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Burlington v. News Corporation

United States District Court, E.D. Pennsylvania

May 4, 2015

THOMAS BURLINGTON,
v.
NEWS CORPORATION, ET AL

MEMORANDUM

BARCLAY SURRICK, District Judge.

Presently before the Court is Defendants' Motion to Compel production of a confidential settlement agreement (ECF No. 79), and the Motion of Dan Gross and National Union Fire Insurance Company of Pittsburgh, PA to Intervene (ECF No. 83). For the following reasons, the Motion to Compel and the Motion to Intervene will be denied.

I. BACKGROUND

This is an action in which Plaintiff seeks damages for the termination of his employment with Defendants as a television news anchor.[1] Plaintiff brings claims for race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a, et seq., 28 U.S.C. § 1981, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. §§ 951, et seq. Prior to the termination of Plaintiff's employment, he was placed on suspension. On July 5, 2007, the Philadelphia Daily News published an article regarding Plaintiff's suspension from employment and the reasons therefor. The July 5, 2007 article led to a civil action brought by Plaintiff against the Philadelphia Daily News and its reporter Dan Gross (the " Gross action"). (Defs.' Mot. to Compel 2, ECF No. 79.) Plaintiff filed that action in the Court of Common Pleas of Chester County, Pennsylvania on May 28, 2008. (Id. ) The Complaint involved claims for intentional defamation, negligent defamation, and false light invasion of privacy, and sought compensatory damages for lost earnings and other financial losses, as well as punitive damages. (Id. at 2-3; see also id. at Ex. "1.") Many of the factual allegations and damage claims in the Gross action and the instant action overlap. In May of 2013, the Gross action settled. (Id. at 3.) As part of this settlement, it was agreed between Plaintiff and the Gross defendants that the terms of the agreement, as well as the settlement amount, would be confidential. (Mot. to Intervene Ex. "A" at 2, ECF No. 83.)

On February 23, 2015, at the request of Defendants, and with the consent of Plaintiff, we entered an Order requiring Plaintiff to serve Defendants with copies of all non-privileged documents concerning the Gross action. (Third Amended Scheduling Order, ECF No. 78.) Plaintiff objected to producing a copy of the settlement agreement from the Gross action, based upon the fact that it was confidential. (Defs.' Mot. to Compel. 4.) On March 5, 2015, Defendants then filed the instant Motion to Compel production of that settlement agreement. Plaintiff responded on March 20, 2015. (ECF No. 82.) On April 3, 2015, Dan Gross (a defendant in the Gross action) and National Union Fire Insurance Company of Pittsburgh, PA (the insurer to the defendants in the Gross action) (collectively the "Daily News Parties") moved to intervene in this action. (ECF No. 83.) The Daily News Parties seek intervenor status to assert their interests in keeping the Gross settlement agreement confidential.

II. DISCUSSION

We will first address the Motion to Intervene filed by the Daily News Parties. We will then address the Defendants' Motion to Compel.

A. Daily News Parties' Motion to Intervene

The Daily News Parties seek to intervene as of right under Federal Rule of Civil Procedure 24(a). Alternatively, they seek permissive intervention under Rule 24(b).

A party seeking to intervene as of right under Rule 24(a) must establish the following: (1) a sufficient interest in the litigation; (2) a threat that the interest will be impaired or affected by the disposition of the action; (3) inadequate representation of the proposed intervenor's interest by the existing parties to the litigation; and (4) a timely application. Donaldson v. United States, 400 U.S. 517, 531 (1971); see also Kleissler v. United States Forest Serv., 157 F.3d 964, 969 (3d Cir. 1998). "Although these requirements are intertwined, each must be met to intervene as of right.'" United States v. Virgin Islands, 748 F.3d 514, 519 (3d Cir. 2014) (quoting Harris v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987)).

With regard to the third requirement, it must be established that the intervenor's "interests are not adequately represented by the existing parties." Id. (citation omitted). "Inadequate representation can be based on any of three possible grounds: (1) that although the applicant's interests are similar to those of a party, they diverge sufficiently that the existing party cannot devote proper attention to the applicant's interests; (2) that there is collusion between the representative party and the opposing party; or (3) that the representative party is not diligently prosecuting the suit.'" Id. at 519-20 (quoting Brody By and Through Sugzdinis v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992)).

The Daily News Parties do not argue that they have an interest in this litigation. Their interest is collateral to this action, namely the confidentiality of the Gross settlement agreement. Clearly, their interest is aligned with Plaintiff, the other party to that agreement. Plaintiff here strenuously argues in support of maintaining the confidentiality of the Gross settlement agreement. Plaintiff advances numerous arguments in opposition to Defendants' Motion to Compel, namely that in this instance a heightened burden is placed upon Defendants and Defendants have not met that burden. This is the same argument advanced by the Daily News Parties in their Memorandum of Law opposing Defendants' Motion. ( Compare Pl.'s Mem. of Law 4-6, with Daily News Parties' Mem. of Law 2-6, Mot. to Intervene Ex. "A.") Indeed, the arguments advanced by the Daily News Parties are similar to those advanced by Plaintiff.

The interests that the Daily News Parties have in maintaining the confidentiality of the Gross settlement agreement and the interests of Plaintiff are perfectly aligned. Both strongly oppose Defendants' Motion to Compel. They present parallel legal arguments. Under these circumstances, the interests of the Daily News Parties are adequately represented by Plaintiff. The Daily News Parties therefore do not qualify for status as an intervenor-as-of-right. Their Motion under Rule 24(a) will be denied.

We will also deny the Daily News Parties' request for permissive intervention under Rule 24(b). The grant of permissive intervention is wholly discretionary. Johnson v. Cohen, No. 84-6277, 1986 WL 785, at *1 (E.D. Pa. Jan. 9, 1986). It should be denied where "the applicant raises claims collateral or extrinsic to the questions presented in the original proceedings, even though the petition presents a common question of law or fact." Id. (citation omitted). The Daily News Parties do not have any interest in the present litigation and present no questions of law or fact common to ...


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