Feldman's Medical Center Pharmacy, Inc. v. CareFirst, Inc.
Filing
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MEMORANDUM OPINION AND ORDER re: 105 Motion to Seal filed by Feldman's Medical Center Pharmacy, Inc. Signed by Magistrate Judge Susan K. Gauvey on 10/24/11. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FELDMAN’S MEDICAL CENTER
PHARMACY, INC.
Plaintiff
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v.
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CAREFIRST, INC.,
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Defendant.
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CIVIL NO. SKG-10-254
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MEMORANDUM OPINION AND ORDER
Presently pending before the Court is Plaintiff Feldman’s
Medical Center Pharmacy, Inc.’s (“FMCP’s”) Motion for Leave to
File Documents Under Seal.
(ECF No. 105).
FMCP seeks to file
under seal its pending motion for summary judgment (ECF No.
100), the supporting memorandum of law (ECF No. 100-1), the
separate statement of undisputed material facts (ECF No. 100-2),
the declaration of Nurys Puente (ECF No. 101), the declaration
of Anthony Paduano (ECF No. 102), and the declaration of Jarrett
T. Bostwick (ECF No. 104).
In support of its motion, FMCP submits that the Stipulation
and Order Regarding Confidentiality filed with the Circuit Court
for Baltimore County on September 20, 2009 and signed by the
Court on September 22, 2009 (the “Confidentiality Stipulation”)
(ECF No.11) remains in effect despite subsequent removal to this
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Court.
(ECF No. 105, 1).
The Confidentiality Stipulation
provides that,
The Parties shall designate only those documents
containing
the
following
information
as
“CONFIDENTIAL”: (1) trade secrets, for example,
but not limited to, sensitive and confidential
business
information,
including
financial
information
such
as
expenses,
profits,
and
information regarding employees and business
plans;
(2)
information
subject
to
HIPAA,
including medical and demographic information,
which must remain private in order to comply with
HIPAA; and (3) Medical Records as defined by
Maryland Health-Gen. Sec. 4-301.
(ECF No. 11, 1-2).
FMCP further contends that, pursuant to the Confidentiality
Stipulation, Defendant CareFirst, Inc. (“CareFirst”) has
designated as “confidential” a number of documents and
deposition transcripts that FMCP relies upon in its motion for
summary judgment.
(ECF No. 105, 2).
Finally, FMCP asserts the
necessity to disclose to the Court in its filings certain
medical records and other protected health information as
defined in 45 C.F.R. § 160.103, as well as other information
protected by the Health Information Portability and
Accountability Act (“HIPAA”).
(Id.).
Thus, FMCP seeks to file
under seal each of the documents listed above.
CareFirst
consents to FMCP’s filing of its motion for summary judgment and
related documents under seal.
(Id.).
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Although Feldman’s correctly asserts that the parties have
agreed to file material designated as “confidential” under seal,
and that certain information relevant to the underlying case is
protected under HIPAA, review of the documents in question
indicates that they incorporate a great deal of information that
is not protected either under the Confidentiality Stipulation or
otherwise.
For instance, identifying information has already
been redacted from medical records pertaining to individual
patients that have been submitted as exhibits.
101, Ex. A).
See (ECF No.
FMCP does not offer any reason why these documents
should be filed under seal even though they have already been
redacted.
Similarly, FMCP does not address the propriety of
redaction with respect to the memorandum of law submitted in
support of its motion for summary judgment or any of the other
documents at issue, but merely states that “[t]here are no
alternatives to filing under seal.”
(ECF No. 105, 2).
The Court understands that Feldman’s may have considered
itself obligated to move to seal documents that CareFirst had
designated as “confidential” under the stipulation.
While the
Court may sanction extensive confidentiality designations
between the parties in the discovery phase, courts have been
very reluctant to sanction litigation “under cover.”
There is
an acknowledged public interest and thus public right of access
to documents filed in conjunction with a dispositive motion in a
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civil case, such as FMCP’s motion for summary judgment in this
matter.
The Fourth Circuit in Rushford v. The Washington Post
Company held that the First Amendment public right of access
standard, rather than the less rigorous common law standard,
applies to documents filed with the trial court as attachments
to a summary judgment motion in a civil case.
(4th Cir. 1988).
846 F.2d 249, 253
The Rushford Court reasoned that “[o]nce the
documents are made part of a dispositive motion, such as a
summary judgment motion, they lose their status as being ‘raw
fruits of discovery.’”
Id. at 252 (citing In re “Agent Orange”
Product Liability Litigation, 98 F.R.D. 539, 544-45 (E.D.N.Y.
1983) (internal citations omitted).
Following the rule
announced in Rushford, the Fourth Circuit in Virginia Dept. of
State Police unsealed civil pretrial discovery material “that
was later filed (or addressed in filings) in the district
court.”
386 F.3d 567, 576 (4th Cir. 2004).
The Virginia Dept.
of State Police Court noted that the trial court had limited the
order under review “to cover only documents that had been filed,
and [] expressly excluded ‘discovery material that was not part
of the record.’”
Id. at 573 n.1.
Applying the standard set forth in the case law with
respect to sealing of material submitted in conjunction with a
dispositive motion in a civil case, this Court finds that
substantial portions of the material at issue need not be filed
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under seal.
FMCP, however, does not address with any
specificity the need to maintain confidentiality of its motion
for summary judgment and material submitted in support, even
though several of the documents, particularly the declaration of
Jarrett T. Bostwick, include extensive exhibits.
(ECF No. 104).
Accordingly, FMCP and CareFirst shall have until two weeks from
the date of this Memorandum Opinion and Order to justify with
particularity the need for sealing of the individual documents
either seeks to protect.
If FMCP or CareFirst declines to
submit additional briefing by that date, the material at issue
will be unsealed.
Date: 10/24/11
/s/
Susan K. Gauvey
United States Magistrate Judge
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