Durham v. Ankura Consulting Group, LLC et al

Filing 327

ORDER granting in part and denying in part 274 Motion Requesting that Exhibits be Filed under Restricted View or for Continued Protection and granting in part and denying in part 318 Motion Requesting that Exhibits be Filed under Restricted View or for Continued Protection. Signed by District Judge Keith Starrett on 5/22/2023 (jrg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WILLIAM H. DURHAM, M.D.

PLAINTIFF

v.

CIVIL ACTION NO.: 2:20-cv-112-KS-MTP

ANKURA CONSULTING GROUP, LLC and
JOHN DOES 1-5

DEFENDANTS

ORDER
This cause comes before the Court on Ankura Consulting Group, LLC’s Motion
Requesting that Exhibits be Filed under Restricted View or for Continued Protection [274] and its
Supplemental Motion Requesting that Exhibits be Filed under Restricted View or for Continued
Protection [318]. These motions are fully briefed and ripe for ruling.
I. BACKGROUND
Throughout this litigation, Dr. Durham and Ankura have relied upon various Confidential
and/or Highly Confidential documents in support of their respective motions and responses.1 In
an effort to “address the confusion surrounding the filing of said motions/exhibits,” this Court
entered its Order Setting Briefing Schedule, wherein it required, among other things, that the
parties file “motions requesting that exhibits be filed under restricted view or for continued
protection[.]” [217]. Ankura timely moved and requested that specific exhibits filed in support of
certain motions and responses maintain continued protection. In some instances, Ankura has
requested that portions of a document be redacted rather than the whole document being sealed.

1

Such documents have been marked either Confidential and/or Highly Confidential in accordance with this Court’s
Protective Order [37].

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The Court held a hearing on Ankura’s original Motion on January 19, 2023, at which time
the Court issued its rulings on each of the documents at issue, which will be memorialized herein.
Also, at the conclusion of the hearing, the Court and parties discussed additional exhibits that had
been attached to Plaintiff’s then recently filed Motion to Alter or Amend Orders [308], some of
which Ankura desired to have continued protection under Local Uniform Civil Rule 79. As such,
the Supplemental Motion addresses these additional exhibits. Having considered the submissions
of the parties and the applicable law, the Court finds that Ankura’s Motion [274] and Supplemental
Motion [318] should be granted in part and denied in part for the reasons set forth below.
II. DISCUSSION
A. Legal Standard
“Courts have recognized that the public has a common law right to inspect and copy
judicial records.” S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (citing Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). This right of public access serves to “promote
trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a
more complete understanding of the judicial system, including a better perception of fairness.” Id.
at 849. The right of public access, however, is not absolute. “Every court has supervisory power
over its own records and files, and access has been denied where court files might have become a
vehicle for improper purposes.” Nixon, 435 U.S. at 598. Thus, courts must balance the public’s
right to access against the factors favoring secrecy. Van Waeyenberghe, 990 F.2d at 848.
Pursuant to Local Rule 79, “[e]xcept as otherwise provided by statute, rule, . . . or order,
all pleadings and other materials filed with the court (‘court records’) become a part of the public
record of the court[, and] [a]ny order sealing a document must include particularized findings
demonstrating that sealing is supported by clear and compelling reasons and is narrowly tailored

2

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to serve those reasons.” L.U. Civ. R. 79 (a)-(b). The party seeking to seal court documents bears
the burden of establishing that the public’s right to access is overcome by the need for secrecy.
B. Analysis
The Court finds compelling reasons exist to maintain continued protection as to some of
the documents Ankura seeks to protect (either in whole or in redacted form). Where the Court
finds that a redaction of the sensitive provisions of a document is appropriate under the
circumstances presented here, the remainder of the document must be filed of record.2 In addition,
the Court understands that there are duplicates in the record of some of the exhibits at issue because
they were filed in support of or in response to various motions. Therefore, any ruling that grants
protection to a particular Bates range shall apply to that Bates range regardless of where it appears
in the record, and the parties shall use their utmost diligence to insure that all copies in the record
reflect the Court’s rulings.
Exhibits to Dr. Durham’s Motion for Partial Summary Judgment [210]3

I.
•

Exhibit 1 – Excerpt of Ankura’s Contract with Celotex Corp. (ACG-ID-0000686)
A previously redacted version of this entire document was filed in accordance with a
prior Court Order. See [78-1]. However, before the Court is now simply the first page
of a contract between Ankura and one of the Trusts. As to this first page, the Court
finds that Ankura has failed to meet the Rule 79 standard as to the three paragraphs

2

In addition to the documents at issue in these Motions, there were 277 other documents that had, in an abundance
of caution, either been filed with restricted view or filed with placeholders, with originals submitted only to the Court.
The list of these documents is attached hereto as Exhibit A. As to these documents, for which Ankura seeks no
protection or redaction, it is ORDERED that these documents shall be filed in the public record in their entirety in
accordance with the procedure set forth at the end of this Order.
3
The exhibits were actually attached to Doc. No. [211].

