Planned Parenthood of the Great Northwest and the Hawaiian Islands v. Wasden et al

Filing 29

MEMORANDUM DECISION AND ORDER It is ORDERED that the parties' Joint Motion for Entry of a Stipulated Protective Order (Dkt. 27 ) is DENIED WITHOUT PREJUDICE. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

PLANNED PARENTHOOD OF THE
GREAT NORTHWEST AND THE
HAWAIIAN ISLANDS, a Washington
corporation,
Plaintiffs,

Case No. 1:15-cv-00557-BLW
MEMORANDUM DECISION &
ORDER

v.

LAWRENCE G. WASDEN in his
official capacity as Attorney General of
the State of Idaho, JAN M. BENNETTS
in her official capacity of Ada County
Prosecutor, GRANT P. LOEBS in his
official capacity of Twin Falls County
Prosecutor, IDAHO STATE BOARD OF
MEDICINE,

Defendants.

Pending before the Court is the parties’ Joint Motion for Entry of Stipulated
Protective Order (Dkt. 27). The Court will deny the motion without prejudice.
The parties have submitted a Proposed Protective Order for the Court’s review and
approval. Within that proposed order, the parties agreed upon various terms meant to
govern the handling of sensitive and confidential information in this litigation. Of
concern to the Court are paragraphs 9, 12, and 13, which provide:
9.

Discovery about individuals: Because of the special security
concerns for Planned Parenthood, any current or former

MEMORANDUM DECISION & ORDER - 1

physicians, employees, or staff members of Planned Parenthood
of the Great Northwest and the Hawaiian Islands will be referred
to by a pseudonym in the discovery process and trial. A
pseudonym may also be used for any other physicians,
individuals, or employees who perform or assist with elective
abortions in or around Idaho. However, in all instances in which
a pseudonym is used for any such individual described in this
paragraph, the true names or identities of the individuals from
whom a pseudonym is used shall be furnished to counsel for the
opposing party under the designation of “Confidential Attorney’s Eyes Only.” For purposes of this Order, the
designation of “Confidential - Attorney’s Eyes Only” means that
the information is Confidential under this Order and may only be
seen by the attorneys assigned to this case, or staff in the
Attorney’s office working on their behalf.
12.

The parties agree that no Confidential information shall be
included in any document that is publicly filed in this litigation.
Any Confidential information contained in deposition transcripts
or exhibits, as well as briefs, memoranda, motions,
interrogatories or exhibits thereto, and other papers containing
or otherwise disclosing such information, which is filed with or
otherwise submitted to the Court, including at hearing or trial,
shall be filed under seal or, if physically filed, lodged or
submitted to the Court, placed in a sealed envelope or other
sealed container and maintained in an area not accessible to the
public. No such document shall be disclosed except as provided
in this Protective Order. Each sealed envelope or container shall
be conspicuously endorsed with the title of this action, the words
“CONFIDENTIAL,” “SUBJECT TO PROTECTIVE ORDER”
and any other identifying language required by the Court.

13.

If Confidential information is used at trial, hearing or during a
deposition, at the discretion of the Court, that portion of the trial
or hearing will be conducted in camera before the Court and any
other necessary trier of fact, without the presence of any person
or party not identified in Paragraph 5 of this Order, and the
transcript will be marked pursuant to this Order. Confidential
information shall not become a part of the public record except
upon the written consent of the party or person supplying the
information or unless so ordered by this Court.

MEMORANDUM DECISION & ORDER - 2

Stipulated Protective Order, lodged with the Court on April 29, 2016 (emphasis added).
The problem with these paragraphs is that the Court would be sealing documents
or excluding the public from trial proceedings without the benefit of a prior motion and
an opportunity to determine whether the governing Ninth Circuit standards have been
satisfied. See Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir.
2006). 1 Although paragraph 13 does provide that trial proceedings will be conducted in
camera “at the discretion of the Court,” this is inadequate for two reasons: (1) it does not
cover the filing of sealed documents, and (2) it suggests that the Court’s decision could
be based upon something other than the applicable Ninth Circuit standard. Id.
For these reasons, the Court will not approve the Stipulated Protective Order in its
current form. The parties may resubmit a proposed order that addresses the concerns
outlined above.
ORDER
It is ORDERED that the parties’ Joint Motion for Entry of a Stipulated Protective
Order (Dkt. 27) is DENIED WITHOUT PREJUDICE.

DATED: May 18, 2016

_________________________
B. Lynn Winmill
Chief Judge
United States District Court
1

The parties included a similar provision in their discovery plan filed with the Court. See April
22, 2016 Discovery Plan, Dkt. 26.
MEMORANDUM DECISION & ORDER - 3