Enow v. National Association of Boards of Pharmacy et al

Filing 216

OPINION and ORDER by Judge Marcia S. Krieger on 5/15/2020, re: 213 Pearson's motion for reconsideration of the denial of its motion to restrict is DENIED. (sphil, )

Case 1:17-cv-01645-MSK-SKC Document 216 Filed 05/15/20 USDC Colorado Page 1 of 7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 17-cv-01645-MSK-SKC
ENOW ENOW,
Plaintiff,
v.
NATIONAL ASSOCIATION OF BOARDS OF PHARMACY, and
PEARSON PROFESSIONAL CENTERS,
Defendants.
______________________________________________________________________________
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to Defendant Pearson Professional
Centers’ (“Pearson”) Motion for Reconsideration (# 213) of the Court’s November 19, 2019
Opinion and Order (# 209) that, among other things, denied Pearson’s Motion for Leave to
Restrict (# 149) public access to certain Pearson filings.
The Court assumes the reader’s familiarity with the proceedings to date. Pearson
administers computer-based professional licensing exams, including the NAPLEX exam that is
administered to candidates for licensure as pharmacists. In conjunction with the Plaintiffs’
claims against Pearson in this case (and Pearson’s motion for summary judgment thereupon),
Pearson submitted the six documents currently at issue: (i) two documents, Exhibits L (# 147)
and M (# 147-1), which are titled “NBAP Client Reference” and which consist of instructions to
Pearson employees as to how the NAPLEX exams for 2016 and 2017 were to be conducted (i.e.
containing information about how to properly verify test-takers’ ID, listing what items test

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candidates could and could not possess in the testing room, when breaks would be allowed, etc.);
(ii) two documents, Exhibits N (# 147-2) and Q (# 148) that comprise the “test maps” that
identify each interaction (e.g. mouse clicks, scrolling, and text input) that Mr. Enow had with the
2016 and 2017 tests; and (iii) two documents, Exhibits O (# 147-3) and R (# 148-1) that consist
of incident reports describing the technical difficulties Mr. Enow experienced during his tests,
the steps that Pearson representatives took to address those steps during the text, and various
notes created by Pearson in the course of investigating Mr. Enow’s complaints. Pearson
requested (# 149) that those documents (and others) be restricted from public access under D.C.
Colo. L. Civ. R. 7.2, but in its November 19, 2019 Opinion, the Court denied that motion,
finding that Pearson had offered “insufficiently conclusory” showings regarding the
requirements of Local Rule 7.2(c)(2)-(4).
Pearson then filed the instant motion (# 213), seeking reconsideration of the Court’s
denial of restricted access, offering a more detailed argument as to why the six documents
identified above should be subject to restriction.
The Court has some doubt that Pearson’s motion for reconsideration is proper, given that
it simply seeks to re-argue (albeit in more detail) matters that were previously presented to and
considered by the Court. See generally Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (a motion for reconsideration is “not appropriate to revisit issues already
addressed or advance arguments that could have been raised in prior briefing”). And Pearson
does not contend that the current motion turns on newly-discovered evidence or that its failure to
adequately articulate the grounds for its request in its prior motion was the result of some form of
excusable neglect. Nevertheless, because the outcome is the same, the Court will overlook that
defect and consider the motion on its merits.

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The Court need not recite the familiar standards governing restrictions on public access.
It is sufficient to note that the public holds a strong interest in having access to materials that
have been presented to and considered by the Court in discharging its judicial functions. Nixon
v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978). That public interest may yield in
certain circumstances, including where public access to documents “might harm a litigant’s
competitive standing.” Id. The party seeking to restrict public access – here, Pearson – bears the
burden of overcoming the presumption favoring access by “articulating a real and substantial
interest that justified depriving the public of access to the records that inform our decisionmaking process.” Sacchi v. IHC Health Services, Inc., 918 F.3d 1155, 1160 (10th Cir. 2019).
With those principles in mind, the Court turns to the three categories of documents to which
Pearson seeks to restrict access.
1. Testing center instructions
Exhibits L and M are materials that Pearson provides to its test center staff, instructing
them as to the procedures to use in administering exams. According to the affidavit of Guy
Speier, tendered in support of Pearson’s motion, these materials are not disclosed to the public
because “the contain[ ] specific procedures for administering [ ] exams, which, if released,
publicly, might give a candidate an unfair advantage or might give a competitor information that
would harm Pearson in the marketplace.” Mr. Speier does not elaborate on how, specifically, a
candidate or competitor could use the information contained in these documents to Pearson’s
disadvantage, and from the Court’s own review of those documents, it is difficult to see how they
could. The information contained in these documents are unremarkable protocols for checking
test candidates’ identification, for determining what materials a candidate may and may not
possess during the test, when breaks may be given, and how to respond to situations where it

