Energy and Policy Institute v. Drummond Company, Inc.; Balch & Bingham, LLP; David Roberson; and Anna Roberson (Jefferson Circuit Court: CV-19-901210).

Rel: November 8, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA
OCTOBER TERM, 2024-2025
____________________

SC-2023-0651
____________________

Energy and Policy Institute

v.

Drummond Company, Inc.; Balch & Bingham, LLP; David
Roberson; and Anna Roberson

Appeal from Jefferson Circuit Court
(CV-19-901210)

PER CURIAM.

The Energy and Policy Institute ("EPI") appeals the Jefferson

Circuit Court's order denying its motion for leave to intervene for the
SC-2023-0651

limited purpose of unsealing the record in the action filed by David

Roberson and Anna Roberson against Drummond Company, Inc.

("Drummond"), and Balch & Bingham, LLP ("Balch") (Drummond and

Balch are collectively referred to as "the defendants"). Because we

conclude that EPI was entitled to intervene in the action, we reverse the

trial court's order denying EPI's motion to intervene and remand the case

for further proceedings consistent with this opinion.

I. Facts

This appeal arises from the same underlying action that has twice

been before us. In Roberson v. Balch & Bingham, LLP, 358 So. 3d 1118

(Ala. 2022) ("Roberson I"), we reversed the circuit court's judgment

dismissing David Roberson's claims against Balch under the Alabama

Legal Services Liability Act ("the ALSLA"), § 6-5-570 et seq., Ala. Code

1975. In Roberson v. Drummond Co., [Ms. SC-2022-0863, Feb. 9, 2024]

___ So. 3d ___ (Ala. 2024) ("Roberson II"), we affirmed the circuit court's

order dismissing the Robersons' indemnification claim against

Drummond. In those cases, we set forth the relevant facts, as follows:

"David was a vice president of Drummond. In 2013, the
Environmental Protection Agency proposed placing polluted
property in Jefferson County on its 'National Priorities List'

2
SC-2023-0651

for cleanup. The cleanup costs were estimated at over $100
million. To avoid responsibility for the cleanup costs,
Drummond hired [Balch] to conduct a public-relations
campaign to prevent the property from being placed on the
National Priorities List. As part of that campaign, Balch
employed the Oliver Robinson Foundation, which was
controlled by then-Representative Oliver Robinson, to
convince Birmingham residents not to have their property
tested for toxins. After making payments to the foundation,
Balch submitted invoices to Drummond for reimbursement.

"After receiving Balch's invoices, Drummond's general
counsel asked David to approve payment of the invoices.
David asked Joel Gilbert, a lobbyist employed by Balch, if he
had asked Balch's ethics lawyers whether the plan was ethical
and legal. Gilbert represented to David that Balch's ethics
lawyers had reviewed the plan and determined that it was
legal. David then approved payment of Balch's invoices.
Thereafter, because he approved the payments to Balch,
David was convicted of bribery in violation of federal law and
was sentenced to 30 months in prison.

"After his conviction, David was allowed to remain free
on bond pending his appeal. Drummond retained David as an
employee on administrative leave and continued paying him
his salary and benefits. A little over six and a half months
later, Drummond terminated David's employment."

Roberson II, ___ So. 3d at ___.

"[O]n March 15, 2019, [David] Roberson commenced an action
against Balch and Drummond in the Jefferson Circuit Court.
In his initial complaint, Roberson asserted claims of
negligence, fraud, suppression, and 'implied indemnity'
against Balch and Drummond. On April 18, 2019, Balch filed
a motion to dismiss the complaint …. Drummond also filed a
motion to dismiss the complaint ….

3
SC-2023-0651

"Roberson amended his initial complaint twice,
expanding upon the factual allegations and retooling the
assertion of his claims against each defendant. Balch filed
motions to dismiss each of those complaints, repeating the
arguments from its original motion to dismiss, and attaching
more exhibits from Roberson's federal criminal trial.

"On November 11, 2019, Roberson filed the operative
third amended complaint. …

"….

"On November 22, 2019, Balch filed a motion to dismiss
the third amended complaint in which it repeated all the
arguments it had presented in its previous motions to dismiss.
…

"On August 25, 2020, the circuit court entered an order
ruling on all outstanding motions except the defendants'
motions to dismiss the third amended complaint. …

"On September 14, 2020, the circuit court entered a
judgment granting Balch's motion to dismiss all claims
asserted against it in Roberson's third amended complaint. …

"….

"… The circuit court also certified the judgment as a final
judgment pursuant to Rule 54(b), Ala. R. Civ. P., finding that
the judgment disposed of all the claims against Balch and that
there was no just reason for delay in entering a final
judgment."

Roberson I, 358 So. 3d at 1122-25. The Robersons appealed.

4
SC-2023-0651

On December 30, 2020, while the appeal in Roberson I was pending,

the circuit court entered a protective order prohibiting counsel from

making extrajudicial statements that would violate the guidelines set

forth in Ex parte Wright, 166 So. 3d 618 (Ala. 2014) (plurality opinion).

The circuit court noted that it had a duty to "prevent pretrial publicity

from creating a 'carnival atmosphere,' which threatens the integrity of

the proceeding." On January 8, 2021, the circuit court entered a second

protective order that set forth a process by which any party producing

discovery materials could mark such materials as confidential and that

restricted access to and use of such confidential materials.

