PLANNED PARENTHOOD v. COMMISSIONER, et al.

Filing 39

ORDER - On October 11, 2013, the Defendants filed a Response to Plaintiff's Motion for Preliminary Injunction and a First Stipulation of the Parties. [Dkts. 37 ; 38 .] Two issues with those filings require the Court's attention. The Defendants' response brief, the stipulation, and all exhibits attached to those filings were filed under seal without a motion requesting to do so. The Defendants' description of the exhibits attached to their brief does not facilitate t he Court's review. For the reasons detailed herein, the Court ORDERS the Defendants to file an Amended Response Brief by noon on October 17, 2013. The Plaintiff's reply deadline remains October 18, 2013, and a hearing remains set for October 30, 2013. ***SEE ORDER FOR FURTHER INSTRUCTION*** Signed by Judge Jane Magnus-Stinson on 10/15/2013. (JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PLANNED PARENTHOOD OF INDIANA AND
KENTUCKY, INC.,
Plaintiff,
vs.
COMMISSIONER, INDIANA STATE DEPARTMENT OF HEALTH, et al.,
Defendants.

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1:13-cv-1335-JMS-MJD

ORDER
On October 11, 2013, the Defendants filed a Response to Plaintiff’s Motion for Preliminary Injunction and a First Stipulation of the Parties. [Dkts. 37; 38.] Two issues with those filings require the Court’s attention.
A. Filings Under Seal
The Defendants’ response brief, the stipulation, and all exhibits attached to those filings
were filed under seal without a motion requesting to do so. The Court recognizes that the parties’ Joint Motion for Protective Order is presently pending. [Dkt. 36.] It is highly unlikely,
however, that the proposed protective order or prevailing Seventh Circuit precedent would justify filing all of those materials under seal.
“It is beyond dispute that most documents filed in court are presumptively open to the
public; members of the media and the public may bring third-party challenges to protective orders that shield court records and court proceedings from public view.” Bond v. Utreras, 585
F.3d 1061, 1073 (7th Cir. 2009). In fact, the United States Supreme Court has recognized that
this right to access is protected by the First Amendment of the United States Constitution. See,
e.g., Globe Newspaper Co. v. Super. Ct. for Norfolk County, 457 U.S. 596, 603-06 (1982); Nixon
v. Warner Comm’ns, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country
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recognize a general right to inspect and copy public records and documents, including judicial
records and documents.”). Although this principle originated from a need to ensure access to
criminal cases, it has been expanded to civil proceedings. Smith v. U.S. Dist. Ct. for S. Dist. of
Ill., 956 F.2d 647, 650 (7th Cir. 1992).
The public’s right to access court records is not unlimited, however, and Federal Rule of
Civil Procedure 26(c) allows the Court to shield certain documents from the public when there is
good cause to do so. Bond, 585 F.3d at 1074. Although protective orders may keep certain documents confidential, as a general rule, “dispositive documents in any litigation enter the public
record notwithstanding any earlier agreement.” Baxter Int’l, Inc. v. Abbott Laboratories, 297
F.3d 544, 546 (7th Cir. 2002) (original emphasis). As the Seventh Circuit has observed, “How
else are observers to know what the suit is about or assess the [judge’s] disposition of it? Not
only the legislature but also students of the judicial system are entitled to know what the heavy
financial subsidy of litigation is producing.” Id.
Very few categories of documents are to be kept confidential once “their bearing on the
merits of a suit has been revealed.” Id. In civil litigation, “only trade secrets, information covered by a recognized privilege (such as the attorney-client privilege), and information required
by statute to be maintained in confidence (such as the name of a minor victim of a sexual assault), is entitled to be kept secret.” Id. A party seeking to maintain confidentiality must explain
what harm will result from the disclosure as well as why that harm is the sort that presents a legal
justification for secrecy in presumptively public litigation. Id. at 547.
B. Exhibits
The Defendants’ description of the exhibits attached to their brief does not facilitate the
Court’s review. Local Rule 5-6 requires each exhibit to be given a title describing its content,

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and labels such as “Exhibit B” are unhelpful. The Defendants’ response brief also refers to the
exhibits with those vague labels, which would require the Court to spend an undue amount of
time determining the identity and location of the referenced exhibits.
C. Amended Brief
For the reasons detailed herein, the Court ORDERS the Defendants to file an Amended
Response Brief by noon on October 17, 2013. The Court will not require the Defendants to refile the exhibits referenced in their response brief already on file; however, the Amended Response Brief should refer to the previously filed exhibits by a more descriptive name as well as
the docket number of the corresponding exhibit (e.g., dkt. 37-1 at 2). The Defendants should not
substantively amend their brief other than to add citations.
Should the Defendants desire to maintain any portion of their Amended Response Brief,
the First Stipulation of the Parties, or any of the exhibits attached thereto under seal, they should
file a corresponding motion specifically articulating the reasons for maintaining any filing under
seal. To the extent that the Defendants request any portion of their Amended Response Brief to
be maintained under seal, they must also file a redacted version of the brief that will be publicly
available. The Plaintiff’s reply deadline remains October 18, 2013, and a hearing remains set
for October 30, 2013.
10/15/2013
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana

Distribution via ECF only:
Talcott Camp
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AMERICAN CIVIL LIBERTIES UNION
[e-mail]
Kenneth J. Falk
ACLU OF INDIANA
[e-mail]
Thomas M. Fisher
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Ashley Tatman Harwel
OFFICE OF THE INDIANA ATTORNEY GENERAL
[e-mail]
Helene T. Krasnoff
PLANNED PARENTHOOD FEDERATION OF AMERICA
[e-mail]
Heather Hagan McVeigh
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Gavin Minor Rose
ACLU OF INDIANA
[e-mail]

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