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appears that a candidate has engaged in misconduct. With the minor exceptions of the
identification of specific Pearson officials that test proctors should contact, the instructions in
these documents are ordinary, common-sense practices that are likely followed in one form or
another by every test administrator. Pearson has not identified any component of these
instructions that is proprietary to Pearson-administered tests, much less demonstrated how a
competitor’s use of such information could result in substantial harm to Pearson’s operations.
Nor has Pearson identified how a candidate’s knowledge of what forms of ID are and are not
acceptable or when breaks will be provided would operate to give a candidate an inappropriate
advantage in testing. Because Pearson’s stated justifications for restricting access to these
documents remains at a largely conclusory level, the Court denies Pearson’s motion.
2. Test maps
Exhibits N and Q constitute the “test maps” that Pearson produced to show how Mr.
Enow worked through the two exams at issue here. For purposes of providing context, the Court
quotes a representative sample portion of Exhibit N:
2016-8-19 09.06.53.432 : INFO : Setting exhibit position to
java.awt.Point[x=0, y=276]
2016-8-19 09.06.54.071 : INFO : Vertical scroll bar adjusted to
“1” for “Scn:B38ED7596C6E40E5AF0DC0EC7E86A0C8”
2016-8-19 09.07.20.264 : INFO : Navigate next requested
2016-8-19 09.07.20.264 : INFO : deliveryContext.resetIsInput
Cached called
2016-8-19 09.07.20.264 : INFO : deliveryContext – comItem.
getInput() called
2016-8-19 09.07.20.264 : INFO : deliveryContext – comItem.
getInput() called

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2016-8-19 09.07.20.264 : INFO : deliveryContext – get RawScore
called
2016-8-19 09.07.20.280 : INFO : Display message “NABP
requires you to view all of the information in the current patent
profile or question before moving to the next question. Please
move each scroll bar the entire length and/or width of the patient
profile in question.”
Mr. Speier’s affidavit states that these test maps should be restricted from public access because
they “contain source code for Pearson’s test delivery software.” He does not specifically identify
which of the entries in the 120+ page test maps refer to test delivery source code, nor explain
what portions of the code Pearson claims to be proprietary, why it is proprietary, and how
Pearson would be affected if that source code was disclosed to its competitors.
It is clear that some portions of the test maps do not touch on Pearson’s test delivery
code, or at the very least, do not touch on any allegedly proprietary portion of that code. For
example, in the fragment quoted above the first entry simply reflects the location where an
exhibit is displayed on the screen; it seems unlikely that Pearson is claiming some proprietary
advantage in its own software’s ability to place exhibits on-screen at a certain location.
Similarly, the percipient information that Mr. Enow requested to navigate to a particular test
question at a given point in time does not implicate any proprietary concerns of Pearson, nor
does the message that Pearson displayed when Mr. Enow apparently failed to scroll through the
entire patient profile. The test map might reveal certain functions in the test software that might
refer to a proprietary software design owned by Pearson, or it might refer to routine software
functions (getInput, resetIsInputCached) that any programmer would recognize and use to
accomplish the same results. In this respect, Mr. Speier’s affidavit is both overbroad (in
suggesting that the entirety of the test map contains “source code”) and insufficiently specific (in
failing to identify those portions of the test map that reflect proprietary Pearson source code).

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Moreover, to the extent that some test map entries may reveal proprietary Pearson code, Pearson
has not demonstrated that those instances cannot be effectively redacted so as to both preserve
Pearson’s interest in not disclosing those fragments of code and simultaneously avoid the need to
restrict public access to the entirety of Exhibits N and Q. See D.C. Colo. L. Civ. R. 7.2(c)(4).
Accordingly, the Court denies Pearson’s motion to restrict access to Exhibits N and Q.
3. Incident reports
Exhibits O and R are the incident reports that Pearson prepared to describe Mr. Enow’s
testing complaints and to memorialize the investigation that Pearson conducted into the
complaints, both during the testing process and thereafter. According to Mr. Speier’s affidavit,
Pearson requests that these exhibits be restricted because “Pearson does not make[ ] these reports
available to candidates and not to the public” and because the reports “contain personal
identifying information about Mr. Enow, which Pearson has agreed to keep confidential, as well
as information about the steps Pearson took to investigate Mr. Enow’s alleged issues.” Mr.
Speier’s affidavit offers no explanation as to how disclosure of the incident reports would result
in any harm to Pearson. See D.C. Colo. L. Civ. R. 7.2(c)(3).
The fact that Pearson does not make these reports available to candidates or the public in
ordinary circumstances does not outweigh the need for public disclosure of documents filed with
the court to ensure transparency in litigation. To the extent that the incident reports disclose
information about Mr. Enow, that information appears to be limited to Mr. Enow’s name, phone
number, address, and e-mail address. Mr. Enow has not complained of such disclosure, but to the
extent that he has an objection, it would seem that redaction of Mr. Enow’s information, rather
than wholesale restriction of the highly-relevant incident reports, would be the proper course of
action.

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Accordingly, the Court finds that Pearson has no overcome the presumption of public
access to any of the six documents at issue. Therefore, Pearson’s motion for reconsideration
(#213) of the denial of its motion to restrict is DENIED.
Dated this 15th day of May, 2020.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge