June Medical Services LLC et al v. Gee et al

Filing 396

ORDER: The rulings set forth herein shall govern the unsealing, sealing, and redaction of the 177 Disputed Documents pending further order of this Court. Within 14 days of the date of this Order, the Plaintiffs shall submit a Memorandum setting fo rth their argument and evidence supporting their position that the Dr. Does should be allowed to proceed under pseudonyms, consistent with the standard established by the Circuit. Defendants shall file an opposition, if any, within 10 days An Ev identiary Hearing is set for 2/22/2022 at 09:30 AM in Courtroom 2, to determine what basis, if any, exists to allow the Dr. Does to continue these proceedings under pseudonyms. No post hearing pleadings will be permitted. Pending further order of this Court, the Pseudonym Order remains in full force and effect. Parties shall file the redacted documents as outlined herein within 14 days of the issuance of this Order. Signed by Judge Brian A. Jackson on 2/7/2022. (LLH)

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 1 of 24

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUNE MEDICAL SERVICES, CIVIL ACTION
LLC, ET AL.

VERSUS
REBEKAH GEE, ET AL. NO. 16-00444-BAJ-RLB

ORDER
On January 7, 2022, the United States Court of Appeals for the Fifth Circuit
remanded this matter to this Court with instructions that it re-evaluate its prior
sealing Orders that adopted the Agreement of the parties, and to do so by the
standards established by the Circuit, as clarified in its January 7 Opinion. (Doc. 386).
On January 13, 2022, this Court ordered the parties to file a
Joint Memorandum addressing all disputed sealing issues in this matter, relying
solely on the guidance set forth in the Fifth Circuit's January 7 Opinion. (Doc. 387).
The Court required the parties to meet and confer in good faith to determine which
documents: (1) should be unsealed; (2) should be unsealed subject to redaction;
(3) should remain sealed; and (4) remain subject to disagreement. (Id,).
On January 21, 2022, the parties filed their Joint Memorandum in compliance
with the Court's Order. (Doc. 390). Of the 177 documents originally in dispute (the
177 Disputed Documents"), the parties now stipulate that 150 documents should be
unsealed in their entirety; that two documents should remain under seal; and that
two additional documents should be unsealed subject to redaction. (Id.). This leaves

1

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 2 of 24

only 23 documents actually in dispute following the Circuit s remand. (Id.). The Court
will address each category of documents in turn.

I. BACKGROUND
This case arises out of a challenge to seven Louisiana laws that regulate
abortion procedures. (Doc. 88). At the outset of this matter, the Court granted the
three Doctor-Plaintiffs Motion to proceed under pseudonyms. (Doc. 8; Doc. 12, the

"Pseudonym Order"). The Court also granted the parties' Joint Motions for Stipulated
Protective Orders and entered Protective Orders regarding the handling of
confidential and sensitive documents. (Doc. 95; Doc. 96; Doc. 149; Doc. 154;

Doc. 157; Doc. 158). In their Joint Motions, the parties expressly agreed that the real
names of the Dr. Does "shall be placed under seal. (Doc. 96, p. 4).
Despite the parties purported Agreements, and for reasons not entirely clear
to the Court, the Defendants have breached their agreement and continue to dispute

which documents should be filed under seal and whether the Pseudonym Order
should continue to apply. As a result, a dispute has arisen regarding which documents
should be filed on the open record, under seal, or with redactions. These disputes have
demanded an inordinate amount of time, attention, and resources from the parties
and the Court, particularly in liglit of the parties prior agreements. Moreover, they

have resulted in multiple orders addressing sealing issues, including (most recently)
this Court s November 30, 2020 Ruling and Order granting in part Defendants
motions to reconsider prior sealing orders entered by the Magistrate Judge. (Doc. 347,
the "November 30 Order").

2

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 3 of 24

On appeal, the Fifth Circuit vacated the Court s November 30 Order and issued
a limited remand directing the Court to evaluate its prior Rulings under the legal
standard the Circuit further clarified in its January 7 Opinion. (Doc. 386, p. 14).
In accordance with the January 7 Opinion, the Court has since conducted a
comprehensive (<(document"by"document, line-by-line balancing of tlie public's
common law right of access against the interests favoring nondisclosureQ"' and has

identified the proper status of each document at issue. (Id.).

II. DISCUSSION
A. Documents to be Unsealed Per Stipulation of Parties
Relying on the Fifth Circuit s January 7 Opinion, the parties stipulate that the
following 150 documents should be unsealed. (Doc. 390, p. lm6). Accordingly, the

Court orders that the documents listed below shall be UNSEALED.

