Feinwachs, et al. v. HealthPartners, Inc., et al.

Filing 187

ORDER granting in part and denying in part 145 Motion for Further Consideration of Sealing and granting 157 Motion for Further Consideration of Sealing. Permanent Sealing GRANTED for Document Number(s): 115, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 131, 135, 136, 146, 148, 149, 150, 162, 163, 164, 165, 168, 169, 170, 171Permanent Sealing DENIED for Document Number(s): 137, 152, 153. Order on continued sealing becomes final on 3/7/2018 unless further timely submissions are filed.(Written Opinion) Signed by Magistrate Judge Steven E. Rau on 2/13/2018. (BDB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
______________________________________________________________________________
David Feinwachs,
Individually, and as Relator for United States
of America,
Plaintiffs,

Case No. 11-cv-8 (JRT/SER)

ORDER

v.
Minnesota Hospital Association and MCCA,

Defendants.

Brian E. Wojtalewicz, Esq., Wojtalewicz Law Firm, Ltd., Appleton, Minnesota, for
Plaintiff.
Elizabeth S. Gerling and Lee A. Lastovich, Esqs., Jackson Lewis P.C., Minneapolis,
Minnesota, for Defendants.

STEVEN E. RAU, United States Magistrate Judge
This matter comes before the undersigned on Plaintiff David Feinwachs’s (“Feinwachs”)
and Defendants Minnesota Hospital Association (“MHA”) and MCCA’s, a subsidiary of MHA
(collectively, “Defendants”), cross-motions for Further Consideration of Sealing [Doc. Nos. 145,
157]. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 and District of
Minnesota Local Rule 72.1. For the reasons stated below, the Court grants Defendants’ Motion
for Further Consideration of Sealing, and grants in part and denies in part Feinwachs’s Motion
for Further Consideration of Sealing.
I.

BACKGROUND
The underlying litigation involves Feinwachs’s allegations that he was improperly

terminated from his job as general counsel for Defendants. See generally (Third Am. Compl.)

[Doc. No. 43]. Currently before the Court are the parties’ motions regarding the continued
sealing of documents [Doc. Nos. 115, 118–127, 131, 135–137] originally filed under seal. In
support of continued sealing, the parties also filed additional documents under seal which the
Court reviews for continued sealing when analyzing the parties’ respective motions. See [Doc.
Nos. 146, 148–150, 152–153, 162–165, 168–171].
As required under the Local Rules, the parties first submitted a Joint Motion Regarding
Continued Sealing (“Joint Motion”) [Doc. No. 142]. Of the identified documents, the parties
agreed that Brunner deposition excerpts [Doc. No. 137] should not remain sealed. 1 See (Joint
Mot. at 13–14). The parties could not agree on the remaining documents. (Id. at 1–13). The
Court denied the parties’ Joint Motion. (Text Only Order Dated June 27, 2017) [Doc. No. 143].
The parties filed their respective Motions for Further Consideration of Sealing thereafter. (Pl.’s
Motion for Further Consideration of Sealing); (Defs.’ Motion for Further Consideration of
Sealing).
With respect to Feinwachs’s Motion for Further Consideration of Sealing, Feinwachs
asserts that his medical information should not be disclosed because he is asserting “‘garden
variety’ emotional distress damages” as a result of “being fired from a 29-year career” and has
not put his medical condition at issue because he “did not seek treatment for the emotional
distress, and will not be calling an expert witness on the subject.” (Pl.’s Mem. for Mot. for
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The parties Joint Motion is not a model of clarity. For example, with respect to the
Brunner deposition experts, the parties indicate that they agree that the document should not be
sealed, but Defendants provide “reasons why document should remain sealed” while Feinwachs
provides “reasons why document should be unsealed.” (Joint Mot. at 13–14) (emphasis added).
That said, Defendants specifically disclaim that the deposition excerpts should remain sealed in
other filings with the Court. See (Defs.’ Mot. for Further Consideration of Sealing at 2)
(providing a specific list of documents that they believe the Court should keep sealed, while
omitting the deposition excepts). Consequently, the Court treats the discrepancy in the Joint
Motion as a typographical error.

