GANSKI et al v. WOLFF LIGHTING SYSTEMS et al
Filing
92
ORDER THAT PLAINTIFFS' MOTION TO FILE DOCUMENTS UNDER SEAL IS DENIED. SIGNED BY MAGISTRATE JUDGE THOMAS J. RUETER ON 9/30/2014. 9/30/2014 ENTERED AND COPIES MAILED TO PRO SE, E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BERNARD F. GANSKI, JR.
and LORRAINE V. GANSKI
:
CIVIL ACTION
:
v.
:
CASSANDRA WOLFF
NO. 09-1903
MEMORANDUM OF DECISION
THOMAS J. RUETER
United States Magistrate Judge
September 30, 2014
Presently before the court is plaintiffs’ pro se Motion to File Documents Under
Seal (the “Motion,” Doc. No. 89) and defendant’s response in opposition thereto (Doc. No. 90).
For the reasons set forth below, plaintiffs’ Motion is DENIED.
I.
BACKGROUND
On June 11, 2007, defendant Cassandra Wolff struck the rear of plaintiff Bernard
Ganski’s vehicle. Plaintiff Bernard Ganski and his wife brought suit against defendant for
injuries related to the accident. Plaintiff Bernard Ganski claimed to have suffered a range of
injuries resulting from the accident, including injuries to his back and knee, brain damage that
resulted in linguistic deficits and loss of memory and concentration, and psychological and
personality changes that caused he and his wife to separate. Ganski v. Wolff, 2012 WL 3193939,
at *1 (E.D. Pa. Aug. 7, 2012). Plaintiff Lorraine Ganski claimed that her husband’s injuries
caused a severe strain on their marital relationship and caused her to suffer a loss of
companionship with her husband. Id. Defendant stipulated that she breached her duty of care,
but asserted that her negligence was not a factual cause of the injuries claimed by plaintiffs. Id.
The jury returned a verdict in favor of defendant. Plaintiffs filed a motion for a new trial under
Fed. R. Civ. P. 59(a)(1)(A) (Doc. No. 74). On August 7, 2012, this court denied the motion for a
new trial by Memorandum of Decision (the “August 7, 2012 Decision,” Doc. No. 84) reported at
2012 WL 3193939 (E.D. Pa. Aug. 7, 2012). On April 30, 2013, the Third Circuit Court of
Appeals affirmed the decision. See Ganski v. Wolff Lighting Systems, 517 F.App’x 118 (3d Cir.
2013) (not precedential).
Plaintiffs’ instant Motion requests an order sealing and/or redacting portions of
the docket to be applied nunc pro tunc. Specifically, plaintiffs request that pages 1, 2, 6, 9, 10
and 11 of the August 7, 2012 Decision be redacted or the entire decision be sealed. Plaintiffs
assert that these pages contain “personally identifiable and protected health information along
with false injurious and libelous statements.” (Mot. at 1.) Plaintiffs are concerned about the
availability of the August 7, 2012 Decision on websites or search engines maintained by entities
such as the United States District Court for the Eastern District of Pennsylvania, Government
Printing Office, FindALaw, Google, Yahoo and Bing, and other third party legal information
providers, and therefore request that the August 7, 2012 Decision be sealed or redacted. Id. at 12.
II.
DISCUSSION
The Third Circuit has recognized that a “common law right of access to judicial
records is beyond dispute.” Miller v. Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994). Courts
have adopted a “strong presumption” in favor of openness. Id. Before sealing judicial records,
the court must articulate “the compelling countervailing interests to be protected, [make] specific
2
findings on the record concerning the effects of disclosure, and [provide] an opportunity for
interested third parties to be heard.” Id.
To obtain an order sealing or redacting judicial records, the moving party must
show “good cause” for granting the motion. Pansy v. Bor. of Stroudsburg, 23 F.3d 772, 786 (3d
Cir. 1994). Good cause is shown if “disclosure will work a clearly defined and serious injury to
the party seeking closure. The injury must be shown with specificity.” Id. (citing Publicker
Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984)). “Broad allegations of harm,
unsubstantiated by specific examples or articulated reasoning, do not support a good cause
showing.” Id. Seven factors, although neither mandatory nor exhaustive, may be considered in
determining if the moving party has shown good cause: (1) whether disclosure will violate any
privacy interests; (2) whether the information is being sought for a legitimate purpose or for an
improper purpose; (3) whether disclosure of the information will cause a party embarrassment;
(4) whether confidentiality is being sought over information important to public health and
safety; (5) whether the sharing of information among litigants will promote fairness and
efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or
official; and (7) whether the case involves issues important to the public. Glenmede Trust Co. v.
Thompson, 56 F.3d 476, 483 (3d Cir. 1995). In addition to granting or denying the motion
outright, the court also can limit the method of disclosure. Fed. R. Civ. P. 26(c)(1)(D). Courts
have significant discretion in crafting protective orders to reduce potential harm. Pansy, 23 F.3d
at 787.
Here, plaintiffs bear the burden of showing good cause. Plaintiffs assert three
injuries resulting from the availability of the August 7, 2012 Decision on the internet. First, the
3
inclusion of personally identifiable and protected health information violated Bernard Ganski’s
rights under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub.L.
No. 104-191, 110 Stat. 1936. (Mot. at 2.) Second, the August 7, 2012 Decision has damaged
Bernard Ganski’s reputation. Id. Third, Bernard Ganski claims he is unable to secure long term
employment because of the availability of the August 7, 2012 Decision on electronic sources.
A.
HIPAA Violation
Plaintiffs assert that reference to his medical evidence in the August 7, 2012
Decision violates his “rights” under HIPAA. (Mot. at 2, 5-8.) HIPAA regulates the use and
disclosure of individuals’ health information by covered entities. See 45 C.F.R. § 164.500, et
seq. Under HIPAA, the court is not a covered entity. See 45 C.F.R. § 160.103. Thus, plaintiffs’
reliance upon HIPAA is misplaced.
Additionally, plaintiffs did not complain of a HIPAA violation during the trial
when some of Bernard Ganski’s medical information was discussed in open court and admitted
into evidence. Only now that the litigation proved unsuccessful in this court and on appeal in the
Third Circuit Court of Appeals, do plaintiffs seek to withdraw the evidence from public view, or
to try to blunt its impact.
HIPAA regulations allow medical records to be disclosed for judicial proceedings
and produced in response to a subpoena provided that certain notice requirements have been met.
45 C.F.R. § 164.512(e)(1)(ii). At no time during the discovery period or during the trial did
plaintiffs complain that the Federal Rules of Civil Procedure or HIPAA requirements were
violated with respect to the production and use of Bernard Ganski’s medical records. See
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Thomas v. 1156729 Ontario Inc., 979 F.Supp. 2d 780, 785 (E.D. Mich. 2013) (Fed. R. Civ. P.
45(a)(1)(D) subpoena notice requirements are consistent with HIPAA regulations).1
B.
Damage to Reputation
Plaintiffs claim the August 7, 2012 Decision damaged Bernard Ganski’s
reputation. They assert that the decision “will make it extremely difficult for the plaintiff to live
in the city of his birth and interact among his professional and social colleagues.” (Mot. at 9.)
Plaintiffs assert that the August 7, 2012 Decision contains “defamatory material” and “false
injurious and libelous statements,” at least one of which was made by defendant’s counsel. Id. at
1-2.2 However, plaintiffs do not provide specific support for these claimed injuries. In
Glenmede, the court found that plaintiff’s “general allegations of injury to reputation”
1
Furthermore, by claiming physical and psychological injuries as a result of the
accident, Bernard Ganski’s medical records, physical and psychological, were relevant to the
underlying litigation. By filing this lawsuit, plaintiff Bernard Ganski waived any claim of
privilege that may have existed in his medical records. See Furey v. Wolfe, 2012 WL 877115, at
*2 (E.D. Pa. Mar. 15, 2012) (citing cases). Plaintiffs admit that Bernard Ganski’s medical
records were relevant and discoverable during the trial. (Mot. at 6.)
