Welch et al v. My Left Foot Children's Therapy, LLC et al

Filing 187

ORDER granting ECF No. 185 Motion to Unseal. Signed by Magistrate Judge Cam Ferenbach on 9/7/2021. (Copies have been distributed pursuant to the NEF - KR)

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Case 2:14-cv-01786-MMD-VCF Document 187 Filed 09/07/21 Page 1 of 3 1 2 3 4 5 6 7 CHRISTOPHER CHIOU Acting United States Attorney District of Nevada Nevada Bar No. 14853 TROY K. FLAKE Assistant United States Attorney 501 Las Vegas Blvd. So., Suite 1100 Las Vegas, Nevada 89101 (702) 388-6336 Troy.Flake@usdoj.gov Attorneys for the United States UNITED STATES DISTRICT COURT 8 9 10 11 12 13 14 15 DISTRICT OF NEVADA UNITED STATES OF AMERICA AND THE ) STATE OF NEVADA ex rel. MARY KAY ) WELCH, ) Case No: 2:14-cv-01786-MMD-VCF ) Plaintiffs, ) MOTION TO UNSEAL ) v. ) ) MY LEFT FOOT CHILDREN’S THERAPY L ) ANN MARIE GOTTLIEB, JONATHAN ) GOTTLIEB, ) Defendants. 16 The United States and the State of Nevada request that the Court unseal the 17 18 remaining sealed documents in the above case based on the following points and 19 authorities. Relator Mary Kay Welch filed this case on October 28, 2014. Over the next several 20 21 months, the United States and the State of Nevada (the “Government”) investigated the 22 allegations of the Complaint. On May 29, 2015, the United States and Nevada filed a notice 23 declining intervention. In that notice, the Government requested that the contents of the 24 Court’s file remain under seal, except the Complaint and notice declining intervention. On 25 June 1, 2015, the Court unsealed the case, but ordered that all previously filed documents 26 other than the Complaint, notice declining intervention, and the Court’s order remain 27 sealed. 28 1 Case 2:14-cv-01786-MMD-VCF Document 187 Filed 09/07/21 Page 2 of 3 1 The False Claims Act imposes mandatory filing and service requirements, including 2 a requirement that qui tam complaints “shall remain under seal for at least 60 days.” 31 3 U.S.C. § 3730(b)(2). These provisions were adopted “primarily to allow the government first 4 to ascertain in private whether it was already investigating the claims stated in the suit and 5 then to consider whether it wished to intervene.” United States v. Aurora Las Encinas, LLC, 6 2011 WL 13137312, at *5 (C.D. Cal. Sept. 8, 2011)(Citing Erickson ex rel. United States v. 7 American Inst, of Bio. Sciences, 716 F. Supp. 908 (E.D. Va. 1989)). However, as a general 8 matter, there is “[A] ‘strong presumption in favor of access to court documents. Kamakana v. 9 City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Accordingly, courts have 10 discretion to unseal documents filed in qui tam cases unless the United States shows that 11 unsealing the documents would (1) reveal confidential investigative methods or techniques; 12 (2) jeopardize an ongoing investigation; or (3) harm non-parties. United States v. Ctr. for Emp. 13 Training, 2016 WL 561774, at *2 (E.D. Cal. Feb. 12, 2016). 14 The Ninth Circuit has indicated that sealing may be appropriate when a party will be 15 harmed by court files becoming “a vehicle for improper purposes such as the use of records 16 to gratify private spite, promote public scandal, circulate libelous statements, or release trade 17 secrets.” Kamakana, 447 F.3d at 1179. Conversely, the mere fact that the production of 18 records “may lead to a litigant’s embarrassment, incrimination, or exposure to further 19 litigation will not, without more, compel the court to seal its records.” Id. 20 As the Court is aware, the qui tam defendants are in a coverage dispute with their 21 insurer arising out of the qui tam matter. See My Left Food Children’s Therapy, et al. v. Certain 22 Underwriters at Lloyd’s London Subscribing to Policy No. HAH15-0632, 2:15-cv-01746-MMD- 23 VCF (D. Nev.). The coverage defendants have moved to intervene in this qui tam to obtain 24 access to the remaining sealed documents in the file. 1 25 26 27 28 The Government does not believe that unsealing the documents in this case would 1 Because this motion will accomplish the result the coverage defendant seeks, and because the False Claims Act expressly states that “When a person brings an action under [the False Claims Act], no person other than the Government may intervene,” 31 U.S.C. § 3730(b)(5), the Government respectfully requests that the Court deny the Motion to Intervene. 2 Case 2:14-cv-01786-MMD-VCF Document 187 Filed 09/07/21 Page 3 of 3 1 reveal confidential investigative methods or techniques. The Government has declined to 2 intervene, and the qui tam case has concluded, so unsealing would not jeopardize an 3 ongoing investigation. Finally, the Government does not have any information suggesting 4 that unsealing will cause the type of harm that would justify denying public access to the 5 court filings. Accordingly, there is no compelling reason to keep the documents unsealed 6 and the Government respectfully requests that this court order that the remaining sealed 7 documents in this case be unsealed. 8 Respectfully submitted this 19th day of August, 2021. 9 CHRISTOPHER CHIOU Acting United States Attorney 10 11 s/ Troy K. Flake TROY K. FLAKE Assistant United States Attorney 12 13 14 15 16 17 It is so ordered: 18 19 20 21 22 Cam Ferenbach United States Magistrate Judge Dated this 7th day of September, 2021 23 24 25 26 27 28 3

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