Comer et al v. McCracken County Detention Center et al

Filing 29

OPINION & ORDER by Magistrate Judge Lanny King on 2/19/2019. re 26 Proposed Agreed Protective Order/Stipulation filed by Ben Comer, David Council. The Court declines to enter the Order at Docket #26 for failure to comply with the "good cause" requirement of Federal Rule of Civil Procedure 26. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:18-CV-00020-TBR-LLK
BEN COMER, et al.

PLAINTIFFS

v.
McCRACKEN COUNTY
DETENTION CENTER, et al.

DEFENDANTS
OPINION AND ORDER

Senior Judge Thomas B. Russell referred this matter to Magistrate Judge Lanny for ruling
on all discovery motions (Docket # 25). The parties submitted two Agreed Protective Orders
(Docket # 26 & #27). For the reasons set forth below, the Court declines to enter the Agreed
Protective Order at Docket #26 for failure to comply with the “good cause” requirement of Federal
Rule of Civil Procedure 26, and the sealing requirements under the Local Rules. The Court will
enter the Agreed Order at Docket #27 because it is limited to documents already protected by the
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), codified primarily at
Titles 18, 26, and 42 U.S.C. (2003) and does not pre-judge whether documents may be filed under
seal.
Good Cause Requirement
This Court has increasingly scrutinized stipulated motions for protective orders that do not
make the necessary showing of good cause required by the Rules of Civil Procedure and case
authority. See Bussell v. Elizabethtown Independent School Dist., 3:17-cv-00605-GNS (W.D. Ky.
Oct. 23, 2018) (Edwards, J.) (discussing why the Court will enter the second proposed agreed
protective order because it develops why a protective order is necessary) (Pacer); see also
Wellmeyer v. Experian Info. Sols., 3:18-cv-94-RGJ (W.D. Ky. May 30, 2018) (Pacer); Middleton

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v. Selectrucks of America, LLC, 3:17-cv-602-RGJ (W.D. Ky. Sept. 21, 2018) (Pacer); Mitcham v.
Intrepid U.S.A., Inc., 3:17-cv-00703-CHB (W.D. Ky. Oct. 1, 2018) (Boom, J.) (Pacer); Roberson
v. KentuckyOne Health, Inc., 3:18-cv-00183-CRS-RSE (Aug. 29, 2018) (Edwards, J.) (Pacer);
Savidge v. Pharm-Save, Inc., 3:17-cv-000186-CHB (W.D. Ky. July 9, 2018) (Whalin, J.) (Pacer);
Effinger v. GLA Collection Co., 3:17-cv-000750-DJH (W.D. Ky. March 28, 2018) (Lindsay, J.)
(Pacer); Fleming v. Barnes, 3:16-cv-264-JHM (W.D. Ky. Feb. 27, 2017) (Whalin, J.) (Pacer).
Under Federal Rule of Civil Procedure 26(c)(1)(G), “[t]he court may, for good cause, issue
an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden
or expense , including . . . requiring that a trade secret or other confidential research, development,
or commercial information not be revealed or be revealed only in a specified way….” Good cause
exists when the party moving for the protective order “articulate[s] specific facts showing ‘clearly
defined and serious injury’ resulting from the discovery sought….” Nix v. Sword, 11 Fed. App’x
498, 500 (6th Cir. 2001) (citing Avirgan v. Hull, 118 F.R.D. 252, 254 (D.D.C. 1987)). For
example, in determining whether to grant a protective order in a trade secret case, the court
considered the following factors:
(1) the extent to which the information is known outside of [the] business;
(2) the extent to which it is known by employees and others involved in [the] business;
(3) the extent of measures taken . . . to guard the secrecy of the information;
(4) the value of the information to [the business] and to [its] competitors;
(5) the amount of effort or money expended . . . in developing the information;
(6) the ease or difficulty with which the information could be properly acquired or
duplicated by others.

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Williams v. Baptist Healthcare Sys., No. 3:16-CV-00236-CRS, 2018 WL 989546, at *2 (W.D. Ky.
Feb. 20, 2018) (citing Nash-Finch Co. and Super Food Servs., Inc. v. Casey’s Foods, Inc., 2016
WL 737903, at *2 (E.D. Ky. Feb. 23, 2016) (citations omitted)). “The burden of establishing good
cause for a protective order rests with the movant.” Nix v. Sword, 11 Fed. App’x 498, 500 (6th Cir.
May 24, 2011); see also In re Skelaxin Antitrust Litig., 292 F.R.D. 544, 549 (E.D. Tenn. 2013)
(“To show good cause, the moving party must articulate specific facts that show a clearly defined
and serious injury resulting from the discovery sought; mere conclusory statements will not be
sufficient.”).
Rule 26 of the Federal Rules of Civil Procedure affords the Court with broad discretion to
grant or deny protective orders. Parker & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 227
(6th Cir. 1996). Because entry of a protective order is contrary to the basic policy in favor of
broad discovery, the party that seeks a protective order has a heavy burden to show substantial
justification for withholding information from the public. See Williams, 2018 WL 989546, at *2;
see also, Proctor & Gamble Co. v. Banker’s Trust Co., 78 F.3d 219, 227 (6th Cir. 1996) (“While
District Courts have the discretion to issue protective orders, that discretion is limited by the careful
dictates of Fed. R. Civ. P. 26 and is circumscribed by a long-established tradition which values
public access to court proceedings.”); Meyer Goldberg, Inc. of Lorain v. Fisher Foods, Inc., 823
F.2d 159, 162 (6th Cir. 1987) (“As a general proposition, pretrial discovery must take place in the
public unless compelling reasons exist for denying public access to the proceedings.”).
With regard to the agreed protective order tendered by the parties at docket number 26, the
parties have not met their burden in showing that the documents they seek to protect and deem as
confidential should be shielded from the public. The tendered Order does not specify the
documents that require protection; rather, the Order outlines generally what could be considered

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confidential, such as “material that contains a trade secret, protected health information, personally
identifiable information of non-parties, or any other confidential, sensitive, or proprietary
information of a technical, business, or personal nature of Plaintiff or Defendant.” (Docket # 26,
p. 1-2).
This Court recently reached a similar conclusion in Bussell, in which the parties submitted
an Agreed Protective Order for the protection of alleged confidential and private information,
without any explanation for why the Order was necessary. Bussell v. Elizabethtown Independent
School Dist., 3:17-cv-00605, at Docket # 27 (W.D. Ky. Aug. 29, 2018). The Court denied the
motion without prejudice and specifically stated that the party seeking a protective order should
set out the reasons why a protective order is necessary. Id. at Docket # 28. The parties then filed
a new motion for protective order, which the Court granted, noting that the parties explained that
the materials at issue were nude or seminude photographs and that dissemination of the images
was sensitive in nature, may constitute additional crimes, and could potentially adversely impact
ongoing criminal proceedings. Id. at Docket # 33.
Sealing Standard
Additionally, the Court declines to sign and enter the proposed order at docket 26 because
Paragraph 15, which provides that “[a] party shall not file any properly designated Confidential
Information in the public record of this Action … The envelope shall be opened only by counsel
of record, who shall return the document to the Clerk in a sealed envelope or container, or by Order
of the Court” (Docket # 26 at p. 4) is contrary to Local Rule 5.7(c) and Sixth Circuit direction on
the requirements for filing a document under seal. Local Rule 5.7(c) addresses filing documents
under seal:
(c) Specific Authority or Motion Required; Protective Orders. Absent a federal statute
or federal rule of procedure, local rule, or standing order of this court, a party seeking to
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file a sealed document must electronically file a motion for leave to seal. The motion must
state why sealing is required and must establish that the document sought to be filed under
seal is entitled to protection from public disclosure. Reference to a stipulation that allows
a party to designate certain documents as confidential is not sufficient grounds to establish
that a document, or portions thereof, warrants filing under seal.
LR 5.7(c).
The Sixth Circuit addressed the requirements that must be met by both the proponents of
an order to seal and the court ruling on that motion in Shane Grp., Inc. v. Blue Cross Blue Shield
of Michigan, 825 F.3d 299 (6th Cir. 2016). The Shane Court clarified the standard for sealing
documents the parties have chosen to make part of the judicial record by filing is “vastly more
demanding” than the standard for protective orders for documents the parties exchange with each
other during discovery. Id. at 307. That the documents are covered by a “mere protective order”
or have been designated as confidential by a party is not sufficient reason to seal them from the
public after the parties placed the documents in the judicial record. Id. Once parties place
documents in the judicial record, they have crossed a line between the discovery stage and the
adjudicative stage. Id. at 305.
In Shane, the Sixth Circuit also stated that at the adjudicative stage “the public has a strong
interest” in access to assess a court’s decisions and the information on which the court relied in
making that decision. Id. Due to the “strong presumption in favor of openness…Only the most
compelling of reasons can justify” sealing documents and “the seal must be narrowly tailored to
serve that reason.” Id. Therefore, the party seeking to seal documents must “analyze in detail,
document by document, the propriety of secrecy, providing reasons and legal citations.” Id. at 30506. Additionally, the court must explain the basis for sealing each document and must articulate
“specific findings and conclusions” as to why the interest in sealing it is compelling, the interest
in public access less so, and why the seal is as narrow as possible. Id. at 306.

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In this case, the parties proposed blanket language for both a protective order and an order
to seal in the same Proposed Order. The Parties perfunctorily stated that confidential material and
documents containing any confidential material “shall” be filed under seal. (Docket # 26). This is
insufficient. The Parties have not identified the documents, provided analysis to explain why
sealing is required, nor shown how this interest is more compelling than the public’s interest in
access. The Parties have not explained how this provision is narrowly tailored to satisfy this
interest. The Court, therefore, has no information with which it can make the specific findings and
conclusions required to seal.
To the extent that the tendered order seeks to protect documents containing personal
identifiers, Federal Rule of Civil Procedure 52 requires that this information be redacted from
documents filed with the Court, and no additional Protective Order is necessary.
Conclusion
For the reasons provided above, the Court declines to enter the Order at Docket #26 for
failure to comply with the “good cause” requirement of Federal Rule of Civil Procedure 26, but
will enter the Order at Docket #27, as it is limited to information already protected by HIPAA and
does not pre-judge whether documents may be filed under seal.

February 19, 2019
c:

Counsel

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