Documents to Be Unsealed
Document Title

Document Number
201-1

Defs/ Mem. ISO Motion

201-2

Hearing Transcript

201-3

Grand- Jury Report

201-4

LSBME Consent Judgment

201-5

LSBME FOFs

201-6

Arrest Report

201-7

LSBME Discipline History

247-11

Email Correspondence

247-12

Email Correspondence

247-13

Email Correspondence

247-14

Email Correspondence

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 4 of 24

Documents to Be Unsealed
Document Title

Document Number
247-15

Email Correspondence

247-16

Email Correspondence

247-17

Email Correspondence

247-18

Email Correspondence

247-19

LSBME Suspension

247-3

Email Correspondence

247-5

Email Correspondence

247-6

Email Correspondence

247-7

Email Correspondence

247-8

Email Correspondence

270-10

Deficiencies Report

270-11

Email Correspondence

270-12

Email Correspondence

270-13

Email Correspondence

270-14

Email Correspondence

270-15

Email Correspondence

270-16

Email Correspondence

270-17

Email Correspondence

270-18

cv

270-19

Informed Consent Form

270-20

Informed Consent Form

270-21

Informed Consent Form

270-22

Bossier Printout

270-24

Deficiencies Report

270-28

Obituary

270-29

LSBME License Verification

270-3

Defs/ Motion

4

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 5 of 24

Documents to Be Unsealed
Document Title

Document Number
270-30

LSBME License Verification

270-31

Book Listing

270-32

Book Listing

270-33

Rolling Stone Article

270-34

Clinic Web site

270-35

Google Search

270-36

Medical Students for Choice article

270-37

FOX News Article

270-38

Nola.com Article

270-39

DailyWorld.com Article

270-4

Defs/ Memo ISO Motion (Confidential Version)

270-42

Corporate Registration

270-43

Order

270-44

Complaint

270-45

Complaint

270-46

Complaint

270-47

Complaint

270-5

Defs.' Memo ISO Motion (Redacted/((Public" Version)

270-55

Declaration

270-56

Corporate Registration

270-57

Christian Science Monitor Article

270-58

Press Release

270-59

Press Release

270-6

Proposed Order

270-60

New York Times Op-Ed

270-61

Google Search

270-7

Declaration

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 6 of 24

Documents to Be Unsealed
Document Title

Document Number
271-10

Email Correspondence

271-11

Email Correspondence

271-3

Cover Motion

271-4

Defs/ Memo ISO Renewed Motion (Confidential Version)

271-5

Defs/ Memo ISO Renewed Motion (Redacted/Tublic"
Version)

