100reporters LLC v. United States Department of Justice100reporters LLC v. United States Department of Justice
John Cuong Truong, U.S. Attorney‘s Office, Washington, DC, for Defendant.
Re Document Nos.: 13, 17
MEMORANDUM OPINION
GRANTING SIEMENS‘S MOTION TO INTERVENE; GRANTING DR. WAIGEL‘S MOTION TO INTERVENE
RUDOLPH CONTRERAS, United States District Judge
I. INTRODUCTION
In this Freedom of Information Act (“FOIA“) lawsuit, Plaintiff 100Reporters LLC (“100Reporters“) seeks to compel the United States Department of Justice (“DOJ“) to produce six categories of information related to the compliance monitoring program established by Siemens Aktiengesellschaft (“Siemens“) in connection with its plea agreements in 2008 for violations of the Foreign Corrupt Practices Act (“FCPA“). Now before the Court are separate motions to intervene filed by Siemens and Dr. Theo Waigel (“Dr. Waigel” or the “Monitor“), who served for four years as the independent corporate compliance monitor to Siemens following resolution of the FCPA investigation. For the reasons set forth below, the Court will grant both motions to intervene.
II. BACKGROUND
A. The Siemens Monitorship
In December 2008, Siemens entered into a plea agreement with the DOJ and a consent decree with the U.S. Securities and Exchange Commission (“SEC“) to resolve criminal and civil аllegations that Siemens and three of its subsidiaries committed certain violations of the FCPA. See Notice Regarding Corporate Monitorship, United States v. Siemens Aktiengesellschaft, No. 08-367 (D.D.C. Dec. 18, 2012), ECF No. 23 (“Monitorship Notice“), at ¶¶ 1-4; Plea Agreement,
Monitorship Notice ¶ 16; Statement of Offense as to Defendant Siemens, Attach. 2, United States v. Siemens Aktiengesellschaft, No. 08-367 (D.D.C. Dec. 15, 2008), ECF No. 15 (“Statement of Offense“), at 11.
In furtherance of the Monitor‘s mandate, the DOJ required that Siemens provide the Monitor with broad access to Siemens‘s confidential аnd commercially-sensitive information, documents, and records. See Statement of Offense ¶ 12. The DOJ also expressly authorized Siemens to share privileged information with the Monitor subject to a non-waiver arrangement. See id. Similarly, Siemens was obligated to ensure that the Monitor could inspect all relevant documents, conduct on-site observations of Siemens‘s internal controls and internal audit procedures, meet with and interview employees, officers, and directors, and analyze and test Siemens‘s compliance programs and controls. See id. ¶ 17.
Further, the settlement agreements directed the Monitor to conduct an initial review of Siemens‘s anticorruption compliance program and to prepare an initial report, followed by up to three subsequent reviews and reports. See id. ¶ 13. The agreements required that each report “set[] forth the Monitor‘s assessment and mak[e] recommendations reasonably designed to improve the effectiveness of Siemens‘[s] program for ensuring compliance with the anticorruption laws.” Id. ¶ 14. At the conclusion of each follow-up review, the Monitor also was required to “certify whether the compliance program of Siemens, including its policies and procedures, [was] reasonably designed and implemented to detect and prevent violations within Siemens of the anti-corruption laws.” Id. ¶ 16. Finally, the agreements directed the Monitor to provide regular communications to the DOJ and the SEC by requiring the Monitor to submit a work plan to the agencies for comment prior to each review, see id. ¶ 13, to provide the agencies with the Monitor‘s written reports following completion of each review, see id. ¶ 14, and to report any improper activities or violations of law discovered during the monitorship. See id. ¶ 18.
Although the plea agreement contemplated a four-year term for the monitorship, the agreement also provided that the term could be shortened or lengthened at the discretion of the DOJ. See id. ¶ 16. After four years, the DOJ authorized the termination of the monitorship, concluding that Siemens had “satisfied its obligatiоns under the plea agreement with respect to the corporate compliance monitorship.” Monitorship Notice ¶ 11. The DOJ specifically determined that Siemens had granted the Monitor broad access to its documents, projects, and employees:
Over the course of those four years, the Monitor conducted on-site or remote reviews of Siemens‘[s] activities in 20 countries; conducted limited or issue-specific reviews in or relating to an additional 19 countries; reviewed over 51,000 documents . . .; conducted interviews of or meetings with 2,300 Siemens employees; observed over 180 regularly scheduled company events; and spent the equivalent of over 3,000 auditor days conducting financial studies and testing.