3

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previously redacted on Page 1, and for the reasons stated on the record, the document
shall be refiled in its entirety with no redactions.4
•

Exhibit 3 – Excerpt of Deposition Testimony of John Brophy
The parties have agreed to redact only the words reflecting a specific purchase price
located on Page 20 line 6 of the deposition. The Court agrees that this item is sensitive
business information and that, in accordance with Rule 79, the last number and word
on Line 6 should be redacted. Therefore, and also for the reasons stated on the record,
the excerpt shall be refiled with only this one redaction.5

•

Exhibit 4 – Spreadsheet regarding Ankura’s Income from Trusts (ACG-ID-0016429)
The Court finds that this document contains business sensitive information that would
harm Ankura’s competitive standing should it be filed into the public domain. Such
business sensitive information includes Ankura’s income from various trusts, and could
be used by a competitor to Ankura’s disadvantage if not restricted from public access.
The Court finds such restriction is supported by compelling reasons and is narrowly
tailored to serve those reasons and will (a) allow the litigants to freely access the
document; (b) protect Ankura’s confidential information therein; and (c) still allow the
public to see the general nature of the action without jeopardizing Ankura’s competitive
business interests. Therefore, and also for the reasons stated on the record, the entire
one-page document shall remain under restricted view, with CM/ECF access permitted
only to counsel of record for the parties in this matter and the Court.

4

This ruling shall also apply to Exhibit 4 to Doc. No. [308], which contains the first page of several contracts that
Ankura had with the Trusts: ACG-ID-0000674, 0000129, 0000686, 0000700, 0000714, 0000728, 0000742,
0000756, 0000770.
5
These words shall also be redacted from the transcript of the hearing should such transcript be filed in the record.
Additionally, this same redaction applies to Exhibit 3 to Doc. No. [308].

4

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•

Exhibit 5 – Excerpt of Deposition Testimony of Lori Tansley
Similar to the deposition excerpt of Mr. Brophy, the Court finds that Ms. Tansley’s
testimony regarding Ankura’s income information is sensitive business information
that could be used by a competitor to Ankura’s disadvantage if not redacted as agreed
to by the parties. Therefore, and also for the reasons stated on the record, the excerpt
shall be refiled with only the dollar amounts located on the following pages redacted:
Page 225, line 23; Page 225, Line 25; Page 226, Line 9; and Page 226, Line 11.

•

Exhibit 21 – Email Correspondence (ACG-ID-0019452)
The Court finds that this document contains personal medical information of Mr. Gary
Wingo that is inherently confidential and irrelevant to the issues in this case and the
limitations on access are supported by compelling reasons narrowly tailored to serve
those reasons. Therefore, and for the reasons stated on the record, the document shall
be refiled with any reference to a medical procedure contained therein redacted.

•

Exhibit 22 – Email Correspondence (ACG-ID-0020160 - 20163)
The Court finds that this document should be restricted from public view for the reason
that it implicates other individuals; it names and identifies doctors and individual
claimants and other audits; it does not involve the audit of Dr. Durham; and it contains
business-sensitive information that could harm Ankura in a competitive way should it
be filed in the public domain. Therefore, and also for the reasons stated on the record,
this entire four-page document shall remain under restricted view, with CM/ECF access
permitted only to counsel of record for the parties in this matter and the Court.

5

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Exhibits to Dr. Durham’s Response to Ankura’s Motion to Exclude the Expert
Testimony and Opinions of Ralph Summerford [230]6

II.
•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0005741-5742)
The Court finds that this document contains the names/identities of law firms that,
while not wholly irrelevant, indicate audit findings as they relate to those law firms.
Audit results as they relate to law firms that are strangers to this litigation implicate
privacy interests of those law firms which present compelling reasons to overcome the
presumption of public access, and the limitation shall be narrowly tailored to serve
those reasons. Therefore, and also for the reasons stated on the record, the document
shall be refiled with only the law firm names, other than Smith Clinesmith, LLP,
redacted wherever such names appear on the document in addition to the already
redacted claimants’ names.

•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0009209)
Similar to the last document, the Court finds that this document contains the
names/identities of law firms and companies that at the time had holds on their claims
as part of the audit process. These law firms and companies that are strangers to this
litigation have privacy interests that must be protected, which present compelling
reasons to overcome the presumption of public access, and the limitations shall be
narrowly tailored to serve those reasons. Therefore, and also for the reasons stated on
the record, the document shall be refiled with only the law firm names, other than Smith
Clinesmith, LLP, redacted wherever such names appear on the document.

