Garrett v. The Ohio State University

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

BRIAN GARRETT, et al.,

Plaintiffs, Case No. 2:18-cv-692

v. Judge Michael H. Watson

THE OHIO STATE UNIVERSITY, Chief Magistrate Judge Deavers

Defendant.

STEVE SNYDER-HILL, et al., Case No. 2:18-cv-736

Plaintiffs, Judge Michael H. Watson

v. Chief Magistrate Judge Deavers

THE OHIO STATE UNIVERSITY,

Defendant.

OPINION AND ORDER

In accordance with the Court’s Order issued on May 20, 2020 (Case No. 2:18-cv-692,

ECF No. 156), Plaintiffs in both of the above-captioned cases filed Amended Complaints on

May 27, 2020,1 under seal. Defendant filed a Response on June 10, 2020, stating that it had

reviewed both Complaints for confidentiality concerns as directed. The Snyder-Hill Plaintiffs

responded to Defendant’s confidentiality concerns on June 12, 2020. For the following reasons,

the Court lifts the seal and directs that both pleadings be filed on the public record in their

entirety.

1In Garrett, Case No. 2:18-cv-692, Plaintiffs filed a Consolidated Class Action Complaint (ECF

No. 157). According to that pleading, Case Nos. 2:19-cv-5272 and 2:20-cv-1649 may be

administratively closed. In Snyder-Hill, Case No. 2:18-cv-736, Plaintiffs filed a Second

Amended Complaint (ECF No. 123).

I.

It is well established that “[e]very court has supervisory power over its own records and

files.” Nixon v. Warner Commc’ns, 435 U.S. 589, 598 (1978). A court’s discretion to seal

records from public inspection, however, is limited by “the presumptive right of the public to

inspect and copy judicial documents and files[,]” which the United States Court of Appeals for

the Sixth Circuit as described as a “long-established legal tradition.” In re Knoxville News-

Sentinel Co., Inc., 723 F.2d 470, 473–74 (6th Cir. 1983); see also Brown & Williamson Tobacco

Corp. v. FTC, 710 F.2d 1165, 1178–80 (6th Cir. 1983) (discussing the justifications for the

“strong presumption in favor of openness”). Therefore, “[o]nly the most compelling reasons can

justify non-disclosure of judicial records.” Shane Grp., Inc. v. Blue Cross Blue Shield of Mich.,

825 F.3d 299, 305 (6th Cir. 2016) (internal quotation marks and citation omitted). The Sixth

Circuit has indicated that exceptions fall into two categories: (1) exceptions “based on the need

to keep order and dignity in the courtroom”; and (2) “content-based exemptions,” which “include

certain privacy rights of participants or third parties, trade secrets, and national security.” Brown

& Williamson Tobacco Corp., 710 F.2d at 1179 (citations omitted).

In addition, the Sixth Circuit has recently emphasized the public’s “strong interest in

obtaining the information contained in the Court record.” Shane Grp., Inc., 825 F.3d at 305

(internal quotation marks and citation omitted); see also In re Nat’l Prescription Opiate Litig.,

927 F.3d 919, 939 (6th Cir. 2019) (“‘[T]he greater the public interest in the litigation’s subject

matter, the greater the showing necessary to overcome the presumption of access.’”) (quoting

Shane Grp., Inc., 825 F.3d at 305). Accordingly, district courts must consider “each pleading [to

be] filed under seal or with redactions and to make a specific determination as to the necessity of

nondisclosure in each instance” and must “bear in mind that the party seeking to file under seal

must provide a ‘compelling reason’ to do so and demonstrate that the seal is ‘narrowly tailored to

serve that reason.’” In re Nat’l Prescription Opiate Litig., 927 F.3d at 940 (quoting Shane Grp.,

825 F.3d at 305). If a district court “permits a pleading to be filed under seal or with redactions,

it shall be incumbent upon the court to adequately explain ‘why the interests in support of

nondisclosure are compelling, why the interests supporting access are less so, and why the seal

itself is no broader than necessary.’” Id. (quoting Shane Grp., Inc., 825 F.3d at 306).

II.

Defendant indicates that it does not believe the pleading in Garrett, contains confidential

information. The Court agrees. Accordingly, the Consolidated Class Action Complaint (ECF

No. 157 in Case No. 2:18-cv-692) shall be filed on the public record without redaction.2

With respect to the Snyder-Hill pleading, Defendant identifies three paragraphs--237,

238, and 247--that it believes are arguably protected from disclosure by Ohio Rev. Code §

4731.22.(F)(5). In considering whether information ought to be sealed, the Sixth Circuit’s

decision in Shane Group requires a district court to balance, among other things, the nature of the

public’s interest in the litigation’s subject matter; whether the information sought to be sealed is

required by statute to be maintained in confidence; and the privacy interests of innocent third

parties. Thomas v. Nationwide Children's Hosp., Inc., No. 2:14-CV-1236, 2018 WL 1512908, at

*2 (S.D. Ohio Mar. 27, 2018).

The first consideration requires little discussion. The public’s interest in this case can

only be characterized as significant. The Ohio State University is a national institution and the

nature of Dr. Strauss’ alleged conduct has been the repeated subject of extensive news coverage

2The Court notes that two copies of the Consolidated Class Action Complaint were filed

inadvertently. (ECF Nos. 157 and 159.) Accordingly, the Court will STRIKE the second filed

pleading (ECF No. 159) as redundant.

over the course of the last several years. This factor weighs strongly in favor of unsealing the

Second Amended Complaint in its entirety.

