Reberger v. Vern

• Court: District Court, D. Nevada
• Decided: November 12, 2019
• Docket: 3:17-cv-00077
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 LANCE REBERGER, Case No.: 3:17-cv-00077-MMD-WGC

4 Plaintiff, Order

5 v. Re: ECF No. 103

6 VERN, et al.,

7 Defendants.

9 Before the court is Defendants' motion for leave to file medical records under seal. (ECF 10 No. 103.) 11 In this motion, Defendants seek to file under seal exhibits containing Plaintiff's medical 12 request forms (kites) in connection with a motion for summary judgment. The exhibits are set forth 13 at ECF Nos. 104-1, 104-2. 14 "Historically, courts have recognized a general right to inspect and copy public records and 15 documents, including judicial records and documents." Kamakana v. City and County of Honolulu, 16 447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation marks and citation omitted). "'Throughout 17 our history, the open courtroom has been a fundamental feature of the American judicial system. 18 Basic principles have emerged to guide judicial discretion respecting public access to judicial 19 proceedings. These principles apply as well to the determination of whether to permit access to 20 information contained in court documents because court records often provide important, 21 sometimes the only, bases or explanations for a court's decision.'" Oliner v. Kontrabecki, 745 F.3d 22 1024, 1025 (9th Cir. 2014) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 23 1177 (6th Cir. 1983)). 1 Documents that have been traditionally kept secret, including grand jury transcripts and 2 warrant materials in a pre-indictment investigation, come within an exception to the general right 3 of public access. See Kamakana, 447 F.3d at 1178. Otherwise, "a strong presumption in favor of 4 access is the starting point." Id. (internal quotation marks and citation omitted). "The presumption

5 of access is 'based on the need for federal courts, although independent—indeed, particularly 6 because they are independent—to have a measure of accountability and for the public to have 7 confidence in the administration of justice.'" Center for Auto Safety v. Chrysler Group, LLC, 809 8 F.3d 1092, 1096 (9th Cir. 2016), cert. denied, 137 S.Ct. 38 (Oct. 3, 2016) (quoting United States 9 v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2nd Cir. 1995); Valley Broad Co. v. U.S. Dist. Ct., 10 D. Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)). 11 There are two possible standards a party must address when it seeks to file a document 12 under seal: the compelling reasons standard or the good cause standard. Center for Auto Safety, 13 809 F.3d at 1096-97. Under the compelling reasons standard, "a court may seal records only when 14 it finds 'a compelling reason and articulate[s] the factual basis for its ruling, without relying on

15 hypothesis or conjecture.'" Id. (quoting Kamakana, 447 F.3d at 1179). The court must 16 "'conscientiously balance[ ] the competing interests of the public and the party who seeks to keep 17 certain judicial records secret.'" Id. "What constitutes a 'compelling reason' is 'best left to the sound 18 discretion of the trial court.'" Id. (quoting Nixon v. Warner Comm., Inc., 435 U.S. 589, 599 (1978)). 19 "Examples include when a court record might be used to 'gratify private spite or promote public 20 scandal,' to circulate 'libelous' statements, or 'as sources of business information that might harm 21 a litigant's competitive standing.'" Id. 22 The good cause standard, on the other hand, is the exception to public access that has been 23 typically applied to "sealed materials attached to a discovery motion unrelated to the merits of the 1 case." Id. (citation omitted). "The 'good cause language comes from Rule 26(c)(1), which governs 2 the issuance of protective orders in the discovery process: The court may, for good cause, issue an 3 order to protect a party or person from annoyance, embarrassment, oppression, or undue burden 4 or expense.'" Id.

5 The Ninth Circuit has clarified that the key in determining which standard to apply is 6 whether the documents proposed for sealing accompany a motion that is "more than tangentially 7 related to the merits of a case." Center for Auto Safety, 809 F.3d at 1101. If that is the case, the 8 compelling reasons standard is applied. If not, the good cause standard is applied. 9 Here, Defendants seek to file exhibits under seal in connection with their motion for 10 summary judgment which is unquestionably "more than tangentially related to the merits of a 11 case." Therefore, the compelling reasons standard applies. 12 This court, and others within the Ninth Circuit, have recognized that the need to protect 13 medical privacy qualifies as a "compelling reason" for sealing records. See, e.g., San Ramon 14 Regional Med. Ctr., Inc. v. Principal Life Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10,

15 2011); Abbey v. Hawaii Employers Mut. Ins. Co., 2010 WL4715793, at * 1-2 (D. HI. Nov. 15, 16 2010); G. v. Hawaii, 2010 WL 267483, at *1-2 (D.HI. June 25, 2010); Wilkins v. Ahern, 2010 17 WL3755654 (N.D. Cal. Sept. 24, 2010); Lombardi v. TriWest Healthcare Alliance Corp., 2009 18 WL 1212170, at * 1 (D.Ariz. May 4, 2009). This is because a person’s medical records contain 19 sensitive and private information about their health. While a plaintiff puts certain aspects of his 20 medical condition at issue when he files an action alleging deliberate indifference to a serious 21 medical need under the Eighth Amendment, that does not mean that the entirety of his medical 22 records filed in connection with a motion (which frequently contain records that pertain to 23 unrelated medical information) need be unnecessarily broadcast to the public. In other words, the 1 plaintiff’s interest in keeping his sensitive health information confidential outweighs the public’s 2 need for direct access to the medical records. 3 Here, the referenced exhibits contain information regarding Plaintiff's health conditions. In 4 particular, these kites are unrelated to the issues in this lawsuit, and are submitted to show that

5 Plaintiff did not put Defendants on notice of his claim he was served undercooked and raw food. 6 Since the kites are not relevant to the litigated issues, and discuss separate medical concerns, the 7 court finds compelling reasons exist for sealing these exhibits. Therefore, Defendants' motion 8 (ECF No. 103) is GRANTED. 9 IT IS SO ORDERED. 10 Dated: November 12, 2019. 11 _________________________________ William G. Cobb 12 United States Magistrate Judge

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