The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
JUNE MEDICAL SERVICES, LLC, d/b/a CIVIL ACTION
HOPE MEDICAL GROUP FOR WOMEN,
on behalf of its patients, physicians and
staff, ET AL.
VERSUS
REBEKAH GEE, in her official capacity NO: 16-CV-00444-BAJ-RLB
as Secretary of Health of the Louisiana
Department of Health, ET AL.
RULING AND ORDER
Before the Court is Defendants’ Motion to Vacate and Unseal (Doc. 207).
Plaintiffs opposed this motion. (Doc. 219). Oral argument is not required. For the
reasons stated below, Defendants’ motion is DENIED.
I, FACTUAL BACKGROUND
The motion swb-judice arises from the Court’s October 19, 2018 order sealing
certain pleadings in this matter (Doc. 203). Plaintiffs John Doe 1, John Doe 2, and
John Doe 8 (the “Doe Doctors”) filed a motion for a Protective Order, seeking to
proceed under pseudonyms due to the potential risks the Doe Doctors and those
associated with them may face if their identities were publicly revealed. (Doc. 8). The
Court granted that motion. (Doe. 12). Thereafter, the parties conferred and jointly
petitioned the Court to memorialize the agreed upon terms of a subsequent protective
order (“Second Protective Order’). (Doc. 95).
Defendants subpoenaed the “complete files” of certain physicians from the
Louisiana State Board of Medical Examiners (““LSBME”). (Doc. 199 at p. 2). The
Magistrate Judge entered an order quashing part of the subpoena. (/d. at p. 4)
Defendants then urged the District Court to review the Magistrate Judge’s order, and
attached multiple documents that revealed personally identifying information of two
non-party abortion providing doctors (“non-Doe Doctors”).
Plaintiffs filed an emergency motion to strike Defendants’ motion to review the
Magistrate Judge’s order on the grounds that it disclosed the identities of non-Doe
Doctors, in contravention of the terms of the Second Protective Order. (Doc. 95), The
Court denied Plaintiffs’ motion to seal all of Defendant’s motion, but ordered Docs
201-1 through 201-7 be sealed until further orders of the Court. (fd.). Defendants
now move for the Court to vacate its October 19, 2018 Order and unseal the
documents, (Doc. 207). Plaintiffs oppose the motion, (Doc. 219).
IK. LEGAL STANDARD
Fed. R. Civ. P. 60 provides that:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may relieve a party
or its legal representative from a final judgment, order, or proceeding
for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect:
(2) newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
Ill. ARGUMENTS
Defendants claim that Plaintiffs misled and induced the Court to issue the
October 19, 2018 Order in violation of the First Amendment. (Doc. 207-1 at p. 1).
Defendants argue that the names of the non-Doe Doctors are not protected under the
terms of the Protective Orders. (Ud. at p. 6). Defendants also argue that the Second
Protective Order further limits the scope of protectable information to information
“produced by a party or non-party ... in response to any subpoena or discovery
request.” (Id.).
Defendants further argue that the documentation attached to the motion was
publicly available, and therefore cannot be subject to a protective order. Defendants
argue that it is improper for a court to place under seal items that were generally
available to the public. Ud. at p. 9). Blanchard & Co. v. Barrick Gold Corp., 2004 WL
737485, at *6 (H.D. La. Apr. 5, 2004).
Defendants assert that the First Amendment and the Louisiana Public
Records Law prevent sealing of documents containing public information. (/d, at p.
10). Defendants cite Seattle Times Co. v. Rhinehart, 467 U.S. 20, 34 (1984) for the
proposition that a party may disseminate information identical to the protected
information, so long as that information is gained through means independent of the
court’s process, Finally, Defendants argue that the Court has committed a procedural
error in sealing documents without explanation. United States v. Holy Land Found.
For Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010).
Plaintiffs note that Defendants have not identified a single reason why it is
beneficial to their case for the records to be unsealed. (Doc. 217 at p. 1). Plaintiffs
aiso claim that the Protective Orders defined “confidential” broadly, and that it
encompasses personnel information, information produced by or related to third
parties and others associated with Plaintiffs, and “sensitive information regarding
non-party healthcare facilities.” Ud. at p. 5). Plaintiffs also allege that Defendants
failed to cite the first paragraph of the Second Protective Order in its entirety, which
provides that the Second Protective Order:
govern|s] the handling of all confidential and sensitive documents,
testimony, interrogatories, correspondence, and any other material or
information produced, disclosed or filed by any party or non-party and
designated as such in accordance with the terms hereof.
