Meyer v. UNUM Life Insurance Company of America et al
Filing
76
MEMORANDUM AND ORDER denying 55 Motion to Enforce. Signed by Magistrate Judge Kenneth G. Gale on 2/27/14. (aw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN MEYER,
)
)
Plaintiff,
)
)
v.
)
)
UNUM LIFE INSURANCE COMPANY )
OF AMERICA,
)
)
Defendant.
)
___________________________________ )
Case No. 12-1134-KHV-KGG
MEMORANDUM & ORDER ON
MOTION FOR PROTECTIVE ORDER
Now before the Court is Defendant’s “Motion to Enforce ECF
Administrative Procedures and Protective Order.” (Doc. 55.) Having reviewed the
submissions of the parties, the Court DENIES Defendant’s motion.
FACTS
Plaintiff filed his federal court Complaint seeking benefits under a long-term
disability plan governed by the Employment Retirement Income Security Act of
1974, 29 U.S.C. § 1001, et seq. (“ERISA”). (See Doc. 1.) Plaintiff’s claim was
denied by Defendant on the basis that a preexisting condition caused his disability.
The Scheduling Order entered in this case makes specific reference to the
potential need for a Protective Order.
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Discovery in this case may be governed by a protective
order. If the parties agree concerning the need for and
scope and form of such a protective order, their counsel
shall confer and then submit a jointly proposed protective
order by June 14, 2013. Such jointly proposed protective
orders should be drafted in compliance with the written
guidelines that are available on the court’s Internet
website . . . . At a minimum, such proposed orders shall
include, in the first paragraph, a concise but sufficiently
specific recitation of the particular facts in this case that
would provide the court with an adequate basis upon
which to make the required finding of good cause
pursuant to Fed.R.Civ.P. 26(c).
(Doc. 39, at 6.) The Scheduling Order also set a deadline by which the parties
could move for a Protective Order if they were unable to agree to the need for, or
terms of, such an order. (Id.)
The Protective Order was entered on June 17, 2013, and stated that
The allegations and defenses in this action may result in
the production or disclosure of confidential medical and
proprietary documents of the parties. Specifically,
Defendants may produce or disclose documents or
information containing confidential, proprietary, or
trade secret information regarding their business
practices and policies, as well as confidential medical
information regarding Plaintiff, and Plaintiff may
produce or disclose confidential, medical and
financial information. The parties desire that discovery
proceed without delay occasioned by possible disputes
about the confidential nature of the documents and/or
information being produced or disclosed.
(Doc. 44, at 1 (emphasis added).) The Protective Order continues with the
following procedure for designating documents as “Confidential.”
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1.
All documents, data, interrogatory answers,
admissions or discovery materials produced or obtained
through the discovery process or by agreement of the
parties in this action, containing or comprising the
confidential, proprietary, or trade secret information
of Defendants as well as the confidential medical or
financial information of Plaintiff shall be considered
CONFIDENTIAL INFORMATION, subject to this
Protective Order if designated by any party as
“Confidential.”
2.
In the event, at any stage of the proceedings, any
party to this action disagrees with designation of any
information as “Confidential,” the parties shall first try to
resolve such dispute in good faith on an informal basis.
If the dispute cannot be resolved informally, the party
claiming the confidentiality designation may apply for
appropriate relief to this Court within 14 days of the
opposing party’s final confirmation, in writing, that an
informal resolution is not possible. The Court may
conduct an in camera inspection of the challenged
materials. The party seeking confidentiality of the
information shall have the burden of establishing that the
information is entitled to confidential treatment.
(Id., at 2 (emphasis added).)
During Defendant’s process of reviewing Plaintiff’s claim, Dr. Costas
Lambrew, a cardiologist, served as a doctoral representative during one of
Defendant’s “round table” reviews of Plaintiff’s claim. During discovery,
Defendant produced Dr. Lambrew’s IRS form 1099s, which indicate the
compensation Defendant paid to him. Defendant designated the 1099s and
information contained therein as “Confidential” pursuant to the Protective Order
entered in this case. (Doc. 44.) Plaintiff disputes the confidential nature of the
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information, leading to Defendant’s present motion seeking an Order requiring
Plaintiff “to comply with the Protective Order and the ECF Administrative
Procedures by redacting the confidential financial information of Dr. Lambrew
from the 1099s before filing them with the Court.” (Doc. 56, at 10.)
The Court notes that Defendant is not trying to quash the production of the
underlying information. To the contrary, the documents have been produced to
Plaintiff. Defendant is merely requesting that information it has designated as
“confidential” pursuant to the Protective Order in this case be redacted before the
documents are filed with the Court or filed under seal.
ANALYSIS
The question in this case is the same as a motion to file under seal. Whether
the information is redacted from documents, or filed under seal, the object is to
protect the information from public disclosure. The decision whether to seal
judicial records is a matter left to the sound discretion of the district court. Mann v.
Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). The public has a common-law
right to judicial records. Id.; Bryan v. Eichenwald, 191, F.R.D. 650, 652 (D. Kan.
2000). This interest derives from the public’s interest in the fairness and honesty
of its courts, and in understanding disputes that are resolved in a public forum.
Crystal Grower’s Corp. v. Dobbins, 616 F.2d 459, 461 (10th Cir. 1980). The right
of the public is presumed paramount. Id. See Garcia v. Tyson Foods, Inc., No. 06-
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2198-JWL-DJW, 2010 WL 3584462 (D. Kan. 2010). The Courts of the United
States do not operate in secret.
Notwithstanding, the parties’ privacy interest in some information may
overcome the public’s right. The Court is required, upon request, to balance the
public’s right against the party’s interest in sealing the record or a portion thereof.
Garcia v. Tyson Foods, Inc., supra. Documents should be sealed only on the basis
of “articulable facts known to the court, not on the basis of unsupported hypothesis
or conjecture.” 2010 WL 3584462 at *1. See also Womak v. Delaware Al Services
Provider, LLC, No. 10-2312-SAC, 2012 WL 1033384 at *1 (D. Kan. 2012). The
party seeking to file a document under seal must establish a “significant interest” to
overcome the public’s right of access to judicial records. 2012 WL 1033384 at *1.
Citing 477 U.S. at 1149.
The defense describes the information as personal financial information of
the contractor-physician. It is so only in the broadest sense. This information does
not comprise, as far as is known, the physician’s only income and is not his
personal tax return. The information at issue is the amount of money paid to this
contractor by one customer for particular services - including an instance in which
his impartiality may be at issue in this case. 1 This does not constitute any blanket
1
The defendant minimizes the importance of this information to the case, but concedes
that it is not entirely irrelevant, describing it as “merely one factor (and a remote one at that) that
plays into the Court’s analysis of the conflict of interest . . . .” Dkt. 56 p. 4.
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exposure of the physician’s personal finances.2 Furthermore, the service provided
is one which is predictably challenged in Court, and it is unreasonable to assume
that the circumstances surrounding that contract would not be subject to
examination. This same consideration blunts the defendant’s second argumentthat the amount they pay the contractor-physician is a business secret or
proprietary. Further, defendant has done little other that assert this concern
without real support. Finally, the contention that the amount of money paid the
physician is not “dispositive” of the case is not an argument supporting sealing or
redacting the information.
IT IS THEREFORE ORDERED that Defendant’s “Motion to Enforce
ECF Administrative Procedures and Protective Order” (Doc. 55) is DENIED.
IT IS SO ORDERED.
Dated this 27th day of February, 2014, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
2
Certain personal information which would be contained on the 1099 should be redacted
such as the physician’s social security number and home address. These items are not at issue
here.
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