271-6

Proposed Order

271-7

Declaration

271-8

Order

271-9

Christian Science Monitor Article

272-10

Corporate Registration

272-11

Corporate Registration

272-12

Corporate Registration

272-13

Order

272-14

Motion

272-15

Motion

272-16

Grand Jury Testimony

272-17

Pennsylvania Board of Medicine Order

272-18

Pennsylvania Board of Medicine Order

272-19

Pennsylvania Board of Medicine Public Order and
Qonsent Agreement

272-20

Grand Jury Findings & Order

272-22

LSBME Meeting Minutes

272-23

The News Journal Article

272-24

USA Today Article

272-25

Delaware Board of Medicine Order

272-26

Delaware Board of Medicine Order

272-27

Delaware Board of Medicine Consent Agreement

6

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 7 of 24

Documents to Be Unsealed
Document Title

Document Number
272-29

LSBME Termination, of Probation & Reinstatement of
License

272-30

LSBME Consent Order

272-31

LSBME Suspension of License

272-32

LSBME Order

272-33

LSBME Interim Consent Order

272-34

LSBME Order for Reinstatement of Medical License

272-35

LSBME Notice for Summary Suspension of Medical
License

272-36

LSBME Consent Order

272-37

The Advocate Article

272-39

LSBME Consent Order

272-4

Declaration

272-40

LSBME Opinion & Ruling

272-41

LSBME License Verification

272-42

LSBME Consent Order

272-43

Subpoena

272-44

Subpoena

272-45

Order

272-46

Women's Health Care Center letter

272-48

Service Affidavit

272-49

Journal of Medical Regulation Study

272-5

Corporate Registration

272-52

Deficiencies Report

272-53

New York Times Article

272-54

Book Chapter

272-6

Corporate Registration

272-7

Corporate Registration

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 8 of 24

Documents to Be Unsealed
Document Title

Document Number
272-8

Corporate Registration

272-9

Corporate Registration

273-1

Pis/Opp. to Motion

273-4

Declaration

277-3

Defs/ Reply ISO Motion

277-4

Declaration

277-5

Email Correspondence

277-6

Email Correspondence

277-7

Licensing Verification

289-10

The Advocate Article

289-11

The Advocate Article

289-12

DailyWorld.com Article

289-13

Deposition Transcript Excerpt

289-15

LSBME Consent Order

289-16

Journal of Medical Regulation Study

289-17

Subpoena

289-3

Defs/ Opp. to Third-Party Motion to Quash

(Confidential Version)
289-4

Defs/ Opp. to Third-Party Motion to Quash (Public
Version)

289-5

Declaration

289-6

Service Affidavit

289-7

Google Search

289-8

Medical Students for Choice Article

289-9

FOX News Article

297-3

Declaration

298-3

Response to Pro Forma Motion to File Under Seal

298-4

Declaration

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 9 of 24

Documents to Be Unsealed
Document Title

Document Number
300-2

Memorandum in Reply to Defs. Opp.

300-3

Order

303-3

Defs. Consolidated Opp. to Third-Party Physicians
Motion

303-4

Declaration

303-5

Clinic website

272-42

LSBME Consent Order

B. Documents to be Unsealed Subject to Redaction Per
Stipulation of Parties
The parties further stipulate that the following two documents should be
unsealed subject to redaction. (Doc. 390, p. 7).

Documents to Be Unsealed Subject to Redaction
Document Title

Document Number
247-4
272-51

Email Correspondence

Deposition Transcript Excerpt

The Court has reviewed the parties' proposed redactions, which would protect
three non-party doctors names and the address of a Federal Rule of Civil Procedure
30(b)(6) corporate representative. (Doc. 390-l-~Doc. 390-2). These proposed redactions
are de minimus. Moreover, the underlying documents are not public records.
Additionally, with respect to the issue of the corporate representative's address, the

Circuit directed the Court to consider the option to unseal the testimony with
appropriate redactions." (Doc. 386, p. 14).

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 10 of 24

Noting the presumption in favor of access, the Court finds that the parties'
stipulated redactions are minimal and appropriate. A layperson can understand the
documents even with the redaction of the few words proposed by the parties. Indeed,

a Rule 30(b)(6) corporate representative's address is irrelevant to the litigation and
adds no value to the deposition testimony. Accordingly, the Court orders the

above-referenced documents be UNSEALED SUBJECT TO REDACTION
consistent with the parties' stipulation. (Doc. 247-4; Doc. 272-51).

C. Documents to Remain Sealed Per Stipulation of Parties
The parties further stipulate that the following two documents should remain
sealed. (Doc. 390, p. 7).

Documents to Remain Sealed
Document Title

Document Number
273-3

Incident Investigation Report

289-14

Incident Investigation Report

These documents are two copies of the same preliminary Incident Investigation

Report. The Incident Investigation Report appears to contain a preliminary intake
form of alleged concerns regarding an abortion provider. Given the sensitive nature

of these documents, and the parties' stipulation that they should remain sealed, the
Court hereby orders that the above-referenced documents shall remain UNDER

SEAL. (Doc. 273-3; Doc. 289-14).
D. Disputed Documents
A total of 23 documents remain in dispute. (Doc. 390, p. 7~16). Plaintiffs argue
that each of these documents should be unsealed subject to redactions. (Id.).

10

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 11 of 24

Defendants contend that many of these documents should be unsealed in full and
they oppose Plaintiffs' proposed redactions. The Court will address eacli disputed
document in turn.
i. Pseudonym Order

First, the parties dispute whether the Court should permit the continued use
of pseudonyms for the Dr. Does. (Doc. 390). Plaintiffs assert that the Dr. Does have
experienced harassment, intimidation, and physical and verbal threats of violence,

and seek to protect their identities because they fear that they and their families
will be subjected to heightened acts of harassment, intimidation, and violence, as well
as retaliation in their professional practices, if their identities are made public in
connection with this litigation. (Id. at p. 16). Notably, the original Pseudonym Order
was supported by Declarations proffered by the Dr. Does in June 2016, submitted in
support of the Dr. Does' original request to proceed under pseudonyms. {See Docs. 8-4,
8-5, 8-6).