Plaintiffs allege that this paragraph allows for information outside of what is
gathered during the discovery process to be included within the ambit of the
Protective Orders. Further, Plaintiffs argue that Defendants were able to easily find
the identities of the non-Doe Doctors on the internet because Defendants already
knew the names of those doctors, and that persons who do not know the identity of
the physicians could not otherwise conduct such internet searches. (Id.).
Plaintiffs further cite Test Masters Educ. Servs., Inc. v. Robin Singh Educ.
Servs, Inc., 799 F.3d 487, 455 (5th Cir. 2015), rev'd on other grounds.’ wherein the
\Test Masters Educ. Serus., Inc. v. Robin Singh Hduc. Servs., Ine., 2015 WL 18768849, at *2 (5th Cir.
Oct. 22, 2015).
United States Court of Appeals for the Fifth Circuit held that a court may seal
documents without analysis when it has “extensive history with the parties” and was
“uniquely familiar with the facts of the case.” Finally, Plaintiffs claim that
Defendants, as a state entity, are not entitled to First Amendment Protection. □□□□
at Doc. 9). Plaintiffs argue that nothing prevents Defendants from exercising their
duties under the Louisiana Public Records Law outside of the scope of the litigation.
IV. ANALYSIS
A. The Terms of the Protective Order Allow Sealing
The Protective Order shall stand. Defendants’ claim that the Court’s Order
protects information that falls outside the scope of the Protective Order is
unsupported by the facts and the law. Paragraph 2 of the Protective Order sets forth
a specific class of information, and does not define “confidential.” Paragraphs 5 and
6 of the Second Protective Order actually define “confidential,” and includes
information that could “jeopardize the privacy of the staff, physicians, patients, and
others associated with Plaintiffs.” (Doc. 96 at p. 4)(emphasis added). The non-Doe
doctors are included in the category of “others,” as contemplated by the Second
Protective Order.
Further, Paragraph 6 sets forth that confidential information may include
investigations related to any person’s ability to practice medicine, legal or disciplinary
actions taken by the Louisiana Department of Health, information regarding claims
of medical malpractice, and any records concerning peer review committee
discussions. Ud.). The sealed information falls into these categories.
Furthermore, the Court has the authority to seal documents for “good cause
shown.” Rule 26(c). Defendants have offered no explanation why it is necessary for
these documents to remain unsealed, given the potential harm that may result to the
non-Doe Doctors, should their names be publicized. Most troubling, Defendants have
alleged that after searching for the names of the non-Doe Doctors, it was discovered
that their names appeared on websites that Plaintiffs identified as being potentially
linked with groups that advocate violence against abortion providers and clinics.
(Doc. 219 at p. 6),
B. The Court’s Order does not Violate the First Amendment or the
Louisiana Public Records Law
Defendants rely on Reinhart, in arguing that a court cannot unilaterally take
an entire topic out of the public domain by means of a protective order. Rhinehart,
467 U.S. at 34. Having found that the Second Protective Order to which both parties
stipulated covers the contested information, the Court finds that Reinhart is wholly
inapplicable in this matter.
Defendants raised the argument that the State of Louisiana enjoys First
Amendment rights. Government entities enjoy no such rights. Estiverne v. La. State
Bar Assn, 863 F.2d 371, 379 (6th Cir. 1989). Defendants also argue that the Order,
in effect, removes information from the public domain. This is not the case. Barring
Defendants from making reference to the identities of certain physicians in this
litigation does not mean that they cannot respond to requests for such information
pursuant to the Louisiana Public Records Law. Nothing in this Court’s Order or in
the stipulated Protective Order demands otherwise.
C. No Procedural Error was Committed
Being intimately familar with the parties and arguments in this case, the
Court did not commit a procedural error in sealing the challenged documents with no
findings of fact. A court may seal documents without placing findings of fact onto the
record if it has “extensive history with the parties” and is “uniquely familiar with the
facts of the case.” Test Masters, 799 F.3d at 455. Moreover, unlike in Test Masters,
Defendant has not demonstrated any hardship arising from the documents being
sealed, nor did the Court issue its order sealing the documents sua sponte. Test
Masters, 2015 WL 18768849, at *2.
This matter has been litigated in this Court for approximately three years and
the Court is fully and extensively familiar with the facts of the case. Defendant’s
assertion is unfounded.
V. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants’ Motion to Vacate and Unseal (Doce.
207) is DENIED.
‘siana, this Ol
Baton Rouge, Louisiana, this “day of July, 2019.
A a ®
JUDGE BRIAN A KSON
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA