187 F.3d 1096 (9th Cir. 1999)
SAN JOSE MERCURY NEWS, INC.,Petitioner,v.U.S. DISTRICT COURT -- NORTHERN DISTRICT (SAN JOSE),Respondent, LORA SALDIVAR; SHANNON CALBY; CITY OF MOUNTAIN VIEW,Real Parties in Interest.
No. 99-70062
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted July 16, 1999--Filed August 13, 1999

[Copyrighted Material Omitted]
Edward P. Davis, Jr., Gray, Cary, Ware & Friedenrich, Palo Alto, California, for the petitioner.
Gregory E. Stubbs and H. Christopher Hittig, Stubbs, Hittig  & Leone, San Francisco, California, for the City of Mountain  View, real party in interest.
Vanessa A. Zecher, San Jose, California, for Lora Saldivar  and Shannon Calby, real parties in interest.
Petition for Writ of Mandamus to Review an Order Entered by the United States District Court for the Northern District of California James Ware, District Judge, Presiding. D.C. No. CV-96-20718-JW.
Before: Mary M. Schroeder, Betty B. Fletcher, andCynthia Holcomb Hall, Circuit Judges.
OPINION
B. FLETCHER, Circuit Judge:


1
The San Jose Mercury News, Inc. ("Mercury News") petitions for mandamus in an effort to gain access to an investigatory report commissioned by the City of Mountain View  ("Mountain View") in connection with a sexual harassment  suit brought by two female police officers ("Plaintiffs")  against Mountain View and its police department  ("Defendants"). In order to obtain the report, the Mercury  News sought permissive intervention in the action before the  district court. The district court denied the motion, prompting  the newspaper's petition for mandamus relief. We grant the  writ, vacate the district court's order denying the Mercury  News' motion to intervene, and remand for further proceedings.

I.

2
The relevant facts are undisputed. In early 1996, the Plaintiffs filed discrimination charges with the EEOC against the  Defendants. After receiving "right to sue" letters from the  EEOC, the Plaintiffs filed the underlying suits alleging,  among other things, that the Mountain View Police Department maintained a work environment hostile to its female  employees in violation of state and federal law.


3
In response to the discrimination charges, the Defendants  retained an independent expert, Geraldine Randall, to investigate the allegations and produce a report detailing her findings ("Report"). During discovery, the Plaintiffs sought  production of the Report. This set off an extended series of  discovery disputes between the parties, spanning almost six  months. In the end, the Defendants lost the fight -- the district court ordered the Report produced. The parties, however,  stipulated to a protective order that kept the Report from  becoming public.1 The district court entered the protective  order on February 18, 1998.


4
Mercury News coverage of the discrimination suit apparently began in January 1998, with a story detailing the Plaintiffs' allegations and the Defendants' efforts to withhold the  Report. On May 14, 1998, the Mercury News filed a motion  seeking permissive intervention and an order modifying the  protective order so as to unseal the Report. The district court  denied the motion on July 27, 1998, holding that neither the  First Amendment nor federal common law provides a right of  public access to court records in civil cases prior to final judgment. On January 22, 1999, the Mercury News filed the  instant petition for mandamus relief, invoking our jurisdiction  pursuant to the All Writs Act, 28 U.S.C. S 1651.

II.

5
Mandamus is a "drastic" remedy, "to be invoked only  in extraordinary situations." Kerr v. United States District  Court, 426 U.S. 394, 402 (1976); Calderon v. United States  District Court, 134 F.3d 981, 983 (9th Cir.) (quoting Kerr),  cert. denied sub nom. Calderon v. Taylor, 119 S. Ct. 274  (1998). This court has recognized five factors, commonly  known as the "Bauman factors," that are the analytic starting  point in determining whether mandamus should issue: (1)  whether the party seeking the writ has no other adequate  means, such as a direct appeal, to attain the relief he or she  desires; (2) whether the petitioner will be damaged or prejudiced in a way not correctable on appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4)  whether the district court's order is an oft-repeated error, or  manifests a persistent disregard of the federal rules; and (5) whether the district court's order raises new and important  problems, or issues of law of first impression. See Phoenix  Newspapers v. United States District Court, 156 F.3d 940,  951-52 (9th Cir. 1998); Bauman v. United States , 557 F.2d  650, 654-55 (9th Cir. 1977). A petitioner need not satisfy all  five factors. "The considerations are cumulative and proper  disposition will often require a balancing of conflicting  indicators." Bauman, 557 F.2d at 655. Mandamus review is at  bottom discretionary -- even where the Bauman  factors are  satisfied, the court may deny the petition. See Kerr, 426 U.S.  at 403; Phoenix Newspapers, 156 F.3d at 952.