Id. ¶ 17. Indeed, the Monitor had incorporated this information into, among other things, the four annual reports that the Monitor submitted to the DOJ, which described Siemens‘s confidential business information and contained detailed findings and recommendations relating to a number of topics, including third-party risks, financial controls, and Sie-
B. 100Reporters’ FOIA Request
By letter dated July 23, 2013, 100Reporters, a not-for-profit news media organization, submitted a FOIA request to the DOJ seeking all records relating to the Siemens plea agreement and monitorship. See Compl. ¶¶ 18-19. The DOJ denied this request on the basis that the materials 100Reporters sought were exempt from disclosure under FOIA Exemption 7(A), see id. ¶ 21, and the DOJ later affirmed its denial in response to 100Reporters’ appeal. See id. ¶ 23. Thus, on July 24, 2014, 100Reporters commenced the instant lawsuit against the DOJ seeking to compel the production of six specific categories of information relating to the Siemens plea agreement and monitorship, including the four annual reports that the Monitor submitted to the DOJ during the course of the monitorship. See id. ¶ 22.
C. Motions To Intervene
The DOJ did not notify Siemens or the Monitor regarding 100Reporters’ FOIA request during the pendency of the proceedings before the agency. See Siemens‘s Motion to Intervene 4; Monitor‘s Motion to Intervene 5. Instead, Siemens first became aware of the FOIA request when it learned of 100Reporters’ lawsuit on October 1, 2014, see Siemens‘s Motion to Intervene 4, and the Monitor became aware of the FOIA request on October 15, 2014, when the DOJ contacted the Monitor‘s counsel by telephone to provide notice of the FOIA request and civil action. See Monitor‘s Motion to Intervene 5. On October 20, 2014, Siemens and the Monitor each filed a motion to intervene in the lawsuit as a matter of right under
III. ANALYSIS: INTERVENTION AS OF RIGHT
“The right of intervention conferred by
[u]pon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
As the D.C. Circuit has explained, the right to intervene under
A. Timeliness
The timeliness of a motion to intervene must “be judged in consideration of all the circumstances.” Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001) (quoting United States v. AT & T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)). “Though the time elapsed since the inception of the suit is relevant, measuring the length of time passed is not in itself the determinative test because [courts]
1. Siemens
Siemens filed its motion to intervene on October 20, 2014, which was just a few weeks after it first learned of 100Reporters’ lawsuit against the DOJ. See Siemens‘s Motion to Intervene 6. Further, though 100Reporters’ complaint was filed on July 24, 2014, three months before Siemens‘s motion, the DOJ did not submit its first responsive pleading until October 14, 2014, which was only days before Siemens filed its motion. See generally DOJ‘s Answer. To date, no substantive progress has occurred in this action, and the Court finds that allowing Siemens to intervene at this time would not unduly disrupt the litigation or pose an unfair detriment to the existing parties. See Roane, 741 F.3d at 151. Indeed, this Court routinely has held that intervention applications are timely when a party seeks to intervene under circumstances similar to those here. See, e.g., Navistar, Inc. v. Jackson, 840 F. Supp. 2d 357, 361 (D.D.C. 2012) (finding intervention application timely when it was filed “less than two weеks after Defendants filed their responsive pleadings, and before any discovery or substantive progress had been made in the case“); Appleton v. FDA, 310 F. Supp. 2d 194, 197 (D.D.C. 2004) (”Appleton II“) (finding intervention applications timely when they were filed within two months of the agency notifying the intervenors about the lawsuit). The Court therefore finds that Siemens‘s motion to intervene was timely.
2. The Monitor
Like Siemens, the Monitor filed his motion to intervene on October 20, 2014, which was just a few days after both when he learned of 100Reporters’ lawsuit against the DOJ and when the DOJ filed its first responsive pleading. See Monitor‘s Motion to Intervene 7. Accordingly, the Court finds that the Monitor‘s motion to intervene was timely for the same reasons that Siemens‘s motion was timely.