On March 2, 2021, Drummond moved to seal the record to prevent

prejudicial pretrial publicity. In that motion, Drummond alleged that, in

their February 18, 2021, interrogatory responses, the Robersons had

falsely alleged that Drummond had bribed a prominent state official

through campaign contributions. Drummond further alleged that,

within 24 hours of the filing of the Robersons' interrogatory responses,

an Internet blog had posted an article with the headline: "Testimony:

Drummond's contributions to [a state official] were in exchange for

opposition to EPA plans." Drummond further alleged that the Robersons'

5
SC-2023-0651

counsel had a history of providing court filings from the underlying action

to the Internet blog. Drummond also noted that that Internet blog had

provided an online link to download the Robersons' interrogatory

responses, but the downloadable PDF copy of the interrogatory responses

was not obtained through Alacourt, Alabama's online public court-record

database for trial courts, or from the Jefferson Circuit Clerk's office.

Drummond further alleged that another Internet blog had posted an

article quoting the Robersons' interrogatory responses; that the

Robersons' counsel had a history of providing court filings to that blog as

well; and that the referenced article had directly called for a settlement

of the case.

Drummond also alleged that, the day after the Robersons

submitted documents in discovery, an article appeared on the Internet

demanding that Drummond face a federal probe of evidence tampering

regarding the documents. Drummond also alleged that one of the

Internet blogs had also posted an article claiming that Drummond and

Alabama Power Company had tried to assassinate David Roberson while

he was driving on Highway 280. Drummond requested that the circuit

court seal the record to protect the integrity of the proceeding from such

6
SC-2023-0651

prejudicial pretrial publicity. Drummond further requested a hearing to

determine whether the Robersons or their counsel had violated the

protective orders.

On March 19, 2021, the circuit court entered an order directing the

clerk to seal the record and to mark the case as confidential. That order

stated, in relevant part:

"In Open Court, counsel for the Plaintiff, Burt Newsome,
Esquire, stated that he had NO OBJECTION to this case
being marked as Confidential. After hearing and considering
sworn testimony offered by the Plaintiff and Defendants,
hearing and considering arguments of counsel and reviewing
and considering the aforementioned documents, along with
the Alabama Supreme Court's guidelines in Holland v. Eads,
614 So. 2d 1012 [(Ala. 1993)], this Court weighed the right of
public access to judicial records with an individual's privacy
interest. The Court finds that, notwithstanding the Plaintiff's
'no objection' to the Defendant's request and after a full review
of the aforementioned testimony and documents at this
Hearing, the Defendant has proved by clear and convincing
evidence that the information contained in documents and
presented through testimony promote scandal or defamation;
pose a serious threat of harassment, exploitation, and/or
physical intrusion to the Parties in this action; and pose the
potential for harm to third persons not parties to this
litigation. Accordingly, this Court finds it necessary to seal
the entire record of this case, including discovery, before trial
and during trial. The Court will re-evaluate this
determination after trial. It is hereby ordered that the entire
file in the above captioned case is sealed and marked as
confidential. It is ordered that the Clerk of the Court is
directed to ensure that the contents in this file are released

7
SC-2023-0651

only to the counsel of record to the herein named Parties. It is
ordered that counsel and Parties are prohibited from
disclosing any contents, documents or information contained
within this file to the public, without permission of this
Court."

(Capitalization in original; emphasis omitted.)

On January 21, 2022, this Court released its opinion in Roberson I.

Thereafter, on August 4, 2022, the circuit court dismissed the Robersons'

indemnification claim and certified that dismissal as final under Rule

54(b), Ala. R. Civ. P. The Robersons appealed.

On April 6, 2023, while the Robersons' appeal in Roberson II was

pending, EPI moved to intervene for the limited purpose of unsealing the

record. EPI described itself as follows:

"EPI is a watchdog group that uses research to inform
the public, the media, and policymakers on energy, utility,
and other environmental issues. In particular, EPI
investigates special interest influence on energy policy and its
impacts on citizens and utility ratepayers. Informed by its
investigative research, EPI provides insights on
environmental policy to the public through online platforms
and other channels. EPI publishes articles on its website, and
its work is featured by local and national news outlets. In
order to fulfill its mission, EPI uses public records from local,
state, and federal agencies, including judicial records, to
understand and report on policy issues that affect consumers
and citizens."

8
SC-2023-0651

In its motion, EPI cited numerous online articles, both on its own

website and on AL.com, suggesting that Balch and Drummond have

multiple connections to Alabama Power Company, Southern Company,

and Matrix, LLC, and that those corporations also could have been

involved in what EPI calls "the bribery scheme." EPI alleged that it "has

been following the fallout of the bribery scheme and [David Roberson's]

conviction and remains interested in the proceedings …." EPI argued

that it was asserting the common-law right of the citizens of Alabama to

inspect the records of judicial proceedings on behalf of the public and that

the parties' interest in secrecy did not outweigh the public interest in

disclosure under the factors set forth in Holland v. Eads, 614 So. 2d 1012

(Ala. 1993).

Alabama Media Group ("AMG"), the owner of AL.com, submitted

an amicus curiae brief in support of EPI's motion. Drummond and Balch

opposed the motion. The Robersons also submitted a brief in support of

EPI's motion.

