Have gun will intervene.

g36Michael Swoboda sued Continental Enterprises, claiming that it conducted an investigation into alleged trademark infringement led to his wrongful discharge. He sought the production of documents that Continental alleged were protected as work product. The district court allowed the discovery and denied the intervention by Heckler & Koch, the gunmaker whose rights about the G36 submachine gun (above) were at issue and had retained Continental.

The Fifth Circuit reversed, holding: “Continental’s work product privilege argument was overruled because Continental is a company that engages in investigative work, and the district court concluded that the discovery that Swoboda sought was produced in Continental’s ordinary course of business, i.e., in the course of a Continental investigation. HK is a gun manufacturer. Investigations are not a part of HK’s ordinary course of business. Some of the discovery that Swoboda sought was, from HK’s perspective, prepared in anticipation of litigation. We have held that an applicant-intervenor should be allowed to intervene when it ‘has a defense not available to the present defendant.’ HK has a defense unavailable to Continental, and it should have been allowed to present that defense in the district court.” Swoboda v. Manders, No. 16-30074 (Oct. 31, 2016, unpublished).

Untimely intervention

M300_HiRes_3qtrView_0114Jones, the sole shareholder of a bankrupt business, moved to intervene in a lawsuit between the trustee for the business and Bank of America — two weeks after the parties had filed a stipulation of dismissal that the district court accepted. The district court denied Jones’s motion; he appealed, and the Fifth Circuit affirmed. As to the stipulation of dismissal, the appeal was untimely; as to the intervention, while Jones’s late arrival did not bar his motion outright, it heavily influenced the relevant factors against him. Sommers v. Bank of America, No. 15-20775 (Aug. 26, 2016).

Denial of Intervention Reversed

Two individuals, involved in a political struggle about a camera system for traffic lights, sought to intervene of right in a lawsuit between the City of Houston and the system’s contractor.  City of Houston v. American Traffic Solutions (No. 11-20068, Jan. 24, 2012).  The Court reviewed the general requirements of Fed. R. Civ. P. 24(a)(2) but observed that “[b]riefing does not reveal any cases directly on point” to this situation.  Op. at 4.  The Court reversed the district court’s denial of intervention, observing that “[a] court must be circumspect about allowing intervention of right by public-spirited citizens,” but finding that these individuals were exceptionally involved in the political background for the system, and that the City was not necessarily an adequate representative for them in light of the specific history of this system and litigation.  Op. at 4-5.