B. Interests
1. Siemens
The Court finds, and 100Reporters does not dispute, that Siemens possesses a clear interest in the subjеct of this action because 100Reporters has requested that the DOJ release materials relating to the Siemens monitorship that very likely contain Siemens‘s confidential and proprietary information, including sensitive commercial information about Siemens‘s compliance programs, business operations, and internal controls. See Compl. ¶ 22; Siemens‘s Motion to Intervene 6-7. Indeed, preventing the disclosure of commercially-sensitive and confidential information is a well-established interest sufficient to justify intervention under
2. The Monitor
The Monitor asserts that he has a protectable interest in the subject of this action because 100Reporters seeks the disclosure of reports and other materials that were authored by the Monitor during the Siemens monitorship and submitted by him to the DOJ and the SEC under the terms of the settlement agreements, and in turn, these documents “contain highly confidential information relating tо Siemens‘s financial controls, compliance policies and procedures, and business operations,” which potentially is protected by FOIA Exemption 4. See Monitor‘s Motion to Intervene 8. The Monitor also asserts that when submitting the reports and making related communications with the DOJ, he asked the DOJ to preserve the confidentiality of the documents, and “it is only by protecting these materials from disclosure that the Monitor could ensure that it would have unfettered access to Siemens‘s sensitive information and to communicate the Monitor‘s findings in detail to the DOJ and the SEC.” Id.
In response, 100Reporters disputes the validity of the Monitor‘s
Specifically, in opposition to the Monitor‘s motion to intervene, 100Reporters argues that future disclosure of the requested materials will not injure the Monitor‘s general interest in being “the Monitor” because the monitorship ended in 2012. See Pl.‘s Mem. Opp‘n Motions to Intervene 13. In addition, 100Reporters suggests that the Monitor asserts a generalized and abstract injury because he claims only that disclosure would injure future compliance monitors at large by failing to protect the confidentiality of their official reports and communications with government agencies. See id. Finally, 100Reporters asserts that the Monitor cannot create a private interеst under FOIA Exemption 5—which authorizes the withholding of inter-agency or intra-agency documents, including agency records containing comments solicited from nongovernmental parties, see McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331, 335-36
Despite 100Reporters’ criticism, the Court is satisfied that the Monitor has a proper interest in the subject of this action. Indeed, this Court routinely has recognized that the submitter of documents to a government agency has a cognizable interest in maintaining the confidentiality of those documents that is sufficient under
This interest in confidentiality often arises at least in part through FOIA Exemption 4, which protects against the disclosure of “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”
Furthermore, outside the FOIA litigation context, federal courts regularly have recognized preserving confidentiality as a sufficient interest under
Indeed, though the confidentiality interest in some of these cases appears similar to the personal privacy interest protected by FOIA Exemption 6—which permits the government to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,”
Rather, the Court finds that it is sufficient for purposes of
C. Impairment Of Interests
In determining whether an applicant‘s interests will be impaired, courts in this circuit look to the “practical consequences” that the applicant may suffer if intervention is denied. See Natural Res. Def. Council v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977); Am. Horse Prot. Ass‘n, Inc. v. Veneman, 200 F.R.D. 153, 158 (D.D.C. 2001).
1. Siemens
Siemens argues that 100Reporters seeks materials provided to the DOJ during the monitorship that contain commercially-sensitive information, the disclosure of which “would result in significant harm to Siemens.” See Siemens‘s Motion to Intervene 7. In addition, Siemens provides that the Monitor‘s reports catalog and describe in detail all aspects of Siemens‘s compliance program, and public disclosure of those details would impair Siemens‘s ability to detect and prevent compliance issues moving forward, which also would substantially impair Siemens‘s interests. See id. at 7-8. In response, 100Reporters does not challenge Siemens‘s impairment analysis. Regardless, the Court finds that Siemens‘s interests potentially could be impaired if the materials sought by 100Reporters are released. See, e.g., Pub. Citizen, 975 F. Supp. 2d at 116-17 (disclosure of materials containing an “extensive, probing” review of “confidential business systems and policies,” as well as company‘s “internal structure and operatiоns,” would result in competitive harm to the company if disclosed); Appleton II, 310 F. Supp. 2d at 197 (“[D]isclosures resulting from the disposition of this action could impair the applicants’ ability to protect their trade secrets or confidential information.“).
2. The Monitor
The public release of the Monitor‘s reports and related communications also might impair the Monitor‘s interest in maintaining the confidentiality of those materials for the same reasons that publication might impair Siemens‘s interest in confidentiality. 100Reporters does not challenge the Monitor‘s impairment claim, and the Court thus finds that the Monitor has satisfied this requirement.