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Further Consideration of Sealing, “Pl.’s Mem. in Supp.”) [Doc. No. 146 at 2]. As a result,
Feinwachs “requests prevention of any such disclosure at hearings or trial of this case, or to the
public in any manner.” (Id. at 1). In support, Feinwachs submitted a memorandum, a declaration,
and exhibits, each filed under seal. See (Pl.’s Mem. in Supp.); (Decl. of David Feinwachs for
Mot. for Further Consideration of Sealing, “Feinwachs Decl. in Supp. of Sealing”) [Doc. No.
148]; (Ex. 1 to Feinwachs Decl. in Supp. of Sealing) [Doc. No. 149]; (Ex. 2 to Feinwachs Decl.
in Supp. of Sealing) [Doc. No. 150]. Also, as required under the Local Rules, Feinwachs
submitted a Meet and Confer Statement [Doc. No. 152] and a Proposed Order [Doc. No. 153]
along with his motion. See LR 7.1. The Meet and Confer and Proposed Order were also filed
under seal. (Meet & Confer Statement); (Proposed Order).
Defendants object to Feinwachs’s Motion for Further Consideration, in large part because
Defendants assert that Feinwachs is attempting to improperly use the sealing rules as an ad hoc
motion in limine. See generally (Defs.’ Resp. to Pl.’s Mot. for Further Consideration of Sealing
“Defs.’ Resp.”) [Doc. No. 168]. Defendants argue that “Local Rule 5.6 does not allow Plaintiff
the opportunity to litigate trial issues before Summary Judgment is even decided.” (Id at 3). In
particular, Defendants assert that Chief Judge Tunheim’s practice pointers state unequivocally
that “he decide motions in limine.” (Id.). Defendants, however, do “not oppose continued sealing
of Plaintiff’s deposition testimony concerning his medical information filed as an exhibit in
support of Summary Judgment.” (Id.).
With respect to Defendants’ motion and relevant to the determination before the Court,
Feinwachs brought both federal and state actions related to his termination from MHA. See
(Def.’s Mem. in Supp. of Mot. for Further Consideration of Sealing, “Defs.’ Mem. in Supp.”)
[Doc. No. 159 at 2]; (Pl.’s Mem. Opposing Defense Mot. for Further Consideration of Sealing,

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“Pl.’s Resp.”) [Doc. No. 173 at 2–3]. As a result, certain documents in the Ramsey County
District Court action were filed under a protective order. See (Ex. 49, Attached to Decl. of
Elizabeth S. Gerling, “Gerling Decl.”) [Doc. No. 117–3 at 200–22] (copies of two orders: (1) the
Ramsey County protective order; and (2) an order denying Feinwachs’s motion in Ramsey
County District Court to modify the protective order). 2
At the hearing before the undersigned on the parties’ cross-motions, Feinwachs asserted
that many documents filed under seal in this case do not merit protection on the basis of the
protective order filed in Ramsey County District Court because the documents were publically
available. In support of this argument, Feinwachs filed a declaration stating he was able to obtain
certain documents at the Minnesota Court of Appeals. See (Second Decl. of David Feinwachs on
Continued Sealing Mot. of Defs., “Second Feinwachs Decl.”) [Doc. No. 177].
Defendants, however, argue that the Ramsey County District Court judge’s protective
order has not been vacated. See (Second Decl. of Elizabeth S. Gerling, “Second Gerling Decl.”)
[Doc. No. 178 ¶¶ 8–11, 13]. Defendants assert that many of the documents proffered by
Feinwachs in support of his argument that documents are publically available are not the
documents at issues in Defendants’ Motion for Further Consideration of Sealing. (Id. ¶ 3). To the
extent that Feinwachs was able to obtain any of the documents at issue, Defendants are unsure
why Feinwachs was able to obtain them, but surmise it was because he was a party to the
litigation in Ramsey County District Court. (Id. ¶ 12). Regardless, because the Ramsey County
District Court judge’s protective order is still operative, Defendants argue that it controls and that

2

There are multiple independently paginated exhibits attached to the Gerling Declaration.
As a result, CM/ECF pagination is used when citing to exhibits attached to the Gerling
Declaration.

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documents subject to it should remain sealed. See (id. at ¶¶ 14–15); (Def.’s Mem. in Supp at 2–3,
11–15).
II.