Defendants respond that the continued use of pseudonyms, or the
accompanying redaction of the doctors' names, is inappropriate. (Doc. 390, p. 10).

Defendants argue that Dr. Doe 2 testified that you can find out from the Internet
that [he performs] abortions." (Id.), Defendants note that Dr. Doe 2 has litigated
abortion cases in his own name and has given media interviews identifying himself
as an abortion provider. (Id.).

In relevant part, the Circuits January 7 Opinion provides the following
guidance regarding the Dr. Does continued use of pseudonyms:

11

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 12 of 24

The party doctors' request for anonymity is itself an unusual practice.
Abortion providers regularly litigate under their own names. See, e.g.,
Planned Parenthood of Wis., Inc. v. Kaul, 384 F. Supp. 3d 982, 984

(W.D. Wis. 2019), affd, 942 F.3d 793 (7th Cir. 2019) (involving a case
brought by Dr. Kathy King, Natalee Hartwig, Sara Beringer, and
Kafcherine Melde, on behalf of themselves and their patients);
Little Rock Fam. Plan, Servs. v. Eutledge, 397 F. Supp. 3d 1213, 1220

(E.D. Ark. 2019) (granting preliminary injunction to Dr. Thomas
Tvedten, on behalf of himself and his patients), affd, 984 F.3d 682
(8th Cii\ 2021), petition for cert. filed, No. 20-1434 (U.S. Apr. 13, 2021);
Robinson v. Marshall, 415 F. Supp. 3d 1053, 1055 (M.D. Ala. 2019)
(granting injunction to Dr. Yashica Robinson, on behalf of her patients);
Whole Woman's Health v. Paxton, No. 17-CV-690, 2017 WL 11606683,
at *lm2 (W.D. Tex. Aug. 15, 2017) (denying pseudonym request and

noting that "[w]hat transpires in. the courtroom is public property"
(alteration in original) (quoting Doe v. Stegall, 653 F.2d 180, 185 (5th
Cir. 1981))). They also—as licensed professionals—operate under their
own names and are often already known or knowable by other means.

For example, Doe 2 acknowledged in his deposition that you can find
out from the internet that [he provides] abortions and he has submitted
public declarations in past abortion litigation.
Furthermore, this court does not usually allow parties to proceed
anonymously based on generalized concerns. For example, we affirmed
this district court's denial of a police officer's request to proceed as an
anonymous plaintiff. See Doe v. Mckesson, 945 F.3d 818, 835 n.12

(5th Cii\ 2019), vacated on other grounds, 141 S. Ct. 48 (2020). That
officer argued that "the public nature of his job putQ him and his family
in danger of additional violence, and he listed examples of acts of
violence perpetrated against police officers for political reasons. Id. That
was not enough. We approved of the district court s rejection of that

argument because "the incidents Officer Doe listed did not involve
Officer Doe and were not related to this lawsuit." Id. Indeed, "Officer

Doe conceded that he had received no particularized threats of violence
since filing his lawsuit." Id.
(Doc. 386, p. 11-12).

While the Court appreciates the Fifth Circuits resolve to have this matter
reviewed within 30 days, and having endeavored diligently to fulfill its limited
mandate (with the parties' assistance), this Court concludes that the interests of

12

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 13 of 24

justice and fairness to both parties demand additional evidentiary development to
determine whether the Dr. Does may establish the sort of particularized concerns

justifying continued use of pseudonyms, as noted by the Circuit. In making this
determination, the Court notes that two of the three Dr. Does' original June 2016

declarations—which provided the evidentiary basis for this Courts original
Pseudonym Order—set forth accounts of physical and verbal threats related to their
work performing abortions, including threats that resulted in the involvement of the
police and the FBI. (See Doc. 8-6, UK 3-4; see also Doc. 8-5, K 3). The Court further

notes that in support of their original July 2016 request for anonymity, the Dr. Does
cited multiple authorities from within this Circuit showing that "courts, including in
this District, routinely enter protective orders to safeguard the identities of such
individuals who fear for their safety and well-being. (Doc. 8-2, p. 5).1 By contrast, the

Circuit s January 7 Opinion cites exclusively to authorities that post-date the Dr.
Does original motion.
Accordingly, the Court will enter an expedited briefing schedule and set an
evidentiary hearing to allow the Dr. Does an opportunity to set forth evidence of

1 Specifically, the Dr. Does cited the following authorities: Roe v. Wade, 410 U.S. 113 (1973);
Doe v. Bolton, 410 U.S. 179 (1973); June Med. Servs. v. Ca-ldwell, No. 14-cv-525

(M.D. La. Aug. 28, 2014) (ECF No. 24); Jackson Women's Health Org. v. Currier,
No. 12-CV-436 (S.D. Miss. May 22, 2013) (ECF No. 98); Hope Med. Grp. for Women v.
Caldwell, No. lO-cv-0511 (M.D. La. Aug. 9, 2010) (ECF No. 9); K.P., M.D. v. LeBlanc,
No. 07-CV-0879 (M.D. La. Jan. 7, 2008) (ECF No. 24); Choice, Inc. of Tex. v. Graham,

226 F.R.D. 545 (E.D. La. 2005) (granting plaintiff s motion to proceed pseudonymously when
raising the right to choose and seek abortion services, a quintessentially private matter,
and noting that plaintiffs, "by filing suit, made revelations about their personal beliefs and
practices which may invite a hostile reaction from the public."); VictoriaW. v. La-rpenter,
No. 00-1960, 2001 WL 406334 (E.D. La. Apr. 17, 2001); Sojourner v. Roemer,
772 F. Supp. 930 (E.D. La. 1991), aff'd, 974 F.2d 27 (5th dr. 1992).

13

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 14 of 24

particularized concerns sufficient to justify the continued use of pseudonyms in this
matter. Until such time, the Court will withhold issuing a ruling on the continued
applicability of the Pseudonym Order, and the current anonymity of the Dr. Does
shall remain pending further orders of the Court.2

ii. Public Records
1. Deficiencies Reports
Plaintiffs propose redactions to deficiencies reports. (Doc. 247-10; Doc. 270-9;
Doc. 270-25; Doc. 272-38; Doc. 390, p. 8-9, 11). Plaintiffs contend that patient

identifying information should be redacted because the interest in protecting patient
privacy outweighs any "purported" right of access to this information. (Doc. 390,

p. 8m9; 11). Defendants respond that these documents should be unsealed in their
entirety because they are public records. {Id.),

The Court has reviewed Plaintiffs proposed redactions. (Doc. 392-2;
Doe. 393-1; Doc. 393-2; Doc. 394-6). Plaintiffs propose redaction of patients dates of
births, administrators' signatures, and the number of Cesarean Section procedures

performed on such patients. While the redactions are minimal, the Fifth Circuit
ordered that the Court "shall not seal or order redaction of any publicly available
documents or information. (Doc. 386, p. 13). Because the deficiencies reports are

publicly available, and despite the sensitive nature of the information in the reports,

2 In many of the disputed documents, the parties contest both the continued applicability of
the Pseudonym Order as well as other issues, such as redaction of patient identifying
information, signatures, and "highly sensitive" information. To follow, the Court will address
all disputed redaction issues. To be clear, however, until further order of the Court, the
Dr. Does shall remain anonymous. Thus, regardless of the Court's ultimate determination
regarding redaction issues, all documents shall, for now, retain the Dr. Does pseudonyms.

14

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 15 of 24

the reports shall be unsealed in their entirety. (Doc. 247-10; Doc. 270-9; Doc. 270-25;
Doc. 272-38).
2. Licensing Documents

For the same reason, the checklist for initial licensing and licensing
application—which are also public records—shall be unsealed in their entirety.3
(Doc. 270-40; Doc. 270-41).4

3. Judicial Records
Plaintiffs propose redaction of patient identifying information and "highly
sensitive information regarding Dr. Doe 5 in a Motion for Summary Judgment,

3 The Court notes that Plaintiffs also propose redactions to signatures contained in these
documents. The Court addresses this next. See infra, Section U(D)(iu).
4 Plaintiffs propose redaction of Dr. Doe 5s home address, personal phone number, personal

email address, and signature. (Doc. 390, p. 9). While the Court appreciates Plaintiffs' concern
that disclosure of this information will increase the risk of severe harassment and violence
in connection with this litigation, the Fifth Circuit has mandated that the Court shall not
order redaction of publicly available documents. (Doc. 386, p. 13).
Plaintiffs also seek to redact an Employer Identification Number. (Doc. 394-1, p. 21).
Defendants agree that redaction of the Employer IdentifLcation Number appears to be
appropriate pursuant to Federal Rule of Civil Procedure 5.2. (Doc. 390, p. 9). Rule 5.2
provides:

