Small et al v. University Medical Center of Southern Nevada

Filing 243

ORDER Denying 188 Motion to Seal. Signed by Magistrate Judge Peggy A. Leen on 3/18/2015. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DANIEL SMALL, et al.,

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Plaintiffs,

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Case No. 2:13-cv-00298-APG-PAL

v.

ORDER
(Mtn to Seal – Dkt. #188)

UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA,
Defendant.

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This matter is before the court on Defendant University Medical Center of Southern

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Nevada’s Motion to Seal all Transcripts and Exhibits to Special Master Orders (Dkt. #188) filed

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August 16, 2014. This matter was referred to the undersigned pursuant to 28 U.S.C.

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§ 636(b)(1)(B) and LR IB 1-4 and 1-9.

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Response (Dkt. #204), and Defendant’s Reply (Dkt. #213).

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I.

The court has considered the Motion, Plaintiffs’

The Parties’ Positions.

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A.

Defendant’s Motion to Seal (Dkt. #188).

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Defendant seeks an order sealing all of the attachments to Special Master Daniel Garrie’s

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E-Discovery Summary and Order (Dkt. #183) entered August 13, 2014. In addition, Defendant

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requests an order sealing all exhibits and transcripts filed with Special Master Garrie’s April 14,

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2014, July 31, 2014, and August 15, 2014, E-Discovery Summaries and Orders . Defendant

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contends that because the documents attached to these Orders are part of discovery activities in

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this case and were not filed in connection with any dispositive motions or orders, they were

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improperly filed on the court’s public docket and should be removed and sealed. Defendant

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asserts that no prejudice will result from sealing these orders, and there is “no reason for them to

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be available to the public.” Motion at 2:15-16. In addition, Defendant asserts the documents

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should be sealed in accordance with the parties’ Stipulated Protective Order (Dkt. #67) entered

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by Magistrate Judge George W. Foley on February 28, 2013.

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Defendant contends that the Special Master attached transcripts from hearings with the

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August 13, 2014, Order, and these transcripts contain “a wealth of information about UMC’s

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internal personnel and human resource matters . . . [and] a level of detail about UMC’s various

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IT systems and their inner workings.”

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justification for filing the transcripts publicly. In addition, Defendant objects to the Special

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Master’s attachment of emails between him and counsel to his August 13, 2014, Order. UMC

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maintains no one aside from the court or the parties should see these emails while discovery is

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on-going.

Motion at 3:17-19.

Defendant asserts there is no

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The Special Master also attached “meet and confer” communications to his Order, and

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Defendant argues that these documents were not intended for public disclosure, and their filing is

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superfluous to resolving any discovery disputes in this case. Defendant also contends the letter

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briefs and attachments submitted to the Special Master during the course of his hearings that are

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attached to the Order should be sealed. Defendant was never informed that these items would be

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publicly filed, and counsel does not believe the Special Master should have included the informal

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briefing in his Order that was filed in the public record. Finally, Defendant asserts that the

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declarations of its IT System Administrator and other IT personnel attached to the Special

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Master’s Order should be sealed because they contain these UMC employees’ phone numbers,

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email addresses, job titles, and other unspecified private information.

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Defendant asserts that none of these documents were submitted with a dispositive motion

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and are “not presumed to be publicly accessible in court filings under Kamakana v. City and

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County of Honolulu, 447 F.2d 1172 (9th Cir. 2006).” Motion at 7:16-18. Furthermore, the

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Stipulated Protective Order warrants sealing of discovery documents attached to non-dispositive

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filings.

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materials with the court, and the advisory committee notes to the 2003 amendments to Rule 53 of

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the Federal Rules of Civil Procedure state that caution should be exercised in filing documents

In addition, Defendant points out that Local Rule 26-8 prohibits filing discovery

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with the court after special master proceedings. Finally, Defendant argues that the Sedona

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Principles also confirm that documents exchanged in discovery are confidential.

