Little Rock Family Planning Services et al v. Rutledge et al

Filing 182

ORDER granting in part and denying in part 90 emergency motion for an order enforcing plaintiffs' confidentiality designations and imposing sanctions; denying plaintiffs' request to the extent plaintiffs seek sanctions for defendants� 39; conduct with respect to this 90 motion; granting in part and denying in part 109 motion to strike and for other appropriate relief; directing the Clerk's Office to remove docket entry 107 from the Court's electronic filing system and place it under seal, consistent with this Court's prior direction and current Order; denying without prejudice defendants' request to the extent defendants seek sanctions for plaintiffs' conduct with respect to this 109 motion; granting 121 motion requesting leave to file a reply; directing defendants to file their reply within 14 days from the entry of this Order; granting 127 motion for a protective order; and directing the parties to continue to treat as confidential Plaintiffs' County-Level Confidential Patient Data. Signed by Judge Kristine G. Baker on 3/31/2021. (jbh)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
LITTLE ROCK FAMILY
PLANNING SERVICES, et al.
v.

PLAINTIFFS
Case No. 4:19-cv-00449 KGB

LESLIE RUTLEDGE, et al.

DEFENDANTS
ORDER

Pending before the Court are several motions (Dkt. Nos. 90, 109, 121, 127). The Court
rules as follows: (1) the Court grants, in part, and denies, in part, plaintiffs’ emergency motion for
an order enforcing plaintiffs’ confidentiality designations and imposing sanctions (Dkt. No. 90);
(2) the Court grants, in part, and denies, in part, defendants’ motion to strike and for other
appropriate relief (Dkt. No. 109); (3) the Court grants defendants’ motion requesting leave to file
a reply, directs defendants to file their reply within 14 days from the entry of this Order, and has
considered defendants’ proposed reply when ruling on the pending motion (Dkt. No. 121-1); and
(4) the Court grants plaintiffs’ motion for a protective order (Dkt. No. 127).
A.

Plaintiffs’ Emergency Motion For An Order Enforcing Plaintiffs’
Confidentiality Designations And Imposing Sanctions

The Court begins its analysis with plaintiffs’ emergency motion for an order enforcing
plaintiffs’ confidentiality designations and imposing sanctions (Dkt. No. 90). The Court noticed
and conducted a hearing on plaintiffs’ emergency motion (Dkt. Nos. 91, 93). At that hearing, the
Court heard argument from counsel for plaintiffs and defendants.
According to plaintiffs’ motion, “[a]t close of business on Friday evening, Defendants
notified Plaintiffs that unless Plaintiffs convince Defendants by noon [Monday] that the patient
data Plaintiffs have designated confidential warrants continued protection, Defendants will

publicly file the information on the docket at noon CST.” (Dkt. No. 90, at 2). The patient data
refers to “data reflecting detailed information about women who have historically sought abortion
care in this State. . . .” (Id.).
The Court entered a protective order in this case (Dkt. No. 69), the terms of which control
this litigation.

Paragraph 16 of the protective order provides:

“Confidential and highly

confidential information shall not become part of the public record except upon written consent of
the party or person supplying the information or unless so ordered by this Court.” (Id., at 7).
The Court grants, in part, and denies without prejudice, in part, plaintiffs’ emergency
motion (Dkt. No. 90). The Court will not overrule plaintiffs’ designation of this patient data as
confidential, to the extent defendants make that request of the Court. The Court instructs the
parties at this time, and consistent with the terms of the protective order, to treat as confidential
the patient data plaintiffs have designated as confidential. If any party wishes to request that the
Court reconsider this ruling, it may do so in a written filing setting forth the legal authorities and
arguments it wishes for the Court to consider upon reconsideration.
To the extent plaintiffs seek sanctions for defendants’ conduct with respect to this motion,
including but not limited to plaintiffs’ attorney fees in having to file the motion, the Court denies
without prejudice plaintiffs’ request. Plaintiffs may renew their request for sanctions after the
Court rules on the merits of this action, at the conclusion of the litigation, if plaintiffs choose to do
so.
B.