(a) Redacted- Filings. Unless the court orders otherwise, in an electronic or
paper filing with the court that contains an individual's social-security
number, taxpayer-identification number, or birth date, the name of an
individual known to be a minor, or a financial-account number, a party or

nonparty making the filing may include only:
(1) the last four digits of the social-security number and taxpayeridentification number;

(2) the year of the individual's birth;
(3) the minor's initials; and
(4) the last four digits of the financial-account number.
Here, however, the Circuit has "order[ed] otherwise. (Doc. 386, p. 13 (On remand,

the district court shall not seal or order redaction of any publicly available documents or
information.")). Accordingly, the checklist for initial licensing and licensing application shall
be unsealed in their entirety, as mandated by the Circuit. (Doe. 270-40; Doc. 270-41).

15

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 16 of 24

petitions, and expert report filed in other courts. (Doc. 270-23; Doc. 270-26;
Doc. 270-53; Doc. 270-27; Doc. 303-6; Doc. 390, p. 11, 13-14). The Fifth Circuit has
held: "Judicial records are public records. And public records, by definition, presume

public access." Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 416 (5th Cir. 2021).
Indeed, the Circuit emphasized in its January 7 Order that |J]udicial records belong
to the American people; they are public, not private, documents. (Doc. 386, p. 10

(citing Binh Hoa Le, 990 F.3d at 417)). Because judicial records are public records,
and the Fifth Circuit has ordered that the Court shall not order redaction of same,
the Court cannot permit Plaintiffs' proposed redactions.5

iii. Signatures
Plaintiffs propose redaction of signatures in several documents, citing fraud

and forgery concerns. (Doc. 390). The Fifth Circuit has repeatedly emphasized the
public s right of access to judicial records, particularly in cases involving matters of
particular public interest, such as the instant case. (Doc. 386, p. 11). Fraud and
forgery concerns, standing alone, do not outweigh the public s interest in transparent

court proceedings. (Id. C'[\V]e heavily disfavor sealing information placed in the
judicial record. )). Accordingly, the Court will not permit redaction of signatures.
(Doc. 270-40; Doc. 270-41; Doc. 270-23; Doc. 270-51; Doc. 303-6; Doc. 270-53).

iv. Deposition Transcripts
Plaintiffs propose redactions to deposition transcripts. (Doc. 247-9; Doc. 270-8;
Doc. 272-21; Doc. 272-50). The Court will address each deposition transcript in turn.

5 The Court notes that Plaintiffs also propose redactions to signatures contained in these
documents. The Court addresses this next. See infra., Section II(D)(iu).

16

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 17 of 24

1. Deposition Transcript of Dr. Doe 2
Plaintiffs propose redaction of the following categories of information in two
identical deposition transcripts: (a) names of Dr. Does; (b) sensitive information
regarding malpractice coverage; (c) sensitive patient identifying information;
(d) names of non-public staff; and (e) "other highly sensitive information that could
be used to identify Dr. Doe 2:' (Doc. 390, p. 7; Doc. 247-9; Doc. 270-8). The Court has
reviewed Plaintiffs proposed redactions. The Court s analysis and conclusions now
follow.6

First, Plaintiffs propose redaction of information regarding the home states of
abortion providers who attended a particular meeting. (Doc. 247-9 and Doc. 270-8,

101:9-11 (discussing a meeting attended by abortion providers in Georgia, Alabama,
Mississippi, and Louisiana)). The Court sees no reason to redact this information,
particularly considering the strong presumption in favor of access. (Doc. 247-9 and
Doc. 270-8, 101:9-11; Doc. 386, p. 13). The Court will not permit these redactions.
(Doc. 247-9 and Doc. 270-8, 101:9-11).

Second, Plaintiffs propose redaction of information regarding medical
malpractice insurance. (Doc. 247-9 and Doc. 270-8, 58:7-25; 59:1-2; Doc. 390, p. 7).
Defendants argue that they do not understand the basis for redaction here," and note
that Plaintiffs elsewhere concede the name of Dr. Doe 2's partner "forty years ago."
(Doc. 390, p. 7). Similarly, the Court sees no reason to redact this information,

6 Plaintiffs' proposed redactions in the index of the deposition transcript are subject to the
same disposition as the testimony each term accompanies.

17

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 18 of 24

particularly considering the strong presumption in favor of access. The Court will not
permit these redactions.