D. Adequate Representation Of Interests
The Supreme Court has explained that the adequate representation “requirement of [Rule 24(a)] is satisfied if the applicant shows that representation of his interest ‘may be’ inadequate; and the burden of making that showing should be treated as minimal.” Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972); see also Fund for Animals, 322 F.3d at 735-36. Similarly, the D.C. Circuit has described this requirement as “not onerous.” Dimond v. District of Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986); see also AT & T, 642 F.2d at 1293 (stating that an applicant “‘ordinarily should be allowed to intervene unless it is clear that the party will provide adequate representation for the absentee‘” (quоting 7A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1909 (1st ed. 1972))).
Although the intervenor and the government entity involved in the litigation frequently may agree on a legal position or course of action, the D.C. Circuit nonetheless “often [has] concluded that governmental entities do not adequately represent the interests of aspiring intervenors.” Fund for Animals, 322 F.3d at 736. This is primarily because the government entity‘s overarching “obligation is to represent the interests of the American people,” while the intervenor‘s obligation is to represent its own interests. Id. The divergence of interests, moreover, is especially evident in FOIA litigation, where this Court has recognized that the “plaintiffs’
1. Siemens
Siemens asserts that none of the existing parties in the underlying litigation shares its same incentive to protect its confidential and commercially-sensitive information from disclosure. See Siemens‘s Motion tо Intervene 8. 100Reporters argues, on the other hand, that Siemens and the DOJ currently hold “identical legal positions,” in large part because the DOJ “has never repudiated its blanket denial of 100Reporters’ FOIA request.” Pl.‘s Mem. Opp‘n Motions to Intervene 8. Thus, 100Reporters suggests that so long as the DOJ continues to seek the withholding of all documents responsive to the FOIA request, including by asserting FOIA Exemption 4, Siemens and the DOJ will share a “perfect harmony of interests,” and there is “no reason to think” that the DOJ would not adequately represent Siemens‘s interests. Id. The Court disagrees.
100Reporters’ analysis is inconsistent with the jurisprudence in this circuit regarding the adequate representation prong of
In addition, even if the DOJ always maintains its present position that all materials sought by 100Reporters must be withheld, that “does not mean that [the DOJ] would afford the same primacy to [Siemens‘s] interests” during the litigation such that adequate representation exists. See id. at 20 (“The mere fact that other defendants might hypothetically take [the intervenor‘s] interests into account when shaping their arguments does not mean that they would afford the same primacy to [the intervenor‘s] interests[.]“). This is especially true when the intervenor intends to raise an argument under FOIA Exemption 4 because, as this Court has explained, “[c]ourts have repeatedly rejected competitive harm claims [under Exemption 4] when they are advanced solely by the defendant agencies.” Newry Ltd. v. U.S. Customs and Border Prot. Bureau, No. Civ. 04-2110, 2005 WL 3273975, at *3-4 (D.D.C. July 29, 2005) (rejecting competitive harm argument advanced solely by agency), reconsideration granted (D.D.C. Mar. 30, 2006) (upholding competitive harm argument following agency‘s submission of supplemental declarations, including one from submitter); see also Wiley Rein & Fielding v. U.S. Dep‘t of Commerce, 782 F. Supp. 675, 676-77 (D.D.C. 1992) (rejecting competitive harm ar-
In sum, the DOJ has neither the incentives nor the information necessary to represent fully Siemens‘s commercial and competitive interests during this FOIA litigation. Accordingly, even though such interests may indeed overlap at times, the Court finds that Siemens has satisfied the inadequate representation requirement. See, e.g., Fund for Animals, 322 F.3d at 737 (explaining that “partial congruence of interests . . . does not guarantee the adequacy of representation“); Hardin v. Jackson, 600 F. Supp. 2d 13, 16 (D.D.C. 2009) (“[P]rivate companies can intervene on the side of the government, even if some of their interests converge[.]” (citations omitted)); Am. Horse Prot. Ass‘n, 200 F.R.D. at 159 (“[M]erely because parties share a general interest in the legality of a program or regulation does not mean their particular interests coincide so that representation by the agency alone is justified[.]” (citation omitted)).