6

This Response was refiled at Doc. No. [290].

6

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•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0003514)
The Court finds that this document contains the same information that was included on
ACG-ID-0005741-5742. Therefore, for the reasons previously stated, this document
shall be redacted in the same manner and refiled.

•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0004167-4170)
The Court finds that Rule 79 has been met with regard to this document because it
appears Dr. Durham may attempt to use this document as a vehicle for an improper
purpose, namely the filing of a bar complaint against one of the attorneys in the email
string. “Every court has supervisory power over its own records and files, and access
has been denied where court files might have become a vehicle for improper purposes.”
Alter Trading Corp. v. Shemper, 2018 WL 10418730, at *1 (S.D. Miss. 2018) (quoting
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)). Therefore, for the reasons
stated on the record, the entire four-page document shall remain under restricted view,
with CM/ECF access permitted only to counsel of record for the parties in this matter
and the Court.

•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0012702)
The Court finds that this document contains irrelevant information that is related to an
audit of another company, and does not touch and concern Dr. Durham or the audits of
Dr. Durham in any way. Therefore, for the reasons stated on the record, this entire onepage document shall remain under restricted view, with CM/ECF access permitted only
to counsel of record for the parties in this matter and the Court.

•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0005462 through 0005463)
The Court finds that this document contains the name/identity of a law firm that is
irrelevant to the issues in this case. Audit information as it relates to law firms that are
7

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strangers to this litigation implicates privacy interests of those law firms which present
compelling reasons to overcome the presumption of public access, and the limitation
will be narrowly tailored to serve those reasons. Therefore, and for the reasons stated
on the record, the document shall be refiled with name of the law firm that appears
twice in the July 27, 2018 email from Gary Wingo redacted.
•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0003872 through 0003875)
The Court finds that this document contains the name/identity of a law firm related to
other audits not relevant to the issues in this case. Audit information as it relates to law
firms that are strangers to this litigation implicates privacy interests of those law firms
which present compelling reasons to overcome the presumption of public access, and
the limitation with be narrowly tailored to serve those reasons. Therefore, and for the
reasons stated on the record, this document shall be refiled with the name of the law
firm redacted from the first and fourth pages.

•

Part of Exhibit 2 – Audit Committee Agenda – August 30, 2017 (ACG-ID-0009243)7
The Court finds that this document contains both the name/identities of doctors and law
firms related to other audits – neither of which touch and concern Dr. Durham or the
audits of Dr. Durham in any way. Audit information as it relates to doctors or law firms
that are strangers to this litigation implicates privacy interests of those law firms and
companies which present compelling reasons to overcome the presumption of public
access, and the limitation shall be narrowly tailored to serve those reasons. Therefore,
and for the reasons stated on the record, this one-page document shall be refiled with
Paragraphs 1, 3, 4, 5, and 6 completely redacted.

7

ACG-ID-0009244 will not be part of what is refiled.

8

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•

Part of Exhibit 2 – Audit Committee To-Do Summary (ACG-ID-0011986—11987)
The Court finds the document not only contains references to Dr. Durham but also both
the name/identities of doctors and law firms related to other audits – neither of which
touch and concern Dr. Durham or the audits of Dr. Durham in any way. Audit
information as it relates to doctors or law firms that are strangers to this litigation
implicates privacy interests of those law firms and companies which present
compelling reasons to overcome the presumption of public access, and the limitation
shall be narrowly tailored to serve those reasons. Additionally, this document also
contains business sensitive information that would harm Ankura’s competitive
standing should it be filed into the public domain, and could be used by a competitor
to Ankura’s disadvantage if not restricted. Redacting portions of this document is
supported by compelling reasons. Therefore, and for the reasons stated on the record,
the document shall be refiled and the two proper nouns in the first sentence on Page
11986 shall be redacted, as well as, under the heading “THIS WEEK’S TO DO
SUMMARY,” all paragraphs, except the two lines following “Dr. Durham:” shall be
redacted.

•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0005488 through 0005498)
The Court finds that portions of this document containing personal and private,
confidential information, such as addresses and telephone numbers, should be redacted.
This document contains personal information of Dr. Michael Leviton (his cell phone
number and address) that is inherently confidential and irrelevant to the issues in this
case. Therefore, when the document is refiled Dr. Leviton’s address and cell phone
number shall be redacted from pages 5488, 5493, 5494, 5496, and 5497.

9

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•

Part of Exhibit 2 – Email Correspondence (ACG-ID-0012524)
The Court finds that this document contains the name/identity of a lawyer/law firm not
relevant to the issues in this case. Audit information as it relates to lawyers/law firms
that are strangers to this litigation implicates privacy interests of those lawyers/law
firms which present compelling reasons to overcome the presumption of public access.
Therefore, and for the reasons stated on the record, the document shall be refiled with
the name of the law firm/attorney in the June 25, 2018 email redacted.

•

Part of Exhibit 4 – Email Correspondence (ACG-ID-0019979)
The Court finds this document contains both the name/identities of law firms related to
other audits and, specifically, implicates other individuals not involved in the audits of
Dr. Durham. Audit information as it relates to law firms that are strangers to this
litigation implicates privacy interests of those law firms which present compelling
reasons to overcome the presumption of public access. Additionally, this document also
contains business sensitive information that would harm Ankura’s competitive
standing should it be filed into the public domain, and could be used by a competitor
to Ankura’s disadvantage if not restricted. Allowing public viewing in the Clerk’s
office as contemplated by Local Rule Civ. P. 79(3)(B)(3) would not alleviate the public
disclosure of audit information related to non-parties or competitive harm that would
result to Ankura should this document be made available for public inspection.
Therefore, and for the reasons stated on the record, the entire one-page document shall
remain under restricted view, with CM/ECF access permitted only to counsel of record
for the parties in this matter and the Court.

10

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•

Exhibit 6 – Email Correspondence (ACG-ID-0012669)
The Court finds this document contains both the name/identities of various law firms
and companies related to other audits – none of which touch and concern Dr. Durham
or the audits of Dr. Durham in any way. Audit information as it relates to law firms or
companies that are strangers to this litigation implicates privacy interests of those law
firms and companies which present compelling reasons to overcome the presumption
of public access. Therefore, and for the reasons stated on the record, the entire onepage document shall remain under restricted view, with CM/ECF access permitted only
to counsel of record for the parties in this matter and the Court.

•

Part of Exhibit 7 – Chart (ACG-ID-0012180)
The Court finds that the request to prevent public access to the document will be denied.
It is simply a bubble chart, and without more, it is a benign document that does not
provide any information that could invoke a privacy interest.
Exhibits to Dr. Durham’s Response to Ankura’s Motion for Summary Judgment
[236]8

III.

●

Part of Exhibit 6 - Email Correspondence (ACG-ID-0019344-19345)
The Court finds this this two-page document contains the name of an asbestos claimant,
whose identity is of no concern to Dr. Durham or the audits of Dr. Durham in any way.
Identifying claimants who are strangers to this litigation implicates privacy interests of
those individuals and presents a compelling reason to overcome the presumption of
public access. Therefore, and for the reasons stated on the record, when the document

8

The exhibits were attached to Doc. No. 237, which has been refiled at Doc. No. [293].

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is refiled, the claimant’s name that appears five times on the first page of the document
shall be redacted, as well as the three times it appears on the second page.
•

Part of Exhibit 9 – Email Correspondence (ACG-ID-0005747)
The Court finds that this document contains the same information that was included on
ACG-ID-0005741-5742. Therefore, for the reasons previously stated, this document
shall be redacted in the same manner and refiled.

●

Part of Exhibit 9 - Email Correspondence (ACG-ID-0008829)
The Court finds that this document contains the name of a doctor (whose last name
begins with “S”), who is irrelevant to the issues in this case and such mention in the
public record would implicate privacy interests of that doctor, which presents a
compelling reason to overcome the presumption of public access, and the limitation
will be narrowly tailored to serve that reason.9 Therefore, and for the reasons stated on
the record, the document shall be refiled with the name of said doctor redacted both
times it appears on the page.

•

Part of Exhibit 9 – May 9, 2016 Document regarding various audit findings (ACG-ID0010929)
The Court finds that this document contains both the name of a doctor (whose last name
begins with “L”) and information relating to an audit, all of which is irrelevant to the
issues in this case. The mention of his name and audit information relating to such
doctor, who is a stranger to this litigation, implicates his privacy interests, which
presents a compelling reason to overcome the presumption of public access, and the

9

While Ankura has sought to redact a non-party doctor’s name from this document, it has not sought to redact the
names of two other non-party doctors that appear in the document. According to Ankura, that is because the other two
non-party doctors filed a legal action, making their audits public after the Trusts ceased accepting their reports. This
supports that the redactions are narrowly tailored to serve the compelling reasons for redaction.

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limitations are narrowly tailored to serve that reason. Therefore, and for the reasons
stated on the record, the document shall be refiled with the name of said doctor redacted
in the first line of the document, as well as the line stating his name and “(Diagnosing
Physician”) and the two full paragraphs that follow.
•

Part of Exhibit 9 – Email Correspondence (ACG-ID-0011510)
The Court finds that this one-page document with various emails contains both the
name of a doctor (whose last name begins with “G”) and information relating to an
audit, all of which is irrelevant to the issues in this case. The mention of his name and
audit information relating to such doctor, who is a stranger to this litigation, implicates
his privacy interests, which presents a compelling reason to overcome the presumption
of public access, and the limitations are narrowly tailored to serve that reason.
Therefore, and for the reasons stated on the record, the document shall be refiled with
the doctor’s name in the subject line of each email on the page redacted, as well as all
substantive paragraphs except for the paragraph that begins “I have attached” and ends
with “what Mary Ellen sent.”

•

Part of Exhibit 9 – Audit Committee Meeting Agenda November 28, 2018 (ACG-ID0012236)
The Court finds that this document contains business sensitive information unrelated
to the audit of Dr. Durham that would harm Ankura’s competitive standing should it
be filed into the public domain, and could be used by a competitor to Ankura’s
disadvantage if not restricted in some way. Additionally, this information does not
touch and concern the audits of Dr. Durham, and post-dates the Trusts’ decision to no
longer accept his reports. Therefore, and for the reasons stated on the record, the

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document shall be filed in the record with the entirety of the document redacted except
for the heading and the first bullet point under Paragraph 3.
•

Part of Exhibit 9 – Email Correspondence (ACG-ID-0016021)
The Court finds that this document contains both the name/identity of a doctor who is
irrelevant to the issues in this case. Audit information as it relates to doctors that are
strangers to this litigation implicates privacy interests of those doctors which presents
compelling reasons to overcome the presumption of public access, and the redactions
are narrowly tailored to serve those reasons. The document also contains business
sensitive information that would harm Ankura’s competitive standing should it be filed
into the public domain, and could be used by a competitor to Ankura’s disadvantage if
not restricted. Therefore, and for the reasons stated on the record, the document shall
be filed in the record with the second, third, and fourth paragraphs redacted.

•

Part of Exhibit 9 – Table regarding Error Rates (ACG-ID-0018895)
The Court finds that this document contains both the name/identities of various
doctors related to other audits and, specifically, implicates other individuals not
involved in the audits of Dr. Durham. Audit information as it relates to doctors that
are strangers to this litigation implicates privacy interests of those doctors, which
presents a compelling reason to overcome the presumption of public access, and the
limitations are narrowly tailored to serve those reasons. Therefore, and for the reasons
stated on the record, the document shall be refiled with the entirety of it redacted
except for the row in the chart beginning with “X-ray Reading Physician”; the entire
row relating to Dr. Durham; and the names of Dr. Klepper and Dr. Breyer.

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•

Part of Exhibit 9 – Audit Committee CC Agenda January 15, 2020 (ACG-ID-0019963)
The Court finds that this document implicates privacy interest of individuals not
involved in the audits of Dr. Durham and contains sensitive business information that
could harm Ankura’s competitive standing should it be filed into the public domain,
and could be used by a competitor to Ankura’s disadvantage if not sealed. Therefore,
and for the reasons stated on the record, this entire document shall remain under
restricted view, with CM/ECF access permitted only to counsel of record for the parties
in this matter and the Court.

•

Part of Exhibit 9 – Email Correspondence (ACG-ID-0020365)
The Court finds that this document is an e-mail about the inner workings and decisionmaking processes of the Audit Committee, and thus, contains sensitive business
information regarding deliberations related to procedures that post-date the Trusts
decision to no longer accept reports from Dr. Durham. This presents compelling
reasons to support restricting the document. Therefore, and for the reasons stated on
the record, this entire document shall remain under restricted view, with CM/ECF
access permitted only to counsel of record for the parties in this matter and the Court.

•

Part of Exhibit 9 – Email Correspondence (ACG-ID-0012034-0012035)
The Court finds that this document contains the names/identities of law firms and
companies that, while not wholly irrelevant, indicate audit findings as they relate to
those law firms. Audit results as they relate to law firms and companies that are
strangers to this litigation implicate privacy interests of those law firms and companies
which presents a compelling reason to overcome the presumption of public access, and
the restrictions will be narrowly tailored to serve that reason. Therefore, and for the
reasons stated on the record, the document shall be refiled with the same consistent
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redaction of the law firm names on the chart contained on ACG-ID-0012035, as well
as the two times that law firms’ names are mentioned in the paragraph above the chart.
Additionally, on ACG-ID-0012034, there are five instances where either a law firm or
company name is mentioned, and those names shall be redacted as well.
Exhibits to Dr. Durham’s Response to Ankura’s Motion for Sanctions [232]