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B.

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Plaintiffs respond that Defendant has not made a particularized showing of compelling

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reasons or good cause to justify sealing any documents attached to the Special Master’s Orders.

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Plaintiffs contend that UMC has only made vague and conclusory assertions of confidentiality

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and has not supported its request to seal with any declaration or factual examples to illustrate

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disclosure will cause some identifiable harm. Plaintiffs also argue that Defendant’s claim of

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harm regarding the April 2014 Orders is belied by its failure to object for four-and-a-half

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Plaintiffs’ Response (Dkt. #204).

months.

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In addition, any request to seal documents entered by the Special Master before July 26,

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2014, is time-barred pursuant to Federal Rule of Civil Procedure 53(f)(2), which prescribes a

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twenty-one day time limit to object or move to modify an order of a special master. Plaintiffs

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assert that the transcripts should not be sealed because they were part of formal, evidentiary

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hearings recorded by a court reporter, and Defendant did not object regarding confidentiality or

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request the proceedings be closed. Similarly, all of the parties’ letter briefs, sworn declarations,

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communications with the Special Mater, and meet and confer letters were part of a court-ordered

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formal judicial process, and they should be treated like publicly-filed submissions to the court.

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Finally, Plaintiffs argue that the Stipulated Protective Order does not constitute good cause to

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seal the records attached to the Special Master’s Orders.

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C.

Defendant’s Reply (Dkt. #213).

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Defendant requests that the Motion to Seal be extended to include all exhibits of Special

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Master Garrie’s Report of Findings and Recommendation (Dkt. #189). Defendant replies that

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Kamakana’s “interest has not attached yet” because there is no dispositive motion pending, and

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discovery documents attached to non-dispositive motions rebut the presumption of public access.

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Reply at 5:15, 18; 6:13-15. Defendant relies on language from Kamakana that where a court has

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granted a protective order pursuant to Federal Rule of Civil Procedure 26(c), that protective

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order warrants sealing discovery documents attached to non-dispositive motions. Defendant

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contends the Stipulated Protective Order also warrants sealing discovery documents attached to

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the Special Master’s Orders. Finally, Defendant reiterates that pursuant to the Sedona Principles,

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the parties must keep the fruits of discovery private, and by implication, “the fruits of discovery

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proceedings” must also remain private.

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II.

Analysis.

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Generally, there is a strong presumption of access to judicial records. See Kamakana,

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447 F.3d at 1179. The Ninth Circuit has carved out an exception to this presumption of access

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for materials attached to non-dispositive motions where the movant makes a particularized

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showing of good cause under Rule 26(c) of the Federal Rules of Civil Procedure that rebuts the

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public’s right of access. See Foltz v. State Farm Mut. Ins. Co., 331 F.3d 1122, 1135, 1138 (9th

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Cir. 2003); Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002).

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As an initial matter, Defendant’s reliance on the Stipulated Protective Order to establish

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good cause to seal the documents attached to Special Master Garrie’s Orders is insufficient. The

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Ninth Circuit requires a party to make a particularized showing of good cause for each document

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it seeks to file under seal. See Foltz, 331 F.3d at 1131. In addition, the Ninth Circuit has

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recognized that a party seeking a blanket protective order “typically does not make the ‘good

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cause’ showing required by Rule 26(c) with respect to any particular document.” Id. at 1133; see

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also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992) (explaining that

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blanket stipulated protective orders are over inclusive by nature and do not include a finding of

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“good cause”). Reliance on a stipulated blanket protective order does not justify sealing court

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records. 966 F.2d at 475-76. Because a blanket stipulated protective order does not contain a

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finding of good cause to keep any particular document confidential, the fact that a court has

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entered one and that a party has designated a document confidential pursuant to that protective

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order does not establish good cause for sealing a particular document. See, e.g., Rockwell

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Automation, Inc. v. Beckhoff Automation, LLC, 2014 U.S. Dist. Lexis 78873, *3-4 (D. Nev. June

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9, 2014).

