Saginaw Chippewa Indian Tribe of Michigan et al v. Blue Cross Blue Shield of Michigan

Filing 85

ORDER Directing Defendant to Respond. Set Motion and R&R Deadlines/Hearings as to 80 MOTION for Leave to File Under Seal, Motion for Order that Documents may be filed in the Public Record: (Defendant's Response due by 4/21/2017). Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
SAGINAW CHIPPEWA INDIAN TRIBE
OF MICHIGAN, el al.,
Plaintiffs,
v.

Case No. 16-cv-10317
Honorable Thomas L. Ludington

BLUE CROSS BLUE SHIELD OF MICHIGAN,
Defendant.
_______________________________________/
ORDER DIRECTING DEFENDANT TO RESPOND
On January 29, 2016, Plaintiffs Saginaw Chippewa Indian Tribe of Michigan and the
Welfare Benefit Plan (“Plaintiffs”) brought suit against Blue Cross Blue Shield of Michigan
(“BCBSM”). Plaintiffs’ suit takes issue with BCBSM’s management of Plaintiffs’ “self-insured
employee benefit Plan.” Am. Compl. at 1, ECF No. 7. Specifically, Plaintiffs assert that BCBSM
violated its fiduciary duty under the Employee Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1001, et seq., when it did not authorize payment of Medicare-like Rates for certain
health services and hidden fees (Count I), that BCBSM engaged in prohibited transactions under
ERISA when it charged Plaintiff hidden fees (Count II), and seven state law claims (Count IIIIX). On August 3, 2016, the Court granted Defendant’s motion to dismiss Counts I and III–IX.
ECF No. 22. That order was later amended to reflect that Count I was dismissed only as it related
to Medicare-like rates. ECF No. 29. Now, the parties have filed cross-motions for partial
summary judgment on the remaining claims. ECF Nos. 79, 81. Plaintiffs have simultaneously
filed a motion requesting leave to file documents on the public record. ECF No. 80.
In the motion, Plaintiffs explain that four exhibits to their motion for partial summary
judgment were marked as “confidential” during discovery. Pursuant to the protective order

entered into between the parties, ECF No. 44, documents marked as confidential cannot be filed
on the public record unless the opposing party consents. Alternatively, the party may file the
documents under seal if authorized by the Court.
Plaintiffs wish to file the documents on the public record, but Defendant has not yet
consented to the filing. There is a “strong presumption in favor of openness” regarding court
records. Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983).
“The proponent of sealing therefore must ‘analyze in detail, document by document, the
propriety of secrecy, providing reasons and legal citations.’” Shane Grp., Inc. v. Blue Cross Blue
Shield of Michigan, 825 F.3d 299, 305 (6th Cir. 2016) (quoting Baxter Int’l, Inc. v. Abbott Labs.,
297 F.3d 544, 548 (7th Cir. 2002)).
The protective order creates an unusual dynamic whereby one party wishes to use
documents to support its motion for summary judgment, but can only file them under seal unless
the opposing party consents to public filing. If Defendant does not consent, then Plaintiffs will be
required to seek leave of the Court to file the documents under seal. Thus, although Plaintiff
might be the party nominally seeking leave to file under seal, Defendant is the true “proponent of
sealing,” assuming it opposes the public filing. Id.
For that reason, Defendant will be directed to respond to Plaintiffs’ motion. Defendant
should indicate whether it opposes Plaintiffs’ request to openly file the documents. If it does,
Defendant must then bear its burden of analyzing “in detail, document by document, the
propriety of secrecy, providing reasons and legal citations.”
Accordingly, it is ORDERED that Defendant is DIRECTED to respond to Plaintiffs’
motion for leave to file, ECF No. 80, on or before April 21, 2017.

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Dated: April 13, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on April 13, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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