Third, Plaintiffs propose redaction of patients names used in relation to
lawsuits filed in other courts. (Doc. 247-9 and Doc. 270-8, 141:23, 142:6-9, 323:13,

324:4, 14; 337:15-16, 339:3, 339:23-24, 340:8-9). Because judicial records are public
records, and the Fifth Circuit has ordered that the Court shall not order redaction of
publicly available documents, the Court will not permit these redactions.
(Doc. 386, p. 13); Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 416 (5th Cu\ 2021).
Fourth, Plaintiffs propose redaction of "highly sensitive information" regarding
Dr. Doe 2. (Doc. 247-9 and Doc. 270-8, 345:16-25, p. 346:2-25, 347:1-15, 348:19,
350:18-25, 351:1-22). This information, however, is related to a public lawsuit.
Accordingly, for the same reason, the Court will not permit these redactions.7
(SeeDoc, 386, p. 13).

Fifth, Plaintiffs propose redaction of the names ofnon-public staff. (Doc. 247-9
and Doc. 270-8, 120:13-14, 20; 121:2, 11; 159:10-20, 203:21, 311:19). Defendants
elsewhere do not object to the redaction of employees' names that are not publicly
associated with the abortion provider. (Doc. 390, p. 11). Accordingly, the Court will
permit these redactions to remain.

Sixth, Plaintiffs propose redaction of the number of previous Cesarean Section
procedures performed on patients. (Doc. 247-9 and Doc. 270-8, 307:16, 309:14, 320:4).

7 For the same reasons, the Court will not permit redactions of the deposition transcript
excerpts. (Doc. 272-21, p. 346:2-25, 347:1-15).

18

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 19 of 24

Defendants rightly point out, however, that this information is public record.
(Doc. 390, p. 8). Indeed, the Court has already unsealed this information elsewhere.

(See Doc. 247-10; see also discussion accompanying Section II(D)(ii)(l)). Accordingly,
the Court will not permit these redactions. (Doc. 247-9 and Doc. 270-8, 307:16,

309:14).
Finally, Plaintiffs specifically propose redaction of information regarding one
patient that is not involved in this case (or any other lawsuit), including the patient's
name and place of residence. (Doc. 247-9 and Doc. 270-8, 332:9-10, 333:3, 333:13,

333:23, 334:6, 336:14). The particular patient at issue is a minor whose identity is not
otherwise publicly known in any judicial proceeding. Accordingly, consistent with
long-standing judicial policy to shield medical information of minors from the public
record, the Court will permit these redactions. (Doc. 247-9 and Doc. 270-8, 332:9-10,

333:3, 333:13, 333:23, 334:6, 336:14); Bradley on behalf of AJWv.Ackal, 954 F.3d 216,
229 (5th Cii\ 2020) (citing Fed. R. Civ. P. 5.2 (stating only the initials of a person
"known to be a minor may be provided in court filings); Globe Newspaper Co. v.

Superior Court for Norfolk Cty., 457 U.S. 596, 607 (1982) (holding, in the
First Amendment context, that safeguarding the physical and psychological wellbeing of a minor who is a sex crime victim in a criminal case is a "compelling"

interest)).
2. Deposition Transcript of Michael Rothrock
Plaintiffs propose redaction of the name of a non-party physician who provides
counseling at June Medical Services, arguing that disclosure could subject this

19

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 20 of 24

physician to harassment, intimidation, retaliation, and violence. (Doc. 272-50;
Doc. 390, p. 11; Doc. 394-7). Defendants do not object to the redaction of an employee

not publicly associated with June Medical. (Doc. 390, p. 11). Accordingly, the Court
will permit this redaction. (Doc. 272-50, p. 57:18; 57:20m21; 57:25).
v. Conclusion Regarding Disputed Documents
Following a comprehensive "'document-by-document, (line-by-line) balancing
of 'the public's common law right of access against the interests favoring

nondisclosure[,]'" the Court finds the following.

Applicability
of Pseudonym

Document

Number

Document

Title

Permitted
Redactions

Order
Reason

Disputed?

Names ofnon-

party employees of
abortion providers,

p. 120:13-14, 20;

121:2, 11;
Deposition
247-9

Transcript

159:10m20, 203:21, Agreement
af parties
311:19

Yes

Patient name of

minor unrelated to Patient

Identifying

lawsuit,

information

p. 332:9-10, 333:3, of minor,

247-9
247-10

Deposition
Transcript
Deficiencies
Report
Deposition

270-8

Transcript

333:13, 333:23,

not public

334:6, 336:14

record

Yes

Public
None8

record

Name ofnon-party Agreement
of parties
employees of

No
Yes

8 A notation of none indicates that no redactions shall be permitted other than redactions
pertaining to the Pseudonym Order. For the reasons stated, herein, the Court defers ruling
on the redaction of the Dr. Does' names at this time.

