Cretney-Tsosie, et al. v. Creekside Hospice II, LLC, et al.

Filing 147

ORDER Granting 117 Motion to Unseal. The clerk of court shall unseal sealed documents in both consolidated actions (Case no 2:13-cv-01283 and 2:13-cv-0167). Signed by Magistrate Judge Peggy A. Leen on 12/30/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA, et al.

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Plaintiffs,

ORDER

v.

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Case No. 2:13-cv-00167-APG-PAL

(Mot to Unseal Related Actions – Dkt. #117)
CREEKSIDE HOSPICE II, LLC, et al.,
Defendants.

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Before the Court is Defendants’ Motion to Unseal Related Actions (Dkt. #117). The

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court has considered the motion, the United States’ Response (Dkt. #119), and Defendants’

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Reply (Dkt. #126).

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BACKGROUND
I.

Procedural History

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This case is a consolidated qui tam action initiated by two private citizens under the

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provisions of the Federal False Claim Act (“FCA”), 631 U.S.C. § 3730(b). Both actions were

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filed by two former hospice care workers employed by Creekside, under seal, in accordance with

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31 U.S.C. § 3730(b)(2). The first case was filed by Plaintiff/Relator, Joanne Cretney-Tsosie,

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against Creekside Hospice II, LLC and Skilled Healthcare Group, Inc. for violations of the

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United States False Claim Act 31 U.S.C. § 3729 et seq., and the Nevada False Claim Act, NRS

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357.070 et seq. The Complaint was initially filed in camera and under seal.

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The second complaint, Case No. 2:13-cv-1283, was filed by Plaintiff/Relator Veneta

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Lepera against Skilled Healthcare LLC, Creekside Homecare II, LLC, and Creekside Hospice II,

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LLC doing business as Creekside Home Healthcare (“Creekside”). It was also filed in camera

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and under seal.

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After multiple applications and court orders granting extensions of time for the United

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States and State of Nevada to elect to intervene, the United States and State of Nevada filed a

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Notice of Election to Intervene in Part, and to Decline to Intervene in Part (Dkt. #34) in the

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Joanne Cretney-Tsosie (“Cretney-Tsosie”) action, Case No. 2:13-cv-00167 on August 6, 2014.

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The United States also filed a Notice of Election to Intervene in Part, and to Decline to Intervene

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in Part (Dkt. #18) in the Veneta Lepera (“Lepera”) action, Case No. 2:13-cv-01283 on August 6,

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2014. The United States and State of Nevada filed a Motion to Consolidate Actions (Dkt. #36)

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in the Cretney-Tsosie case, and (Dkt. #20) in the Lepera case on August 7, 2014. Both motions

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to consolidate were filed under seal and cited Fed. R. Civ. P. Rule 42(a) as authority for the

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consolidation. The motions to consolidate were granted in sealed orders entered August 14,

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2014, (Dkt. #37) in Cretney-Tsosie, and (Dkt. #23) in Lepera. Both cases were consolidated

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with Case No. 2:13-cv-00167 serving as the base case.

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The United States and State of Nevada’s Notice of Election to Intervene in Part, and

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Decline to Intervene in Part in Cretney-Tsosie (Dkt. #34) was initially filed ex parte and under

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seal, but is now part of the public record. The district judge entered an Order (Dkt. #38) on

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August 18, 2014: (1) unsealing the notice of election to intervene in part, and decline to intervene

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in part and his order; (2) giving the United States and State of Nevada 90 days to serve their

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complaint; (3) directing the Relator’s complaint be unsealed on the filing and service of the

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United States and Nevada’s complaint in intervention; (4) requiring the Relator to serve its

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complaint upon Defendants within 90 days; (5) directing that all other papers or orders on file in

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this case remain under seal; (6) directing that the seal be lifted on all other matters occurring in

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this action after the date of the order; (7) directing that as to the part of this action in which the

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United States and Nevada declined to intervene, that the parties serve all pleadings and motions

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filed in that part of the action, including the supporting memoranda, upon the United States and

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Nevada as provided for in 31 U.S.C. § 3730(c)(3) and NRS 357.130(1); (8) requiring that all

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orders of the court be sent to the United States and Nevada; and (9) providing that should the

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Relator or the Defendant propose that part of the action in which the United States and Nevada

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have declined to intervene be dismissed, settled, or otherwise discontinued, that the court would
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provide the United States and Nevada with notice and an opportunity to be heard before ruling or

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granting its approval. A similar order was entered in Lepera on August 13, 2014. See (Dkt.

