Looney et al v. Moore et al
MEMORANDUM OPINION AND ORDER re 42 MOTION to Vacate (Partially) the Protective Order Entered by this Court on March 21, 2014: For the reasons stated above, the court DENIES Plaintiffs motion to vacate. This court's Protective Order will remain in effect as issued. (Doc. 41). Signed by Chief Judge Karon O Bowdre on 4/7/14. (SAC )
2014 Apr-07 PM 02:37
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT COURT
BILLY RYAN LOONEY, ET AL.,
SHEILA D MOORE, ET AL.,
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
This matter comes before the court on “Plaintiffs’ Motion to Partially Vacate the
Protective Order Entered by this Court on March 21, 2014.” (Doc. 42). For the following
reasons, the court DENIES the motion. This court’s Protective Order will remain in effect as
issued. (Doc. 41).
This case involves a clinical research trial performed on premature infants with low birth
weights. The class action suit, brought by the infant Plaintiffs, by and through their parents,
alleges that the members of the University of Alabama at Birmingham Institutional Review
Board, the doctor who was the principal investigator for the study, and the company that
provided a device for the study were negligent and lacked informed consent, among other
allegations. (Doc. 32).
On March 13, 2014, Defendants filed a Motion for Protective Order. (Doc. 40). Pursuant
to the court’s Scheduling Order, which states that the court will grant any discovery motion
unless the party opposing the motion responds within three days, the court waited three days for
the Plaintiffs to respond. (Doc. 38). When the Plaintiffs failed to respond within three days, the
court granted the motion and entered Defendants’ proposed Protective Order. (Doc. 41).
On March 24, 2014, Plaintiffs filed a Motion to Partially Vacate the Protective Order.
(Doc. 42). In their motion, Plaintiffs asked the court to vacate a single sentence of the Protective
Order: “All Discovery Material produced in the above captioned action (the ‘Litigation’) is to be
used solely for the purposes of this Litigation.” On March 27, 2014, Defendants filed their
opposition to the motion. (Doc. 43).
ELEVENTH CIRCUIT DISCOVERY PRACTICE
The court finds that Plaintiffs’ motion is due to be denied on the merits because no right
of public access to discovery material exists in the Eleventh Circuit. The Eleventh Circuit has
repeatedly acknowledged the private nature of discovery, stating: “Discovery, whether civil or
criminal, is essentially a private process because the litigants and the courts assume that the sole
purpose of discovery is to assist trial preparation.” Chicago Tribune Co. v.
Bridgestone/Firestone, Inc., 263 F.3d 1304, 1316 (11th Cir. 2001) (quoting United States v.
Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)) (emphasis in original). The Court has also
found that “[d]iscovery is neither a public process nor typically a matter of public record.
Historically, discovery materials were not available to the public or press.” United States v.
Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (citing Seattle Times Co. v. Rhinehart, 467 U.S.
20, 32-34 (1984)). Further, the Circuit Court noted that “private documents collected during
discovery are not judicial records,” that the “common-law right of access does not extend to
information collected through discovery which is not a matter of public record,” and that the
“discovery process, as a matter of legislative grace, is a statutorily created forum not traditionally
open to the public.” In re Alexander Grant & Co. Litigation, 820 F.2d 352, 355 (11th Cir. 1987)
(internal citations omitted).
Based on this standard of practice, the court finds that restricting the use of discovery
materials to case-related purposes only, even over Plaintiffs’ objection, is within this court’s
discretion and authority even without the application of the Rule 26(c) good cause standard.
By its text, Rule 26(c) applies to situations where the court is either limiting what a party has to
produce at all in the discovery process, or limiting public access to documents that are actually
filed in the case. Fed. R. Civ. Pro. 26(c). The disputed limitation in this case does not fall into
either of these categories; Defendants are not asking the court for permission to withhold any
specific information from the Plaintiffs, and are likewise not at this point asking for any specific
documents to be withheld from public view once they are filed with the court.
RULE 26(c) GOOD CAUSE
As an alternative, even if the Rule 26(c) good cause standard applied, the court finds that
it is met in this case. Rule 26(c) states: “The court may, for good cause, issue an order to protect
a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .”
Fed. R. Civ. P. 26(c).
The court has already expressed to the parties its concern that this potentially high profile
case will be tried in the media, rather in the courtroom. Significant media coverage of the case
has already occurred.1 In the interest of justice, this court is committed to giving both parties a
See Mike Oliver, Lawsuit says UAB study harmed premature babies, AL.com (April 18,
Meyer Michelle, OHRP Suspends Compliance Action Against SUPPORT Study Sites Pending
Public Hearing & Guidance, Harvard Law Petrie-Flom Center (June 5, 2013)
fair trial, which includes protecting the Defendants from the “annoyance, embarrassment, [and]
oppression” that could occur from allowing their names to be dragged through the metaphorical
mud before a jury has even made any determination of wrongdoing. At least one other court has
cited the risk of excessive publicity preventing the selection of an impartial jury as legitimate
support for a finding of good cause under Rule 26(c). See Anderson v. Cryovac, Inc., 805 F.2d 1,
4 (1st Cir. 1986) (overturning the district court’s decision on other grounds). As such, the court
finds that good cause exists to support the Protective Order as written, and Plaintiffs’ motion to
vacate is due to be denied.
For the reasons stated above, the court DENIES Plaintiffs’ motion to vacate. This court’s
Protective Order will remain in effect as issued. (Doc. 41).
DONE and ORDERED this 7th day of April, 2014.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
http://blogs.law.harvard.edu/billofhealth/2013/06/05/ohrp-suspends-compliance-action-againstsupport-study-sites-pending-public-hearing-guidance/; Richard Knox, NIH Chief Rejects Ethics
Critique Of Preemie Study, NPR (June 6, 2013),
http://www.npr.org/blogs/health/s013/06/06/189156915/nih-chief-rejects-ethics-critique-ofpreemie-study; Public Citizen: Oxygen Experiment On Premature Babies is Highly Unethical,
Citizen.org (June 2013), http://www.citizen.org/Page.aspx?pid=5971.
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