Appeal from the United States District Court for the Central District of California. D.C. No. CV-85-8382-MRP. Mariana R. Pfaelzer, District Judge, Presiding.
Before: J. Clifford Wallace, Chief Judge, James R. Browning and Warren J. Ferguson, Circuit Judges. Opinion by Judge Ferguson.
International Insurance Company ("International") appeals orders of the district court granting motions of the intervenors to (1) intervene under Fed. R. Civ. P. 24(b) and (2) modify a protective order to permit the intervenors access to six deposition transcripts taken in an earlier action. International contends that the intervenors failed both to satisfy the requirements for intervention and to justify modification of the protective order. We affirm.
The main action between Beckman Industries (Beckman), plaintiff, and International, defendant, was settled and dismissed in 1988. At issue was whether environmental impairment liability (EIL) insurance policies issued by International to Beckman provided coverage for certain environmental liabilities. Discovery included the depositions of six International employees involved in the development and administration of the EIL policies sold to policy holders around the country. As part of the Beckman action the district court, pursuant to a stipulation, issued a blanket protective order in 1986 keeping all discovery confidential.
Stauffer Chemical Company, Monsanto Company, Reichhold Limited, FMC Corporation and Bridgestone/Firestone, Inc. ("intervenors") are currently involved in litigation in state courts in which the scope of coverage of International's EIL policies is at issue. Stauffer and International are parties in two consolidated cases pending in Los Angeles County Superior Court. In April 1990 Stauffer filed a motion to intervene in the Beckman action for the purpose of moving to modify the protective order to gain access to the six deposition transcripts. The other intervenors filed a joint motion based on the same grounds and seeking the same relief as Stauffer. Beckman did not object to the modification, and the intervenors agreed to use the six deposition transcripts in accordance with protective orders in the pending state actions.
Intervenors claimed the six transcripts (1) will provide relevant information regarding the drafting, interpretation, underwriting and administration of the standard EIL insurance policies; (2) may contain admissions against interest as to policy interpretation; and (3) may contain inconsistent statements. The district court granted the intervenors' motions. International appeals.
The underlying order is appealable either as a final order under 28 U.S.C. § 1291 or as a collateral order. United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424, 1426 (10th Cir. 1990), cert. denied, 111 S. Ct. 799, 112 L. Ed. 2d 860 (1991). See also Wilk v. American Medical Ass'n, 635 F.2d 1295, 1298 (7th Cir. 1980) (appeal from modification of protective order proper under collateral order doctrine); Martindell v. International Tel. & Tel. Corp., 594 F.2d 291, 293-94 (2nd Cir. 1979) (appeal from orders granting intervenor status and modification of protective order proper under 28 U.S.C. § 1291 because no other matter pending before the court).
Intervenors propose that the proper standard of review is abuse of discretion, while International urges de novo review.
We review a decision whether to grant permissive intervention under an abuse of discretion standard. Venegas v. Skaggs, 867 F.2d 527, 529 (9th Cir. 1989), aff'd, 495 U.S. 82, 110 S. Ct. 1679, 109 L. Ed. 2d 74 (1990). However, the initial questions before us are legal ones, concerning the coverage and interpretation of the Federal Rules of Civil Procedure. Review is therefore de novo as to whether Rule 24(b) permits intervention for the purpose of seeking a modification of a protective order after the Conclusion of the underlying action. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc) (issues of law subject to de novo review), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984).
The court reviews the grant of a protective order for abuse of discretion, Roat v. C.I.R., 847 F.2d 1379, 1382 (9th Cir. 1988), as well as a request to modify a protective order. United Nuclear Corp. v. Cranford Insurance Co., 905 F.2d 1424, 1427 (10th Cir. 1990), cert. denied, 111 S. Ct. 799 (1991); Public Citizen v. Liggett Group, Inc., 858 F.2d 775, ...