United States District Court, D. Nebraska
RYSTA LEONA SUSMAN, Both Individually and as Legal Guardian of Shane Allen Loveland; and JACOB SUMMERS, Plaintiffs,
THE GOODYEAR TIRE & RUBBER COMPANY, Defendant.
M. Bazis United States Magistrate Judge.
matter is before the Court on Kearney Towing and Repair
Center, Inc.'s (“Kearney”) Petition to
Intervene. (Filing No. 95.) Kearney, a non-party,
seeks to intervene for purposes of obtaining a modification
to the Protective Order (Filing No. 66) entered in
this case. Kearney also asks that the Court preclude
Plaintiffs from deposing Kearney's corporate
representatives in this case until a later time.
Kearney's requests will be denied.
lawsuit arises out of a motor vehicle accident that occurred
on May 1, 2015. (Filing No. 1.) Plaintiffs allege
the accident was caused by a defective tire manufactured by
Defendant. Plaintiffs have asserted claims of negligence,
strict liability, and breach of implied warranty of
merchantability against Defendant.
about April 12, 2019, Plaintiffs filed a separate lawsuit
against Kearney in the District Court of Buffalo County,
Nebraska (the “state court suit”). (Filing
No. 95-4.) The lawsuit arises out of the same accident
at issue in this case. The complaint in the state court suit
alleges Kearney inspected, mounted, installed and balanced
the tires that were on the motor vehicle involved in the
accident. Plaintiffs contend Kearney was negligent in the
inspection and installation of the tires and breached the
contract for the sale, installation, and assembly of the
tires. Defendant is not a party to the state court suit.
19, 2018, the Court entered a Protective Order in this case.
(Filing No. 66.) The Protective Order identifies
categories of confidential information and allows the parties
to designate discovery materials falling within these
categories as confidential by marking them as follows:
“THIS DOCUMENT PRODUCED UNDER COURT ORDER FOR USE IN
SUSMAN, ET AL. v. THE GOODYEAR TIRE & RUBBER COMPNAY, AND
SHALL NOT BE USED FOR ANY OTHER PURPOSE WHATSOEVER.”
Defendant represents that it has used this confidentiality
designation in the production of thousands of pages of
documents related to certain types of tires, as well as the
tire at issue in this case. (Filing No. 100 at CM/ECF p.
has moved to intervene pursuant to Federal Rule of Civil
Procedure 24(b) in order to modify the Protective Order
entered in this case. Kearney wants to modify the terms of
the Protective Order to allow confidential materials produced
in this case to be used in the state court suit. Kearney
contends this change would reduce costs by preventing
intervention under Rule 24(b) is an appropriate procedural
vehicle for non-parties seeking access to judicial records in
civil cases.” Flynt v. Lombardi, 782 F.3d 963,
967 (8th Cir. 2015). See also AT&T Corp. v. Sprint,
Corp., 407 F.3d 560, 562 (2d Cir. 2005)
(“[P]ermissive intervention is the proper method for a
nonparty to seek a modification of a protective
order”); EEOC v. Nat'l Children's Ctr.,
Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998)
(“[D]espite the lack of a clear fit with the literal
terms of Rule 24(b), every circuit court that has considered
the question has come to the conclusion that nonparties may
permissively intervene for the purpose of challenging
confidentiality orders”). A court's “decision
to grant or deny a motion for permissive intervention is
wholly discretionary.” South Dakota v. U.S.
Dep't of Interior, 317 F.3d 783, 787 (8th Cir.
2003). “In exercising its discretion, the court must
consider whether the intervention will unduly delay or
prejudice the adjudication of the original parties'
rights.” Fed.R.Civ.P. 24(b).
Court will not allow Kearney to intervene in this action. The
parties have engaged in discovery under the terms of the
Protective Order for over a year and Defendant has produced
thousands of pages of documents that it has designated as
confidential. These documents contain trade secret and
proprietary information related to the design, manufacture,
and testing of Defendant's tires, as well as information
pertaining to prior claims and litigation involving
Defendant. Defendant would be prejudiced by allowing Kearney
to use these documents in a state court lawsuit to which
Defendant is not a party. Although Kearney's interest in
reducing expenses by eliminating duplicative discovery is
legitimate, it does not outweigh Defendant's interest in
protecting its confidential documents from use in a state
court lawsuit in which it is not involved.
also requests that this Court preclude Plaintiffs from taking
depositions of Kearney's corporate representatives in
this case until Plaintiffs certify that they are ready to
proceed with these depositions in the state court suit.
Plaintiffs argue that such an order will protect
Kearney's representatives from being deposed twice in
lawsuits involving the same facts. This request will likewise
be denied. This Court will not involve itself in coordinating
its discovery deadlines with those in the state court suit.
The deadline for completing depositions in this case is
November 15, 2019. (Filing No. 119.) Moreover, not all facts
relevant in the state court suit are relevant to this action.
Kearney is not a defendant in this case and questioning in
the state court action will largely focus on establishing
Kearney's liability to Plaintiffs.
IT IS ORDERED:
1. Kearney's Petition to Intervene (Filing No.
95) is denied in its entirety.
2. Kearney's Request for Oral Argument Concerning the
Petition to Invervene (Filing No. 102) ...