Miller et al v. York Risk Services Group

Filing 57

ORDER AND OPINION granting in part and denying in part 33 Motion for Protective Order. Counsel shall prepare and file a Final Protective Order consistent with the decision in this Order and Opinion. The Final Protective Order will supercede the existing temporary protective order put in place by the order at docket 51. See PDF document. Signed by Judge John W Sedwick on 3/11/14.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA

LAURIE MILLER, BRIAN DIMAS,
KIM MILLS, ANTHONY SOZA,
BRUCE CAMPBELL, KELLIE
BOWERS, TIM HUNTER, BRIAN
SAYLOR, MICHAEL SCHAMADAN,
INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE
OF HIS WIFE BRANDI SCHAMADAN,
Plaintiffs,
vs.
YORK RISK SERVICES GROUP,
Defendant.

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2:13-cv-1419 JWS

ORDER AND OPINION

[Re: Motion at docket 33]

I. MOTION PRESENTED
At docket 33 plaintiffs Laurie Miller, Brian Dimas, Kim Mills, Anthony Soza, Bruce
Campbell, Kellie Bowers, Tim Hunter, Brian Saylor, and Michael Schamadan,
individually and as representative of the estate of his wife, Brandi Schamadan
(“Plaintiffs”) move pursuant to Rule 26(c) of the Federal Rules of Civil Procedure for the
entry of a protective order. At docket 36, defendant York Risk Services Group

(Defendant) responds. Plaintiffs’ reply is at docket 43. Oral argument was requested
but would not be of material assistance to the court.
II. BACKGROUND
Plaintiffs are or were employed by the City of Phoenix (“City”) Fire Department.
Defendant is a third-party insurance administrator which adjusts workers’ compensation
claims made by City employees. Plaintiffs allege that with the assistance and
knowledge of certain City employees Defendant wrongfully denied and delayed
workers’ compensation benefits which resulted in harm related to their medical care and
financial situations. More specifically, Plaintiffs allege that Defendant, acting in concert
with the City, fraudulently denied their workers’ compensation benefits in violation of the
Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961,
1964, and 1965. Plaintiffs also allege that Defendant violated Arizona law by aiding
and abetting the City’s breach of its duty of good faith and fair dealing. These claims
survived Defendant’s motion to dismiss and remain for resolution.1
III. DISCUSSION
The parties recognize that discovery in this case will involve the disclosure of
materials which contain confidential trade secret information. To protect such
information from unnecessary dissemination to third parties, both Plaintiffs and
Defendant seek to have an appropriate protective order entered by the court. Indeed,

1

See Orders at dockets 23, 26, and 35.

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the court has entered a temporary protective order which will govern the dissemination
of such information pending resolution of the motion at hand.2
In terms of the contents of a final protective order, Plaintiffs and Defendant part
company on two issues. Plaintiffs explain the situation as follows:
After extensive conference efforts, the parties were able to settle upon an
agreed form [of protective order] in most respects, but Defendant . . . is
opposed to the final form of Plaintiffs’ proposed order unless 1) the order
seals records alleged to be confidential by any party through and after
public trial proceedings, and 2) bars sharing with like-situated parties
engaged in similar litigation with [Defendant] and the courts overseeing
such litigation, only.3
More specifically, Plaintiffs request and Defendant objects to including proposed
paragraph 3. (e), 3. (f), and the second paragraph which is numbered 6, while
Defendant requests and Plaintiffs object to proposed paragraphs 10., 12., and the first
sentence of paragraph 13. in the otherwise jointly agreed Interim Protective Order.4
The first issue to address is whether strangers to the litigation who would litigate
claims against Defendant similar to those being litigated by Plaintiffs in the case at bar
should have the same access to Defendant’s confidential information as Plaintiffs, their
counsel, and their experts have under the Interim Protective Order. Parties appearing
in other litigation against Defendant should be subject to whatever discovery limits (if
any) may be imposed by the tribunal in which their cases are proceeding. If this court
2

See Order at doc. 51 adopting the parties’ proposed temporary protective order which
appears at docket 50-1.
3

Doc.33 at p. 2.