Motion To Strike And For Other Appropriate Relief

Defendants filed a motion to strike and for other appropriate relief (Dkt. No. 109).
Defendants maintain that defendants marked as confidential pursuant to the terms of the protective
order entered in this case “a document containing sensitive information concerning an entity or

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entities not publicly identified as performing abortions.” (Dkt. No. 109, at 3). Defendants assert
that they provided that document marked confidential to plaintiffs during discovery and that,
thereafter, plaintiffs “filed a public document citing that sealed document and publicly identifying
an entity or entities – other than Plaintiffs’ abortion facilities – as having performed abortions.”
(Id.). Defendants maintain that, prior to publicly filing the sealed document, plaintiffs never
attempted to challenge its designation as confidential under the terms of the protective order (Id.).
Defendants represent that “[u]pon discovery Plaintiffs’ public disclosure of Confidential
information subject to this Court’s protective order, Defendants immediately contacted this Court
and requested that it direct the clerk’s office to remove Plaintiffs’ filing.” (Id., at 4).
The Court directed the Clerk to place that filing under seal (see Dkt. No. 107). That filing
has remained under seal, pending the Court’s resolution of these matters.
Defendants assert that, “[a]s a result of Plaintiffs’ original filing, Defendants were required
to notify relevant state officers and other stakeholders of the disclosure of Department of Health
information.” (Dkt. No. 109, at 5). Defendants also argue, with no citation to record evidence, that
“[t]here is also a significant risk that Confidential information was accessed by the public, the
media, and others and that it will be further disseminated.” (Id.).
Defendants request “that this Court formally strike Plaintiffs’ original filing listed as
Docket 107 from the record, ensure that document is removed from the Court’s electronic filing
system, require the docket entry be updated to reflect this Court’s decision to order that filing’s
removal from the Court’s electronic filing system, and order Plaintiffs to file the original document
under seal. Defendants also request that this Court “consider granting other appropriate relief
under Federal Rule of Civil Procedure 37 and this Court’s inherent power to address Plaintiffs’
violation of this Court’s protective order.” (Id., at 10).

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Plaintiffs responded in opposition to defendants’ motion (Dkt. No. 117). Defendants filed
a motion requesting leave to file a reply in support of their motion to strike and for other
appropriate relief (Dkt. No. 121). The Court grants defendants’ motion requesting leave to file a
reply, directs defendants to file their reply within 14 days from the entry of this Order, and has
considered defendants’ proposed reply when ruling on the pending motion (Dkt. No. 121-1).
The Court grants, in part, and denies, in part, defendants’ motion (Dkt. No. 109). The
Court directs that the Clerks’ office to remove docket entry 107 from the Court’s electronic filing
system and place it under seal, consistent with this Court’s prior direction and current Order.
Previously, plaintiffs tendered to the Court and defense counsel a proposed redacted copy of
plaintiffs’ original filing. The Court directs plaintiffs to resend that proposed redacted copy to the
Court and all counsel, for defendants to review that proposed redacted copy, and for defendants to
inform the Court, within 14 days from the time that proposed redacted copy is circulated, whether
the proposed redactions are acceptable to defendants. The Court is not privy to all of the parties’
discovery and confidentiality designations in this case. As a result, the Court seeks input from
counsel with respect to proposed redactions. By separate Order, the Court will direct that a
redacted copy be substituted for plaintiffs’ original filing.
To the extent defendants seek sanctions for plaintiffs’ conduct with respect to this motion,
the Court denies without prejudice defendants’ request. Defendants may renew their request for
sanctions after the Court rules on the merits of this action, at the conclusion of the litigation, if
defendants choose to do so.
C.

Motion For Protective Order

Plaintiffs filed a motion for protective order, requesting that “this Court grant Plaintiffs’
Motion for Protective Order to provide continued confidential treatment to Plaintiffs’ County-

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Level Confidential Patient Data.” (Dkt. No. 127, at 10). In support of their motion, plaintiffs
recount events from hearings before the Court with respect to evidence and cite the events that
lead to their filing their emergency motion for an order enforcing plaintiffs’ confidentiality
designations and imposing sanctions (Dkt. No. 90), among other matters. Defendants oppose the
motion (Dkt. No. 129); the Court rejects defendants’ view of the motion. The transcript of the
Court’s hearing on plaintiffs’ emergency motion for an order enforcing plaintiffs’ confidentiality
designations and imposing sanctions speaks for itself (Dkt. No. 93).
For good cause shown, the Court grants the motion (Dkt. No. 127). The Court directs the
parties, consistent with the terms of the protective order, to continue to treat as confidential
Plaintiffs’ County-Level Confidential Patient Data.
So ordered this 31st day of March, 2021.

_________________________________
Kristine G. Baker
United States District Judge

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