United States of America et al v. Halifax Hospital Medical Center et al

Filing 229

ORDER granting 218 Motion to Seal; granting 224 Motion to Seal. Signed by Magistrate Judge Thomas B. Smith on 3/27/2013. (KWH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA,
ex. rel. and ELIN BAKLID-KUNZ, Relator,
Plaintiffs,
v.

Case No. 6:09-cv-1002-Orl-31TBS

HALIFAX HOSPITAL MEDICAL CENTER,
d/b/a Halifax Health, a/k/a Halifax Community
Health System, a/k/a Halifax Medical Center
and HALIFAX STAFFING, INC.,
Defendants.
_______________________________________
ORDER
Pending before the Court are Defendants Halifax Hospital Medical Center and
Halifax Staffing, Inc.’s (collectively “Halifax”) Motion for Leave to Seal (Doc. 218), and
Plaintiff United States of America’s Motion to Seal Exhibits (Doc. 224). Both motions are
due to be GRANTED.
I. Background
Halifax has filed a Expedited Motion to Strike Portions of the Deposition Testimony
of Thomas Garthwaite, Audrey Pike and Eric Peburn on the ground that when the
witnesses were deposed they revealed attorney-client privileged information which should
be stricken from the record. (Doc. 217). In the pending motion, Halifax seeks leave of
Court to file under seal those portions of the deposition transcripts which contain the
alleged privileged information. (Doc. 218). Counsel for Halifax represents that he has
conferred with counsel for Plaintiffs and “both parties neither consent to, nor oppose, the
motion.” (Id. at 7).

The United States has filed a Motion to Preclude Evidence, or, in the Alternative,
Motion to Compel and for Leave for Additional Deposition Testimony in which it seeks to
“exclude evidence inconsistent with answers provided by [Halifax] to Plaintiff United States
of America’s Interrogatories 7 and 8.” (Doc. 219 at 1). The United States is requesting
leave of Court to file under seal, portions of the depositions of George Rousis and Eric
Peburn “to demonstrate the inconsistent positions taken by Halifax throughout discovery.”
(Doc. 224 at 1). These depositions are subject to a Protective Agreement Governing the
Disclosure of Confidential Information entered into by the United States and Halifax which
requires that the transcripts be treated as confidential. (Doc. 224 at 2). Counsel for the
United States represents that he has conferred with the other counsel in the case and they
do not oppose the motion. (Id. at 3).
II. Legal Standard
During the discovery process and pursuant to Federal Rule of Civil Procedure 26(c),
a court may enter a protective order preventing the public disclosure of certain information
or limiting how that information is used in the litigation. FED . R. CIV. P 26(c)(1)(H) provides:
A party or any person from whom discovery is sought may move
for a protective order in the court where the action is pending--or
as an alternative on matters relating to a deposition, in the court
for the district where the deposition will be taken. The motion
must include a certification that the movant has in good faith
conferred or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The court may,
for good cause, issue an order to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including . . . requiring that the parties simultaneously
file specified documents or information in sealed envelopes, to
be opened as the court directs.
FED . R. CIV. P. 26(c)(1)(H). Upon a showing of good cause by the party seeking protection,
the Court must “balance the party’s interest in obtaining access against the other party’s
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interest in keeping the information confidential.” Chicago Tribune Co. et al. v.
Bridgestone/Firestone, Inc. 263 F.3d 1304, 1313 (11th Cir. 2001). Courts have held that
when balancing these interests, “the mere fact that the production of records may lead to a
litigant’s embarrassment, incrimination, or exposure to further litigation will not, without
more, compel the court to seal its records.” Graphic Packaging Int’l, Inc. v. C.W. Zumbiel,
No. 3:10-cv-891-J-JBT, 2010 U.S. Dist. LEXIS 143284, at *3-4 (M.D. Fla. Oct. 27, 2010)
(internal quotations and citations omitted).
In this Circuit, it is well settled that “[t]he operations of the courts and the judicial
conduct of judges are matters of utmost public concern” and the integrity of the judiciary is
maintained by the public’s right of access to court proceedings. Romero v. Drummond Co.,
480 F.3d 1234, 1245 (11th Cir. 2007) (citing Landmark Commc’ns, Inc. v.Virginia, 435 U.S.
829, 839 (1978)). The public’s right “includes the right to inspect and copy public records
and documents.” Chicago Tribune, 263 F.3d at 1311. But, the public’s right of access is
not unfettered and does not apply to discovery. Romero, 480 F.3d at1245. Indeed, “the
need for public access to discovery is low because discovery is ‘essentially a private
process . . . the sole purpose [of which] is to assist trial preparation.’” Id. (quoting United
States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)). And, “[t]he prospect of all
discovery material being presumptively subject to the right of access would likely lead to an
increased resistance to discovery requests.” Chicago Tribune, 263 F.3d at 1312 n. 10.
Courts draw a distinction between documents filed with discovery motions and
documents filed in connection with other types of motions. “‘[T]here is a presumptive right
of public access to pretrial motions of a nondiscovery nature, whether preliminary or
dispositive, and the material filed in connection therewith.’” Romero, 480 F.3d at 1246