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The language Defendant relies on from Kamakana refers to protective orders entered

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pursuant to Federal Rule of Civil Procedure 26(c) and not to blanket protective orders. In fact,

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later in the opinion, the Ninth Circuit directly addresses “the hazard of stipulated protective

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orders,” noting they often “purport to put the entire litigation under lock and key without regard

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to the actual requirements of Rule 26(c).” 447 F.3d at 1183. Blanket protective orders are

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entered to facilitate the exchange of discovery documents.

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particular document is confidential or that a document’s disclosure would cause harm. In fact,

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the Stipulated Protective Order itself provides that “the party seeking to file a paper under seal

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bears the burden of overcoming the presumption in favor of public access to papers [filed in]

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court.” Protective Order, attached to Motion to Seal as Exhibit A.

They make no findings that a

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UMC has not met its burden of making a particularized showing of good cause for each

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document it seeks to file under seal. It did not provided any specific facts, supported by

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affidavits or concrete examples, to show any specific confidential information should remain

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under seal or establish that disclosure of the information would cause an identifiable and

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significant harm. UMC makes conclusory statements that: (a) the transcripts contain “a wealth

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of information about UMC’s internal personnel and human resources matters” and “an

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extraordinary level of detail about UMC’s various IT systems and their inner workings;” (b)

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“other emails” contain information about UMC’s computer backup systems and “a description of

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a technical report;” (c) the meet and confer communications “were never intended for public

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disclosure;” and (d) it understood the letter briefing to be an informal process. Each of these

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statements is insufficient to make a particularized showing of good cause for each item

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Defendant seeks to file under seal.

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In addition, UMC has not made a particularized showing that “specific prejudice or harm

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will result.” See, e.g., San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d 1096, 1103

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(9th Cir. 1999). ”Broad allegations of harm, unsubstantiated by specific examples or articulated

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reasoning do not satisfy the Rule 26(c) test.” Foltz, 331 F.3d at 1130 (9th Cir. 2003) (citing

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Beckman Ind., Inc. v. Internat’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992)). Defendant has not

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asserted or shown specific harm or prejudice that it expects will result from disclosure of any

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particular document it seeks to seal. Defendant has not identified with any particularity which

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documents contain confidential IT information or human resources matters or what prejudice or

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harm will come from disclosure of any particular document.

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Finally, the special master was only appointed because the court had lost

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confidence in UMC’s willingness or ability to comply with its discovery obligations with respect

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to electronically stored information (ESI) under the terms of a stipulated ESI protocol that its

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own former counsel had drafted. The court reluctantly appointed a special master after months

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of holding hearings and attempts to get UMC in compliance. Before appointing the special

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master I gave UMC one final opportunity to comply with its ESI discovery obligations warning

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UMC that if it did not I would appoint a special master at UMC’s expense, which I stated on the

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record I believed would be a ridiculous expense for UMC to incur. I appointed a special master

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for the first time in 14 years on the federal bench as a last resort to investigate and report on

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whether UMC withheld, deleted, destroyed or permitted to be destroyed ESI it was legally

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obligated to preserve in connection with this case. The special master conducted hearings and

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engaged in efforts to investigate and resolve UMC’s ESI discovery issues under my direction

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after multiple court hearings, transcripts of which are filed in the public record in this case.

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UMC is a public hospital. Public funds have been and continue to be expended on the defense of

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this case. UMC has paid in excess of $500,000 to the special master fund alone because of its

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failures to comply with its ESI discovery obligations. There is a strong presumption of public

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access to judicial files and records. I find the public has a right to know exactly why enormous

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sums have been spent at public expense.

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Accordingly,

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IT IS ORDERED that Defendant’s Motion to Seal (Dkt. #188) is DENIED.

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Dated this 18th day of March, 2015.

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____________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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