker 02:
So that's where you would draw the line.

[00:34:35] Speaker 02:
You think the court inherent powers allow the court, if the court inadvertently discloses them, but not if a party inadvertently makes a mistake and discloses them.

[00:34:45] Speaker 01:
Right.

[00:34:45] Speaker 01:
And the case where a party discloses it to, in the news gathering process, to a newspaper, media organization.

[00:34:51] Speaker 02:
No, my example, make sure you understand my example.

[00:34:53] Speaker 02:
My hypothetical is,

[00:34:56] Speaker 02:
It's not a newspaper.

[00:34:57] Speaker 02:
Let's put that aside, because that sort of distorts the... It's just a party that wasn't supposed to get these confidential materials.

[00:35:04] Speaker 02:
There's multiple parties, and one of them was not supposed to.

[00:35:06] Speaker 02:
But in sending out the materials, the other party on the other side screws up and sends them to the party they're supposed to, but also their paralegal accidentally sends them to the wrong party.

[00:35:18] Speaker 02:
Will the court's inherent powers allow the court to order, well, return those materials?

[00:35:23] Speaker 01:
I think the rules applying to the profession would require an attorney to give those back if they were sent to the attorney.

[00:35:29] Speaker 02:
The professional rules, I think the First Amendment would trump professional rules, don't you think?

[00:35:34] Speaker 01:
I believe it would, yes.

[00:35:36] Speaker 01:
But the rules would require that and would require that return.

[00:35:41] Speaker 02:
But are those rules unconstitutional?

[00:35:42] Speaker 02:
That's my question then.

[00:35:43] Speaker 01:
No, I don't believe so, Your Honor.

[00:35:46] Speaker 01:
I believe that as a party to, and as an attorney, for instance, which is what you're talking about.

[00:35:51] Speaker 02:
So I'm trying to get, so I'm sorry, but we don't have a lot of time.

[00:35:53] Speaker 02:
I'm trying to figure out where the line lies on your, because it seems like ultimately, if you kind of agreed with all that, and maybe you don't in a certain way, but at the end of the day, it seems more like because it wasn't given through a court process, it was given to a different party,

[00:36:10] Speaker 02:
outside the court process, that that seems to be what you're relying on.

[00:36:12] Speaker 02:
You're relying on two things.

[00:36:13] Speaker 02:
You're saying we're not a party, because we're just an intervener that's not a party.

[00:36:17] Speaker 02:
But then, is that your whole argument, or is there something else?

[00:36:21] Speaker 02:
No.

[00:36:21] Speaker 01:
Well, I think it's very clear in this case, because the court found that this was not the use of a court process.

[00:36:27] Speaker 01:
I mean, specifically found not the use of a court process.

[00:36:30] Speaker 02:
So that's what my questions were going to get at.

[00:36:33] Speaker 02:
If one party just randomly sends it to another party, and it's not

[00:36:40] Speaker 02:
But I thought earlier you said, well, if a party sent it to another party accidentally, I mean, you could say that was outside the court process because you're not doing it because the court ordered you to.

[00:36:49] Speaker 02:
In fact, the court told you not to.

[00:36:51] Speaker 01:
Well, I don't think that's the court process that the First Amendment is dealing with in all of the cases, whether it's Bartucci or the Ziprexa case, for instance, where they're dealing with its news gathering, which is the key end of the First Amendment.

[00:37:08] Speaker 05:
But I guess I take the, just to, this is a question of the power.

[00:37:12] Speaker 05:
There may or may not be First Amendment constraints on the court's power, but

[00:37:15] Speaker 05:
Your assertion is that the judges in this case, the federal district judge, federal magistrate judge,

[00:37:23] Speaker 05:
in the event of an inadvertent disclosure of information to an intervener, that the federal district judge has to wait for the state disciplinary process and professional responsibility process.

[00:37:35] Speaker 05:
Those are the only obligations that would require the counsel for the intervener to order their client to give it back.

[00:37:44] Speaker 05:
The district judge has no inherent power over that information that was only produced but for the litigation.

[00:37:52] Speaker 01:
I don't believe if it's produced outside of the court process, which is key here, and it was key.

[00:38:00] Speaker 05:
It was discovery documents.

[00:38:01] Speaker 05:
How is that outside of, I guess I'm trying to understand, what do you mean outside of the court process?

[00:38:04] Speaker 05:
This was discovery that was produced within the court process, produced to another party, in this case, an intervener.

[00:38:12] Speaker 01:
Well, it's outside the court process because this was a process of news gathering.

[00:38:17] Speaker 01:
Well, his question is,

[00:38:19] Speaker 02:
Would you say it was inside the court process that the paralegal accidentally sent them?

[00:38:23] Speaker 02:
But if you meet at a coffee shop and just give it to them on a PDF, you see why we're struggling, what do you mean exactly by outside the court process?

