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Phillips v. Goodyear Tire & Rubber Co.

October 31, 2007

HAROLD J. PHILLIPS AND GEORG-ANNE PHILLIPS, PLAINTIFFS, LEROY HAEGER, KORI D. HALEY, ET AL., INTERVENING PLAINTIFFS,
v.
GOODYEAR TIRE & RUBBER CO., DEFENDANT.



The opinion of the court was delivered by: Hon. Rudi M. Brewster United States Senior District Judge

ORDER (1) GRANTING MOTION and TO INTERVENE; (2) SETTING BRIEFING SCHEDULE ONMOTION TO MODIFY PROTECTIVE ORDER; AND (3) REFERRING REQUEST FOR CONTEMPT TO MAGISTRATE JUDGE FOR FINDINGS [Docket Nos. 26, 27, & 35]

This Court referred the Intervening Parties' motion to intervene and modify the Protective Order to the Honorable Nita L. Stormes for a Report and Recommendation (R&R). 28 U.S.C. § 636(b)(1). The Magistrate Judge recommends that the Court grant the motion to intervene. The parties were permitted to file objections to the R&R, but none have been filed. The Court adopts the R&R and grants the motion to intervene. Once the motion to modify the Protective Order is fully briefed, the Court asks the Magistrate Judge to prepare an R&R on that matter, as well as the request for contempt.

Background

In 2002, Plaintiffs Harold and Georg-Anne Phillips filed this tort action against Defendant Goodyear Tire and Rubber Company. They alleged personal injuries from an accident in their motor home when a tire's tread separated and they lost control of the vehicle. The Phillips alleged the tires were defective and that Goodyear knew this model tire was not safe for motor homes. Goodyear answered the complaint and the parties proceeded to discovery.*fn1

In June 2003, Plaintiffs deposed a Goodyear employee, Kim Cox in Ohio. The parties did not complete the deposition because they decided to proceed to mediation to try to settle the case. The court reporter had her stenographer's notes of the incomplete deposition, but never made a transcript.

A few days later, the parties stipulated to a Protective Order. [# 22] Allegedly, Goodyear designated that Cox's deposition be treated as "confidential." By the terms of the Protective Order, the attorney for the Phillips', Guy Ricciardulli, was prohibited from communicating in any manner the information contained in designated documents because the information was solely for use in this case. Protective Order ¶ 2 ("Said documents shall not be given, shown, made available, discussed or otherwise communicated in any way to anyone other than" those specified in this case). Deposition testimony was included. Id. ¶ 3.

The mediation was successful and the case was dismissed in September 2003.

The parties' attorneys contacted the court reporter in Ohio and asked her to send her "original and all copies of [her] notes and transcription" of the Cox deposition to Goodyear's attorney (John McCormick) for destruction. McCormick Decl. Ex. B. The court reporter complied and sent the notes and exhibits of the deposition to McCormick. She confirmed that it had not been transcribed. Id. McCormick destroyed the reporter's notes.

The Intervening Parties' Litigation against Goodyear

Several families have similar lawsuits against Goodyear in other courts.*fn2 These plaintiffs have joined together to either obtain any notes from Cox's deposition or to depose the attendees at the Cox deposition without an objection based upon the Protective Order.

The Intervening Parties filed this motion to intervene into the closed Phillips case so that they can then take the second step of moving to modify the Protective Order to permit inquiry into the Cox deposition.*fn3 The Intervening Parties' motion triggered Goodyear to file its own motion to issue an order to show cause ("OSC") why Ricciardulli should not be held in contempt for violating the Protective Order.

Discussion I. Motion to Intervene

The Court has read the pleadings and has considered the applicable case law. Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983) ("The district court must decide for itself whether the magistrate's report is correct."). The Ninth Circuit permits a third party to use Rule 24 as a mechanism to intervene in order to seek the modification of a protective order or otherwise seek access to judicial records in civil cases. Fed. R. Civ. P. 24; San Jose Mercury News, Inc. v. Dist. Ct., 187 F.3d 1096, 1100 (9th Cir. 1999); Beckman Inds., Inc. v. International Ins. Co., 966 F.2d 470, 472-73 (9th Cir. 1992). Rule 24(b) permits permissive intervention for this purpose when there is a common question of law or fact and the intervention will not prejudice or delay the action. As Magistrate Judge Stormes correctly noted, the Phillips ...


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