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#21).

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On August 26, 2014, Judge McKibben recused himself in both cases. See Minute Order

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in Cretney-Tsosie (Dkt. #39) and Lepera (Dkt. #24). The consolidated case was reassigned to

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Judge Gordon and the undersigned. See Minute Order in Chambers (Dkt. #40). The minute

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order reassigning this case indicated that all further documents must bear the correct case number

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2:13-cv-00167-APG-PAL.

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Plaintiff Lepera filed a Notice of Partial Voluntary Dismissal (Dkt. #26) on February 24,

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2015, dismissing claims involving allegations of illegal “inducements and remuneration,” but

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continuing as a party, and joining the United States and State of Nevada in the complaint in

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intervention.

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After the cases were consolidated and reassigned to Judge Gordon, the Department of

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Justice (“DOJ”) requested and received an extension of time to file a complaint in intervention.

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See Order (Dkt. #55). The Second Amended Complaint (Dkt. #52) was filed by the United

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States and State of Nevada on November 25, 2014. Plaintiff/Relator Joanne Cretney-Tsosie filed

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a Notice of Voluntary Dismissal (Dkt. #53) November 25, 2014, voluntarily dismissing, without

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prejudice, the claims in her First Amended Complaint related to Defendants’ pre-2010 conduct,

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submission of false claims to payors other than Medicaid and Medicare, and failure to meet the

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voluntary workforce requirement. However, she continued as a party to this action on all

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remaining claims and joined and incorporated by reference the entirety of the complaint in

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intervention.
With a few exceptions, all of the papers filed in this action after the cases were

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consolidated are on the public docket and not sealed.
II.

The Motion to Unseal.

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A. Creekside’s Motion.

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In the current motion, Creekside seeks to unseal all docket entries and pleadings in both

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qui tam cases before and after consolidation.
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The motion requests unsealing the original

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complaints, amended complaints, all ex parte requests for extension of time, and other ex parte

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requests for judicial relief. It argues that Creekside has a compelling need to review the entire

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dockets of all related cases to prepare its defenses and perform its discovery because the United

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States admitted in response to Creekside’s motion to enforce the court’s prior discovery order

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that it could not fully identify all of the false claims submitted by Creekside for sample patients,

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the false statements relating to those false claims, nor how they were caused to be submitted.

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Creekside acknowledges that private parties acting as Relators may file suit on behalf of

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the United States alleging fraud under the FCA under seal and are required to provide the

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government with a complaint and a written disclosure of the supporting evidence. While the

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government evaluates whether to intervene, the case remains under seal pursuant to 31 U.S.C. §

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3730(b)(2). The purpose of the sealing provisions is to protect the government’s interest in

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criminal matters by enabling it to investigate the alleged fraud without tipping off investigative

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targets at a sensitive stage. However, once the government elects to intervene, it conducts the

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action, has primary responsibility for prosecuting the action, and the Relator’s interest is only

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commercial and pecuniary. After intervention, the United States remains the real party in

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interest.

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In this case, DOJ sought and received multiple extensions from the court beyond the 60

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days initially allowed by statute to decide whether or not to intervene. DOJ did not elect to

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intervene until 25 months after Ms. Cretney-Tsosie’s first amended complaint was filed. All of

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the requests for an extension are under seal. Creekside believes the sealed portions of the record

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are material to allegations of the government’s complaint and necessary for it to defend against

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the claims. Creekside asserts there is no compelling need to keep the action under partial seal

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even if the Relators and the government prefer this. Creekside maintains that it is entitled to

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assess the original allegations, how they changed, how the facts are presented by the Relators,

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the basis of any extension, and the court’s partial unsealing of the actions in 2013. Creekside’s

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intention is to examine the complete record in both cases to assess factual inconsistencies and

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deviations by the parties. Because there are two competing qui tam actions, Creekside seeks to

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assess the first to file rule under the FCA which bars subsequently filed suits. Creekside also
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intends to assess the extensions granted to the government to assess why it delayed advising

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Creekside of the identity of the Relators.

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Creekside claims that the “procedural chronology of this case has many oddities that may

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have been injurious to Creekside.” As an example, Cretney-Tsosie filed an original qui tam

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action in July 2012, after she resigned as an employee from Creekside. Creekside claims she

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removed corporate documents and patient records without authorization.

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employment with Creekside in September 2013, but did not tell Creekside about her pending qui

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tam action. After rejoining Creekside, she continued to surreptitiously remove and use corporate

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records for this case, providing them to her counsel, and eventually to the DOJ. Creekside

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believes she removed over 10,600 pages from Creekside under false pretenses and argues it is

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entitled to full discovery of who knew what and when, to defend allegations and to assert

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potential counterclaims or other remedies for unauthorized removal of business and clinical

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records.

She resumed

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Finally, Creekside intends to assess and potentially assert defenses about the amount of

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time these cases remained under seal because it may constitute an abuse of process. Creekside

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argues that the government is not allowed to engage in one-sided litigation and oppose the

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motion to dismiss on the basis of evidence of false claims that it failed to produce in response to

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discovery requests and court orders, while admitting it does not have the evidence needed to

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respond despite multiple extensions prior to intervention. Creekside believes that it is entitled to

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establish a record on how the government received extensions and subjected it to impermissible

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one-sided litigation, and removal of a large quantity of corporate records for use in this

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proceeding. It believes that the government has used the under seal period as a means of

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conducting unchecked discovery in an effort to build a more complete case against it which is a

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practice at least one court has found was not contemplated by Congress and not authorized by the

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FCA.

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A number of courts have held that the FCA gives the court authority to maintain the

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filings under seal and to make them available to the parties.

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dockets of qui tam actions once litigation is under way. There is a strong presumption in favor
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The courts routinely unseal the

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of public access to judicial proceedings and access is critical for Creekside to adequately

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evaluate the allegations against it and assert all potential defenses. The presumption in favor of

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unsealing is overcome if a party opposing unsealing meets the compelling reasons standard

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articulated by the Ninth Circuit in Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1137

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(9th Cir. 2003). The court should conscientiously balance the competing interests of the public

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and the party who seeks to keep certain judicial records secret. In this case, Creekside has a

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compelling interest to review all allegations leveled against it. Unsealing the records will not

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jeopardize an ongoing investigation, reveal confidential investigative techniques, or impair third

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parties because the Relators have revealed their allegations to DOJ which has included aspects of

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those allegations in its complaint in intervention. Transparency in judicial administration of

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cases and Creekside’s own right to assess and defend the allegations compels a complete

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unsealing of both consolidated actions.

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B. The United States’ Response.

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The United States opposes the motion in a pithy response which asserts many of the

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sealed documents detail the status of the ongoing confidential investigation conducted by the

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United States and State of Nevada. 31 U.S.C. § 3730(b) allowed Relators and the United States

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to submit all filings in this case under seal before the United States and State of Nevada decided

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to intervene. The filings that were sealed include: (1) the Relators complaint and amended

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complaints, and written disclosure of substantially all material evidence and information required

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by 3730(b)(2); (2) requests by the United States and State of Nevada for extensions of time to

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decide whether to intervene, which described the status of the ongoing confidential investigation;

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(3) requests to partially lift the seal to permit disclosure of the complaints to the Defendants and

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Relators in these actions; (4) appearances by counsel; and (5) court orders on these various

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matters.