4

A copy is at doc. 33-1. The first of the two paragraphs assigned the number 6 in the
proposed order is not in dispute. It is the second paragraph number 6 which is in dispute. In
this order references to paragraph number 6 are references to the second of the two
paragraphs.

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were to rule that a protective order adopted in this case somehow applied to litigants (or
would be litigants) in other cases, it would be imposing rules respecting discovery in
matters not before this court. Moreover, “policing” this court’s order in other tribunals
invites confusion and controversy which is easily avoided by restricting the disclosure of
confidential information in this case to the parties, their counsel, and their experts.
Such a restriction does not prejudice the interests of Plaintiffs in this case–the only case
before this court. In keeping with this ruling, Proposed paragraphs 3. (e) and (f) in the
Interim Protective Order will not be included in the Final Protective Order, but proposed
paragraph 10 in the Interim Protective Order will be included.
The second issue which must be addressed concerns the duration of the
confidentiality protection afforded by a protective order. Plaintiffs contend that
Defendant has not shown a sufficient basis for maintaining the confidentiality of all the
information during trial and in post-trial proceedings. Plaintiffs argue that to protect all
of the information through trial and beyond would require sealing a portion of the trial
record, something which they say should be considered closer to the time of trial. For
its part, Defendant concedes that any documents which are disclosed publicly at trial
would then be accessible to the public, but argues that the confidentiality order should
provide trial and post-trial security from disclosure subject only to the possibility that
some confidential documents would be properly disclosed at trial.
The public enjoys the right to “inspect and copy public records and documents,
including judicial records and documents.”5 This right is not unlimited: “Every court has

5

Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978).

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supervisory power over its own records and files, and access has been denied where
court files might have become a vehicle for improper purposes.”6 The Ninth Circuit
instructs that unless a court document is something which has traditionally been kept
secret there is a strong presumption in favor of allowing public access, and a party
seeking to seal the document must overcome the presumption with compelling reasons
which are supported by specific factual findings.7 The Ninth Circuit has recognized two
categories of documents which fall into the category of papers that have been
traditionally protected from disclosure to the public: grand jury transcripts and materials
which concern warrants while an investigation is under way.8 Here, the appellate
court’s teaching is understood by this court to mean that a proper protective order
cannot automatically apply through trial and beyond. Rather, only to the extent that
Defendant can carry its burden to show compelling reasons why some specific material
should be sealed will the court afford protection from disclosure during trial and beyond.
It may be added that if Plaintiffs seek to use materials which are subject to a protective
order, but not relevant to the trial, the court will rule that they are not relevant and their
disclosure would continue to be subject to the Final Protective Order.
To be sure the provisions of the Final Protective Order are consistent with this
order, proposed paragraph 12. of the Interim Protective Order must be modified as
follows

6

Id., 435 U.S. at 598.

7

Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006).

8

Id.

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Insert immediately following the number 12.: “No document, testimony or
information otherwise subject to this Protective Order which a party
succeeds in introducing as evidence at trial shall remain subject to the
provisions of this Protective Order unless the party seeking to keep it
confidential shows compelling reasons why such document, testimony or
information should not become part of the public record of the trial in this
case. Other.” The paragraph would then continue as written starting with
the word “documents” and concluding with the words “reasonable period
of time.”
Plaintiffs’ objection to the first sentence in paragraph 13 will be sustained,
because the balance of paragraph 13 provides protection from disclosure consistent
with the court’s rulings in this order. The first sentence of paragraph13 proposed by
Defendant must be excised.
IV. CONCLUSION
The motion at docket 33 is GRANTED in part and DENIED in part as follows:
Counsel shall prepare and file a Final Protective Order consistent with the decision
above. The Final Protective Order will supercede the existing temporary protective
order put in place by the order at docket 51.
DATED this 11th day of March 2014.

/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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