Zadeh et al v. Robinson et al

Filing 105

ORDER GRANTING 76 Motion to Enforce the Protective Order. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOSEPH Z. ZADEH, et al.
v.
MARI ROBINSON, et al.

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CAUSE NO. 1:15-CV-598-RP

ORDER
Before the Court are Defendants’ Motion to Enforce the Protective Order (Dkt. No. 76);
Plaintiffs’ Response to Defendants’ Motion to Enforce the Protective Order (Dkt. No. 78); and
Defendants’ Reply (Dkt. No. 83). The District Court referred the above motion to the undersigned
Magistrate Judge for resolution pursuant to 28 U.S.C. § 636(b)(1)(A), FED. R. CIV. P. 72, and Rule
1(c) of Appendix C of the Local Rules.
I.

BACKGROUND
Plaintiff Joseph Zadeh brings this case against Defendants Mari Robinson, former Director

of the Texas Medical Board, and TMB investigators Sharon Pease, and Kara Kirby, alleging that the
Defendants’ inspection and seizure of medical records from his office pursuant to a subpoena
violated his Fourth Amendment rights. Separately, the TMB has instituted proceedings against
Zadeh and his medical license, alleging that he violated a number of Texas statutes that regulate the
prescription of controlled substances.
In a prior order, the Court directed the TMB to produce to Zadeh a number of documents
from the TMB proceedings against Zadeh, including the complaint on which the TMB based its
subpoena. The TMB designated the complaint “Attorneys’ Eyes Only” under the parties’ agreedupon protective order (Dkt. No. 64). At the request of Zadeh’s counsel, the TMB redesignated the
complaint as “Confidential,” so the attorneys could discuss the complaint with Zadeh. Subsequently,

Zadeh sent notice to the TMB challenging the “Confidential” designation. This placed the burden
on the TMB to file a motion to preserve the designation. By the instant motion, the TMB makes that
request. The Drug Enforcement Administration has also submitted an advisory requesting that the
complaint remain confidential, because a DEA investigative report is a portion of the complaint.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 26 allows a court to enter a protective order “for good cause

shown.” FED. R. CIV. P. 26(c). However, the Court must balance the public’s common-law right
of access with the interests favoring non-disclosure. See S.E.C. v. Van Wayenberghe, 990 F.2d 845,
849 (5th Cir. 1993). The party seeking the protective order has the burden of showing that the
interest of secrecy outweighs the public’s right of access. Leucadiea, Inc. v. Applied Extrusion
Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993). Moreover, “privacy interests are diminished when
the party seeking protection is a public person subject to legitimate public scrutiny.” Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994). Thus, “courts should consider for what
purpose the information is being sought—if the case involves matters of legitimate public concern
or issues relating to public health or safety, those are factors weighing against a protective order.”
Gutierrez v. Benavides, 292 F.R.D. 401, 404-05 (S.D. Tex. 2013).
III.

ANALYSIS
Defendants argue that the complaint should remain confidential because Zadeh only received

access to the documents—which would normally not be discoverable under Texas law—as a result
of this litigation, and therefore he does not have a First Amendment right of access to the document.
See Dkt. No. 76 at 3-4 (citing Seattle Times Co. v. Rhinehard, 467 U.S. 20, 32 (1984)). Zadeh
responds that the Defendants are merely trying to “hide their constitutional misconduct behind a
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Texas statute.” Dkt. No. 78 at 2. Zadeh believes that the TMB used the complaint as a pretext to
search his office as a proxy for the DEA, and contends that by keeping the complaint confidential,
the Court would be hiding the Defendants’ misconduct from public view. Zadeh also notes that
Defendants have not presented any “good cause” for the document to remain confidential. As noted,
the DEA requests that the Court maintain the document’s confidential designation, as a DEA
investigative report is attached to the complaint and the DEA contends the confidentiality is needed
to protect its ongoing criminal investigation.
There is a presumption in favor of public dissemination of documents, especially where the
issues involve “matters of public concern”—such as government overreaching or police misconduct.
See Gutierrez, 292 F.R.D. at 404-05 (finding that there is a legitimate interest in public
dissemination of “records indicating official misconduct, abuse of power, or constitutional
violations”). But when a document contains investigative materials related to an ongoing criminal
investigation, the balance shifts in favor of non-disclosure. See Degen v. United States, 517 U.S.
820, 827 (1996) (a “court can exercise discretion to manage the civil litigation to avoid interference
with a criminal case”).
The DEA also notes that the qualified law enforcement privilege suggests the document
should remain confidential. Courts have recognized this qualified privilege to protect investigative
files in an ongoing criminal investigation from discovery. See In re U.S. Dep’t of Homeland Sec.,
459 F.3d 565, 569-70 (5th Cir. 2006) (citing Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991)).
Here, the DEA is not requesting that the Court prevent production of the complaint—Zadeh already
has it—but is merely asking that the complaint remain non-public. In Flagg ex rel. Bond v. City of
Detroit, 268 F.R.D. 279, 295 (E.D. Mich. 2010), the court noted that
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If a federal court may, in the proper circumstances, altogether prohibit the disclosure
of materials bearing upon an ongoing criminal investigation, it stands to reason that
the court may take the lesser step of imposing restrictions upon the parties’ (and the
public’s) access to such materials and information obtained during the discovery
process.
See also Shelley v. Cty. of San Joaquin, No. 2:13-CV-0266, 2015 WL 2082370, *7 (E.D. Cal. May
4, 2015) (designating documents confidential because they involve an ongoing criminal
investigation); United States v. Smith, 985 F. Supp. 2d 506, 531-32 (S.D.N.Y. 2013) (same).
The Court recognizes the legitimate public interest in access to documents that may show
constitutional violations. On the other hand, this must be balanced with the interest in protecting an
ongoing criminal investigation. Here, the DEA has advised the Court that public dissemination of
the complaint and attached DEA investigative report would cause significant harm to its ongoing
investigation. Zadeh’s legitimate interests in the use of the document can be protected without
making it public. First, Zadeh has access to the complaint for use in his claims. Second, this
lawsuit, in and of itself, is making public what Zadeh believes is the TMB’s misconduct and
overreaching. He does not need to make the complaint itself public to achieve that goal. The interest
in protecting an ongoing criminal investigation outweighs the competing interests in this case.
Finally, courts also consider whether the party seeking to protect a document from disclosure relied
on a protective order when it produced the document. See Pansy, 23 F.3d at 789. Here, there is no
doubt that the TMB would not have produced the document—and the Court may not have compelled
its production—absent the protective order in this case. This factor thus also suggests the
classification of the complaint as “Confidential” should remain.

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Based upon the foregoing, the Defendants’ Motion to Enforce the Protective Order (Dkt. No.
76) is GRANTED and the “Confidential” designation of the complaint shall remain in place.
SIGNED this 9th day of February, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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