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The United States cites an unpublished decision in this district denying a motion to unseal

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an FCA action on the grounds the sealed filings provided nothing useful to the defense. The

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United States also cites United States ex rel O’Keefe v. McDonald Douglas Corp., 902 F. Supp.

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189, 192 (E.D. Mo. 1995), which denied Defendant’s request to unseal the United States’
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extension requests and supporting affidavits and memoranda because they provided substantive

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details regarding the government’s methods of investigation. The decision found there would be

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harm associated with disclosure of the details.

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The government acknowledges that several courts have unsealed documents in other qui

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tam cases brought under the FCA. However, most of these cases have found that there would be

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something useful to the defense. Defendants have not identified any material issue involved in

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the case for which any of these sealed filings would provide any factual relevant information

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they do not already have. Instead, the Defendants want them because they are curious about

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what the United States was doing in 2013 and 2014 before it intervened.

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The United States also argues that the Defendants’ discussion about the strong

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presumption of public access is misplaced under the FCA because Congress explicitly required

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the filings be made under seal to protect the United States’ investigation and to prevent the

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disclosure of investigative techniques. The public does not have a right to know how the United

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States conducts confidential investigations of healthcare fraud. Rather, the public is entitled to

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know how the litigation is conducted from the point the United States decides to intervene.

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C. Cretney-Tsosie’s Response.

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Plaintiff/Relator Joanne Cretney-Tsosie filed a response to Defendants’ Motion to Unseal

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which argues the court should deny the motion in whole or in part because it would allow

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disclosure of confidential patient information, including the names of patients from Creekside

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Hospice II, LLC contained in Relator’s complaint and first amended complaint.

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Cretney-Tsosie disputes that she obtained corporate records from the company under

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false pretenses and argues that Defendants’ assertions about this are inaccurate and problematic

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for several reasons. First, “Defendants have failed to properly present to the Court any matter

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pertaining to their assertion that the Relator improperly took documents” and are using these

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allegations as a tactic to malign her and influence the court’s decisions. Cretney-Tsosie has

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worked in hospice for over a decade and serves as a minister frequently writing and speaking on

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issues of faith.

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November 2011, to May 2012, and again from September 2013, to approximately February

She worked at Creekside as a hospice nurse and clinical manager from

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2015. She disputes that she returned to employment under false pretenses. Rather, Creekside

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solicited her for re-employment. She merely maintained her legal obligation under the FCA to

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maintain confidentiality of matters submitted under seal during the government’s investigation of

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the complaint. She acknowledges that she took documents she believes supported her suspicion

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of massive Medicare fraud which were turned over to her counsel and eventually to the

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government. Some of these documents included attorney/client privileged materials, publicly-

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available documents, and documents coming into her possession because of her position with

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Creekside.

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Cretney-Tsosie asserts that she was well within her rights to take these documents and

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provide them to the government because the FCA requires written disclosure of substantially all

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material evidence and information the Relator possesses to be provided to the government. The

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Ninth Circuit has recognized the importance of providing a qui tam Defendant’s documents to

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the government, even when a Relator has explicitly signed a confidentiality agreement

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prohibiting disclosure.

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Cretney-Tsosie states she provided additional documents to the government when she

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separated from employment with Creekside for the second time. In February 2015, she agreed to

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return all documents to Defendants that potentially could be characterized as company property.

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These documents were Bates-stamped JCT 000001 through 010613, and included documents

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from both rounds of her employment at Creekside. The second round of documents was not

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produced to the government until February 21, 2015, when Relator’s counsel provided them to

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the United States because of the ongoing qui tam litigation, and to support Relator’s

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collaboration with the government in litigating this case. She asserts that the government did not

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receive or review the second round of documents until more than seven months after the

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complaint in intervention was filed. As a result, the government could not have relied on these

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additional documents in drafting its complaint in intervention or in the litigation as Defendants

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have maintained. She therefore requests that the court deny the motion to unseal because the

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sealed documents include privileged documents, and other materials protected from disclosure.