6
The Mercury News contends that mandamus relief is  appropriate because the district court's denial of the motion to  intervene was based on an erroneous legal principle -- that  the public has no right of access to court records in civil cases  before judgment. We agree, concluding that a right of access  to such records can be derived from at least two independent  sources: the federal common law and the Federal Rules of  Civil Procedure. This legal conclusion notwithstanding, we  must evaluate whether, in light of the Bauman  factors, mandamus relief is warranted.

A.

7
With respect to the first Bauman factor -- the availability of alternate avenues of relief -- we note that a direct  appeal was available to the Mercury News here. The precedents of this court make it clear that a denial of a motion for permissive intervention in a civil case is directly appealable.  See League of United Latin Amer. Citizens v. Wilson,  131  F.3d 1297, 1307-08 (9th Cir. 1997); see generally 7C WRIGHT,  MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE S 1923  (2d ed. 1986) (recognizing this as the general rule). As a general matter, "[m]andamus is not to be used as a substitute for  an appeal." Calderon v. United States District Court, 137  F.3d 1420, 1421 (9th Cir. 1998); see also Moses H. Cone  Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 8 n.6  (1983).


8
Here, however, the second Bauman factor offsets the  first to some degree. Because of the perishable nature of  news, a direct appeal might not be an entirely adequate remedy here. In cases involving a request by the press for access  to judicial records, this court has recognized that the delay  entailed by a direct appeal can constitute an irreparable injury.  See Valley Broadcasting Co. v. United States District Court,  798 F.2d 1289, 1292 (9th Cir. 1986) ("[Petitioner] cannot  attain the requested relief because the tapes it seeks to copy  will lose much of their newsworthiness during the pendency  of the trial."). At the same time, we are troubled by the fact  that the Mercury News waited almost six months to bring this  petition for mandamus.2 Nevertheless, the Mercury News'willingness to seek the writ, even if belatedly, suggests that  the case was once again "newsworthy" in January 1999. To  the extent this is true, the decay of newsworthiness would  constitute an injury better addressed by a writ of mandamus  than by a direct appeal.


9
Accordingly, we find that the first Bauman factors tips  against mandamus relief, while the second tips in favor.

B.

10
As a general matter, the third Bauman factor demands  that a petitioner seeking mandamus relief show that "the district court's order is clearly erroneous as a matter of law." See  Calderon v. United States District Court, 134 F.3d at 983.  Where a petition for mandamus raises an important issue of  first impression, however, a petitioner need show only  "ordinary (as opposed to clear) error." Id. at 984. The instant  case raises an important issue of first impression -- whether  the public has a pre-judgment right of access to judicial  records in civil cases -- and we conclude that the district  court erred in resolving it.


11
Nonparties seeking access to a judicial record in a civil  case may do so by seeking permissive intervention under Rule  24(b)(2). See, e.g., EEOC v. National Children's Ctr., 146


12
F.3d 1042, 1045 (D.C. Cir. 1998) (collecting cases); Hagestad  v. Tragesser, 49 F.3d 1430, 1432 (9th Cir. 1995) (permissive  intervention granted to nonparty pressing federal common law  right of access); Beckman Indus. v. International Ins. Co., 966  F.2d 470, 473 (9th Cir. 1992) (approving permissive intervention as method for challenging protective order under Rule  26(c)); Philippines v. Westinghouse Elec. Corp.,  949 F.2d  653, 657 (3d Cir. 1991) (permissive intervention granted to  nonparty newspaper pressing both First Amendment and common law right of access). A motion for permissive intervention pursuant to Rule 24(b) is directed to the sound discretion  of the district court. See League of United Latin Amer.  Citizens, 131 F.3d at 1307; Beckman, 966 F.2d at 472. Where,  as here, the district court's decision turns on a legal question,  however, its underlying legal determination is subject to de  novo review. See Beckman, 966 F.2d at 472; accord Pansy v.  Borough of Stroudsburg, 23 F.3d 772, 777 (3d Cir. 1994).


