United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE
March 28, 2018, three non-party media entities (“the
Intervenors”) moved to intervene and unseal judicial
records in this case. (Doc. 107). The court granted the
motion to intervene and ordered Defendants to respond to the
motion to unseal. (Doc. 111). In their response, Defendants
moved for reconsideration of this court's order granting
the Intervenors' motion to intervene. (Doc. 119 at 15).
Accordingly, this matter is before the court on the
Intervenors' motion to unseal judicial records (doc. 107)
and Defendants' motion for reconsideration of their
intervention (doc. 119 at 15).
court WILL DENY Defendants' motion for reconsideration
because the court concludes that the Intervenors have
demonstrated that intervention is proper. The court WILL
GRANT the Intervenors' motion to unseal because the
public has a common law right of access to the sealed records
relating to Alabama's lethal injection protocol.
December 13, 2017, Doyle Lee Hamm filed a complaint
challenging the constitutionality of Alabama's method of
execution as applied to him. (Doc. 1). He also sought a
preliminary injunction to prevent his execution, which the
Alabama Supreme Court had set for February 22, 2018.
(See Doc. 30 at 5). Defendants moved for summary
judgment on the complaint. (Doc. 12). Because of the very
short period of time between Mr. Hamm's filing of the
complaint and the scheduled execution, the court ordered
expedited briefing and, on January 31, 2018, held a hearing
on Mr. Hamm's request for injunctive relief and
Defendants' motion for summary judgment. (See
Doc. 30 at 5-6).
pre-hearing status conference in chambers, the court notified
the parties that it would need to review Alabama's lethal
injection protocol. Defendants agreed to produce the protocol
for the court's in camera review before the
hearing, and also agreed to provide Mr. Hamm's attorney
with a redacted copy of the protocol, subject to a
confidentiality agreement. On January 30, 2018, the parties
filed a joint motion for a protective order (doc. 26), and
the court entered the Agreed Confidentiality Order (doc. 28).
That Order provided that the parties and their counsel had
agreed to keep the protocol and the information contained
within the protocol confidential. On January 31, 2018,
Defendants provided paper copies of the lethal injection
protocol to the court and a redacted version to Mr.
morning session of the January 31 hearing dealt with
Defendants' motion for summary judgment, and the
afternoon session dealt with Mr. Hamm's request for
preliminary injunctive relief. (See Doc. 52 at 3,
70-74). Because part of the afternoon session revolved around
the confidential lethal injection protocol, the court
conducted that part of the hearing in
camera, and the transcript of that part of the
hearing remains sealed. (See Doc. 53). The audience
present during the public parts of the hearing included
members of the press.
February 6, 2018, the court entered a memorandum opinion and
order reserving ruling on Mr. Hamm's request for
preliminary injunctive relief, denying Defendants' motion
for summary judgment, and staying Mr. Hamm's execution to
allow time for an independent medical examination. (Docs. 30,
31). Defendants appealed the court's grant of a stay, and
on February 13, 2018, the Eleventh Circuit vacated the stay
of execution and remanded with instructions for the court to
immediately appoint an independent medical expert and to make
factual findings regarding Mr. Hamm's still-pending
motion for injunctive relief by no later than February 20,
2018. (Doc. 38). Meanwhile, Mr. Hamm's execution was
still scheduled to take place on February 22, 2018.
compliance with the Eleventh Circuit's instructions, the
court appointed an independent medical expert, who conducted
an examination of Mr. Hamm. (Doc. 75). The Intervenors'
motion to unseal records does not relate to the identity of
the independent medical expert, and all identifying
information about the expert will remain sealed.
February 16, 2018, the court held another hearing, which the
court closed to the public to protect the identity of the
independent medical examiner and the confidentiality of the
lethal injection protocol, both of which the court
anticipated the parties would discuss extensively at the
hearing. At that hearing, the court denied Mr. Hamm's
request for preliminary injunctive relief based on the
medical exam and certain representations from Defendants.
(See Doc. 58-2). The court followed with a
memorandum opinion and order on February 20, 2018.
February 22, 2018, the State unsuccessfully attempted to
execute Mr. Hamm. On March 26, 2018, Mr. Hamm filed a second
amended complaint, and on the same day, the parties
stipulated to the dismissal of the case. (Docs. 103, 104).
Two days later, on March 28, 2018, the court dismissed the
case. (Doc. 105).
March 28, 2018, the same day that the court dismissed the
case, the Intervenors filed their motion to intervene and to
unseal the lethal injection protocol and other court records
relating to the protocol. (Doc. 107). On March 30, 2018, the
court granted the motion to intervene, under Federal Rule of
Civil Procedure 24(a)(2), but reserved ruling on the motion
to unseal. (Doc. 111). Defendants opposed the motion to
unseal, and also sought reconsideration of the court's
order granting the motion to intervene. (Doc. 119 at 15).
Defendants' Motion for Reconsideration
Intervenors moved to intervene “to vindicate
constitutional and common law claims for access to court
records.” (Doc. 108 at 14). The court granted the
motion to intervene two days after the Intervenors filed it,
without requiring a response from Defendants. (Doc. 111).
Now, Defendants seek reconsideration of the order granting
intervention. (Doc. 119 at 15-19).
of an order is an extraordinary remedy and is employed
sparingly.” Rueter v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 440 F.Supp.2d 1256, 1267-68 (N.D.
Ala. 2006). Reconsideration is available only “when a
party presents the court with evidence of an intervening
change in controlling law, the availability of new evidence,
or the need to correct clear error or manifest
injustice.” Summit Med. Ctr. of Ala., Inc. v.
Riley, 284 F.Supp.2d 1350, 1355 (M.D. Ala. 2003). But
because this court did not afford Defendants an opportunity
to respond to the motion to intervene, Defendants have not
presented any of their arguments before, so the court will
consider their arguments as if they had made them in the
Intervenors did not identify whether they sought to intervene
under Federal Rule of Civil Procedure 24(a), which governs
intervention of right, or Rule 24(b), which governs
permissive intervention. The court granted intervention of
right under Rule 24(a). (Doc. 111). Rule 24(a)(2) provides
that the court must permit intervention by anyone who
“claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.” But even if the Intervenors were not
entitled to intervene as of right under Rule 24(a), they were
entitled to intervene under Rule 24(b). See Flynt v.
Lombardi, 782 F.3d 963, 967 (8th Cir. 2015)
(“[P]ermissive intervention under Rule 24(b) is an
appropriate procedural vehicle for non-parties seeking access
to judicial records in civil cases.”) (footnote
granting the motion to intervene, the court found that the
motion was timely because the Intervenors filed it within two
months of the court docketing the Agreed Confidentiality
Order and just hours after this court closed the case. (Doc.
111 at 2). The court also found that the Intervenors had an
interest in the “matter of intense public interest: the
method by which the State of Alabama exercises the power to
put people to death, ” and that the parties did not
adequately represent that interest. (Id.).
Defendants contend that the motion was not timely and denial
of intervention would not impede Intervenors' interest in
accessing the lethal injection protocol. (Doc. 119 at 15-19).
considering the timeliness of a motion to intervene, the
Eleventh Circuit explained:
A district court must consider four factors . . ., namely (1)
the length of time during which the would-be intervenor knew
or reasonably should have known of his interest in the case
before he petitioned for leave to intervene; (2) the extent
of prejudice to the existing parties as a result of the
would-be intervenor's failure to apply as soon as he knew
or reasonably should have known of his interest; (3) the
extent of prejudice to the would-be intervenor if his
petition is denied; and ...