20

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 21 of 24

Applicability
Document

Number

Document

Title

Permitted
Reductions

of Pseudonym
Order
Reason

Disputed?

abortion provider,
p. 120:13-14,20;

121:2, 11;
159:10-20,203:21,

311:19
Patient name of

minor unrelated to Patient

identifying

lawsuit,

information

p. 332:9-10, 333:3, of minor,

333:13, 333:23,
334:6, 336:14

270-8

Deposition
Transcript

270-9

Deficiencies
Report

None

270-25

Deficiencies
Report

None

Licensing

record

Yes

No

Public
record

No

Public
record

None

No

Public

Licensing
270-41

record

Public

Checklist for
Initial
270-40

not public

Application

None

record

No

Operation
Rescue search

N/A, pending
disposition of
Pseudonym Order9

N/A

Yes

270-54

Google search

N/A, pending
disposition of
Pseudonym Order

N/A

Yes

272-21

Deposition
Transcript
Excerpt

None

272-38

Deficiencies
Report

272-50

Deposition
Transcript
Excerpt

270-50

Public
record

Yes

Public
None

record

No

Name of non-party

Bmployee of
abortion provider,

A-greement

57:18; 57:20-21;

3f parties

Yes

9 The notation "N/A, pending disposition of Pseudonym Order indicates that the continued
applicability of the Pseudonym Order is the only disputed, issue related to this document.

21

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 22 of 24

Applicability
of Pseudonym

Document

Number

Document

Title

Permitted
Redactions

Order
Reason

Disputed?

57:25
Public

303-6

Expert Report

None

record

Public

272-3

Defs/ Opp. to
BrinMeys Mot.
to Quash
None

272-47

Notice of
Subpoena

record

No

Pseudonym Order

N/A

Yes

N/A

Yes

N/A, pending
disposition of

270-49

Article

N/A, pending
disposition of
Pseudonym Order

270-23

IVTotion for
Summary
Judgment

None

Public
record

IVCedical
Petition

Yes

Public

Malpractice
270-26

Yes

None

record

IVTedical

Yes

Public

M-alpractice

270-27

Petition

None

record

Yes

270-51

Declaration

None

Signatures

Yes

270-53

Petition

None

record

Yes

270-52

Article

N/A, pending
disposition of
Pseudonym Order

N/A

Yes

270-48

Declaration of
Records
Custodian

N/A, pending
disposition of
Pseudonym Order

N/A

Yes

Public

22

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 23 of 24

III. CONCLUSION
Accordingly,
IT IS ORDERED that the rulings set forth herein shall govern the unsealing,
sealing, and redaction of the 177 Disputed Documents pending further order of this
Court.

IT IS FURTHER ORDERED that within 14 days of the date of this Order,
the Plaintiffs shall submit a Memorandum setting forth their argument and evidence
supporting their position that the Dr. Does should be allowed to proceed under
pseudonyms, consistent with the standard established by the Circuit. Defendants
shall file an opposition, if any, within 10 days of the date Plaintiffs file their initial
Memorandum. No reply briefs will be permitted.
IT IS FURTHER ORDERED that an evidentiary hearing is set for Tuesday,
March 22, 2022, at 9:30 AM. in Courtroom 2, to determine what basis, if any, exists
to allow the Dr. Does to continue these proceedings under pseudonyms.10 No post

hearing pleadings will be permitted.

IT IS FURTHER ORDERED that pending further order of this Court, the
Pseudonym Order remains in full force and effect.

10 The Court notes that this is its first available opportunity to hold a civil evidentiary hearing
due to a criminal jury trial which must proceed as scheduled due to the mandates of the
Speedy Trial Act.

23

Case 3:16-cv-00444-BAJ-RLB

Document 396

02/07/22 Page 24 of 24

IT IS FURTHER ORDERED that the parties shall file the redacted
documents as outlined herein within 14 days of the issuance of this Order.

Baton Rouge, Louisiana, this

^

"?4 day of February, 2022

JUDGE BRIAN A. JACKSON

UNITED STATES fff^TRICT COURT
MIDDLE DISTRICT OF LOUISIANA

24