13
In this circuit, there are three necessary prerequisites for  allowing permissive intervention pursuant to Rule 24(b)(2):  "[A] court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant's claim  or defense, and the main action, have a question of law or a  question of fact in common." League of United Latin Amer.  Citizens, 131 F.3d at 1308. Here, the Defendants do not challenge the first or third of these prerequisites. See Beckman,  966 F.2d at 473-74 (holding that independent jurisdictional basis and strong nexus of fact or law are not required where  intervenor merely seeks to challenge a protective order). The  Defendants do, however, argue that the Mercury News'  motion was untimely, and that the district court thus did not  abuse its discretion in denying it.

1.

14
Generally, a district court's determination of timeliness in  connection with a motion to intervene pursuant to Rule  24(b)(2) is reviewed for an abuse of discretion. See League of  United Latin Amer. Citizens, 131 F.3d at 1302. Here, however, the district court did not expressly base its decision on  timeliness grounds and did not make any factual findings  regarding timeliness. As a result, we review de novo. See id.


15
In determining whether a motion for intervention is  timely, a court must consider three factors: "(1) the stage of  the proceeding at which an applicant seeks to intervene; (2)  the prejudice to other parties; and (3) the reason for and  length of the delay." Id. In measuring any delay in seeking  intervention, the inquiry looks to when the intervenor first  became aware that its interests would no longer be adequately  protected by the parties. See Public Citizen v. Liggett Group,  Inc., 858 F.2d 775, 785 (1st Cir. 1988).


16
Here, until the filing of the stipulated protective order  on February 18, 1998, the interests of the Mercury News were  being effectively represented by the Plaintiffs, who had per- sistently sought production of the Report. After the protective  order was entered, the Mercury News waited 12 weeks before  seeking to intervene. The Defendants do not argue that the  length of this delay itself renders the intervention untimely.  Indeed, delays measured in years have been tolerated where  an intervenor is pressing the public's right of access to judicial records. See, e.g., Beckman, 966 F.2d at 471 (affirming  intervention 2 years after settlement); Public Citizen, 858 F.2d  at 785 (collecting cases). Instead, the Defendants contend that  the delay was prejudicial because they would not have agreed  to the stipulated protective order had they known that the  Report would become public. The Defendants argue that they  passed up their opportunity to seek reconsideration of the district court's order to produce the Report in exchange for the  confidentiality provisions of the stipulated protective order. In  their view, permitting the Mercury News to intervene now  would upset their bargained-for expectations.


17
The Defendants' argument is unavailing. First, on this  view, any intervention after the entry of the stipulated protective order would be untimely, as it would upset the bargainedfor expectations of the parties. It was, however, only upon  entry of the stipulated protective order that the injury to the  public's right of access became clear. Second, to the extent  the Defendants relied on the stipulated protective order in  making the decision to forgo a motion for reconsideration,  such reliance was unreasonable. The right of access to court  documents belongs to the public, and the Plaintiffs were in no  position to bargain that right away. Third, if a moftion to intervene is denied as untimely, it is likely that subsequent motions to intervene will also be held untimely, stymying the  public's right of access altogether. Consequently, courts have  recognized that,


18
assuming an intervenor does assert a legitimate, pre sumptive right to open the court record of a particu lar dispute, the potential burden or inequity to the parties should affect not the right to intervene but, rather, the court's evaluation of the merits of the applicant's motion to lift the protective order.


19
Public Citizen, 858 F.2d at 787 (quoting Mokhiber v. Davis,  537 A.2d 1100, 1106 (D.C. 1988)).


20
We conclude that the motion to intervene was timely.

2.