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Alternatively, if the court grants the motion, she requests that the patient names in Relator’s

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complaint and amended complaint be redacted prior to unsealing.

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D. Creekside’s Reply.

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Creekside replies that the motion to unseal identifies several reasons why the case should

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be unsealed in its entirety.

The government has acknowledged that it filed its notice of

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intervention, a complaint, and amended complaint without determining the existence of one false

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claim, false certification or false statement to support a false claim. In a Status Report (Dkt.

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#112), the United States stated it had no objection to unsealing the Relator’s complaints.

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Creekside seeks the ex parte extensions and “the ex parte partial lifting of the seal” which the

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United States still argues should remain sealed.

Creekside reiterates arguments that these

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categories of sealed pleadings and orders are essential to fully assess its defenses and potential

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affirmative requests for relief, including the counterclaim for the unlawful removal of 10,600

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pages of corporate documents by one of the Relators. The government has cited no legal

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authority for its claim that FCA actions are entitled to a higher level of secrecy than other

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government actions once the government has elected to intervene. The government has not met

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its burden of showing good cause to overcome the strong public interest in disclosure. By

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definition, an FCA complaint alleges a fraud upon the public and therefore implicates the public

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interest.

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Creekside asks that the court review the documents in camera to determine whether any

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compelling reason exists to keep the records under seal. The two cases cited by the government

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require the court to make an in camera review of the documents to determine whether they

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should remain sealed. It is unlikely that any reason remains for the documents to remain sealed

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and the court should therefore grant the motion.

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DISCUSSION

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The qui tam provisions of the FCA authorize private parties acting as “relators” to file

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suit on behalf of the United States alleging fraud. See 31 U.S.C. § 3730(b). Relators must file

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qui tam complaints under seal, and must provide the government with the complaint and a

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written disclosure of the supporting evidence. Id. The government has 60 days to decide
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whether to intervene, but may obtain extensions upon a showing of good cause. 31 U.S.C. §

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3730(b)(2)-(c). A qui tam action remains under seal while the government evaluates whether to

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intervene. 31 U.S.C. § 3730(b)(2). Sealing is authorized to “protect the Government’s interests

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in criminal matters” by enabling the government to investigate the alleged fraud without tipping

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off the targets of the investigation at a sensitive stage. United States ex rel. Yesudian v. Howard

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University, 153 F.3d 731, 743 (D.C. Cir. 1998).

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The Ninth Circuit has held that the purpose of qui tam actions is to encourage more

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private false claim litigation. United States ex rel Lujan v. Hughes Aircraft Co., 67 F.3d 242,

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245 (9th Cir. 1995) (citing the Congressional Record). Congress intended to strike a balance

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between the purpose of qui tam actions and law enforcement needs by enacting the seal

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provision. Id. The seal provision allows the government an adequate opportunity to fully

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evaluate the Relator’s claim to determine if the government is already investigating and whether

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it is in the government’s interest to intervene. Id. The seal provision balances these two interests

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“by allowing the qui tam Relator to start the judicial wheels in motion and protect his litigative

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rights, while allowing the government the opportunity to study and evaluate the Relator’s

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information for possible intervention in the qui tam action or in relation to an overlapping

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criminal investigation.” Id.

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The government concedes that a number of courts to address the issue have concluded

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that, once the government elects to intervene, filings in the matter should be unsealed. The

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government cites United States ex rel O’Keefe v. McDonald Douglas Corp., 902 F.Supp 189

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(E.D. Mo. 1995) for the proposition that the court may deny a defendant’s request to unseal the

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United States’ extension requests and supporting affidavits where they provide substantive

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details regarding the government’s methods of investigation. However, as Creekside correctly

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points out, the court made its findings only after conducting an in camera review. In O’Keefe,

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the district judge followed two other published decisions from the Southern District of New York

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which reasoned that because the False Claim Act permits in camera submissions, “the statute

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necessarily gives the court discretionary authority over whether to maintain the secrecy of such

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submissions.” Id. at 191 (citing United States v. CACI Int’l Inc., 885 F. Supp 80, 83 (S.D.N.Y.

