Schemenauer v. Colvin

Filing 25

ORDER GRANTING # 12 Motion to Seal : Clerk shall SEND the Commissioner's counsel a copy of the medical records contained within ECF No. 13 . ( Mailed to AUSA 12/2/2015; with copy of instant Order. ) The Commissioner has TEN DAYS from th e date it receives the medical records filed under seal by Plaintiff to file a response addressing those documents. Plaintiff shall have SEVEN DAYS from the date that response is filed to file a reply addressing only the comments contained in the response. Signed by Magistrate Judge William G. Cobb on 12/1/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CYNTHIA L. SCHEMENAUER,

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3:15-cv-00001-LRH-WGC
Plaintiff,

v.

ORDER
Re: ECF No. 12

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security Administration,

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Defendant.

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Before the court is Plaintiff’s Motion to Seal Medical Evidence. (ECF No. 12.)1 She asks

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that the attached medical records be sealed to the sensitive and personal nature of the information

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contained in the records. (Id.)

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The document is not accompanied by a proof of service. Therefore, it is not clear whether

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the Commissioner was served with the motion to seal or the documents Plaintiff seeks to be

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sealed. Federal Rule of Civil Procedure 5 requires a written motion, notice, appearance, demand

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or similar paper must be served on every party. Fed. R. Civ. P. 5(a)(1). Any paper required to be

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served must be filed, along with a certificate of service, a reasonable time after service. Fed. R.

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Civ. P. 4(d)(1). Plaintiff is advised to comply with Rule 5 in the future by including a certificate

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of service with every filed document.

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Special Order 109, section IV.C.4, which can be found on the District of Nevada’s

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website, directs the physical service of sealed filings on other parties. Defendants indicate in

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their response to Plaintiff’s motion to remand and cross-motion for summary judgment that they

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were not able to access the medical records Plaintiff references. (See ECF Nos. 15/16 at 10, 13.)

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Plaintiff should have served the Commissioner with a copy of the documents she seeks to have

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Refers to court’s electronic case filing (ECF) number.

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filed under seal. Therefore, the Clerk shall SEND the Commissioner’s counsel a copy of the

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medical records contained within ECF No. 13.

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The court finds that the records should be filed under seal. Historically, courts have

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recognized a general right to inspect and copy public records and documents, including judicial

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records and documents.” See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178

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(9th Cir. 2006) (internal quotation marks and citation omitted). “‘Throughout our history, the

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open courtroom has been a fundamental feature of the American judicial system. Basic principles

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have emerged to guide judicial discretion respecting public access to judicial proceedings. These

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principles apply as well to the determination of whether to permit access to information

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contained in court documents because court records often provide important, sometimes the only,

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bases or explanations for a court’s decision.’” Oliner v. Kontrabecki, 745 F.3d 1024, 1025(9th

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Cir. Mar. 20, 2014) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177

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(6th Cir. 1983)).

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Documents that have been traditionally kept secret, including grand jury transcripts and

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warrant materials in a pre-indictment investigation, come within an exception to the general right

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of public access. See Kamakana, 447 F.3d at 1178. Otherwise, “a strong presumption in favor of

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access is the starting point.” Id. (internal quotation marks and citation omitted).

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A motion to seal documents that are part of the judicial record, or filed in connection with

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a dispositive motion, must meet the “compelling reasons” standard outlined in Kamakana. Thus,

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a party seeking to seal judicial records must show that “compelling reasons supported by specific

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factual findings...outweigh the general history of access and the public policies favoring

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disclosure.” Kamakana, 447 F.3d at 1178-79. The trial court must weigh relevant factors

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including “the public interest in understanding the judicial process and whether disclosure of the

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material could result in improper use of the material for scandalous or libelous purposes or

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infringement upon trade secrets.” Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 679 n. 6 (9th

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Cir. 2010) (internal quotation marks and citation omitted). While the decision to grant or deny a

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motion to seal is within the trial court’s discretion, the trial court must articulate its reasoning in

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deciding a motion to seal. Pintos, 605 F.3d at 679.

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Courts have recognized the need to protect medical privacy has qualified as a

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“compelling reason” for sealing records. See, e.g., San Ramon Regional Med. Ctr., Inc. v.

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Principal Life Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10, 2011); Abbey v. Hawaii

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Employers Mut. Ins. Co., 2010 WL4715793, at * 1-2 (D. HI. Nov. 15, 2010); G. v. Hawaii, 2010

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WL 267483, at *1-2 (D.HI. June 25, 2010); Wilkins v. Ahern, 2010 WL3755654 (N.D. Cal.

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Sept. 24, 2010); Lombardi v. TriWest Healthcare Alliance Corp., 2009 WL 1212170, at * 1

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(D.Ariz. May 4, 2009). Here, the records Plaintiff seeks to file under seal contain Plaintiff’s

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sensitive health information, medical history and treatment records. Balancing the need for the

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public’s access to information regarding Plaintiff’s medical history, treatment, and condition

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against the need to maintain the confidentiality of Plaintiff’s medical records weighs in favor of

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sealing these exhibits.

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Therefore, Plaintiff’s motion (ECF. No. 12) to file the medical records (found at ECF No.

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13) under seal is GRANTED. As noted above, the Clerk shall provide the Commissioner with a

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hard copy of these documents.

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The Commissioner has TEN DAYS from the date it receives the medical records filed

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under seal by Plaintiff to file a response addressing those documents. Plaintiff shall have

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SEVEN DAYS from the date that response is filed to file a reply addressing only the comments

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contained in the response. Once this briefing is completed, the court will evaluate the matter and

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issue a report and recommendation addressing Plaintiff’s motion for remand and the

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Commissioner’s cross-motion for summary judgment.

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IT IS SO ORDERED.

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Dated: December 1, 2015.

_________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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