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(quoting Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir 1993)).
Material filed as part of a discovery motion is not subject to the common law right of access.
Chicago Tribune, 263 F.3d at 1312.
“The common law right of access may be overcome by a showing of good cause,
which requires ‘balancing the asserted right of access against the other party’s interest in
keeping the information confidential.’” Romero, 480 F.3d at 1245 (quoting Chicago
Tribune, 263 F.3d at 1313). In balancing these interests “courts consider, among other
factors, whether allowing access would impair court functions or harm legitimate privacy
interests, the degree of and likelihood of injury if made public, the reliability of the
information, whether there will be an opportunity to respond to the information, whether the
information concerns public officials or public concerns, and the availability of a less
onerous alternative to sealing the documents.” Id. at 1246. “Good cause is established by
the moving party when disclosure will cause the party to suffer a clearly defined and serious
injury.” Vista India, Inc. v. Raaga, LLC, Case No. 07-1262, 2008 WL 834399 *2 (D.N.J.
Mar. 27, 2009). The parties’ agreement to seal court documents “is immaterial” to the
public’s right of access. Brown v. Advantage Eng’g, 960 F.2d 1013, 1016 (11th Cir. 1992).
III. Analysis
Both motions present discovery issues. In order to decide Halifax’s Expedited
Motion to Strike Portions of the Deposition Testimony of Thomas Garthwaite, Audrey Pike
and Eric Peburn the Court will need to know the substance of the witnesses’ deposition
testimony. And, if the testimony is privileged, the protection afforded by the attorney-client
privilege should not be lost in the process of making that determination. This constitutes
good cause to keep the testimony confidential, at least until the Court makes its decision.

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To do otherwise would create a risk of harm to Halifax’s interest in preserving the attorneyclient privilege or alternatively, impair the Court’s ability to do its job. These circumstances,
outweigh the public’s right of access and establish good cause. Accordingly, it is hereby
ORDERED that Halifax’s motion is GRANTED and it may file under seal, excerpts of the
deposition testimony of Thomas Garthwaite, Audrey Pike and Eric Peburn wherein Halifax
contends that they disclosed attorney-client privileged information.
Because the United States’ request concerns a discovery issue, it is further
ORDERED that its uncontested motion to seal is GRANTED and it may file under seal
portions of the depositions of George Rousis and Eric Peburn in support of its motion to
preclude evidence.
Unless otherwise ordered by the Court, all of these deposition excerpts shall remain
sealed for one year. See M.D. FLA. 1.09(c).
IT IS SO ORDERED.
DONE AND ORDERED in Orlando, Florida, on March 27, 2013.

Copies to all Counsel

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