2. The Monitor
100Reporters asserts essentially the same arguments regarding the Monitor as it did about Siemens, namely that the DOJ‘s blanket refusal to disclose any documents demonstrates that the Monitor‘s interests are “fully encompassed within [the] DOJ‘s current position.” Pl.‘s Mem. Opp‘n Motions to Intervene 17. Although the Monitor asserts a slightly different confidentiality interest than Siemens, the preceding analysis regarding inadequate representation still applies in full. Indeed, like with Siemens, the Monitor and the DOJ presently share a common position as to 100Reporters’ FOIA request: no materials should be released. That alone, however, does not mean the DOJ will adequately represent the Monitor‘s interests as contemplated by
E. Standing And Ripeness
Having concluded that Siemens and the Monitor satisfy the four elements necessary for intervention as of right under
In regard to the standing of an applicant seeking to intervene as a defendant, an additional wrinkle arises, namely that requiring standing for a proposed defendant-intervenor “runs into the doctrine that the standing inquiry is directed at those who invoke the court‘s jurisdiction,” which, of course, defendants traditionally do not. Roeder, 333 F.3d at 233 (citation omitted). Nonetheless, whereas Roeder merely high-
1. Siemens
100Reporters argues that Siemens‘s motion to intervene is “premature,” and the Court therefore should deny the motion, or at least hold the motion in abeyance, on both standing and ripeness grounds. See Pl.‘s Mem. Opp‘n Motions to Intervene 6-11. Specifically, 100Reporters asserts that until the DOJ finishes its review of the requested documents and completes its withholding analysis, Siemens presents only an “abstract” disagreement that requires further factual development to become ripe. Id. at 7-9. For this same reason, 100Reporters also asserts that it remains unclear whether the DOJ actually will release documents that implicate Siemens‘s confidentiality interests such that Siemens cannot demonstrate a particularized and imminent injury at this time. See id. at 10-11. Although ripeness is “closely akin to the standing requirement,” Wyoming Outdoor Council v. U.S. Forest Serv., 165 F.3d 43, 48 (D.C. Cir. 1999), the Court addresses these two jurisdictional questions separately.
a. Ripeness
“The ripeness doctrine generally deals with when a federal court can or should decide a case.” Am. Petroleum Inst. v. EPA, 683 F.3d 382, 386 (D.C. Cir. 2012). In assessing the ripeness of a case, courts focus on two aspects: the “fitness of the issues for judicial decision,” and the extent to which withholding a decision will cause “hardship to the parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Under the ripeness test, “if the interests of the court and agency in postponing review outweigh the interests of those seeking relief, settled principles of ripeness squarely call for adjudication to be postponed.” State Farm Mutual Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C. Cir. 1986).
As a general matter, 100Reporters fails to cite any prior FOIA case in which a motion to intervene was denied on ripeness grounds. See Pl.‘s Mem. Opp‘n Motions to Intervene 6-9. In fact, following 100Reporters’ approach to ripeness would place the proposed intervenor in a precarious position under
Second, as to the merits of the ripeness question, 100Reporters’ analysis focuses exclusively on the fitness requirement, which “turns on whether a court‘s consideration of the case ‘would benefit from further factual development.‘” Amerijet Int‘l, Inc. v. Pistole, 753 F.3d 1343, 1353 (D.C. Cir. 2014) (quoting Ohio Forestry Ass‘n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998)). 100Reporters appears to suggest that this case will not be fit until the DOJ finishes its review of the requested documents, determines the exact scope of the document universe in dispute, completes its
In particular, 100Reporters’ аnalysis relies heavily on this Court‘s opinion in Appleton v. FDA, 254 F. Supp. 2d 6 (D.D.C. 2003) (”Appleton I“), which held in abeyance in part the defendant‘s motion to stay the plaintiff‘s FOIA claim and denied without prejudice the motions to intervene from five pharmaceutical manufactures. Id. at 7. The Appleton I Court reached this conclusion when it was “clear that there [was] some confusion between the parties as to the scope of the plaintiff‘s [FOIA] request,” which, in turn, caused similar confusion within the motions to intervene because the applicants did not know exactly what records the plaintiff sought in the first place. Id. at 10-11. The Court therefore directed the parties to confer and clarify the scope of the FOIA request, after which the applicants could file renewed motions to intervene. Id. at 11. And after the scope of the FOIA request was clarified, the Court granted the applicants’ motions. See Appleton II, 310 F. Supp. 2d at 197.
