Medical & Chiropractic Clinic, Inc. v. Oppenheim et al

Filing 203

1. Plaintiff's Unopposed Motion to Seal Unredacted Summary Judgment Exhibits 140 is GRANTED-IN-PART and DENIED-IN-PART. 2. Defendants' Unopposed Motion to Seal Summary Judgment Filings 143 is GRANTED-IN-PART and DENIED-IN-PART. 3 . Plaintiff's Unopposed Motion to Seal Unredacted Response to Summary Judgment and Exhibits 147 is GRANTED-IN-PART and DENIED-IN-PART. 4. Plaintiff's Unopposed Motion to Seal Portions of the Parties' Joint Stipulation of Facts [17 5] is GRANTED-IN-PART and DENIED-IN-PART. 5. The parties are permitted to file under seal or by redaction the specific portions of documents, if any, to which the statutory mediation privilege applies. The motions are otherwise DENIED, without prejudice. The remaining documents, or parts thereof, shall be filed un-redacted on or before June 18, 2018. Signed by Judge Charlene Edwards Honeywell on 6/11/2018. (SG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MEDICAL & CHIROPRACTIC CLINIC,
INC.,
Plaintiff,
v.

Case No: 8:16-cv-1477-T-36CPT

DAVID M. OPPENHEIM and BOCK LAW
FIRM, LLC,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon Plaintiff’s Unopposed Motion to Seal Unredacted
Summary Judgment Exhibits (Doc. 140), Defendants’ Unopposed Motion to Seal Summary
Judgment Filings (Doc. 143), Plaintiff’s Unopposed Motion to Seal Unredacted Response to
Summary Judgment and Exhibits (Doc. 147), and Plaintiff’s Unopposed Motion to Seal Portions
of the Parties’ Joint Stipulation of Facts (Doc. 175). By their motions, the parties seek to file under
seal various summary judgment filings and exhibits. Specifically, it appears1 from a comparison
of the redacted and unredacted filings and exhibits that the parties generally seek to file under seal
those documents which include or refer to certain retainer agreements, joint partnership
agreements, and information related to Defendant David Oppenheim’s compensation. In addition,

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The parties do not describe in their motions what kinds of information or what categories of documents they seek to
file under seal. Moreover, many of the exhibits the parties seek to file under seal include whole documents with
information that is clearly non-sensitive, thereby leaving the Court to speculate as to what information the parties may
consider so sensitive to warrant filing under seal.

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the parties seek to file under seal those documents that refer to certain mediation-privileged2
discussions in separate class action lawsuits. Doc. 195, p. 6.
Upon consideration, the Court will deny-in-part and grant-in-part the motions. As indicated
in the Case Management and Scheduling Order (Doc. 70), motions to seal are disfavored and will
be denied unless they comply with Local Rule 1.09. Middle District of Florida Local Rule 1.09
requires that a motion to seal include, among other things, “the reason that sealing each item is
necessary” and “the reason that a means other than sealing is unavailable or unsatisfactory to
preserve the interest advanced by the movant in support of the seal.” Local Rule 1.09(a).
Here, the motions all suffer the same defects: they (1) wholly fail to explain why means
other than sealing are unavailable or unsatisfactory and (2) fail to adequately explain why sealing
each item is necessary. The only argument advanced in support of the necessity of sealing is that
the relevant documents were deemed confidential pursuant to the parties’ agreed confidentiality
and protective order.3 However, just because the parties have designated documents produced in
discovery as “confidential” does not mean that they should be sealed. Doc. 70, p. 6; Local Rule
1.09.
As discussed at the April 2, 2018 hearing on the parties’ cross-motions for summary
judgement, the Court is concerned with limiting the public’s common law right of access to court
operations and to inspect and copy public records and documents. “[T]he courts of this country
recognize a general right to inspect and copy . . . judicial records and documents.” Nixon v. Warner

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Fla. Stat. § 44.405. “State law governs the existence of a privilege in diversity cases.” Bowdler v. State Farm Mut.
Auto Ins. Co., No. 2:13–cv–539–FtM–38CM, 2014 WL 2003114, at *3 (M.D. Fla. May 14, 2014).
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See Docs. 140, 147, 175 (stating sealing is “necessary in these circumstances to protect the proprietary and privacy
interests at stake if documents and deposition testimony and material designated as ‘confidential’ under the Protective
Order were to be made publicly available”); Doc. 143 (stating “Defendants intend to use documents in support of their
respective positions on summary judgment that have been designated as ‘confidential’ under the Agreed
Confidentiality and Protective Order”); Doc. 147 (“Certain paragraphs in the Joint Stipulation directly quote
documents that qualify as Confidential Information under this matter’s Protective Order. As such, they cannot be
publicly filed.”).

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Communications, Inc., 435 U.S. 589, 597 (1978); see also Romero v. Drummond Co., Inc., 480
F.3d 1234, 1245 (11th Cir. 2007). In some limited circumstances, a court has the discretion to
permit materials to be filed under seal. Romero, 480 F.3d at 1246. However, such relief is to be
granted only upon a showing of “good cause,” which requires balancing the asserted right of access
against the party’s interest in keeping the information confidential. See id. (describing balancing
considerations).
Upon careful consideration, the Court finds good cause to file under seal only those specific
portions of documents, if any, to which the statutory mediation privilege applies. Fla. Stat. §
44.405.4 The Court finds the parties have not established good cause to file under seal any other
documents or portions of documents, and the parties have failed to overcome the presumption in
favor of public right of access to these documents.
According, it is hereby ORDERED:
1.

Plaintiff’s Unopposed Motion to Seal Unredacted Summary Judgment Exhibits
(Doc. 140) is GRANTED-IN-PART and DENIED-IN-PART.

2.

Defendants’ Unopposed Motion to Seal Summary Judgment Filings (Doc. 143) is
GRANTED-IN-PART and DENIED-IN-PART.

3.

Plaintiff’s Unopposed Motion to Seal Unredacted Response to Summary Judgment
and Exhibits (Doc. 147) is GRANTED-IN-PART and DENIED-IN-PART.

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Pursuant to Florida Statute § 44.405, “all mediation communications shall be confidential” and “mediation
participant[s] shall not disclose a mediation communication to a person other than another mediation participant or a
participant’s counsel.” A “mediation communication” is defined as “an oral or written statement, or nonverbal conduct
intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to
mediation if made in furtherance of a mediation.” Id. § 44.403(1). See also Bowdler, 2014 WL 2003114, at *3 (holding
that a party’s internal analysis of communications that occurred at mediation did not fall within the statutory definition
of “mediation communications” and was not mediation-privileged).

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4.

Plaintiff’s Unopposed Motion to Seal Portions of the Parties’ Joint Stipulation of
Facts (Doc. 175) is GRANTED-IN-PART and DENIED-IN-PART.

5.

The parties are permitted to file under seal or by redaction the specific portions of
documents, if any, to which the statutory mediation privilege applies. The motions
are otherwise DENIED, without prejudice. The remaining documents, or parts
thereof, shall be filed un-redacted on or before June 18, 2018.

DONE AND ORDERED in Tampa, Florida on June 11, 2018.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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