On July 17, 2023, after a hearing on EPI's motion, the circuit court

entered an order denying EPI's motion. After summarizing the

9
SC-2023-0651

proceedings on EPI's motion and the hearing on the motion, the court

stated:

"The Court takes judicial notice of the court file and read
and considered the aforementioned filings, including an Order
Granting Intervention by The Honorable Karen Owen
Bowdre, in United States of America v. Richard M. Scrushy,
Case Number CR-03-BE-0530-S, Entered October 19, 2004,
provided to the Court by counsel for EPI[,] counsel Michael
Yancey, Esquire. The Court heard and considered arguments
from counsel.

"This Court reiterated its primary function in presiding
over this case, to wit: to ensure ALL Parties a fair trial and
the ability to impanel an impartial jury. The Court further
pointed out that this case is primarily an employee's dispute
with his employer regarding how he was treated in light of
certain alleged promises. The primary issue, in this Court's
opinion, is an individual's employment issue, not a public-
interest issue irrespective of what a Party may want it to be.
While this Court arrived at a different conclusion, regarding
unsealing certain documents, than the one reached by Judge
Bowdre as set forth in her aforementioned Order and due to
distinguishing factors from the above captioned case, this
Court hereby adopts some fundamental principles as set forth
in Judge Bowdre's aforementioned Order, as follows:

" '[This Court] recognizes the right of the press to
intervene in certain circumstances to gain access
to court proceedings and records. ... Balancing the
rights of competing constituencies -- here the
press, the general public, and the litigants --
requires continuing judicial vigilance and
awareness, and occasional modifications of case
management. ... If the document itself must be
sealed to preserve the defendant's fair trial rights,

10
SC-2023-0651

allowing the media, and therefore the public,
access to the substance of the document in a
motion seeking its sealing would defeat the
fundamental purpose for sealing the document in
the first place. …' "

(Capitalization in original.) After the circuit court reiterated the

substance of its order sealing the record, it then stated:

"This Court, after hearing arguments of counsel, is not
swayed to reverse or modify the decision to seal the records in
this case thus far. It is hereby ordered that [EPI's] Motion to
Intervene for the Limited Purpose of Unsealing Court Records
is denied, in its general and broad application. All of the
records sealed thus far have been done so appropriately and
in compliance with the guidelines set forth in Holland, supra.

"The court file reflects that there are no pending
motions. It is hereby ordered, without objection of any Party,
that with any future filings, the Clerk of the Court is directed
to file said Motions and their substance under seal and notify
counsel for [EPI] of the fact of filing and type of motion filed,
only. If EPI desires to pursue the unsealing of the respective
motion, EPI can request a Hearing on same. Due to the
sensitivity of this case as it relates to the personal lives of the
Parties and the potential dissemination of inappropriate
information in violation of the guidelines set forth in Holland,
supra, the Court will review each such request to unseal a
document on a motion-by-motion, hearing-by-hearing, and
Order-by-Order, basis."

(Capitalization in original; emphasis omitted.) EPI appeals.

II. Standard of Review

11
SC-2023-0651

We review the denial of a motion for permissive intervention to

determine whether the circuit court exceeded its discretion. Jim Parker

Bldg. Co. v. G & S Glass & Supply Co., 69 So. 3d 124, 129 (Ala. 2011).

III. Analysis

This Court has held that "a motion to intervene is the procedurally

correct means to seek the opening of a sealed court file." Holland, 614 So.

2d at 1014. Further, "a denial of permissive intervention is an appealable

final order." Universal Underwriters Ins. Co. v. Anglen, 630 So. 2d 441,

442 (Ala. 1993).

In its brief, EPI asserts multiple arguments regarding why the

circuit court erred in denying its motion to intervene. EPI primarily

argues that the circuit court erred in concluding that the parties' interest

in secrecy outweighed the public interest in disclosure and that it met is

burden to intervene in the action for the purpose of obtaining access to

judicial records in this case.

Holland Factors

In Holland, supra, this Court summarized the public's general right

to inspect judicial records:

12
SC-2023-0651

"It has long been the rule of this State to allow public
inspection of judicial records. Brewer v. Watson, 61 Ala. 310,
311 (1878). More than a century ago, this Court held that '[a]n
inspection of the records of judicial proceedings kept in the
courts of the country, is held to be the right of any citizen.' Id.
at 311; see also Ex parte Balogun, 516 So. 2d 606, 612 (Ala.
1987) (holding that 'the public generally has a right of
reasonable inspection of public records required by law to be
kept, except where inspection is merely out of curiosity or
speculation or where it unduly interferes with the public
official's ability to perform his duties'); Excise Comm'n of
Citronelle v. State ex rel. Skinner, 179 Ala. 654, 657, 60 So.
812, 813 (1912). The public's right to inspect court records
derives from the 'universal policy underlying the judicial
systems of this country [that] secrecy in the exercise of judicial
power ... is not tolerable or justifiable.' Jackson v. Mobley, 157
Ala. 408, 411-12, 47 So. 590, 592 (1908)."

614 So. 2d at 1014-15.

In Holland, the trial court sealed the record when the parties

settled the case after the jury had returned a verdict, but the trial court

had not yet entered a judgment on the verdict. Two years later, a third

party moved to intervene in the case for the purpose of obtaining the trial

transcript for use in a similar case against one of the same defendants.

The trial court denied the motion to intervene. This Court affirmed. In

doing so, this Court noted that the question whether the trial court had

erred in sealing the record was not before us. Accordingly, we presumed

that the trial court's original decision to seal the record was correct.