[00:38:31] Speaker 02:
It seems like that would be a weird, that's a hard line to police, whereas

[00:38:36] Speaker 02:
giving the materials from one party to another party, maybe a certain kind of party, but an intervener party, seems a lot more clear.

[00:38:44] Speaker 01:
If the paralegal gave it, or the attorney, as in this case gave it, to the outside party, then that is, in fact, protected under the First Amendment.

[00:38:54] Speaker 01:
It is not part of the court process.

[00:38:57] Speaker 01:
The judge said this has nothing to do with the court process.

[00:38:59] Speaker 02:
So it sounds like you're reverting to, and it's not like most of your argument is turning on him.

[00:39:02] Speaker 02:
And we're trying to nail this down, I think.

[00:39:04] Speaker 02:
But your argument really turns on the fact that you're not a party.

[00:39:08] Speaker 02:
That's a huge part of your argument.

[00:39:09] Speaker 02:
Because if you are a party, it sounds like you have two arguments.

[00:39:12] Speaker 02:
One is we're not a party, and the other is in or not in the court process.

[00:39:16] Speaker 02:
And we're struggling more with what you mean by in or outside the court process because of

[00:39:22] Speaker 02:
In other words, you could say, if I give it to you as counsel, that's in the court process.

[00:39:26] Speaker 02:
If I give it to your client, which is what happened here, that's outside the court process.

[00:39:32] Speaker 02:
Where is that line at, in and outside the court process?

[00:39:34] Speaker 01:
It was not given to a client in this case.

[00:39:36] Speaker 01:
This was strictly a reporter who approached this person about a non-litigant.

[00:39:43] Speaker 02:
What if it had been given to the president or the CEO of the news organization?

[00:39:48] Speaker 02:
Would that be the client?

[00:39:49] Speaker 02:
I'm trying to figure out, again, what your line is.

[00:39:51] Speaker 02:
Both are employees of the party, if we're assuming for a second they're a party.

[00:39:58] Speaker 02:
Both are employees.

[00:39:59] Speaker 01:
You would still have the First Amendment protection if it were to the CEO of the Oregonian or the CEO of the advance publication.

[00:40:07] Speaker 01:
You would still have that First Amendment protection.

[00:40:10] Speaker 01:
And what the court did here was say,

[00:40:13] Speaker 01:
This would be, one, a prior restraint, and number two, you don't get out of the prior restraint by any special circumstances.

[00:40:23] Speaker 01:
In fact, they found there were none here in this case.

[00:40:25] Speaker 02:
Do we have any more questions?

[00:40:28] Speaker 02:
No.

[00:40:29] Speaker 02:
I think we've kind of taken over your time.

[00:40:31] Speaker 02:
Very interesting issue, and we'll let your colleague come up here and respond.

[00:40:35] Speaker 01:
I appreciated the extra five minutes.

[00:40:37] Speaker 01:
Thank you.

[00:40:45] Speaker 04:
I'm in an interesting position in that I have a lot to say on two different appeals.

[00:40:48] Speaker 04:
So I'm going to motor mouth a little bit.

[00:40:50] Speaker 04:
You give me a flag if I'm going too quickly on the ceiling appeal.

[00:40:54] Speaker 04:
This court has already recognized in slew United States versus slew.

[00:40:57] Speaker 04:
We cited it in the reply brief that overlap isn't itself.

[00:41:00] Speaker 04:
enough to change the standard from good cause to compelling reasons.

[00:41:05] Speaker 04:
You really need to look at what the motion itself seeks.

[00:41:08] Speaker 04:
What the motion itself seeks, is it a procedural request or is it a merits request?

[00:41:12] Speaker 04:
And class certification is a procedural request.

[00:41:15] Speaker 04:
The other thing I'd like to flag in response to Judge Johnstone's question is the practical.

[00:41:20] Speaker 04:
Many of these employees have left.

[00:41:24] Speaker 04:
Nike's ability to get declarations from those people would be challenged.

[00:41:28] Speaker 04:
Many of these complaints were anonymous and accusations were slanderous.

[00:41:35] Speaker 04:
individuals would have to be informed that an accusation was made against them.

[00:41:39] Speaker 04:
There's also the practical that this is all happening in the time frame of a case.

[00:41:45] Speaker 04:
And the ability of a litigant to react that quickly is challenged, particularly when those employees are no longer there.

[00:41:52] Speaker 04:
Instead, what Nike is doing is what a good employer to do, and in trying to protect the identity of non-litigants.

[00:41:59] Speaker 04:
To Your Honor's question, though, about merits, one question that I'd like the Court to grapple with is, shouldn't the standard be known before the papers go in?

[00:42:10] Speaker 04:
In other words, your honor was asking, what if we rule on typicality?

[00:42:14] Speaker 04:
Well, Nike and the plaintiffs won't know that until after the court rules.

[00:42:18] Speaker 04:
Instead, if you follow a test that says class certification really is a reason.

