RJ v. Cigna Behavioral Health, Inc.

Opinion

RJ, et al., Case No. 20-cv-02255-EJD

Plaintiffs, ORDER GRANTING IN PART AND DENYING IN PART PARTIES’ v. RENEWED SEALING MOTIONS REGARDING CLASS CIGNA HEALTH AND LIFE CERTIFICATION BRIEFING INSURANCE COMPANY, et al., Re: ECF Nos. 212, 215 Defendants.

Pending before the Court are two requests to seal information designated confidential by Defendants Cigna Health and Life Insurance Co. and MultiPlan, Inc. (“Defendants”). First, Defendants have filed an Administrative Motion to Seal Excerpted and/or Redacted Versions of Certain Exhibits to Plaintiffs’ Motion and Reply in Support of Class Certification (“Defendants’ Motion”), to which Plaintiffs object. See Defts.’ Mot., ECF No. 212; Opp’n to Defts. Mot., ECF No. 214. Second, Plaintiffs RJ, SJ, LW, and MW (“Plaintiffs,” and with Defendants, the “Parties”) have filed their own Administrative Motion to Seal Certain Exhibits to Plaintiffs’ Motion and Reply in Support of Class Certification (“Plaintiffs’ Motion,” and with Defendants’ Motion, the “Renewed Sealing Motions”), to which Defendants object. See Pltfs.’ Mot., ECF No. 215; Opp’n to Pltfs.’ Mot., ECF No. 217. Having reviewed the Parties’ submissions and applicable sealing law, the Court GRANTS IN PART and DENIES IN PART the Renewed Sealing Motions. I. BACKGROUND Plaintiffs filed their motion for class certification on January 17, 2023, and lodged certain exhibits under seal in conjunction with an administrative motion to seal. See ECF Nos. 148, 150. Plaintiffs similarly filed a motion to seal in conjunction with their reply in support of the motion for class certification. See ECF Nos. 179, 180. Both motions to seal concerned documents and information designated by Defendants as confidential pursuant to the protective order entered in this action. See ECF Nos. 150, 180.1 The Court denied without prejudice Plaintiffs’ request to seal in their entirety Exhibits 3, 5, 8–10, 15–18, 22, and 30 to Plaintiffs’ motion for class certification (generally, “Motion Exhibits”), see ECF No. 209, as well as Exhibits 2, 3, and 9–13 to Plaintiffs’ reply in support of its motion for class certification (generally, “Reply Exhibits”), see ECF No. 211. The Court permitted Plaintiffs to file further administrative motions to seal portions of these exhibits. See id. In response to that order—and because the information and documents at issue, with the exception of Exhibit 16 to the class certification motion, were designated confidential by Defendants, rather than Plaintiffs—Defendants filed an administrative motion to seal excerpted and/or redacted versions of Motion Exhibits 3, 5, 8–10, 15, 17, 18, 22, and 30 and Reply Exhibits 9–13. See Defts.’ Mot. Plaintiffs filed an opposition to Defendants’ Motion and concurrently filed their own motion, in which they (1) seek to file redacted versions of Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12, and (2) state that Plaintiffs are unable to file redacted versions of Motion Exhibits 3, [5],2 15, 17, and 30 and Reply Exhibits 9, 10, and 13 because Defendants have “unreasonably” designated these documents to be confidential in their entirety. See Pltfs.’ Mot. Defendants in turn oppose Plaintiffs’ Motion. “Historically, courts have recognized a ‘general right to inspect and copy public records

1 The Court notes for future reference that such motions to seal concerning another party’s confidential information—including the present Renewed Sealing Motions—are properly brought not as motions to seal, but rather as motions to consider whether another party’s material should be sealed. See Civ. L.R. 79-5(f).