21
This brings us to the heart of the petition: does the public  have a pre-judgment right of access to judicial records in civil  cases? The Mercury News answers this question in the affirmative, relying on three independent bases: the First Amendment, the federal common law, and the Federal Rules of Civil  Procedure.3 For our purposes here, it is enough that we agree


22
with the Mercury News as to the latter two bases. See  Hagestad, 49 F.3d at 1434 n.6. We leave for another day the  question of whether the First Amendment also bestows on the  public a prejudgment right of access to civil court records.


23
In Nixon v. Warner Communications, 435 U.S. 589  (1978), the Supreme Court recognized a federal common law  right "to inspect and copy public records and documents." Id. at 597. Federal appellate courts have uniformly concluded  that this common law right extends to both criminal and civil  cases. See, e.g., Leucadia, Inc. v. Applied Extrusion Tech.,  Inc., 998 F.2d 157, 161 (3d Cir. 1993); Smith v. United States  District Court, 956 F.2d 647, 650 (7th Cir. 1992); EEOC v.  Erection Co., 900 F.2d 168, 169 (9th Cir. 1990); FTC v. Standard Fin. Mgt., 830 F.2d 404, 408 n.4 (1st Cir. 1987); In re  Continental Ill. Sec. Litig., 732 F.2d 1302, 1308 (7th Cir.  1984); Brown & Williamson Tobacco Corp. v. FTC,  710 F.2d  1165, 1179 (6th Cir. 1983). We have expressly recognized  that the federal common law right of access extends to pretrial  documents filed in civil cases, see Hagestad,  49 F.3d at 1434,  and that the right of access applies prior to judgment in the  criminal context, see Valley Broadcasting, 798 F.2d at 1291  n.2. Other circuits have expressly recognized that the common  law right reaches documents filed in connection with motions  for summary judgment. See Westinghouse, 949 F.2d at 66061; Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982); see also  Leucadia, 998 F.2d at 164 (holding that common law right of  access applies to all pretrial motions of a nondiscovery nature  and the material filed in connection therewith). While we  have never squarely held that the federal common law right  of public access extends to materials submitted in connection  with motions for summary judgment in civil cases prior to  judgment, we conclude that the unbroken string of authorities  noted above leaves little doubt as to the answer. What doubt  remains, we dispel for the Ninth Circuit today.4


24
That such a federal common law right exists, however, does not mandate disclosure in all cases. The federal common  law right of access is not absolute, and is not entitled to the  same level of protection accorded a constitutional right. See  Valley Broadcasting, 798 F.2d at 1293. Thus, although the  common law right creates a strong presumption in favor of  access, the presumption can be overcome by sufficiently  important countervailing interests. See Hagestad, 49 F.3d at  1434 (noting factors to weigh). Where the district court conscientiously undertakes this balancing test, basing its decision  on compelling reasons and specific factual findings, its determination will be reviewed only for abuse of discretion. Id.  Here, however, the district court never undertook this analysis, having barred the doors to the Mercury News by denying  it leave to intervene. Insofar as the decision was based on a  failure to recognize the existence of a pre-judgment federal common law right of access to civil court documents, it was clearly erroneous.


25
The Mercury News also contends that it is entitled to  intervene in order to press the public's right of access to discovery materials pursuant to Federal Rule of Civil Procedure  26(c). It is well-established that the fruits of pretrial discovery  are, in the absence of a court order to the contrary, presumptively public. See Citizens First Nat'l Bank v. Cincinnati Ins.  178 F.3d 943, at 944-45 (7th  Cir. May 28, 1999); Public Citizen, 858 F.2d at 789; In re  Agent Orange Product Liability Litig., 821 F.2d 139, 145-46  (2d Cir. 1987). Rule 26(c) authorizes a district court to override this presumption where "good cause" is shown.