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1995), and United States ex rel Mikes v. Straus, 846 F.Supp 21, 23 (S.D.N.Y. 1994)).

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In all three cases, the courts exercised their discretion after balancing a defendant’s

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request for sealed documents against the harm to the government risked by disclosure. In the

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two Southern District of New York cases, the courts found that the documents the government

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sought to maintain under seal did not disclose any confidential investigative techniques,

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information which could jeopardize an ongoing investigation, or matters which would injure

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non-parties. The courts found that the sealed documents merely described routine, general

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investigative procedures which did not implicate specific people or provide any substantive

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details. As a result, no harm would result to the government if the documents filed prior to

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intervention were unsealed. The McDonald Douglas court conducted an in camera review of the

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government’s request for extensions of time and accompanying memoranda and affidavits and

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concluded they provided substantive details regarding the government’s methods of

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investigation. Balancing the harm to the government if its motions for extension of time and

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accompanying memoranda and affidavits were unsealed with the movant’s purported need for

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the documents, the court found that the harm outweighed the need and declined to lift the seal

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regarding those documents. However, the court ordered the seal lifted as to other documents

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filed prior to the government’s notice of intervention.

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A number of courts have been critical of the length of time qui tam actions have remained

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under seal and the government’s handling of the actions while deciding whether to intervene.

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See, e.g., United States ex rel Martin v. Life Care Centers of America, 912 F.Supp 2d 618 (E.D.

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Tenn. 2012); United States ex rel Costa v. Baker & Taylor, Inc., 955 F.Supp 1188, 1199 (S.D.

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Cal. 1997). Both cases pointed out that the FCA sealing provision was intended to give the

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government a 60-day period of time to determine whether it is already investigating the claims

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stated in the suit and to consider whether it wished to intervene. Both cases were critical of the

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number of extensions the government sought while it conducted extensive unchecked discovery

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in an effort to build a more complete case against the defendant. (“This practice of conducting

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one-sided discovery for months or years while the case is under seal was not contemplated by
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Congress and is not authorized by the [FCA].” United States ex rel Costa v. Baker & Taylor,

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Inc., 955 F. Supp. at 1191.)

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In Martin, the court found that the FCA contemplated a fairly straightforward process for

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qui tam complaints allowing the Relator to file a complaint under seal and allowing the

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government 60 days to determine whether it wishes to intervene. 912 F. Supp. at 626. The court

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found that “clearly, the FCA contemplates lifting the seal on the Relator’s complaint once the

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Government has decided whether to intervene.” Id. However, the FCA is silent as to the

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continued sealing of other documents. Id. The court concluded that nothing in the text of the

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FCA authorizes an indefinite seal of record materials beyond the complaint. Id. The court also

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found that even assuming the FCA permitted the continued indefinite sealing of certain

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documents, which the court characterized as a “dubious proposition,” that it was clear the

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government would be required to demonstrate “good cause” as a prerequisite to continued

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sealing.

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proceedings, the court concluded that the government had not demonstrated sufficient good

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cause to support its request to continue to seal the qui tam action. It denied the government’s

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request to retain certain documents under seal and ordered that case unsealed in its entirety. Id.,

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at 627.

Id.

Recognizing the long-established legal tradition of public access to court

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As a general matter, there is a strong presumption of access to judicial records.

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Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). “In keeping with

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the strong public policy favoring access to court records, most judicial records may be sealed

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only if the court finds ‘compelling reasons’.” Oliner v. Kontrabecki, 745 F.3d 1024, 1025–26

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(9th Cir. 2014) (citing Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 2010)).

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However, public “access to judicial records is not absolute.” Kamakana, 447 F.3d at 1178.

