Knisely v. National Better Living Association, Inc et al

Filing 169

ORDER DENYING PLAINTIFF'S MOTION 153 TO UNSEAL. Signed by Chief Judge Gina M. Groh on 3/27/2015. (tlg)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF WEST VIRGINIA
MARTINSBURG
DAVID KNISELY,
Plaintiff,
v.

CIVIL ACTION NO.: 3:14-CV-15
(GROH)

NATIONAL BETTER LIVING
ASSOCIATION, INC., AMERICAN MEDICAL
AND LIFE INSURANCE COMPANY, and
JOHN/JANE DOES,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION TO UNSEAL
This matter is before the Court for consideration of the Plaintiff’s Motion to Unseal.
ECF 152. In this motion, the Plaintiff asks the Court to unseal Exhibits D and T to his
motion for leave to file a revised amended complaint. These exhibits are Defendant
National Better Living Association, Inc.’s (“NBLA”) application for tax-exempt status under
Section 501(a) of the Internal Revenue Code. The Plaintiff argues that he filed this
application under seal because NBLA marked it confidential under this case’s Protective
Order. He avers that, because the IRS granted NBLA tax-exempt status, NBLA must
publicly disclose this application. The Plaintiff further requests that the Court order that he
need not file materials he receives pursuant to Internal Revenue Code § 6104 under seal.
NBLA argues that this motion is premature because the Plaintiff did not meet and
confer about this dispute as required by the Protective Order. NBLA asks the Court to
sanction the Plaintiff for violating the Protective Order by awarding NBLA attorney’s fees
incurred in preparing its response.

Paragraph 4 of the Protective Order pertinently provides:
If a receiving party disagrees with any Confidential Information
designation, the receiving party shall serve upon the designating party an
objection to the designation in writing. Within fifteen (15) days from service
of the objection, the receiving party and designating person shall confer and
attempt in good faith to resolve the disagreement. If agreement is reached
confirming or waiving the Confidential Information designation as to any
designation, the designating party shall serve on all parties a notice
specifying the documents and the nature of the agreement. If the receiving
party and designating person fail to resolve their dispute, the designating
party shall be required to move the Court for an order preserving the
designated status of such information within 15 days and failure to do so
shall constitute a termination of the Confidential Information designation. If
the designating party files such a motion, the person or party making the
designation shall have the burden of proving the necessity for the
designation. Until the Court rules on the designating party's motion, any
information that has been produced and designated as Confidential
Information shall be treated as so designated and subject to the terms of this
Order.
This provision required that the Plaintiff object to NBLA’s confidential designation in writing
to initiate a meet-and-confer process. The Plaintiff has not provided any evidence or
argument showing that he did so. Accordingly, the Court DENIES the Motion to Unseal
because the Plaintiff failed to comply with the Protective Order’s meet-and-confer
requirement. As for the Plaintiff’s request that the Court order that he need not file
documents received under Internal Revenue Code § 6104 under seal, the Court DENIES
that request as premature because the Court cannot determine whether to seal a document
without knowing what it is.
Next, the Court considers whether to sanction the Plaintiff by awarding NBLA
attorney’s fees for the time it spent responding to this motion.
Federal Rule of Civil Procedure 37(b)(2)(C) authorizes a court to sanction a party
by awarding attorney’s fees for failing to obey a discovery order. Courts in the Fourth

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Circuit assess four factors in determining whether sanctions are appropriate: “(1) whether
the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance
caused the adversary, (3) the need for deterrence of the particular sort of non-compliance,
and (4) whether less drastic sanctions would have been effective.” Anderson v. Found. for
Advancement, Educ. & Employment of Am. Indians, 155 F.3d 500, 504 (4th Cir. 1998).
Here, first, the Plaintiff has not acted in bad faith. The Plaintiff has consistently
complied with the Protective Order by filing documents designated confidential under seal,
including the tax-exempt application. He appears to have filed this motion as a mere
oversight. Second, this motion has not prejudiced NBLA because its application is still
protected from disclosure. Third, sanctions are not needed to deter the Plaintiff’s conduct.
The Plaintiff did not disregard NBLA’s averred confidentiality interest by filing this document
unsealed. He simply did not follow the proper procedure for challenging the document’s
confidential designation. Finally, because the foregoing factors weigh against imposing
sanctions, the Court need not consider the propriety of lesser sanctions. Accordingly, the
Court DENIES NBLA’s request for attorney’s fees.
The Clerk is directed to transmit copies of this Order to all counsel of record herein.
DATED: March 27, 2015

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