DISCUSSION
Because Feinwachs has justified continued sealing for only some of the documents he

requested, the Court grants in part and denies in part Feinwachs’s Motion for Further
Consideration of Sealing. Furthermore, because the documents at issue in Defendants’ Motion
for Further Consideration of Sealing are subject to a Ramsey County District Court judge’s
protective order, this Court grants Defendants’ Motion for Further Consideration of Sealing. The
Court addresses each in turn.
A.

Legal Standard

“There is a common law right of access to judicial records, which includes the public’s
right to access documents that are submitted to the Court and that form the basis for judicial
decisions.” Skky, LLC v. Facebook, Inc., 191 F. Supp. 3d 977, 980 (D. Minn. 2016) (Wright, J.)
(internal quotation marks omitted). “This right of access is not absolute, but requires a weighing
of competing interests.” Webster Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376
(8th Cir. 1990). Specifically, this Court “must consider the degree to which sealing a judicial
record would interfere with the interests served by the common-law right of access and balance
that interference against the salutary interests served by maintaining confidentiality of the
information sought to be sealed.” IDT Corp. v. eBay, 709 F.3d 1220, 1223 (8th Cir. 2013).
B.

Analysis
1.

Feinwachs’s Motion

The medical information that Feinwachs seeks to protect is of a character that warrants
sealing. See, e.g., Skky LLC, 191 F. Supp. 3d at 981 (stating that “personal health details” may

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“be subject to an order to seal”); Olson v. Kopel, No. 14-cv-3975 (DWF/SER), 2016 WL
452132, at *2 (D. Minn. Feb. 5, 2016) (Frank, J.) (sealing plaintiff’s “medical records only”).
That said, if Feinwachs places his medical condition at issue, it undermines his requests that
information related thereto be sealed. See Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir.
2000). Here, this Court concludes that Feinwachs has not placed his medical condition at issue
because none of the factors the Court typically considers when making this determining suggest
that he has. See O’Sullivan v. Minnesota, 176 F.R.D. 325, 328 (D. Minn. 1997) (Erickson, Mag.
J.) (stating factors that a court should consider when determining whether a plaintiff places his or
her medical condition at issue). Specifically, Feinwachs does not: (1) raise a claim for intentional
or negligent infliction of emotional distress, (2) allege any specific mental or psychiatric
disorder; (3) “claim . . . unusually severe emotional distress”; (4) plan to call expert witnesses
with respect to emotional distress; or (5) contend that he is placing his medical condition at issue.
See generally (Third Am. Compl,); see also O’Sullivan 176 F.R.D. at 328; (Pl.’s Mem. in Supp.
at 2). Consequently, the balance between the public’s right of access and Feinwachs’s interest in
protecting this information from public disclosure weighs in favor of the continued sealing of
this information. Cf. IDT Corp., 709 F.3d at 1223. Furthermore, while not controlling,
Defendants do not object to the continued sealing of this medical information. See (Defs.’ Resp.
at 3); see also LR 5.6 (establishing the sealing procedures which require the Court to
independently determine whether sealing is warranted).
As a result, the Court grants Feinwachs’s Motion for Further Consideration of Sealing
with respect to Feinwachs’s medical information filed with the Court. Out of an abundance of
caution, the Court also grants Feinwachs’s Motion for Further Consideration of Sealing to the
extent publically available documents—including scholarly articles and website pages—

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Feinwachs filed for the Court’s benefit would tend to suggest the nature of the medical
information that Feinwachs seeks to protect.
Nonetheless, Feinwachs’s Motion for Further Consideration of Sealing is problematic for
other reasons. First, and perhaps most importantly, Feinwachs request to prevent “any such
disclosure at hearings or trial of this case, or to the public in any manner” is not properly before
this Court. See (Pl.’s Mem. in Supp. at 1). If Feinwachs wishes to prevent certain evidence from
being presented at trial, he must bring a motion that comports with Chief Judge Tunheim’s
procedures for bringing motions in limine. Therefore, to the extent that Feinwachs requests that
information that is sealed pursuant to this Court’s order be excluded at trial, his Motion for
Continued Sealing is denied without prejudice.
Second, there are documents that Feinwachs filed under seal that should not have been.
Local Rule 5.6 specifically states the purpose of the Rule is “to reduce the amount of information
that is sealed in civil cases” because “parties have been filing too much information under seal in
civil cases.” LR 5.6 advisory committee note to 2017 rule. Certain types of documents that
Feinwachs filed under seal, such as meet and confer statements and proposed orders are
generally inappropriate for sealing. This Court has reviewed those submissions and concludes
that Feinwachs’s Meet and Confer Statement and Proposed Order filed with the Court do not
contain any sensitive information that warrants consideration under the sealing rules. As a result,
the Court denies Feinwachs’s attempt to continue to seal these documents and will order that
these documents be unsealed.
2.