2
This court carefully reviewed the August 7, 2012 Decision in its slip opinion form
and the offending page numbers identified by plaintiffs, namely, pages 1, 2, 6, 9, 10 and 11.
(Mot. at 1-2.) These pages merely discuss portions of the trial transcripts which are available on
the public docket. Page one of the slip opinion contains the beginning of a summary of the case.
Page two of the slip opinion lists some of the injuries Bernard Ganski claims to have suffered as
a result of the accident, and refers the reader to plaintiffs’ pre-trial memorandum and
memorandum of law in support of the motion for new trial for a “complete list of the injuries Mr.
Ganski claims to have suffered as a result of the accident.” Ganski v. Wolff, Civil Action No.
09-1903, slip op. at 2 and 2 n.1 (E.D. Pa. Aug. 7, 2012) (Doc. No. 84). On page six of the slip
opinion, the court quoted a passage from defense counsel’s closing argument in response to an
issue raised by plaintiffs in the motion for a new trial. Id. at 4-6. Page nine of the slip opinion
contains a summary of the evidence with citations to the record. Id. at 9. Pages 10 and 11 of the
slip opinion also contain a summary of evidence presented at the trial, including the testimony of
plaintiffs. Plaintiffs do not claim that the court’s recitation of the record was inaccurate or not
supported by the transcripts.
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insufficient to support a finding of good cause. 56 F.3d at 484. Plaintiff Bernard Ganski’s broad
claim of damage to his reputation is not a “clearly defined or serious injury” as required to show
good cause. See Rossi v. Schlarbaum, 2008 WL 222323, at *3 (E.D. Pa. Jan. 25, 2008) (court
refused to seal record without demonstration of “clearly defined and serious injury” to party).
C.
Long Term Employment
Finally, plaintiffs allege that Bernard Ganski is unable to find long term
employment due to the public availability of the August 7, 2012 Decision. Plaintiffs provide
emails and a letter to support this contention. The emails, see Motion Ex. A, are an exchange
between Bernard Ganski and an employment recruiter regarding an earlier conversation about an
employment opportunity. In his email, Bernard Ganski addressed this employment opportunity
and shared his concerns about the impact the August 7, 2012 Decision may have on his
employment prospects. The recruiter did not respond until eleven days later stating that the
prospective employer had not made a decision, “however rumor has it that it does not look
good.” (Mot. Ex A.) Second, plaintiffs attached to the Motion a letter sent to the court on April
8, 2013. (Mot. Ex. B.) In this letter, Bernard Ganski discusses several articles suggesting that
seventy percent of employment rejections are derived from a candidate’s online content and
ninety percent of hiring managers consider a candidate’s online presence. Again, plaintiffs’
evidence regarding Bernard Ganski’s inability to secure long term employment falls well short of
the standard required to show good cause. The email exchange only shows that the topic of the
August 7, 2012 Decision was raised by Bernard Ganski to his employment recruiter, and that
Bernard Ganski was not hired by a specific employer for some unknown reason. The emails do
not show a causal link, i.e., that Bernard Ganski was not hired because of the August 7, 2012
6
Decision. The letter does not show that Bernard Ganski suffered any injury as a result of the
availability of the August 7, 2012 Decision. Therefore, plaintiffs have not shown that “disclosure
[worked] a clearly defined and serious injury” to them. Pansy, 23 F.3d at 786.
Furthermore, in plaintiffs’ Motion for a New Trial, which was the subject of the
August 7, 2012 Decision, plaintiffs argued that the jury’s verdict was against the weight of the
evidence and claimed an error of law relating to the first question on the Jury Verdict Form
because plaintiffs produced uncontested evidence that the accident caused Bernard Ganski to
suffer some degree of harm. Ganski v. Wolff, 2012 WL 3193939, at *2 (E.D. Pa. Aug. 7, 2012).
Given these arguments, plaintiffs had to have known that in its written opinion the court would
be required to discuss the trial evidence which supported the jury’s verdict, even though some of
that evidence may have reflected poorly on plaintiff Bernard Ganski. Thus, any harm to Mr.