Appleton I is not persuasive to the Court‘s analysis today for at least two reasons. First, that case did not even mention standing or ripeness, so it offers no guidance on such jurisdictional questions, despite 100Reporters’ suggestion to the contrary. And second, unlike Appleton I, the contours of this case—especially “the scope of the plaintiff‘s [FOIA] request,” Appleton I, 254 F. Supp. 2d at 10—were abundantly clear from the moment the complaint was filed: 100Reporters seeks the production of six specific categories of documents relating to the corporate monitorship imposed on Siemens in 2008, see Compl. ¶ 22, and the DOJ has asserted that all materials within those categories are exempt from disclosure. See DOJ Answer ¶ 6. Though the DOJ may continue to develop its legal arguments against disclosure and further refine the document universe, the essential facts of this case are settled, well-defined, and fit for judicial review. As such, the Court rejects 100Reporters’ ripeness challenge.6
b. Standing
“It is axiomatic that Article III requires a showing of injury-in-fact, causation, and redressability.” Deutsche Bank Nat. Trust, 717 F.3d at 193. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the Supreme Court described the injury-in-fact element as requiring a showing of an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Id. at 560. For similar reasons as its ripeness argument, 100Reporters asserts that Siemens‘s injury in the potential disclosure of its confidential documents is speculative and not imminent, mainly because 100Reporters still may agree with the DOJ‘s withholding claims such that Siemens‘s documents might not actually be released. See Pl.‘s Mem. Opp‘n Motions to Intervene 7-8. Once again, 100Reporters demands far too much.
When, as here, it is clear that the FOIA requestor seeks the release of documents that are likely to contain the intervenor‘s confidential information, the intervenor‘s injury is both particularized and sufficiently imminent. It is not surprising, then, that 100Reporters cannot cite a single FOIA case in which a court denied on standing grounds
2. The Monitor
In its
F. Proposed Limitations On Siemens‘s Participation
Finally, “[e]ven where the Court concludes that intervention as a matter of right is appropriate, its inquiry is not necessarily at an end: district courts may impose appropriate conditions or restrictions upon the intervenor‘s participation in the action.” Wildearth Guardians, 272 F.R.D. at 20; see also
But the cases on which 100Reporters relies are inapplicable to the present issue here, as those cases do not address
Ultimately, then, the Court must ensure “that any conditions imposed should be designed to ensure the fair, efficacious, and prompt resolution of the litigation,” while also being consistent with the “two conflicting goals of intervention: (1) to achieve judicial economies of scale by resolving related issues in a single lawsuit, and (2) to prevent the single lawsuit from becoming fruitlessly complex or unending.” Wildearth Guardians, 272 F.R.D. at 20 (internal citation and quotation omitted). Thus, 100Reporters is mistaken to rely on unrelated cases in an attempt to construe
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In sum, the Court finds that both Siemens and the Monitor have filed timely motions to intervene, that both applicants possess interests in the subject of this action that would be impaired if intervention were denied, and that these interests are not adequately repre-
IV. ANALYSIS: PERMISSIVE INTERVENTION
Alternatively, the Court finds that both Siemens and the Monitor also are entitled to intervene under the permissive intervention standard in
100Reporters also suggests that the Monitor‘s permissive intervention would unduly delay the litigation because the DOJ is “aggressively representing each of the interests that Dr. Waigel has asserted in his intervention motion.” Id. at 18. Given this overlap, 100Reporters offers that the “addition of another party to this lawsuit to assert cumulative defenses would only delay the proceedings, multiply the litigation burdens on 100Reporters, and hinder any prospect of settlement.”12 Id. Though the Court agrees that the DOJ can represent capably many of the interests asserted by the Monitor, the Court also has found that, first, the strength of the DOJ‘s position will be enhanced by the assistance of the Monitor (and Siemens) in asserting FOIA withholding arguments generally and Exemption 4 withholding arguments specifically, and second, the DOJ does not share the same fundamental interest in preventing disclosure that the Monitor (and Siemens) possesses because the DOJ‘s primary loyalty lies in carrying out its requirements under FOIA, not blocking the release of materials.
Finally, the Court finds no basis to conclude that the presence of either intervenor will “delay or unduly complicate” the proceedings in this relatively standard FOIA litigation, “which is progressing in orderly fashion towards probable cross-motions for summary judgment.” Agee v. CIA, 87 F.R.D. 350, 352 (D.D.C. 1980) (granting motion to intervene under
V. CONCLUSION
For the foregoing reasons, Siemens‘s and the Monitor‘s motions to intervene are granted. An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
RUDOLPH CONTRERAS
United States District Judge