Defendants’ Motion

Notwithstanding the questionable veracity of Feinwachs’s assertion that Defendants’
documents are freely available to the public, he has failed to demonstrate that the state court’s

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protective order is no longer operative. This is of critical importance because the presence of a
state court protective order is controlling. This Court will not exercise what amounts to appellate
jurisdiction and effectively overrule or vacate a state court protective order shielding documents
from the public. Comity between state and federal courts and constraints placed on a federal
district court’s jurisdiction dictate nothing less. See 28 U.S.C. § 1738 (stating “judicial
proceedings . . . shall have the same full faith and credit in every court within the United
States”); see also D.C. Ct. of Appeals v. Feldman, 460 U.S. 462, 482 (1983) (stating “a United
States District Court has no authority to review” state court decisions in judicial proceedings);
Rooker v. Fid. Tr. Co., 263 U.S. 413, 416 (1923) (stating federal district courts are courts of
original jurisdiction and lack appellate jurisdiction); Glickman, Lurie, Eiger & Co. v. Internal
Revenue Serv., No. 4-75-Civ. 303, 1975 WL 706, *4 (D. Minn. Oct. 14, 1975) (Larson, J.) (“The
Federal courts are not empowered to review the propriety of protective discovery orders in State
court proceedings.”).
Feinwachs’s arguments to the contrary are without merit, some bordering on the absurd.
In particular, Feinwachs asserts that Chief Judge Tunheim’s Memorandum Opinion and Order
Denying Defendants’ Motion to Dismiss Dated February 3, 2016 (“February 2016 Order”) [Doc.
No. 77], forecloses the application of Rooker, Feldman, and their progeny. See (Pl.’s Resp. at 5
n.1). But Feinwachs’s assertions overstate Chief Judge Tunheim’s Order. Specifically, the issue
before Chief Judge Tunheim was whether the adverse decision in Minnesota state court barred
Feinwachs’s claims in federal court on the basis of collateral estoppel. See generally (Feb. 2016
Order). Finding that that state court action involved different issues than the instant case, Chief
Judge Tunheim held that collateral estoppel does not prevent the current action. See (id. at 1–2,
10–13). There is nothing in Chief Judge Tunheim’s Order that would undermine this Court’s

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determination that matters of comity and constraints on its jurisdiction prevent it from interfering
with a state court protective order as Feinwachs’s alleges. See generally (id.); see also (Pl.’s
Resp. at 5).
Because matters of comity prevent this Court from unearthing documents filed under the
Ramsey County District Court’s protective order, all documents that fall within the scope of the
that order shall remain filed under seal. Furthermore, because the only documents at issue in
Defendants’ Motion for Further Consideration of Sealing fall under the Ramsey County District
Court’s protective order, Defendants’ Motion for Further Consideration of Sealing is granted. In
addition, the parties agree that the Brunner deposition excerpts document is not subject to the
Ramsey District Court judge’s protective order and neither party moves for its continued sealing.
See (Joint Mot. at 13–14). The Court will unseal the Brunner deposition excerpts document.
III.

CONCLUSION
Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED

that:
1.

Plaintiff David Feinwachs’s Motion for Further Consideration of Sealing [Doc.
No. 145] is GRANTED in part and DENIED in part as described herein;

2.

Defendants Minnesota Hospital Association and MCCA’s Motion for Further
Consideration of Sealing [Doc. No. 157] is GRANTED;

3.

The following documents shall remain sealed: Document Numbers 115, 118, 119,
120, 121, 122, 123, 124, 125, 126, 127, 131, 135, 136, 146, 148, 149, 150, 162,
163, 164, 165, 168, 169, 170, 171; and

4.

The following documents shall be unsealed: Document Numbers 137, 152, 153.

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Dated: February 13, 2018
s/Steven E. Rau
STEVEN E. RAU
United States Magistrate Judge

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