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NML Capital, Ltd. v. Republic of Argentina

United States District Court, District of Nevada

December 12, 2014

NML CAPITAL, LTD., Plaintiff,
v.
THE REPUBLIC OF ARGENTINA, Defendant. NML CAPITAL, LTD., Plaintiff,
v.
THE REPUBLIC OF ARGENTINA, Defendant.

ORDER

CAM FERENBACH UNITED STATES MAGISTRATE JUDGE

These matters involve NML Capital, Ltd.’s post-judgment execution proceeding against the Republic of Argentina. Eleven motions are before the court: (1) Non-Party M.F. Corporate Services’ Motion to Quash (#14[1]); (2) Non-Party Val de Loire’s Motion to Quash (#1); (3) NML Capital’s Counter Motion to Compels (#10, #60);[2] (4) five Motions to Seal (#21, #22, #28, #64, #65); Jorge Lanata and the Center for Investigative Journalism’s Motion to Intervene (#67); and (5) the 123 Báez Entities’ Emergency Motion to Exclude (#70).

BACKGROUND

In 2001, the Republic of Argentina underwent a depression and sovereign-default crisis. The majority of Argentina’s bondholders voluntarily restructured their investments and suffered a 70% loss. However, one bondholder refused: NML Capital Ltd. (“NML”). Beginning in 2003, NML commenced eleven collection actions against Argentina in the Southern District of New York. NML argued that its debt—which totals $1.7 billion—should be repaid in full. The court agreed. See EM Ltd. v. Republic of Argentina, 695 F.3d 201, 203 n.1 (2d Cir. 2012) aff’d Republic of Argentina v. NML Capital, Ltd., 134 S.Ct. 2250, 2251 (2014).

To date, Argentina has failed to satisfy NML’s judgments.[3] This has caused NML to travel the globe in search of property owned by Argentina, which NML may attach to execute its judgments. See NML Capital, Ltd. v. Republic of Argentina, No. 03–cv–8845–TPG, 2011, WL 3897828, at *1 (S.D.N.Y. Sept. 2, 2011) (affirmances omitted). This search brought NML to Las Vegas, Nevada. Here, NML has served a number of subpoenas on third-party shell corporations. The purpose: to locate billions of Argentine pesos that were allegedly embezzled from the state and laundered by various Argentine politicians and their confidants.

In addition to experiencing a depression and sovereign-default crisis, Argentina has been plagued by allegations of political corruption. Former President Néstor Kirchner and his wife, current President Cristina Fernández de Kirchner, allegedly awarded lucrative state-controlled projects to various political insiders. The business dealings of two Kirchner insiders are relevant here: Lázaro Báez and Cristobal López. In August of 2014, NML demonstrated reasonable suspicion to believe that Báez laundered embezzled state funds through Nevada. See NML Capital Ltd. v. Republic of Argentina, No. 2:14-cv-492-RFB-VCF, 2014 WL 3898021 (D. Nev. Aug. 11, 2014). NML has now expanded its search to include López.

Several discovery disputes are pending in connection with NML’s investigations into Báez and López (See, e.g., Mots. #1, #10, #14, #21, #22, #28, #60, #64, #65, #70). Some of the documents related to these disputes were filed under seal pursuant to a stipulated protective order. (See Doc. #38). Jorge Lanata—the Argentine journalist who first reported on the Kirchners’ dealings with Báez—and the Center for Investigative Journalism in the Americas has moved to intervene and unseal court records pursuant to the public’s common law right of access to judicial records. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978).

On December 12, 2014, the court held a hearing. Three general topics were addressed: (1) whether an evidentiary hearing is needed to resolve the ten pending discovery motions; (2) whether the court should consolidate NML’s related post-judgment execution proceedings; and (3) whether the court should grant Lanata and the Center for Investigative Journalism’s motion to intervene and unseal. Because the court defers ruling on the ten discovery motions until after the court’s March 9, 2015 hearing, and because the parties agreed to file a stipulation to consolidate, the court now turns to the one remaining issue: Lanata and the Center for Investigative Journalism’s motion to intervene and unseal.

LEGAL STANDARD

Federal Rule of Civil Procedure 24 governs permissive intervention. It has two general requirements. First, under Rule 24(b)(2), the intervenor must demonstrate a legal basis for intervention. The rule states, “[o]n timely motion, the court may permit anyone to intervene who is given a conditional right to intervene by a federal statute or has a claim or defense that shares with the main action a common question of law or fact.” Fed.R.Civ.P. 24(b)(2) (colons and alphanumerals omitted). Second, under Rule 24(c), the intervenor must satisfy certain pleading requirements: (1) service of the motion to intervene under Rule 5 and (2) “[t]he motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed.R.Civ.P. 24(c).

Generally, courts are prohibited from modifying requirements, like these, which are enshrined in the Federal Rules of Civil Procedure. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167–68 (1993); In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1546 (9th Cir. 1994) (en banc), superseded on other grounds by Sec. Exch. Comm’n v. Todd, 642 F.3d 1207, 1216 (9th Cir. 2011) (“We are not permitted to add new requirements to Rule 9(b) simply because we like the effects of doing so. This is a job for Congress, or for the various legislative, judicial, and advisory bodies involved in the process of amending the Federal Rules.”).

Federal common law provides an exception here. Permissive intervention is permitted where, as here, a member of the public seeks intervention to modify a protective order and inspect court documents. Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 472–73 (9th Cir. 1992); E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1045 (D.C. Cir. 1998) (collecting cases and stated that “despite the lack of a clear fit with the literal terms of Rule 24(b), every circuit court that has considered the question has come to the conclusion that nonparties may permissively intervene for the purpose of challenging confidentiality orders.”).

This exception is rooted in the common law right of access to judicial records. See San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (citations omitted). The public’s right to access judicial records is “a precious common law right, one that predates the Constitution.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 612 (1978) (Marshall, J., dissenting) (citation omitted). Enforcement of this right does not require a propriety interest in any document or record. Id. at 597. The interest to enforce the right derives from our republican system of limited government: it is rooted “in the citizen’s desire to keep a watchful eye on the workings of public agencies” and in the media’s desire to “publish information concerning the operation of government.” Id. at 598 (citations omitted).[4] Indeed, the right is so strong that it abrogates Rule 24(b)’s textual requirements.[5]See, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 784 (1st Cir. 1988) (citing Ex Parte Uppercu, 239 U.S. 435, 441 (1915) (stating, before the federal rules were adopted, that third-party assertion of right of access to discovery materials “requires no particular formality”)).

When a member of the public seeks intervention to modify a protective order and inspect court documents, the request is governed only by the court’s discretionary considerations under Rules 24 and 26. Both rules involve a similar, two-step inquiry. First, when “exercising its discretion” under Rule 24(b)(3), “the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Here, the starting point is “a strong presumption in favor of access.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). Similarly, under Rule 26, the court must consider whether disclosure will cause “annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c). Here, the starting ...


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