Sidibe v. Sutter Health

Filing 1038

ORDER. In the attached case-management order, the court provides guidance regarding sealing procedures to be followed for trial evidence. (lblc3S, COURT STAFF) (Filed on 6/14/2021)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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DJENEBA SIDIBE, et al.,
Plaintiffs,

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Case No. 12-cv-04854-LB

v.

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SUTTER HEALTH, et al.,

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CASE-MANAGEMENT ORDER
REGARDING SEALING
PROCEDURES

Defendants.

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On June 10, 2021, the court held a case-management conference to address how best to

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approach the sealing issues about trial evidence. This order memorializes the discussion and adds

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additional guidance.

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First, the court will defer addressing sealing issues until after it decides the Daubert and in

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limine motions. The court thus will not hear any sealing issues at the August 5 hearing and vacates

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the deadlines in the scheduling order for filing sealing motions, oppositions, and replies. (See

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Scheduling Order – ECF No. 988 at 4–5.) Instead of filing competing sealing motions, the parties

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will file one joint administrative motion to seal with the final trial exhibits, proposed redactions,

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and supporting declarations from the parties and third parties and, as discussed below, will confer

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on and propose a new schedule.

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Second, as discussed at the CMC, the parties are narrowing and finalizing the trial exhibits.

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Sutter needs to pare its exhibit list way down. There has to be a better way: a Rule 1006 summary,
ORDER – No. 12-cv-04854-LB 

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a sponsoring witness who testifies in depth about contracting practices or health costs in a

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representative contract and then affirms that it is the same for other contract, or identifying the

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actual exhibits Sutter plans to offer (as opposed to just-in-case exhibits). The court suggests 500

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exhibits is the appropriate number at this point, and it should be fewer than 100 by trial. The court

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also is considering the time it will allot for trial. Right now, with a four-week trial, and assuming

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one day for jury selection and opening statements (and it might be faster depending on post-

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pandemic safety protocols), that leaves around 85 trial hours, including for opening and closing

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arguments, or roughly 40 hours a side, at best, assuming that the court even allots that much time

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to the parties.

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A related point is that the court eyeballed Sutter’s witness list and saw custodial witnesses. The

United States District Court
Northern District of California

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parties must confer and either stipulate to authenticity or agree that a Rule 902(11) certification is

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sufficient. There is no excuse for custodial witnesses. Moreover, as a heads up, the court expects the

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parties to stipulate to exhibits in advance, meaning, agree that exhibits can be admitted without

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objection when there is no dispute about authenticity or relevance. (Objections must be identified in

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advance, as the exhibit list shows.) The court requires parties to lay foundation for exhibits,

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meaning, an exhibit gets admitted only if a witness sponsors it (and thus an exhibit stays on the final

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exhibit list only if someone talks about it at trial). But the process eliminates the need to have — for

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example — the full litany for business records, and it makes for a smoother witness examination.

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Third, for an orderly sealing process, the third parties need a realistic exhibit list as soon as

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possible. (If Sutter agrees that it has two buckets of exhibits — probable exhibits and just-in-case

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exhibits — it could produce the probable exhibits faster so that the third parties can start reviewing

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them.) The parties (including third parties) must confer on the timeline for production of the

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pared-down final exhibits and propose a schedule for briefing and hearing the dispute. If the

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parties cannot agree, they must raise their different proposals in a joint submission that has a chart

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that captures their competing proposals and a blank column for the court’s ruling.

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A related point is that for the just-in-case exhibits (again assuming that they exist as a

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category), is there an approach to allow review of them real-time at trial by the third parties? Also,

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for all exhibits, is there a bellwether approach that the parties might use, such as identifying
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documents by category, queuing up a representative sample for the court, and getting a ruling that

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could be applied across the universe of exhibits?

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Fourth, the sponsoring parties must designate the precise parts of the trial exhibits they intend

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to use at trial to reduce the third parties’ work reviewing the documents. For documents that are no

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more than four pages, a designation is not required. Also, the process will not bar parties from

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using other parts of the exhibits at trial if there is an unexpected circumstance that requires it, such

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as refreshing a witness’s recollection or impeaching a witness. (A related point is that exhibits that

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go to the jury include only the admitted parts of exhibits.)

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United States District Court
Northern District of California

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Fifth, the court will make its own sealing determinations but — as discussed at the CMC —
the parties will submit the UEBT sealing orders.
Sixth, before submitting their joint motion to seal, the parties must meet and confer by video or

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telephone with every third party that proposes sealing. When engaging in this process, the parties

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must discuss how to avoid using exhibits that have sealed information. For example, perhaps the

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party and a third party could agree to use excerpts of documents and thereby avoid a sealed exhibit.

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Or perhaps the parties could agree to stipulations — to be read into the record and admitted as

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exhibits — that have the necessary information in a public format. For each document that a third

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party wants to seal, the sponsoring party for the exhibit must consider whether the document is

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appropriately sealed, whether it is likely to be used at trial, and whether the exhibit can be modified

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to avoid sealing it. Whittling the exhibits in this way presumably helps the parties, who now must

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show compelling reasons for sealing. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172,

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1178–79 (9th Cir. 2006). The court’s view on sealing may not be the same as the parties.

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Also, the parties must comply with Local Rule 79-5. A motion to seal “must be accompanied”

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by, among other things, an unredacted version of the material that would be sealed. Civ. L.R. 79-

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5(d). “The unredacted version must indicate, by highlighting or other clear method, the portions of

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the document that have been omitted from the redacted version . . . .” Civ. L.R. 79-5(d)(1)(D). The

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moving party must provide the court with a complete courtesy copy of the motion and all its

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required components. Civ. L.R. 79-5(d)(2). “The courtesy copy should be an exact copy of what

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was filed.” Civ. L.R. 79-5(d)(2). This means that the courtesy copy of unredacted material “must
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indicate, by highlighting or other clear method,” the content that has been redacted. Id. “This rule

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is designed to ensure that the assigned Judge receives in chambers a confidential copy of the

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unredacted and complete document, annotated to identify which portions are sealable . . . .” Civ.

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L.R. 79-5(b) cmt. The moving party must also give the court a “proposed order that is narrowly

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tailored to seal only the sealable material, and which lists in table format each document or portion

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thereof that is sought to be sealed.” Civ. L.R. 79-5(d)(1)(B).

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In their joint submission, the parties must include a single chart (or the functional equivalent)
that compiles all proposed sealings and redactions in one place. The chart must include (1) the

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ECF document number of the filed exhibit and the ECF-generated page number for each proposed

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sealing and (2) the basis for sealing. For each proposed sealing or redaction, the chart must include

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United States District Court
Northern District of California

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the material that the parties want sealed (with the required highlighting under Local Rule

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79-5(d)(1)(D)) and must also include the preceding and succeeding sentence for context. The

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parties must file the highlighted version of this chart under provisional seal together with a public

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version of the chart that redacts the highlighted material.

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IT IS SO ORDERED.

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Dated: June 14, 2021
______________________________________
LAUREL BEELER
United States Magistrate Judge

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