Ganski’s reputation was not the fault of defendant or the court. By voluntarily and affirmatively
putting these issues to a public trial, plaintiffs cannot now complain about the disclosure of the
evidence from that very same public trial they alone initiated.
D.
Broader Interests
Finally, plaintiffs’ request to remove from publication on the internet a judicial
opinion, later affirmed by the Court of Appeals, implicates broader interests. The discussion in
the August 7, 2012 Decision has value, not just to the litigants in the case, but also to other
litigants and attorneys who may refer to the discussion in the opinion for guidance or as support
for arguments made in future litigation. While our Court of Appeals has acknowledged a
person’s interest not to be harmed by defamatory statements made in a judicial opinion, the court
nonetheless recognized “the even greater public interest in and need for access to verbatim
7
reports of judicial decisions.” Lowenschuss v. West Pub. Co., 542 F.2d 180, 185 (3d Cir. 1976).
The court explained:
As ours is a common-law system based on the “directive force” of
precedents, its effective and efficient functioning demands wide dissemination of
judicial decisions. That segment of the public engaged in the practice of law
necessarily must remain abreast of decisions which subtly shape the contours and
the body of the evolving law. Practicing attorneys must be able easily to locate
authoritative precedents for their positions. Courts must be able to rely on briefs
and citations of attorneys practicing before them and on their own research efforts
to direct them quickly to the relevant cases. Even that part of the law which
consists of codified statutes is incomplete without the accompanying body of
judicial decisions construing the statutes. Accordingly, under our system of
jurisprudence the judiciary has the duty of publishing and disseminating its
decisions.
Id.
Because of the strong public interest in the publication of judicial decisions, the
court declines to seal or redact the court’s August 7, 2012 Decision even though public revelation
of the trial evidence may cause embarrassment to plaintiffs. See Dombrowski v. Bell Atlantic
Corp., 128 F.Supp. 2d 216, 219 (E.D. Pa. 2000) (unsealing non-privileged paragraphs of a
complaint amid claims of embarrassment and explaining that “pleadings are filed every day with
allegations that may embarrass the opposing party. If mere embarrassment were enough,
countless pleadings as well as other judicial records would be kept from public view. We will
not travel down this road.”). In Hicklin Engineering, L.C. v. R.J. Bartell, 439 F.3d 346 (7th Cir.
2006), the court reversed the lower court’s decision to seal a judicial opinion. Judge
Easterbrook, writing for the court, recognized the compelling need for accurate reporting to the
public of judicial decisions. He stated:
What happens in the federal courts is presumptively open to public scrutiny.
Judges deliberate in private but issue public decisions after public arguments
8
based on public records. The political branches of government claim legitimacy
by election, judges by reason. Any step that withdraws an element of the judicial
process from public view makes the ensuing decision look more like fiat and
requires rigorous justification.
Id. at 348. See also United States v. McCoullum, 2013 WL 3779154, at *1 (D.Me. July 18,
2013) (refusing to seal and remove a published opinion because it would “contravene the longrecognized public interest in the accurate reporting and dissemination of judicial decisions”).
III.
CONCLUSION
For all the above reasons, the court will deny plaintiffs’ Motion to File Documents
Under Seal (Doc. No. 89). An appropriate order follows.
BY THE COURT:
_/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge
9
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
BERNARD F. GANSKI, JR.
and LORRAINE V. GANSKI
:
CIVIL ACTION
:
v.
:
CASSANDRA WOLFF
NO. 09-1903
ORDER
AND NOW, this 30th day of September, 2014, upon consideration of plaintiffs’
Motion to File Documents Under Seal (Doc. No. 89) and defendant’s response thereto (Doc. No.
90), and in accordance with the Memorandum of Decision filed this same date, it is hereby
ORDERED
that the Motion is DENIED.
BY THE COURT:
__/s/ Thomas J. Rueter
THOMAS J. RUETER
United States Magistrate Judge
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