IV.
•

Part of Exhibit 3 – Summary of Medical Error Rates– (ACG-ID-0018889)
The Court finds that this document, for the most part, contains the results of audits
which do not involve Dr. Durham. This document also contains internal deliberations
surrounding error rates being considered for adoption. This document contains business
sensitive information that would harm Ankura’s competitive standing should it be filed
into the public domain, and could be used by a competitor to Ankura’s disadvantage if
not restricted. This is a compelling reason supporting restriction. However, the first two
paragraphs contain benign facts that deal with recommendations regarding error rates.
Therefore, and for the reasons stated on the record, the document shall be refiled with
everything on the page redacted except for the first two paragraphs under the title of
the document.
Exhibits to Dr. Durham’s Reply in Support of his Motion for Partial Summary
Judgment [247]

V.
•

Part of Exhibit 1 – Excerpt of draft document – (ACG-ID-0010829)
The Court finds that this document that contains a draft of notes from an audit
committee meeting also contains both the name/identities of various individuals and
law firms related to other audits – none of which touch and concern Dr. Durham or the
audits of Dr. Durham in any way. Audit information as it relates to law firms or
individuals that are strangers to this litigation implicates privacy interests of those law

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firms or individuals which presents a compelling reason to overcome the presumption
of public access, and the restrictions will be narrowly tailored to serve that reason.
Additionally, this document also contains business sensitive information that would
harm Ankura’s competitive standing should it be filed into the public domain, and
could be used by a competitor to Ankura’s disadvantage if not restricted. Therefore,
and for the reasons stated on the record, the document shall be filed in the record with
Paragraphs IIB through IIIC, as well as the inserted comment on the right side of the
page, redacted.
•

Part of Exhibit 1 – Email Correspondence (ACG-ID-0011094)
The Court finds that this document contains the name of a doctor, the mention of which
could implicate privacy interests of that doctor. Therefore, and for the reasons stated
on the record, the document shall be filed in the record with the name of the doctor
beginning with the letter “S” in the 3/21/18 email redacted.

•

Part of Exhibit 1 – Email Correspondence (ACG-ID-0014201)
The Court finds that this document, as the Court has previously ruled, contains the
names of certain physicians, whose privacy rights could be implicated should this
document be placed in the public record. Therefore, and for the reasons stated on the
record, the document shall be filed in the record with the names of all physicians in the
top bullet point redacted except for the names Breyer, Durham, and Klepper.

•

Part of Exhibit 1 – Summary document regarding medical error rates – (ACG-ID0018889-0018890)
The Court has already ruled on (ACG-ID-0018889), but this particular exhibit has a
second page attached which contains only four lines. For the reasons stated on the

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record, the Court finds that this document shall be filed in the record with the redactions
as ordered made to the first page and the entirety of the second page redacted.
•

Part of Exhibit 3 – Email Correspondence (ACG-ID-0006167)
The Court finds that this document contains the name of a law firm that has previously
been redacted, but also this document contains emails between the trusts’ counsel and
discusses the inner workings of the Audit Committee, which contains sensitive business
information. Therefore, and for the reasons stated on the record, this entire document
shall remain under restricted view, with CM/ECF access permitted only to counsel of
record for the parties in this matter and the Court.

•

Exhibit 8 – Excerpt of Deposition Testimony of John Brophy
The Court finds that this document contains inherently personal and confidential
information of Mr. John Brophy that is irrelevant to the issues in this case, and includes
Mr. Brophy’s compensation by Ankura over the course of various years. This presents
a compelling reason supporting redaction, and the redactions are narrowly tailored to
serve this reason. Therefore, and for the reasons stated on the record, the document
shall be filed in the record with Line 1 and Line 18 on Page 23 redacted.

•

Exhibit 9 – Excerpt of Deposition Testimony of Andras Molnar
The Court finds that this document contains inherently personal and confidential
information of Mr. Andras Molnar that is irrelevant to the issues in this case, and
includes Mr. Molnar’s compensation by Ankura over the course of various years. This
presents a compelling reason supporting redaction, and the redactions are narrowly
tailored to serve this reason. Therefore, and for the reasons stated on the record, the
document shall be filed in the record with Lines 16-18, 21-22, and 24-25 on Page 30
redacted, as well as Lines 2-3 on Page 31.
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Exhibits to Dr. Durham’s Response to Ankura’s Motion to Exclude Expert
Testimony and Opinions of Dr. Kenneth Krone [238]

VI.
•

Part of Exhibit 10 – Email Correspondence (ACG-ID-00011843)
The Court finds that this document contains the same email found in ACG-ID00011094, for which the Court has already ruled. Therefore, and for the same reasons
stated on the record, this document shall be refiled with the same redaction.10

•

Part of Exhibit 10 – Table regarding radiologists (ACG-ID-0020377)
Similar to the Court’s ruling on ACG-ID-0018895, the Court finds that, for the reasons
stated on the record, this document contains information that must be redacted.
Therefore, the entirety of the document shall be redacted except for the names Klepper,
Breyer, and Durham, along with the entire row of percentages relating to Dr. Durham.