[00:42:21] Speaker 02:
I mean, inherent in my question was, I guess I meant like, if that was the main issue and that was what all of the discovery and such related, the class discovery was all about the typicality.

[00:42:31] Speaker 02:
That was the only issue.

[00:42:32] Speaker 02:
It was a very, which would never be a case.

[00:42:34] Speaker 04:
But if you think about it, your honor, here, class certification was denied.

[00:42:40] Speaker 04:
And so if class certification is denied following the logic of looking until it's the end, it didn't overlap with the merits.

[00:42:46] Speaker 04:
There wasn't a common question on the merits that was presented.

[00:42:50] Speaker 04:
So instead, which, if you follow that.

[00:42:53] Speaker 02:
So here's a, here's a, and really the other issue is more, but the one thing we didn't, I didn't talk with you about, about the first case when you're up before is,

[00:43:03] Speaker 02:
The problem is, and this is what Chrysler says, is the standard is really saying the public has this First Amendment right to learn about the stuff that's underlying the merits claims of the case.

[00:43:16] Speaker 02:
That's why we have this merits.

[00:43:18] Speaker 02:
And we have dispositive, non-dispositive, but that was a pretty loose fit on merits.

[00:43:24] Speaker 02:
So I don't know that I disagree with you that it's a lot more bright line rule, merits or dispositive versus non-dispositive, but it seems like, I mean, that bridge,

[00:43:32] Speaker 02:
We're over that bridge because of Chrysler.

[00:43:37] Speaker 02:
And so if what we're asking ourselves is, does this go to the merits, because that's what the public has a First Amendment right to, that's what this compelling interest, then if the class third issues go to those issues, then it's a bit formalistic to say, yeah, but the case wasn't decided on.

[00:43:56] Speaker 02:
It seems like that's where Chrysler's pushed us, but I don't, I mean.

[00:43:59] Speaker 04:
I'm going to give you 15 seconds and then switch to the other appeal, recognizing that I have things to say on that one.

[00:44:04] Speaker 04:
But what I would say is that this court has the opportunity, given the fact that there's a bedrock line of cases, Phillips, Kamikana, Foltz, up to Chrysler, which Chrysler is informing on the dispositive versus non-dispositive, to look at Chrysler, a fractured decision, 1-1-1, and say,

[00:44:19] Speaker 04:
What Chrysler was really suggesting is, was merits relief granted or sought?

[00:44:25] Speaker 04:
Motion and limiting.

[00:44:26] Speaker 04:
Exclude all evidence on claim one.

[00:44:28] Speaker 04:
That's a merits motion.

[00:44:30] Speaker 04:
Daubert.

[00:44:32] Speaker 00:
We need to talk about this intervener party issue before we're done.

[00:44:37] Speaker 00:
Did Judge Hernandez limit, I mean, when he granted, I'll go back and look at the record, but the order allowing the intervener into the case, did he limit them?

[00:44:49] Speaker 00:
to the extent that they're not a party?

[00:44:52] Speaker 04:
So I think, Your Honor, what the media intervener sought to do was come in and change the protective order.

[00:44:59] Speaker 04:
So they weren't coming in saying, we'd like to be a plaintiff.

[00:45:02] Speaker 04:
They weren't coming in and saying, we think we should be sued.

[00:45:05] Speaker 04:
But they were coming in to say, we're submitting to the jurisdiction of the court to talk about documents we'd like you to give us.

[00:45:11] Speaker 04:
And the court said, OK, you can be in the court, and we'll talk about that.

[00:45:16] Speaker 04:
And for a while, the court said, you can't have the documents.

[00:45:18] Speaker 04:
And then it changed its mind.

[00:45:20] Speaker 04:
But it cannot be the case.

[00:45:22] Speaker 04:
It just cannot be the case as a matter of law, conceptually, that someone can be before the court and say, the court has no power to reach me on the very thing I'm talking about.

[00:45:31] Speaker 00:
On the very issue that they raised to allow them to intervene?

[00:45:35] Speaker 04:
I'm right there with you.

[00:45:38] Speaker 00:
OK.

[00:45:39] Speaker 04:
It would be a dangerous moment in the law where the court could only aid and not order.

[00:45:45] Speaker 04:
on parties before it.

[00:45:48] Speaker 02:
I'll give you 30 seconds here if you have something really, really important to say, but I think we have your argument.

[00:45:59] Speaker 04:
I appreciate your honor's time and courtesy in giving me extra time.

[00:46:03] Speaker 04:
And we'd ask that the court reverse both cases.

[00:46:06] Speaker 02:
Thank you to all the counsel.

[00:46:07] Speaker 02:
Very interesting cases.

[00:46:08] Speaker 02:
Very helpful argument this morning.

[00:46:11] Speaker 02:
And that wraps up our day to day.

[00:46:13] Speaker 02:
The court will come back tomorrow slightly differently configured.