2 Plaintiffs’ Motion labels this exhibit as “Exhibit 4,” see Pltfs.’ Mot. 2, but the exhibit itself is correctly labeled as Exhibit 5. and documents, including judicial records and documents.’” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 & n.7 (1978)). Accordingly, when considering a sealing request, “a ‘strong presumption in favor of access’ is the starting point.” Id. (quoting Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). Parties seeking to seal judicial records relating to motions that are “more than tangentially related to the underlying cause of action,” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1099 (9th Cir. 2016), bear the burden of overcoming the presumption with “compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure,” Kamakana, 447 F.3d at 1178–79 (internal quotation marks and citation omitted). District courts regularly apply the “compelling reasons” standard to requests to seal materials attached to briefing on class certification issues. See, e.g., Philips v. Ford Motor Co., No. 14-CV-02989, 2016 WL 7374214, at *2 (N.D. Cal. Dec. 20, 2016) (collecting cases); McCurley v. Royal Seas Cruises, Inc., No. 17- cv00986, 2018 WL 3629945, at *2 (S.D. Cal. July 31, 2018) (“A class certification motion ‘generally involves considerations that are enmeshed in the factual and legal issues comprising plaintiff's cause of action,’ which require a district court to engage in a ‘rigorous analysis’ that ‘entail[s] some overlap with the merits of the plaintiff's underlying claims.’”) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 352 (2011)). In addition, the Local Rules of this Court require that all requests to seal be “narrowly tailored to seek sealing only of sealable material.” Civ. L.R. 79-5(a). That is, the sealing motion must include “a specific statement of the applicable legal standard and the reasons for keeping a document under seal, including an explanation of: (i) the legitimate private or public interests that warrant sealing; (ii) the injury that will result if sealing is denied; and (iii) why a less restrictive alternative to sealing is not sufficient.” Id. at 79-5(c)(1). The documents at issue consist of deposition transcripts of Defendants’ witnesses (Motion Exhibits 3, 5, 8, 9, 15, 17, 18, 22, and 30 and Reply Exhibit 13); a deposition transcript of one of Plaintiffs’ witnesses (Motion Exhibit 16); deposition transcripts of the Parties’ experts (Reply Exhibits 9–12); and a declaration of Thomas Ralston (Motion Exhibit 10). See Defts.’ Mot. 4–6; Pltfs.’ Mot. 1–2; Decl. of Matthew M. Lavin (“Lavin Decl.”) ¶¶ 2–5, ECF No. 215-1. These documents were all attached in their entirety by Plaintiffs in support of their arguments for class certification. The Court declined to seal these documents in their entirety, and sought to narrow the scope of the sealing request by requesting that Plaintiffs provide either proposed redactions to the full documents, or to narrow the exhibits to excerpts that could be sealed in their entirety. See ECF Nos. 209, 211. Instead, the Parties have presented the Court with motions and oppositions in which Defendants seek to provide excerpts to the Court, and in which Plaintiffs provide redacted versions of some documents yet state for the others that they are unable to come to an agreement about excerpts for the others. See generally Renewed Sealing Motions. The Court first addresses Defendants’ Motion and then turns to Plaintiffs’ Motion. A. Defendants’ Motion (ECF No. 212) As an initial matter, the Court notes that regardless of whether Defendants may believe that Plaintiffs have introduced hundreds of unnecessary pages into the record on class certification, it is improper for Defendants to seek to replace exhibits provided by Plaintiffs in support of Plaintiffs’ class certification arguments with unilaterally chosen excerpts of those exhibits. It is clear from Plaintiffs’ opposition that Plaintiffs did not agree to so reducing the record. See Pltfs.’ Opp’n to Defts.’ Mot. Accordingly, although the Court will consider the arguments made in Defendants’ Motion in support of sealing the information contained in the excerpts discussed by Defendants, the Court DENIES AS MOOT Defendants’ Motion with respect to the provided excerpts of Motion Exhibits 3, 5, 8, 9, 15, 17, 18, 22, and 30 and Reply Exhibits 9–13. The Court addresses Defendants’ Motion with respect to Motion Exhibit 10 at Part III(B)(3) below. B. Plaintiffs’ Motion (ECF No. 215) As noted above, the Court previously declined to seal the following exhibits in their entirety: Motion Exhibits 3, 5, 8–10, 15–18, 22, and 30 and Reply Exhibits 2, 3, and 9–13. See ECF Nos. 209, 211. Plaintiffs’ Motion (1) provides redacted versions of Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12; (2) states that Plaintiffs were unable to file redacted versions of Motion Exhibits 3, 5, 15, 17, and 30 and Reply Exhibits 9, 10, and 13; and (3) does not independently address Motion Exhibit 10 but notes that Plaintiffs oppose Defendants’ proposed redactions as overly broad. See generally Pltfs.’ Mot. The Court addresses these three categories of documents in turn. 1. Redacted Versions Filed (Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12) Plaintiffs have filed public, redacted versions of Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12. See ECF Nos. 215-4, 215-5, 215-7–215-13. Defendants did not substantively respond to Plaintiffs’ Motion except to reiterate that the exhibits in question contain Defendants’ confidential information and to urge the Court to replace Plaintiffs’ exhibits with Defendants’ proposed excerpts. See Defts.’ Opp’n to Pltfs.’ Mot. The Court accordingly finds that Defendants have not provided arguments in favor of sealing any portions of these documents other than those contained in Defendants’ proposed excerpts. Plaintiffs have nonetheless redacted certain portions of the exhibits not contained in Defendants’ excerpts. Having considered the information redacted by Plaintiffs—both within and outside the portions of the documents excerpted by Defendants—and having reviewed Defendants’ arguments in favor of sealing the exhibit generally and the excerpts in particular, the Court finds that there are compelling reasons to maintain the redactions proposed by Plaintiffs. The redacted information consists of (1) Defendants’ non-public financial and competitive information that, if disclosed, could provide competitors with an unfair advantage and (2) confidential protected health information. See, e.g., Exeltis USA Inc. v. First Databank, Inc., No. 17-cv-4810, 2020 WL 2838812, at *1 (N.D. Cal. June 1, 2020); In re Elec. Arts, Inc., 298 F. App’x 568, 569 (9th Cir. 2008) (finding compelling reasons for sealing “business information that might harm a litigant’s competitive strategy,” including confidential contract terms); In re Google Location Hist. Litig., No. 5:18-cv-05062-EJD, 514 F. Supp. 3d 1147, 1162 (N.D. Cal. Jan. 25, 2021) (“Compelling reasons may exist to seal ‘trade secrets, marketing strategies, product development plans, detailed product-specific financial information, customer information, internal reports[.]’”) (citation omitted); In re Pac. Fertility Ctr. Litig., No. 18-cv-01586, 2021 WL 1082843, at *2 (N.D. Cal. Mar. 12, 2021) (sealing email addresses under compelling reasons standard); see also Kumandan v. Google LLC, 2022 WL 17971633, No. 19-cv-04286, at *1 (N.D. Cal. Nov. 17, 2022) (listing cases sealing personal information under compelling reasons standard). Accordingly, the Court GRANTS Plaintiffs’ Motion with respect to Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12, and will maintain under seal the redacted versions of those documents. 2. No Redacted Versions or Excerpts Filed (Motion Exhibits 3, 5, 15, 17, and 30 and Reply Exhibits 9, 10, and 13) Plaintiffs state that they were unable to file redacted versions of Motion Exhibits 3, 5, 15, 17, and 30 and Reply Exhibits 9, 10, and 13 because the documents are designated confidential by Defendants. It is not clear to the Court why Plaintiffs did not, as is common when filing a motion to seal, provide sealed documents indicating proposed redactions. Nonetheless, the Court is loath to punish Defendants for this oversight by here ruling that the exhibits should be unsealed in there entirety. The Court therefore requests that Plaintiffs (1) review the excerpts of these documents proposed by Defendants and (2) advise the Court of whether Plaintiffs are amenable to submitting those excerpts—which the Court understands contain all of the portions of the documents cited by the Parties in their class certification briefs—rather than the entire