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The Ninth Circuit has carved out an exception to the strong presumption of access for

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certain discovery materials where the movant makes a particularized showing of “good cause”

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under Rule 26(c) of the Federal Rules of Civil Procedure that rebuts the public’s right of access.

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See Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1135, 1138 (9th Cir. 2003); Phillips v.

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Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) see also Fed. R. Civ. P. 26(c) (a district
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court may issue a protective order “to protect a party or person from annoyance, embarrassment,

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oppression, undue burden or expense”). The “less exacting ‘good cause’ standard” applies (1) to

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“private materials unearthed during discovery,” as such documents are not part of the judicial

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record, and (2) to “previously sealed discovery” attached to non-dispositive motions. Oliner v.

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Kontrabecki, 745 F.3d 1024, 1026 (9th Cir. 2014) (citing Pintos, 605 F.3d at 678). See also

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Foltz, 331 F.3d at 1135 (holding that the Phillips exception is “expressly limited to the status of

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materials ... attached to a non-dispositive motion”) (emphasis in original). Broad allegations of

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harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule 26(c)

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test.” Foltz, 331 F.3d at 1130.

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The FCA requires Relators to file qui tam complaints under seal and gives the

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government 60 days to decide whether to intervene. The FCA contemplates lifting the seal on

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the Relator’s complaint once the government has decided whether or not to intervene. However,

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the FCA is silent regarding whether other documents should remain sealed once the decision

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about intervention has been made. The court agrees with those courts that have reasoned that

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nothing in the text of the FCA authorizes the government to obtain an indefinite seal of the

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record. The Ninth Circuit has held that the purpose of the seal provision is to allow the

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government an adequate opportunity to fully evaluate the Relator’s claim to determine if the

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government is already investigating, and whether it is in the government’s best interest to

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intervene. Another purpose of the seal provision is to allow the government to investigating

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potential fraud without tipping off a potential target at a sensitive stage. Neither of those

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purposes would be served where, as here, the government has elected to intervene after more

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than two years of investigation.

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The United States sought and obtained leave of the court to unseal the Relator’s

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complaint and amended complaint for the purpose of sharing the information with Defendants in

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furtherance of potential settlement. In a Status Report (Dkt. #112) the government stated it had

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no objection to unsealing the Relators’ complaints and amended complaints. Relator Cretney-

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Tsosie opposes unsealing the complaint and amended complaint asserting they contain patient

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information and other unspecified privileged material. However, a review of the pleadings
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1

reflects they merely provided two letter initials for a handful of sample patients used to illustrate

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the nature of the alleged fraud. Of the remaining categories of documents that are sealed the

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court can discern no reason at all why (1) the United States request to partially lift the seal to

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prevent disclosure of the complaints to Defendants and Relators in these actions, (2) appearances

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by counsel and (3) court orders on these matters should remain sealed.

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With respect to the United States and State of Nevada’s requests for extensions of time to

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decide whether to intervene, the court has conducted an in camera review. The court finds

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nothing in the requests for extensions that would disclose any confidential investigative

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technique or method, or any other information which could jeopardize an ongoing investigation.

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The documents describe routine general investigative procedures and do not implicate specific

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people or provide any substantive details. Additionally, the information that is provided in the

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requests for extension has largely been disclosed by the United States in papers on file and at

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court hearings held since the United States elected to intervene.

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In short, the court agrees that after the government has elected to intervene, the burden is

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on the government to show good cause for documents on file to remain sealed. The government

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has not met its burden. Moreover, an in camera review of the requests for extension indicates no

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sensitive information, substantive details or methods of investigation will be disclosed that

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outweigh the public’s right to know the contents of judicial files and records, or Defendants’

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need to evaluate the sealed materials for the purposes described, and the public’s right

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Accordingly,

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IT IS ORDERED that Defendants’ Motion to Unseal Related Actions (Dkt.

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#117) is GRANTED. The clerk of court shall unseal sealed documents in both consolidated

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actions (Case no 2:13-cv-01283 and 2:13-cv-0167).

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DATED this 30th day of December, 2015.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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