Morgan v. Wesley Medical Center, LLC et al

Filing 224

MEMORANDUM AND ORDER denying 96 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 12/6/18. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

D.M., a minor, by and through
his next friend and natural guardian,
KELLI MORGAN,

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Plaintiff,
vs.
WESLEY MEDICAL CENTER LLC,
et al.,
Defendants.

Case No. 18-2158-KHV-KGG

MEMORANDUM & ORDER ON
MOTION FOR PROTECTIVE ORDER
Before the Court is the “Motion for Protective Order to Close Public
Records Obtained Under KORA” filed by Defendant Via Christi. (Doc. 96.) After
review of the relevant filings, the Court DENIES Defendant’s motion.
The factual background of this medical malpractice case was summarized in
this Court’s Order (Doc. 116) granting in part and denying in part the Motions to
Strike (Doc. 41 and 60) filed by Defendant Chambers-Daney and Defendant
Bridget Grover. That factual summary is incorporated herein by reference.

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The present motion relates to a Kansas Open Records Act (“KORA”)
request from Plaintiff to the Kansas Health Care Stabilization Fund (“the Fund”).
Defendant contends that “[t]he records the Fund may produce that are responsive
to the KORA Request will likely reveal certain confidential information relating to
Defendant Via Christi’s finances and claims history….” (Doc. 96, at 2.) More
specifically, Defendant contends
[t]hrough a series of twelve different categories of
requests, Plaintiff’s KORA Request demands that the
Fund provide Plaintiff with copies of all of those annual
renewal documents and any other documents pertaining
to Via Christi in the Fund’s possession. Those
documents include financial statements, balance sheets,
and other assorted business, financial, proprietary, and
confidential information, the public disclosure of which
could cause undue hardship to Via Christi.
(Id., citing Doc. 96-2.) Defendant argues that the documents “should be treated as
confidential and protected from disclosure outside this litigation, and used only for
the purpose of prosecuting or defending this action and any appeals.” (Id.)
Defendant relies on Fed.R.Civ.P. 26(c), which allows a court to enter a protective
order forbidding a requested disclosure to protect a party from annoyance,
embarrassment or oppression.
Plaintiff argues that documents that are available to the public pursuant to a
KORA request should not be subject to a confidentiality designation under a
protective order. (Doc. 100, at 1.) KORA states that the “public policy of the state
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[is] that public records shall be open for inspection by any person unless otherwise
provided by this act.” K.S.A. § 45-216. Under KORA, a public record is “any
recorded information, regardless of form, characteristics or location, which is
made, maintained or kept by or is in the possession of any public agency.” K.S.A.
§ 45-217(g)(1).
Courts are directed to liberally construe KORA to promote a policy of
openness. Cypress Media, Inc. v. Overland Park, 268 Kan. 407, 417, 997 P.2d
681, 689 (2000). Although KORA provides specific exceptions to disclosure,
“exceptions are to be narrowly interpreted, and the burden is on the public agency
opposing disclosure.” Data Tree, LLC v. Meek, 279 Kan. 445, 454-55, 109 P.3d
1226, 1234 (2005).
Plaintiff argues that Rule 26(c) protective orders “are available only for
documents requested from a party under the Federal Rules of Civil Procedure,” not
information sought or received from a freedom of information request such as
KORA. (Doc. 100, at 5.) Defendant replies that courts have inherent authority to
regulate conduct of lawyers appear before them. (Doc. 119, at 2-3.) As such,
Defendant argues that application of Rule 26(c) in this instance is an appropriate
exercise of this authority. (Id.) Defendant also argues that the KORA request at
issue was made by the attorney representing Plaintiff in this action, not “a stranger
to this litigation.” (Id., at 4.) Defendant further contends that Rule 26(c) is
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applicable because Defendant is a party to this litigation “from whom discovery is
sought,” thus implicating the rule.
The Court finds Defendant’s arguments to be misplaced. The information is
not sought from Defendant Via Christi or any other party to this case. The KORA
request was made to, and is to be answered by, the Fund. (Doc. 96-1.) By
definition, records obtained through the Kansas Open Records Act are “open” or
public. The agency must determine whether the records are producible under
KORA and disagreements about the conclusion are resolved by the state courts.
K.S.A. § 45-222. Any remedy available to Defendant to prevent disclosure under
KORA would be through the state court. Defendant’s creative argument
notwithstanding, Rule 26(c) is not available to limit the use of public document
obtained outside the discovery process. Defendant’s motion is DENIED.

IT IS THEREFORE ORDERED that Defendant Via Christi’s Motion for
Protective Order (Doc. 96) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 6th day of December, 2018.
KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge

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