13
SC-2023-0651

The only question before us was whether a third party may

intervene to reopen a previously sealed record. We noted that this Court

had not yet adopted a standard governing a trial court's ruling on a

motion to intervene under such circumstances. After summarizing

standards adopted by other courts, we adopted the standard set forth by

the Court of Appeals for the District of Columbia in Mokhiber v. Davis,

537 A.2d 1100 (D.C. 1988). Under that standard, "the intervening party

must produce evidence showing why the opponent's interest in secrecy is

no longer sufficiently strong enough to outweigh the public interest in

disclosure." Holland, 614 So. 2d at 1016. We then outlined four factors

that trial courts should consider when ruling on a motion to intervene for

the purpose of unsealing the record:

"First, the court should examine the length of time that the
intervenor knew or reasonably should have known of its
interest in the case before petitioning to intervene. Second,
the court should look at the prejudice to existing parties due
to the intervenor's delay in petitioning to intervene. Third, the
court should consider the prejudice that the intervenor would
suffer if he were not allowed to have the record unsealed.
Fourth, the court should consider the existence of any
extraordinary circumstances suggesting, or cautioning
against, intervention."

Id. at 1017.

14
SC-2023-0651

As to this case, we initially note that the propriety of the circuit

court's March 19, 2021, order sealing the record is not before us.

Likewise, we do not opine on the specific merits of any yet unfiled motion

to lift or modify the circuit court's order sealing the entire court file.

Rather, the only question before us is whether the circuit court correctly

denied EPI's motion to intervene for the purpose of asserting a public

right of access to the case filings. In reviewing the circuit court's order

denying that motion, we turn to the four factors set forth in Holland.

1. Timeliness

As noted above, the circuit court sealed the record on March 19,

2021. EPI moved to intervene on April 6, 2023. As the defendants note,

EPI admitted in its motion to intervene that it knew about its interest in

the case "since before it was sealed." Thus, EPI knew of its interest in

the case at least two years before it moved to intervene. Holland,

however, provides no rigid time limitation for intervention but, rather,

includes time as one factor to be weighed in conjunction with the

prejudice that delay in seeking intervention may cause the exiting

parties. As one court has explained, "the requirement of timeliness is

aimed primarily at preventing potential intervenors from unduly

15
SC-2023-0651

disrupting litigation, to the unfair detriment of the existing parties."

Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014).

Furthermore, when evaluating timeliness, the specific type of claim

for access is relevant. For example, when a public right of access to the

sealed documents is claimed, the timeliness of the claim is weighed

against the public interest in unsealing the records. In Mokhiber, supra,

the case from which this Court adopted its standard for interventions to

unseal records, an investigative reporter moved to intervene for the

purpose of unsealing the record in a previously settled case one year after

the reporter became aware of the case. The trial court ruled that the one-

year delay was untimely. The Court of Appeals for the District of

Columbia disagreed, holding that the one-year delay was not sufficient

to warrant denial of the motion. The Mokhiber court reasoned:

"[I]t is important to consider the specific kind of claim [the
reporter] is making: he asserts a public right of access, that
is, a right that any member of the public can assert. It would
make little sense to deny [the reporter] intervention merely
because he had known about the case for a single year, while
allowing intervention, for example, by a college student who
has just begun her senior thesis on the topic. Given the public
character of the right, the court should not readily refuse
intervention for reasons that do not apply generally to all
members of the public. While there may well indeed be
circumstances where a trial court, in the exercise of its

16
SC-2023-0651

discretion, will rightly conclude that untimeliness or other
factors relating to the particular claimant justify refusal of
intervention, we do not think that [a] one-year delay standing
alone is sufficient to warrant such a refusal …."

Mokhiber, 537 A.2d at 1105. See also Rosado v. Bridgeport Roman

Catholic Diocese Corp., 276 Conn. 168, 228, 884 A.2d 981, 1015 (2005)

(declining to place a rigid time limitation on intervention for the purpose

of seeking, on public-interest grounds, to modify protective order sealing

access to documents filed in withdrawn cases). Accordingly, we conclude

that the timing of EPI's motion to intervene, in and of itself, was not a

basis to deny its motion to intervene.

2. Prejudice to Existing Parties

The next factor to consider is "the prejudice to existing parties due

to the intervenor's delay in petitioning to intervene." Holland, 614 So. 2d

at 1017. In understanding this factor, Public Citizen v. Liggett Group,

Inc., 858 F.2d 775 (1st Cir. 1988), another case cited approvingly by this

Court in Holland, is instructive. In that case, the United States Circuit

Court of Appeals for the First Circuit determined that a delayed motion

to intervene did not prejudice the existing parties because the desired

17
SC-2023-0651

intervention related only to an ancillary issue that would not disrupt the

resolution of the underlying merits. The Public Citizen Court reasoned:

"The second … factor to be considered is the prejudice to
existing parties due to [the intervenor's] delay in intervening.
… This factor encompasses the basic fairness notion that
intervention should not work a 'last minute disruption of
painstaking work by the parties and the court.' [Culbreath v.
Dukakis, 630 F.2d 15, 22 (1st Cir. 1980).] For purposes of this
factor, therefore, it is necessary to ask why a would-be
intervenor seeks to participate, for if the desired intervention
relates to an ancillary issue and will not disrupt the resolution
of the underlying merits, untimely intervention is much less
likely to prejudice the parties. Here, of course, [the
intervenor's] motion pertains to a particularly discrete and
ancillary issue, as demonstrated by the fact that the merits of
the case have been already concluded and are no longer
subject to review. Because [the intervenor] sought to litigate
only the issue of the protective order, and not to reopen the
merits, we find that its delayed intervention caused little
prejudice to the existing parties in this case."