26
In the instant case, the district court entered a blanket  stipulated protective order pursuant to Rule 26(c). Such blanket orders are inherently subject to challenge and modification, as the party resisting disclosure generally has not made  a particularized showing of good cause with respect to any  individual document. See Beckman, 966 F.2d at 476; Public  Citizen, 858 F.2d at 790. Here, the Mercury News sought to  intervene in order to modify the stipulated blanket protective  order so as to unseal the Report. This circuit has held that a  nonparty may seek permissive intervention in order to test  whether the "good cause" requirements of Rule 26(c) have  been met with respect to a particular item of discovery. See  Beckman, 966 F.2d at 473, 476; accord Pansy,  23 F.3d at  783-92; Public Citizen, 858 F.2d at 787-90. Because the district court here denied the Mercury News' motion to inter- vene, it never reached the question of good cause under Rule  26(c). In light of Beckman and Public Citizen, this ruling was  clearly erroneous.


27
For the reasons discussed above, we conclude that the  third Bauman factor tips in favor of granting mandamus relief.

C.

28
It has been noted that the fourth and fifth Bauman factors are often mutually exclusive. See Calderon v. United  States District Court, 134 F.3d at 983 n.4. The Mercury  News' petition does not implicate the fourth factor -- there  has been no showing of oft-recurring error on the part of the  district courts of this circuit. However, as is plain from the  discussion above, the fifth Bauman factor is implicated. The  petition presents an important question that has not yet been  directly addressed by this circuit -- whether the federal common law right of access extends to documents filed in civil  cases that have not yet gone to judgment. Thus, we conclude  that the fifth Bauman factor weighs in favor of granting the  petition for mandamus.

III.

29
We conclude that mandamus relief is appropriate. We  vacate the district court's order denying the Mercury News'  motion for permissive intervention pursuant to Rule 24(b)(2),  and remand to the district court for further proceedings. We express no opinion on whether the Mercury News should ultimately prevail in its motion to intervene; this is a question  properly addressed to the discretion of the district court. See  EEOC v. National Children's Ctr., 146 F.3d at 1048 (district  court has considerable discretion in ruling on a motion for  permissive intervention, even where all the prerequisites are  met). We simply hold that the district court erred to the extent  it premised its denial of the motion on a belief that the public  had no prejudgment right of access to judicial records in civil  cases.


30
The petition for writ of mandamus is GRANTED. The district court's order denying the Mercury News' motion to  intervene is VACATED and this matter is REMANDED for  further proceedings.



Notes:


1
 Apparently the Plaintiffs preferred this compromise to the delays,  uncertainty, and costs attendant on an appeal or motion for reconsideration.


2
 This extended delay also precludes this court from construing the petition as a direct appeal. See Calderon, 137 F.3d at 1422 (where petition is  filed within the time permitted for appeal, the court may construe it as a  direct appeal, but this course is not available where the petition is filed  outside the appeal period).


3
 Citing United States v. Mindel, 80 F.3d 394, 398 (9th Cir. 1996), the  Defendants contend that the Mercury News, as a nonparty intervenor, only  has standing to press its First Amendment theory. In Mindel, the court wascalled on to decide whether a crime victim had standing to challenge a district court's order rescinding a defendant's obligation to make criminal  restitution payments to the victim. Id. at 395. After finding that the victim  did not have standing to bring an appeal, the opinion went on to hold that  the victim was also barred from obtaining mandamus relief. Id. at 398. In  so holding, the court noted that it had granted mandamus standing to news  organizations that had been denied access to criminal proceedings, notwithstanding their inability to bring a direct appeal, but declined to extend  this rule beyond the First Amendment context. Id.
The Defendants' reliance on Mindel is misplaced for at least two reasons. First, we have permitted news organizations to seek mandamus relief  in order to vindicate the federal common law right of access to court proceedings. See Valley Broadcasting, 798 F.2d at 1297. Second, as discussed  above, the Mercury News has standing to bring a direct appeal, thus taking  this case completely outside the rationale of Mindel. See League of United  Latin Amer. Citizens, 131 F.3d at 1307-08.


4
 In resisting the unanimous authorities, the Defendants offer only In re  Reporters Committee for Freedom of the Press, 773 F.2d 1325 (D.C. Cir.  1985), in support of their position that the common law right does not  apply to civil cases prior to judgment. That reliance is misplaced, as that  opinion limits its attention to the First Amendment right of access and  expresses no opinion regarding the reach of the federal common law right.  See id. at 1340.