document. It is, of course, Plaintiffs’ right to choose the scope of the documents they submit in support of their papers, and the Court does not by this request seek to influence Plaintiffs’ choice. If Plaintiffs do not wish to submit the excerpts of the documents suggested by Defendants, then Plaintiffs shall file either (1) other stipulated redactions or excerpts, or (2) a motion to consider whether another party’s material should be sealed pursuant to Civil Local Rule 79-5(f), after which Defendants shall file a statement and/or declaration supporting the sealing of every line or sentence that they wish to maintain under seal. The Court notes that the existence of a protective order does not itself constitute a compelling reason to seal. See Ctr. for Auto Safety, 809 F.3d at 1096. Given that this sealing question has already continued for far longer than should be necessary, the Court strongly urges the Parties to reasonably meet and confer and stipulate regarding redactions or sealed excerpts of these documents. 3. Redacted Version Filed by Defendants (Motion Exhibit 10) Lastly, with respect to Motion Exhibit 10, Defendants filed proposed redactions to the document to which Plaintiffs object as overly broad, although Plaintiffs do not submit their own proposed redactions. See Defts.’ Mot. 6; Pltfs.’ Mot. 1. Defendants propose redacting the following segments of the document: 3:5–9:3 and 9:7–20, i.e., Paragraphs 13–39 and 41–42. See ECF No. 212-7. Defendants argue that Motion Exhibit 10 should be so redacted because it contains “information regarding MultiPlan processes and procedures concerning its dealings with Cigna and other clients, as well as pricing methodology activities, the public disclosure of which would impact MultiPlan’s business and competitive standing.” Defts.’ Mot. 6 (citing Decl. of Marjorie Wilde ¶ 13, ECF No. 158-6). The Court finds that there exist compelling reasons to seal such information, and that Defendants’ proposed redactions are sufficiently tailored. See, e.g., In re Elec. Arts, Inc., 298 F. App’x at 569. Accordingly, the Court GRANTS Defendants’ Motion with respect to the proposed redactions to Motion Exhibit 10. For the foregoing reasons, the Court hereby ORDERS as follows: 1. Defendants’ Motion, ECF No. 212, is GRANTED IN PART with respect to the proposed redactions to Motion Exhibit 10, and otherwise DENIED AS MOOT; 2. Plaintiffs’ Motion, ECF No. 215, is GRANTED IN PART with respect to the proposed redactions to Motion Exhibits 8, 9, 16, 18, and 22 and Reply Exhibits 2, 3, 11, and 12; and otherwise DENIED WITHOUT PREJUDICE. 3. Within seven days of the entry of this order, Plaintiffs shall file one or more (as appropriate) of the following: a. A statement advising the Court that Plaintiffs stipulate to one or more of the excerpts to Motion Exhibits 3, 5, 15, 17, and 30 and Reply Exhibits 9, 10, 1 and 13 proposed by Defendants, after which the Court will evaluate the 2 sealability of those excerpts and make no ruling with respect to the 3 sealability of the remainder of the documents; AND/OR 4 b. A stipulated request to redact or seal with respect to one or more of the 5 documents at issue Gin which case Plaintiffs shall also attach sealed and 6 public versions of the proposed redactions or excerpts); AND/OR 7 c. A motion to consider whether another party’s material should be sealed 8 pursuant to Civil L.R. 79-5(f). 9 4. Defendants shall file no proposal unless Plaintiffs file a motion to consider whether 10 another party’s material should be sealed pursuant to this order, in which case 11 Defendants shall comply with the procedural requirements of such a motion. 12 5. The Court informs the Parties that following the resolution of all sealing requests 13 discussed herein, the Court will issue a request to the Parties to refile public 14 versions of their motion, opposition, and reply in support of class certification for 15 ease of access on the docket.

17 The Court strongly urges the Parties to arrive at a reasonable compromise as to what 18 materials are required for Court’s adjudication of the class certification motion, as well as what 19 material is in fact confidential. 20 22 Dated: January 22, 2024 23 24 aM. EDWARD J. DAVILA 25 United States District Judge 26 27 28 Case No.: 20-cv-02255-EJD ORDER RE PARTIES’ SEALING MOTS. RE CLASS CERT. BRIEFING