The Court must also consider whether a statute requires the information sought to be

sealed to be maintained in confidence. Thomas, 2018 WL 1512908, at *3. This factor addresses

the crux of the issue here.

The highlighted information relates to statements made to the State Medical Board of

Ohio in connection with investigations of Dr. Strauss in 1996. Defendant explains that the quote

in paragraph 237 is public information because it appears in the publicly available 1996

investigation report. However, Defendant represents that, to its knowledge, the quote has not

been publicly attributed to the individual identified in paragraph 237. Defendant notes that

paragraphs 238 and 247 also identify this individual and connect the individual to statements

made before the Medical Board. Accordingly, Defendant asserts that Ohio Rev. Code

§ 4733.22(F)(5) may require the individual’s consent for public disclosure. Defendant

emphasizes that it is highlighting these paragraphs “out of an abundance of caution” and cites to

no authority in support of maintaining this information under seal beyond the language of the

statute.

Ohio Rev. Code § 4731.22(F)(5) provides that “a complaint, or information received by

the board pursuant to an investigation … is confidential and not subject to discovery in any civil

action.” Further, the Medical Board is prohibited from “mak[ing] public the names or any other

identifying information about [] complainants unless proper consent is given[.]” The statute also

authorizes the admission into evidence of confidential information in a judicial proceeding, but

requires that appropriate measures be taken “to ensure that confidentiality is maintained with

respect to any part of the information that contains names or other identifying information about

[] complainants whose confidentiality was protected by the state medical board when the

information was in the board’s possession. Measures to ensure confidentiality that may be taken

by the court include sealing its records or deleting specific information from its records.”

This statute has been interpreted broadly to encompass a privilege of confidentiality to

several groups, including “’investigation witnesses and any other persons whose confidentiality

right is implicated by a Medical Board investigation.’” See State ex rel. Mahajan v. State Med.

Bd. of Ohio, 2010-Ohio-5995, 127 Ohio St. 3d 497, 503 – 504, 940 N.E.2d 1280 (quoting State

ex rel. Wallace v. State Med. Bd. of Ohio, 2000-Ohio-213, 89 Ohio St. 3d 431, 435, 732 N.E.2d

960). The confidentiality provision may be waived, but only by the holder of the privilege. Id.;

see also Wallace, at 435.

The Snyder-Hill Plaintiffs essentially contend that the deponent waived any

confidentiality privilege when he testified in this case about his statements to the Medical

Board.3 They have provided nothing beyond argument on this issue. Moreover, the fact of

waiver is not entirely clear under the circumstances of this case. For example, the deponent

declined to participate in a full interview during the investigation underlying the Perkins Coie

report; for purposes of his deposition, the Snyder-Hill Plaintiffs characterized him as a “Non-

Cooperative Witness”; and, as a third-party, he testified in this case under subpoena. Further,

although the Snyder-Hill Plaintiffs represent that this individual voluntarily testified, without

objection or request for a confidentiality designation, about statements made to the Medical

Board, the Court has no information from which it could make its own assessment as to any

waiver.

3Plaintiffs frame their argument in terms of consent rather than waiver.

At the same time, the Court notes that Defendant acknowledges that the quoted material

has been public for many years. Further, the individual’s identity and position with the

University have been discussed in previous public filings in this case. (See, e.g., ECF No. 81 in

Case No. 2:18-cv-736). Consequently, it seems that, under these circumstances, requiring these

portions of the Second Amended Complaint to remain under seal would not necessarily preserve

confidentiality. However, given the breadth of Ohio’s confidentiality provisions relating to

Medical Board investigations and the limited evidence of waiver, the Court finds that this

consideration weighs somewhat in favor of allowing the individual’s identity set forth in the

three paragraphs highlighted by Defendant to remain under seal.

The final consideration regarding the privacy interests of third parties is not particularly

applicable here. As discussed, the only privacy concerns raised relate to the individual deponent.

The privacy interests of parties with no connection to this case are not implicated by the

information at issue. Consequently, this consideration is neutral.

Taking all of the above into account, the Court concludes that, despite Ohio’s strong

statutory confidentiality provision, the public interest requires that the Second Amended

Complaint be filed on the public record in its entirety without redaction. Secrecy may have been

fine at earlier stages of this case, but different considerations apply at the adjudication stage.

Shane Grp., 825 F.3d at 305 (citations omitted). The line between these stages is crossed once

information is placed on the Court record. Id. As noted above, the public has significant interest

in not only the outcome but in the conduct giving rise to this case. Undoubtedly, the allegations

are of the type where the secrecy concerns noted in Shane Group are particularly heightened. Id.

These concerns strongly outweigh Defendant’s suggestion that these three paragraphs may

require protection from public disclosure.

For the reasons stated above, the Clerk is DIRECTED to file the Consolidated Class

Action Complaint in Case No. 2:18-cv-692 (ECF No. 157) and the Second Amended Complaint

in Case No. 2:18-cv-736 (ECF No. 123) on the public record. Responsive pleadings and replies

shall be filed within rule thereafter.

IT IS SO ORDERED.

Date: June 23, 2020

/s/ Elizabeth A. Preston Deavers

ELIZABETH A. PRESTON DEAVERS

CHIEF UNITED STATES MAGISTRATE JUDGE