It's a fairly routine-ish case. A professor from LMU -- Lawrence Kalbers -- is interested in the VW "Dieselgate" scandal, so submits a FOIA request for various documents; in particular, the reports submitted to the DOJ by the Monitor after VW's guilty plea, as well as the evidence that VW told investors in its annual report that it showed the DOJ at the time. Seems fairly relevant to me.
But the DOJ doesn't want to disclose the documents, so Professor Kalbers sues.
The DOJ drags its feet in the litigation, but after a year or so, the case starts picking up a bit, and the parties are going to file summary judgment motions. At which point Volkswagen moves to intervene in the litigation. The district court denies the motion to intervene on the grounds, inter alia, that VW waited way too long to file its motion, particularly since it knew about the litigation for around a year before even looking to get involved.
The Ninth Circuit reverses, in an opinion by Judge Owens. He says the motion was timely.
You can make arguments for and against the Ninth Circuit's resolution. Reasonable minds can differ on the various points.
What surprised me the most, however, was the occasional tone of Judge Owens' opinion.
The opinion is fairly hostile to the district court's decision. Now, some of this is just being aggressive on the merits. Simply a matter of style.
But take a gander at footnote five, for example. That footnote's about the fact that when it filed its motion to intervene, VW never told the district court that it knew about the litigation way before the DOJ sent it a formal letter notifying it of the case; instead, VW's timeliness motion pretended as if it only knew about the case once it received the letter. When the district court found out about this, not surprisingly, it was . . . miffed. And said so.
The Ninth Circuit opinion accurately noted in the footnote that "the district court severely criticized VW's counsel for 'misrepresentation of the record' and a 'lack of candor'" regarding when it first knew about the lawsuit. And the opinion agreed in that same footnote that "[t]o be clear, VW's motion to intervene should have disclosed the initial 2018 notice and argued for its irrelevance from the get-go," rather than simply hiding that fact. But then the footnote ends with: "However, the record does not support the district court's overheated accusations of unethical conduct towards VW's counsel."
I was more than a little surprised by the inclusion of the word "overheated" there. You usually don't refer to a district court's reasoning or rhetoric in such a fashion. It's a bit . . . personal.
Are there some judges who are notoriously subpar and for whom the Ninth Circuit occasionally goes out of its way to make sure everyone knows it? Sure. But Judge Olguin isn't one of them. Indeed, the tenor of the opinion was sufficiently surprising that I spent a little time trying to figure out if there was a discernable reason why Judge Owens would be so snippy here. Did he have a run-in with Judge Olguin when they were both in Los Angeles; e.g., when Judge Olguin was a magistrate/judge and Judge Owens was a lawyer? Not as far as I can tell. Did Judge Owens personally know any of the various Sullivan & Cromwell lawyers who were slammed in Judge Olguin's opinion? Ditto; couldn't see any obvious connections.
Maybe Judge Owens had merely gotten up on the wrong side of the bed that morning. Or maybe he simply didn't like what he thought was an unjustified attack on counsel -- though, I gotta say, since it seems actually true that VW "neglected" to mention a super important fact in its motion to intervene, my personal view is that it's not super crazy for the district court to say that might show a "lack of candor" on the part of those lawyers.
For whatever reason, Judge Owens thought it important to fairly aggressively stomp down the district court in the process of reversing its decision. So that's what he did.
Volkswagen gets to intervene.
