Zenith Electronics Corp. v. Hon. Eddward Ballinger – 3/5/2009

March 10, 2009

Arizona Court of Appeals Division One Holds That Superior Court Did Not Abuse Its Discretion In Allowing Post-Judgment Intervention By a Non-Party Under Arizona Rule of Civil Procedure 24(b).

Barbara Cassidy filed a wrongful death lawsuit against Zenith, alleging that a defective Zenith television caused a fire that killed Cassidy’s father.  During the litigation, Zenith produced a number of documents through discovery subject to a very broad protective order.  After the case was dismissed by stipulation on May 1, 2008, Public Citizen, a public interest organization, learned of the lawsuit.  On June 11, 2008, Public Citizen filed a motion to intervene under Arizona Rule of Civil Procedure 24(b) for the limited purpose of gaining access to certain materials that Zenith had produced to Cassidy pursuant to the protective order.  The superior court granted the motion to intervene, and Zenith sought special action relief. 

The Court of Appeals took jurisdiction and affirmed the superior court’s granting of the motion to intervene.  The Court explicitly confined its analysis to “the propriety of intervention” because “the superior court has not yet ordered any disclosure [of documents from the litigation.”  Because no Arizona case has discussed post-judgment intervention for the specific purpose of gaining access to discovery materials subject to a continuing protective order, the court reviewed federal cases analyzing the federal counterpart to Rule 24(b).  The analysis under Rule 24(b) focuses on two issues:  timeliness and commonality. 

A court ruling on a motion for permissive intervention must “decide as an initial matter whether the motion is timely.”  This requires a showing of justification for failure to request intervention sooner.  The Court looked to a First Circuit case in which the First Circuit identified four factors relevant to timeliness:  (1) how long the intervenor knew or should have known that the parties no longer adequately protected its interest, (2) prejudice to the existing parties from the intervenor’s delay, including whether intervention would impact the settlement and the intervenor’s reasons for seeking to participate, (3) prejudice to the intervenor if intervention were not permitted, and (4) whether the intervention concerns interests of the public.  Here, Public Citizen moved for intervention after it learned of the Cassidy settlement, and the mere fact that the motion was filed post-judgment was not determinative.  Also, Public citizens sought to intervene for a limited purpose, not to disrupt the settlement.  Finally, Public citizens sought to assert a public interest, not represented by Cassidy or Zenith, associated with possibly defective Zenith televisions.

The second requirement of Rule 24(b) is that Public Citizen’s “claim or defense and the main action have a question of law or fact in common.”  Finding no Arizona cases on point, and noting that federal cases vary in how expansively they define “commonality,” the court held that the common question of law here “involves the propriety of the protective order and the extent to which it may be modified at this stage of the proceedings.”

Judge Weisberg authored the opinion; Judges Orozco and Judge Norris concurred.