858 F.2d at 786.

The defendants argue that they will suffer prejudice related to

EPI's delay in seeking intervention. Specifically, they contend that they

relied on the order sealing the record and that, if the record is unsealed,

they will have to review all the documents filed after the record was

sealed to determine if they need to be redacted. The defendants claim

that forcing them to review and potentially redact hundreds of filings will

18
SC-2023-0651

subject them to a "monumental expenditure of … time and resources"

that will disrupt the discovery process. Drummond's brief at 28.

However, the defendants also note that "almost the entire Court file

-- from the entry of this Court's March 2021 Order to the present --

consists of various discovery disputes amongst the parties." Drummond's

brief at 16. As the defendants correctly note, discovery materials are not

typically considered to be matters of public record. For instance, the

defendants quote the United States Court of Appeals for the Eleventh

Circuit for the proposition that " 'material filed with discovery motions is

not subject to the common-law right of access, whereas discovery

material filed in connection with pretrial motions that require judicial

resolution of the merits is subject to the common-law right.' "

Drummond's brief at 19 (quoting Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001))

(emphasis omitted); see also Mokhiber, 537 A.2d at 1111 (concluding that

there is no public right of access to discovery materials). Thus, to the

extent that the court record is as represented by the defendants and

accepting that EPI does not have a right of public access to pretrial-

discovery matters, i.e., "almost the entire Court file," Drummond's brief

19
SC-2023-0651

at 16, the sorting of discovery-related filings from the substantive filings

appears to be the type of "discrete and ancillary issue" that is unlikely to

unnecessarily disrupt the litigation. Public Citizen, 858 F.2d at 786.

Accordingly, it does not appear that the defendants face any undue

burden or prejudice owing to EPI's delay in intervening. Moreover, to the

extent that EPI intends to seek a modification of the circuit court's

protective order as it relates to prospective filings, the defendants are not

prejudiced by any delay in EPI's intervention. Accordingly, the second

factor does not weigh against permitting EPI to intervene.

3. Prejudice to the Intervenor

Next, EPI contends that the circuit court's denial of its motion to

intervene resulted in prejudice to the public on whose behalf it sought to

intervene. EPI contends that the public suffered prejudice from the

denial of its motion to intervene because it was denied the public right of

access to judicial records in a case of public interest. In response, the

defendants again contend that the public right of access does not extend

to discovery materials, which they assert are the only materials in the

record that have not already been made publicly available. The

defendants note that all nondiscovery materials have already been made

20
SC-2023-0651

public in the records on appeal in Roberson I and Roberson II. In reply to

that argument, EPI points out that other nondiscovery materials will

eventually be filed in the case if it goes to trial and that, if the record is

not unsealed, the public will be denied access to those materials.

EPI's argument on this factor is well-taken. Even accepting that the

public has no right of access to discovery materials, the fact that the only

nonpublic materials in the record are discovery materials does not mean

that the public suffered no prejudice from the denial of EPI's motion to

intervene. Nondiscovery materials will likely be filed if the case proceeds

to trial. Further, the fact that the circuit court's order required the circuit

clerk to notify EPI of the filing does not alleviate the prejudice to the

public because, if EPI does not notify the public of the filing, the public

will never know the filing exists. For these reasons, the third Holland

factor weighs in favor of EPI's intervention to unseal the record on behalf

of the public.

4. Extraordinary Circumstances

The fourth factor to consider is "the existence of any extraordinary

circumstances suggesting, or cautioning against, intervention." Holland,

614 So. 2d at 1017. The only "extraordinary circumstance" cited by the

21
SC-2023-0651

defendants as cautioning against intervention is the fact that some

confidential discovery documents had previously been leaked to two

Internet blogs in violation of the circuit court's protective order.

However, even if various Internet blogs have been able to obtain

confidential discovery material in violation of the circuit court's

protective order, it is unclear how a blanket seal of the entire court file is

tailored to meet that concern, particularly when weighed against the

public's right to access nondiscovery materials in a case of public concern

involving claims of bribery and environmental-protection issues.

Accordingly, we do not agree that there are extraordinary circumstances

weighing against intervention in this case.

IV. Conclusion

This Court has recognized that there is a presumptive right of

access to judicial documents and proceedings. Holland, 614 So. 2d at

1014-15. That right, however, is not absolute, and we do not recognize a

presumptive right to public access to pretrial-discovery documents (or

motions relating to the discovery process) in civil proceedings. See

Mokhiber, 537 A.2d at 1110-12. Nevertheless, in this case, we conclude

that EPI has at least met its burden to intervene for the purpose of

22
SC-2023-0651

asserting a public right to access judicial documents and to seek a

modification of the circuit court's blanket protective order sealing the

case file. Accordingly, we conclude that the circuit court erred in denying

EPI's motion to intervene, and we therefore reverse that order and

remand the cause for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

Stewart, J., and Lyons, Baschab, Welch, and Joiner, Special

Justices,* concur.

Parker, C.J., dissents, with opinion, which Mendheim, J., joins.

