United States of America et al v. Kalispell Regional Healthcare et al

Filing 58

ORDER that the Clerk of Court is directed to unseal cause numbersCV 16-125-M-DWM and CV 18-80-M-DWM in their entirety. Signed by Judge Donald W. Molloy on 9/28/2018. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

UNITED STATES OF AMERICA,
STATE OF MONTANA, ex rel. JON
MOHATT,

Lead Case No.
CV 18-80-M-DWM
Member Case No.
CV 16-125-M-DWM

Relator,
vs.

ORDER

HEALTHCENTER NORTHWEST,
LLC, et al.,
Defendants.

On September 26, 2018, the United States was ordered to show cause as to
why cause numbers CV 16-125-M-DWM and CV 18-80-M-DWM should not be
unsealed in their entirety. (Doc. 14.) In response to that order, the United States
requested the Court to maintain the seal on documents discussing its investigative
and settlement processes that were filed in camera under 31 U.S.C. § 3730(b)(3).
(Doc. 15.) The United States' request is denied.
The False Claims Act, 31 U.S.C. §§ 3729-33, requires the relator's
complaint to remain sealed for at least sixty days. 31 U.S.C. § 3730(b)(2), (b)(3).
The seal allows the United States to investigate the allegations to decide whether to
intervene, prevents defendants from learning of the investigation, and protects the
defendant's reputation while the United States decides whether the case should
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move forward. Am. Civil Liberties Union v. Holder, 673 F .3d 245, 250 (4th Cir.
2011) (citing S. Rep. No. 99-345, at 24-25 (1986), reprinted in 1986 U.S.C.C.A.N.
5266, 5289-90). The United States can extend the seal with a showing of good
cause, and any supporting briefs or affidavits may be filed in camera. 31 U.S.C.
§ 3730(b)(3). The Act does not address how long those documents should remain
sealed. See id. That determination is left to the court's discretion. 1
In deciding whether to unseal documents, courts balance the public interest
in accessing judicial records against the harm that would result from disclosure.
"Where disclosure of confidential investigative techniques, of information which
could jeopardize an ongoing investigation, or of matters which could injure nonparties is requested, courts have recognized the interest of the public in denying or
deferring disclosure." U.S. ex rel. Mikes v. Straus, 846 F. Supp. 21, 23 (S.D.N.Y.
1994). However, because of the fundamental importance of open access to judicial

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See, e.g., U.S. ex rel. Mikes v. Straus, 846 F. Supp. 21, 23 (S.D.N.Y. 1994) ("In
permitting in camera submissions, the statute necessarily invests the court with
authority to preserve secrecy of such items or make them available to the parties.").
See also U.S. by the Dep't ofDefense v. CACI Int'/, Inc., 885 F. Supp. 80, 82-83
(S.D.N.Y. 1995); U.S. ex rel. O'Keefe v. McDonnell Douglas Corp., 902 F. Supp.
189, 191 (E.D. Mo. 1995); U.S. ex rel. Erickson v. Univ. of Wash. Physicians, 339
F. Supp. 2d 1124, 1126 (W.D. Wash. 2004); U.S. ex rel. Lee v. Horizon W, Inc.,
No. C-00--2921-SBA, 2006 WL 305966, at *2 (N.D. Cal. Feb. 8, 2006); U.S. v.
Creekside Hospice II, LLC, No. 2:13-CV-00167, 2015 WL 9581743, at *6 (D.
Nev. Dec. 30, 2015); U.S. ex rel. Handal v. Ctr. For Emp't Training, No. 2:13CV-01697, 2016 WL 561774, at *2 (E.D. Cal Feb. 12, 2016).
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records, see Nixon v. Warner Commc 'ns, Inc. 435 U.S. 589, 597-98 (1978),
maintaining a seal is the exception, not the rule.
Here, the United States has not demonstrated that the harm resulting from
disclosure outweighs the public's interest in accessing the documents at issue.
First, the United States contends that the documents should remain sealed because
they "were filed ex parte and have not been served on any other party in the case"
and that they "fall squarely within the in camera provisions of section 3 73 O(b )(3 ). "
(Doc. 15 at 4.) But that a document was properly filed under seal does not by itself
mean that it should remain under seal. And, as discussed above, the False Claims
Act does not contemplate that a seal will endure in perpetuity.
The United States then contends that the documents should remain under
seal because they discuss its "investigative and settlement processes." (Id. at 5.)
However, this case has already settled, (Doc. 13), which means that any
investigative and settlement processes are complete. The seal, then, has
accomplished its purpose of allowing the United States time to decide how to
proceed. See Am. Civil Liberties Union, 673 F .3d at 250. Further, the United
States does not argue that any information in the documents is confidential or that
it poses harm to non-parties. (See Doc. 15.) Rather, the documents convey general
information about the already-completed investigation and information that has
been public since June 2018, when the amended complaint in the first-filed of
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these consolidated actions was unsealed, (Doc. 18 in CV 16-125-M-DWM).
Accordingly,
IT IS ORDERED that the Clerk of Court is directed to unseal cause numbers
CV 16-125-M-DWM and CV 18-80-M-DWM in their entirety.
DATED this

1~

,_

day of September, 2018.

olloy, District Judge
District Court

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