VII.
•

Exhibits to Dr. Durham’s Motion to Alter or Amend Orders [308]11
Exhibit 5 – Executive Session Minutes of Various Asbestos Trusts (ACG-ID_20598601, 0020605-607, 0020602-604, 0020596-597)
Ankura contends that this exhibit should remain under restricted view and be sealed
from public access only because these are executive session meeting minutes of various
Trusts, which although such minutes may contain some reference to Dr. Durham, the
minutes also contain significant other information related to the Trusts, including
investment reports, processing facility reports, foreign claims reports, information on
audits unrelated to Dr. Durham, legal reports from counsel, legislative matters and other
strictly administrative matters. The Court finds that these documents contain a lion’s
share of Trust-sensitive information wholly unrelated to the audit of Dr. Durham.

10

ACG-ID-00011844 also appears as part of this particular exhibit, but there has been no request for any redactions
or restrictions on the second page; therefore, it shall be refiled without any redaction.
11
Ankura objected only to Exhibits 3, 4, 5, and 7 to [308]. Exhibits 3 and 4 have been addressed previously in this
Order.

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Plaintiff is free to use the document in this litigation to make the arguments he contends
are relevant regardless of any restriction in the record. Therefore, the Court orders that
this exhibit should be filed under restricted view/given continuous protection and be
sealed from public access only, with CM/ECF access permitted by counsel of record
for the parties in this matter.
•

Exhibit 7 – Excerpts of Deposition of Marla Eskin, Esquire
Ankura contends that this document should be filed under restricted view/given
continuous protection and be sealed from public access because Dr. Durham is
attempting to use this process as a vehicle for an improper purpose which is prohibited.
See Alter Trading Corp., supra. The Court is aware that previously in this Order, it
indeed restricted an email from Ms. Eskin that had the potential to be used for an
improper purpose. However, that is not the case here. She was not asked about such
email during this excerpt of the deposition. Rather she is answering questions on an
unrelated topic that appears benign and not subject to protection. Therefore, as to
Exhibit 7 to [308], Ankura’s request is denied, and the document will be filed in its
entirety with unrestricted access.

VIII. Exhibit to Ankura’s Response to Plaintiff’s Motion to Alter or Amend Orders
[312]
•

Exhibit A – Excerpts of Marla Eskin Deposition
This document contains two pages, one of which (p. 275) was included in the previous
excerpt from Ms. Eskin’s deposition [308-7] ruled on by the Court. A second page (p.
276) has been added in Ankura’s exhibit for clarification. However, there is additional
testimony on Page 276 unrelated to the prior line of questioning, to which Plaintiff has
no objection to be redacted. The Court finds that this additional testimony addresses

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the information covered in the previous email that the Court has already found could
be used for an improper purpose. Therefore, this document shall be filed into the record
with Lines 3-12 on Page 276 redacted.
IT IS, THEREFORE, ORDERED that Ankura Consulting Group, LLC’s Motion
Requesting that Exhibits be Filed under Restricted View or for Continued Protection [274] and
Supplemental Motion [318] is GRANTED in part and DENIED in part as set forth herein.
IT IS FURTHER ORDERED that the parties and the Clerk of Court are directed to adhere
to the following procedure in correcting the record in accordance with this Order:
1) Exhibits 7, 9, 10, and 11 to Doc. No. [202] shall be filed in their entirety with no
restrictions. This shall be accomplished by filing a Notice of Filing with these exhibits attached
with a description containing the corresponding exhibit number above and a description of the
document. This Notice shall be linked to [202].
2) Exhibits C, D, and E to Doc. No. [208] shall be filed in their entirety with no restrictions.
This shall be accomplished by filing a Notice of Filing with these exhibits attached with a
description containing the corresponding exhibit number above and a description of the document.
This Notice shall be linked to [208].
3) Exhibits 1, 2, and 6-20 to Doc. No. [211] shall be filed in their entirety with no
restrictions. Exhibit 3, 5, and 21 shall be redacted in accordance with this Order. Exhibit 4 and 22
shall also be attached with no redactions, but these will be filed under restricted view. This shall
be accomplished by filing a Notice of Filing with all exhibits attached with a description containing
the corresponding exhibit number and a description of the document. This Notice shall be linked
to [211]. NOTE: The filing party must call the Clerk of Court immediately after filing, so
that Exhibits 4 and 22 can be placed timely under restriction.