Shaw, Wise, Bryan, Sellers, Mitchell, and Cook, JJ., recuse

themselves.

*Because six members of the Supreme Court recused themselves,
on August 5, 2024, Chief Justice Parker appointed retired Associate
Justice Champ Lyons, Jr., and retired Judges Pamela Willis Baschab,
Samuel Henry Welch, and J. Michael Joiner to serve as Special Justices
in this appeal.

23
SC-2023-0651

PARKER, Chief Justice (dissenting)

I dissent from the main opinion because I believe that, applying the

four factors set forth in Holland v. Eads, 614 So. 2d 1012, 1017 (Ala.

1993), the Energy and Policy Institute ("EPI") has failed to demonstrate

that the Jefferson Circuit Court exceeded its discretion in denying EPI's

motion to intervene. As explained below, I would affirm the circuit court's

judgment.

As noted in the main opinion, this Court has identified four factors

that trial courts consider when determining whether to allow a third

party to intervene for the purpose of unsealing the record. Those factors

are as follows:

"First, the court should examine the length of time that the
intervenor knew or reasonably should have known of its
interest in the case before petitioning to intervene. Second,
the court should look at the prejudice to existing parties due
to the intervenor's delay in petitioning to intervene. Third, the
court should consider the prejudice that the intervenor would
suffer if he were not allowed to have the record unsealed.
Fourth, the court should consider the existence of any
extraordinary circumstances suggesting, or cautioning
against, intervention."

Holland, 614 So. 2d at 1017.

A. Timeliness

24
SC-2023-0651

As stated in the main opinion, EPI admitted in its motion to

intervene that it knew about its interest in the case "since before it was

sealed." The circuit court sealed the record on March 19, 2021, but EPI

did not move to intervene until April 6, 2023. Thus, at a minimum, EPI

waited until two years after it knew of its interest in the case to move to

unseal the record.

EPI does not argue that it was reasonable for it to wait two years

before moving to intervene. Instead, EPI contends that, because it was

asserting the right of access to judicial records on behalf of the public, its

delay should not prevent its motion from being considered timely. In

support of its argument, EPI relies on two cases from other jurisdictions.

First, it relies on Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988). As noted

in the main opinion, the trial court in Mokhiber ruled that an

investigative reporter's one-year delay in moving to intervene after he

became aware of the case and his interest in it caused his motion to be

untimely. The Court of Appeals for the District of Columbia reversed,

noting the public character of the right of access to judicial records:

"[I]t is important to consider the specific kind of claim [the
reporter] is making: he asserts a public right of access, that
is, a right that any member of the public can assert. It would

25
SC-2023-0651

make little sense to deny [the reporter] intervention merely
because he had known about the case for a single year, while
allowing intervention, for example, by a college student who
has just begun her senior thesis on the topic. Given the public
character of the right, the court should not readily refuse
intervention for reasons that do not apply generally to all
members of the public."

Mokhiber, 537 A.2d at 1105.

EPI also relies on Rosado v. Bridgeport Roman Catholic Diocese

Corp., 276 Conn. 168, 884 A.2d 981 (2005), in which the Connecticut

Supreme Court held that the trial court had not erred in allowing

newspapers to intervene to unseal records in withdrawn cases even

though the newspapers had moved to intervene approximately one year

after the cases had been withdrawn. The Rosado court recognized that

one year is "not an insignificant period of time." 276 Conn. at 227, 884

A.2d at 1015. Nevertheless, it "decline[d] to place a rigid time limitation

on intervention when, as in the present case, the sole purpose of the

motion to intervene is to challenge a protective order. To conclude

otherwise would be contrary to the important public interest that the

motion seeks to vindicate." 276 Conn. at 228, 884 A.2d at 1015.

EPI further argues that, in opposing EPI's motion to intervene,

Drummond Company, Inc., and Balch & Bingham, LLP ("the

26
SC-2023-0651

defendants"), did not argue that there was no public right of access to

nondiscovery judicial records and, thus, conceded that there was such a

right. Finally, EPI notes that the circuit court did not find its motion

untimely.

Initially, I note that EPI's argument relies on a case from the

District of Columbia and a case from another state. Such decisions are

merely persuasive authority; they are not binding. Fox v. Hunt, 619 So.

2d 1364, 1367 (Ala. 1993) ("The opinions of our sister states are merely

persuasive authority, and this Court is not bound by the doctrine of stare

decisis to follow such decisions."). I do not find the reasoning in Mokhiber

and Rosado to be persuasive here. The fact that the right of access to

judicial records is a public one has little relevance to the timeliness of the

motion to intervene as contemplated in Holland. Under Holland,

timeliness is measured from the time "that the intervenor knew or

reasonably should have known of its interest in the case." 614 So. 2d at

1017. It is not measured from the time the record is sealed. If timeliness

were measured purely from the time the record is sealed, then Mokhiber

and Rosado might be correct that timeliness should not be a factor when

a public right of access is involved. That is because each member of the

27
SC-2023-0651

public's interest in the case might arise at a different time. But since

Holland states that timeliness is to be measured from the time the

intervenor knew or reasonably should have known of his interest, it

seems to make little difference whether the right is public or not. Even a

public right must be timely asserted. Cf. Citizens & Landowners Against

the Miles City/New Underwood Powerline v. Secretary, United States

Dep't of Energy, 683 F.2d 1171 (8th Cir. 1982) (holding that action by

nonprofit and several landowners to block power line was barred by the

doctrine of laches).

Further, Mokhiber's own reasoning undercuts itself. As noted

above, the Mokhiber court reasoned that, "[g]iven the public character of

the right, the court should not readily refuse intervention for reasons that

do not apply generally to all members of the public." 537 A.2d at 1105.

But Holland's timeliness requirement applies to any member of the

public seeking to exercise the right of access to judicial records. Each

member of the public seeking to intervene to unseal records must move

to do so within a reasonable time after he knows or should know of his

interest in the case. Accordingly, even under Mokhiber's reasoning, a

28
SC-2023-0651

trial court may deny a motion to intervene for untimeliness even when a

public right is being asserted.

As the defendants note, EPI essentially asks us to ignore Holland's

timeliness requirement in all cases involving a public right of access to

judicial records. I am not inclined to ignore Alabama precedent on a

ground found only in foreign decisions that I find unconvincing.

For these reasons, I do not believe that EPI has demonstrated that

the first Holland factor weighs in favor of intervention to unseal the

record.

B. Prejudice to Existing Parties

Next, EPI contends that unsealing the record would not prejudice

the parties. The only authority that EPI cites is Public Citizen v. Liggett

Group, Inc., 858 F.2d 775 (1st Cir. 1988). In that case, the United States

Court of Appeals for the First Circuit held that a third party's delay in

moving to intervene did not prejudice the existing parties when the case

had been adjudicated on the merits. The Public Citizen court stated:

"[The prejudice] factor encompasses the basic fairness notion
that intervention should not work a 'last minute disruption of
painstaking work by the parties and the court.' [Culbreath v.
Dukakis, 630 F.2d 15, 22 (1st Cir. 1980).] For purposes of this
factor, therefore, it is necessary to ask why a would-be

29
SC-2023-0651

intervenor seeks to participate, for if the desired intervention
relates to an ancillary issue and will not disrupt the resolution
of the underlying merits, untimely intervention is much less
likely to prejudice the parties. Here, of course, [the
intervenor's] motion pertains to a particularly discrete and
ancillary issue, as demonstrated by the fact that the merits of
the case have been already concluded and are no longer
subject to review. Because [the intervenor] sought to litigate
only the issue of the protective order, and not to reopen the
merits, we find that its delayed intervention caused little
prejudice to the existing parties in this case."

858 F.2d at 786.

EPI selectively quotes from the above paragraph from Public

Citizen in support of its contention that a motion to intervene for the

purpose of unsealing a court record is a particularly discrete and

ancillary issue that will not disrupt the resolution of the underlying

merits. EPI's quotations from Public Citizen misleadingly indicate that

Public Citizen stands for the proposition that such a motion to intervene

is categorically an ancillary issue that will not prejudice the parties. But

that is not what Public Citizen says. In Public Citizen, the issue of the

protective order was found to be ancillary in light of the fact that the

merits of the case had already been resolved. Here, by contrast, based on

the record before us, the merits of the underlying litigation remain

30
SC-2023-0651

pending. Even if Public Citizen were binding on this Court, it is easily

distinguishable for this reason.

Moreover, EPI's argument frames the prejudice analysis as

considering whether the parties will be prejudiced by the intervention

itself. But Holland's prejudice factor does not relate to the intervention

itself. Rather, courts must determine whether the delay in moving to

intervene is prejudicial to the parties. EPI does not directly address this

issue. The defendants do address that issue by arguing that they relied

on the order sealing the record and that, if the record is unsealed, they

will have to review all the documents filed after the record was sealed to

determine if they need to be redacted.

In response, EPI contends that, although the defendants alleged

that they would be prejudiced by having to review all filings made after

the record was sealed, the defendants did not identify any filings that

would need to be reviewed. That argument misses the point that the

defendants are making -- that the review process to identify which filings

need to be redacted would require a monumental expenditure of time and

resources.

31
SC-2023-0651

In its reply brief, EPI contends that the review process would not

be "as onerous as the [d]efendants pretend" because they were able to

supplement the record with 544 pages of unredacted material from the

previously sealed record. EPI's reply brief at 16-17. However, much of the

supplemental record contains filings that pertain to the circuit court's

protective orders and its order sealing the record. There is nothing to

suggest that the defendants had to review that material before the

addition of it in this proceeding to determine whether it contained

sensitive information that would need to be redacted.

EPI further contends that, because the circuit court's order sealing

the record indicated that the court would reconsider the order after the

trial, unsealing the record now would not prejudice the parties beyond

what could be required of them in the future. But that argument fails to

recognize that the parties would no longer need to redact information in

the record after trial. The reason the circuit court gave for sealing the

record was to preserve the defendants' right to a fair trial. If the record

were unsealed before trial, the parties would have to review it to

determine what information needs to be redacted. If the record is

unsealed after trial, then the parties may not need to redact information

32
SC-2023-0651

because the risk of an unfair trial will be moot at that point. Accordingly,

EPI's argument that its intervention would not prejudice the defendants

because they will have to review the record anyway is unavailing.

Finally, EPI notes that, at the least, the blanket seal can be lifted

only for future filings and that, if it is, prejudice can be avoided because

the defendants can still move to seal individual documents. But doing so

would likely require the circuit court to seal each document already in

the record individually before unsealing the record as a whole. EPI does

not demonstrate that, merely because it was possible for the circuit court

to unseal the record to some degree without prejudice to the parties, its

motion to intervene to unseal the record would not prejudice the parties.

For these reasons, EPI fails to demonstrate that the second Holland

factor weighs in favor of intervention to unseal the record.

C. Prejudice to the Intervenor

I agree with the main opinion that EPI demonstrates that the

public's right of access to judicial records was prejudiced by the circuit

court's denial of its motion to intervene. Nevertheless, prejudice to the

intervenor is not dispositive; it must be weighed against other factors.

D. Extraordinary Circumstances

33
SC-2023-0651

Next, EPI contends that there are extraordinary circumstances

that favor its intervention to unseal the record. EPI contends that it

demonstrated that the record reflects "misconduct by multiple

corporations and individuals, including an elected official," related to an

important public-health issue. EPI's brief at 20. EPI relies on several

cases in support of its argument.

First, EPI again cites Public Citizen, in which the United States

Court of Appeals for the First Circuit held that there was a "strong public

interest" in records containing research documents regarding the health

risks of smoking because those documents concerned "an important

public health issue." 858 F.2d at 787. As EPI notes, the present case is

related to an alleged scheme by certain individuals and corporations to

avoid responsibility for cleaning up polluted property, which would likely

be considered a public-health issue. EPI cites Mokhiber for the

proposition that "[a] claim to access is bolstered when the materials

sought will shed light on events of historical or contemporary interest to

a wider audience; an issue of greater and wider public importance may

create a stronger claim of access than a less important issue." Mokhiber,

537 A.2d at 1117. EPI further cites Nixon v. Warner Communications,

34
SC-2023-0651

Inc., 435 U.S. 589, 602 (1978), in which the United States Supreme Court

considered "the incremental gain in public understanding of [the

Watergate scandal]" in determining whether to release audio recordings

of former President Richard Nixon's conversations. EPI also cites Rosado.

There, the Connecticut Supreme Court noted that the intervenors'

interest in the controversy "militates strongly in favor of intervention

because the [intervenors] seek to vindicate the public interest in, and the

presumptive right of access to, judicial proceedings and documents."

Rosado, 276 Conn. at 228, 884 A.2d at 1015. Finally, EPI cites SRS

Technologies, Inc. v. Physitron, Inc., 216 F.R.D. 525 (N.D. Ala. 2003), in

which the plaintiff sought to modify a protective order to allow it to retain

confidential discovery documents provided by the defendant after the

case had been settled. In refusing to modify the protective order, the

United States District Court for the Northern District of Alabama

distinguished Public Citizen, supra, on the ground that in Public Citizen

the intervenor had sought access for the benefit of the public, but in SRS

Technologies the plaintiff sought to keep the discovery documents for its

own benefit. EPI relies on that distinction, seeking to show that its

35
SC-2023-0651

interest is more akin to that of the intervenor in Public Citizen than that

of the intervenor in SRS Technologies.

Each of the cases EPI cites is either unhelpful, irrelevant, or

distinguishable. First, Nixon does not support EPI's argument because

in that case the United States Supreme Court did not attempt to weigh

the public's interest in an event so historically important as the

Watergate scandal against former President Nixon's arguments for

keeping the audio recordings secret. The Nixon Court held that, because

Congress had created an administrative procedure for releasing

Presidential recordings in the Presidential Recordings Act, the common-

law right of access to judicial records did not require release of the audio

recordings. Thus, although the Nixon Court recognized in dicta that "the

incremental gain in public understanding of an immensely important

historical occurrence" was a consideration, Nixon provides no guidance

for determining the weight to be given that consideration in determining

whether disclosure is required. 435 U.S. at 602.

Two of the cases EPI cites, Rosado and SRS Technologies, are

irrelevant to the extraordinary-circumstances factor. The propositions on

which EPI relies in both cases focus on whether the intervenor sought to

36
SC-2023-0651

assert the public's interest in the right of access to judicial proceedings.

EPI does not identify any extraordinary circumstances in those cases

that weighed in favor of intervention.

That leaves Public Citizen and Mokhiber, which recognized that the

existence of a public-health issue and the existence of issues of historical

or contemporary interest are circumstances that might weigh in favor of

intervention. Both of those cases are distinguishable because, like

Holland itself, each involved an intervenor who sought access to the

record after the case had been settled. Here, by contrast, the case has not

yet gone to trial. Here, the circuit court sealed the record to protect the

defendants' right to a fair trial -- a circumstance that was not at issue in

Public Citizen or Mokhiber. Accordingly, those cases do not support the

proposition that the existence of a public-health issue or an issue of

historical or contemporary importance outweighs the concern regarding

a fair trial.

The main opinion does not address any of the cases on which EPI

relies, and it cites no authority in support of its own conclusion on this

factor. "Courts do not have the luxury of hiding behind ipse dixit

assertions." Hicks v. State, 153 So. 3d 53, 84 (Ala. 2014) (Parker, J.,

37
SC-2023-0651

concurring specially) (footnote omitted). In the absence of pertinent

authority, I am reluctant to reverse the circuit court's order on a point

that involves the exercise of judicial discretion.

For these reasons, although the third Holland factor does weigh in

favor of intervention, I do not find that it weighs so heavily in favor of

intervention that the circuit court exceeded its discretion in denying

EPI's motion to intervene. Accordingly, I would affirm the circuit court's

order denying EPI's motion.

Mendheim, J., concurs.

38