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4) Exhibits 1, 3, 5, and 7 originally attached to Doc. No. [230] shall be filed in their entirety
with no restrictions. Exhibit 2 shall also be attached with certain pages redacted in accordance with
this Order but without ACG-ID-004167-4170 and ACG-ID-0012702 that will be filed under
restricted view. Exhibit 4 shall be filed in its entirety as well, but without ACG-ID-0019979 that
will be filed under restricted view. Exhibit 6 shall be filed in its entirety but will be under restricted
view. This shall be accomplished by attaching all complete exhibits and those with redactions with
a description containing the corresponding exhibit number and description of the document. Those
pages from Exhibits 2 and 4 that will be restricted shall be attached separately (the system will
give them a separate exhibit number) and the filing party shall provide a description such as: Part
of Exhibit 2 with a brief description such as “email” or “meeting minutes.” For illustration, it
should be filed in this order:
Ex 1 Exhibit 1 (give description)
Ex 2 Exhibit 2 (with redactions but not restricted pages) (give description)
Ex 3 “Part of Exhibit 2” (with just restricted pages) (give description)
Ex 4 Exhibit 3 (give description)
Ex 5 Exhibit 4 (but without restricted pages) (give description)
Ex 6 “Part of Exhibit 4” with just restricted pages (give description)
Ex 7 Exhibit 5 (give description)
Ex 8 Exhibit 6 (give description) (to be restricted)
Ex 9 Exhibit 7 (give description)
This Notice of Filing should be linked to the refiled version of [230] located at Doc. No. [290].
NOTE: The filing party must call the Clerk of Court immediately after filing and advise that
the system Exhibit number 3, 6, and 8 should be placed immediately under restriction.

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5) Exhibit 3 to Doc. No. [232] shall be filed with the redactions on one page in accordance
with this Order. This shall be accomplished by filing a Notice of Filing with Exhibit 3 attached
with a description containing the corresponding exhibit number (“Exhibit 3”) and a description of
the document. This Notice shall be linked to [232].
6) Exhibits 1-5, 7, 8, and 10-15 to Doc. No. [237] shall each be filed as separate exhibits
in their entirety. Exhibit 6 shall be filed with one page redacted in accordance with this Order.
Exhibit 9 shall be filed with redactions on certain pages in accordance with this Order but without
ACG-ID-0019963 and ACG-ID-0020365, which will be filed as a separate partial exhibit to be
placed under restricted view. This shall be accomplished by the procedure set forth in Paragraph
4 above. This Notice of Filing should be linked to Doc. No. [293]. NOTE: The filing party must
call the Clerk of Court immediately after filing and advise that the system Exhibit number
for the two pages of Exhibit 9 should be placed immediately under restriction.
7) Exhibits 1-9 to Doc. No. [238] shall be filed in their entirety. Exhibit 10 shall be filed
with redactions in accordance with this Order. This shall be accomplished by filing a Notice of
Filing with all exhibits attached with a description containing the corresponding exhibit number
and a description of the document. This Notice shall be linked to [238].
8) Exhibits 1, 4-7, and 10-20 to Doc. No. [247] shall each be filed as separate exhibits in
their entirety. Exhibits 2, 8, and 9 shall be filed with redactions in accordance with this Order.
Exhibit 3 shall be filed in its entirety but without ACG-ID0006167, which will be filed as a separate
exhibit under restricted view. This shall be accomplished by the procedure set forth in Paragraph
4 above. NOTE: The filing party must call the Clerk of Court immediately after filing and
advise that the system Exhibit number for the one page of Exhibit 3 should be placed
immediately under restriction.

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9) Exhibits 1, 2, 4, 6, 7, and 8 to Doc. No. [308] shall be refiled in their entirety. Exhibit 3
shall be filed with redactions in accordance with this Order. Exhibit 5 will be filed in its entirety
but will be filed under restricted view. This shall be accomplished by filing a Notice of Filing with
all exhibits attached with a description containing the corresponding exhibit number and a
description of the document. This Notice shall be linked to [308]. NOTE: The filing party must
call the Clerk of Court immediately after filing, so that Exhibit 5 can be placed timely under
restriction.12
IT IS FURTHER ORDERED that should either party wish to file into the record the
transcript of the hearing on the instant motion [274], the parties must first confer to redact said
transcript in accordance with the rulings contained in this Order.
SO ORDERED this 22nd day of May 2023.

/s/ Keith Starrett
KEITH STARRETT
UNITED STATES DISTRICT JUDGE

12

Should either party have questions regarding how to file in accordance with this Order, they are directed to call
the Clerk of Court.

24