Frohn v. Globe Life and Accident Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KAREN FROHN, individually and

on behalf of all others similarly

situated,

Case No. 1:19-cv-713

Plaintiff, JUDGE DOUGLAS R. COLE

v.

GLOBE LIFE AND ACCIDENT

INSURANCE COMPANY,

Defendant.

OPINION AND ORDER

This cause comes before the Court on Plaintiff Karen Frohn’s unopposed

Motion to File Danner Deposition Transcripts and Exhibits under Seal (Doc. 69) and

Motion to File Opposition under Seal (Doc. 70). For the reasons set forth more fully

below, the Court GRANTS Frohn’s Motions (Docs. 69, 70).

LAW AND ANALYSIS

A district court’s decision to seal court records is reviewed for an abuse of

discretion. Beauchamp v. Fed. Home Loan Mortg. Corp., 658 F. App’x 202, 207 (6th

Cir. 2016) (citing Shane Grp., Inc. v. Blue Cross Blue Shield of Mich., 825 F.3d 299,

306 (6th Cir. 2016)). But in the sealing context, that “decision is not accorded the

deference that standard normally brings.” Id. To avoid abusing its discretion, a

district court faced with a motion to seal must “set forth specific findings and

conclusions ‘which justify nondisclosure to the public.’” Shane Grp., 825 F.3d at 306

(quoting Brown & Williamson Tobacco Corp. v. F.T.C, 710 F.2d 1165, 1176 (6th Cir.

1983)).

A district court is under an independent obligation, which exists regardless of

any agreement or disagreement among the parties, to determine whether sealing is

warranted. See Proctor [sic] & Gamble Co. v. Ranir, LLC, No. 1:17-cv-185, 2017 WL

3537195, at *2 (S.D. Ohio Aug. 17, 2017) (“A movant’s obligation to provide compelling

reasons justifying the seal exists even if the parties agree the filings should be sealed,

because litigants cannot waive the public’s First Amendment and common law right

of access to court filings.” (citing Rudd Equip. Co. v. John Deere Constr. & Forestry

Co., 834 F.3d 589, 595 (6th Cir. 2016))).

In response to a motion seeking sealing, this Court must determine whether

the party moving for a seal overcomes the “strong presumption in favor of openness.”

Brown & Williamson, 710 F.2d at 1179. The Court must then justify “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.” Shane Grp.,

825 F.3d at 306 (citing Brown & Williamson, 710 F.2d at 1176). And as the Sixth

Circuit has repeatedly cautioned, “only the most compelling reasons can justify

non-disclosure of judicial records.” In re Nat’l Prescription Opiate Litig., 927 F.3d 919,

940 (6th Cir. 2019) (brackets and citation omitted). On top of this, the Court must

ensure that any sealing order be “narrowly tailored” to serve the reason asserted.

Shane Grp., 825 F.3d at 305. To meet this narrow tailoring requirement, the moving

party must “analyze in detail, document by document, the propriety of secrecy,

providing reasons and legal citations.” Id. at 305–06 (quoting Baxter Int’l v. Abbott

Labs., 297 F.3d 544, 548 (7th Cir. 2002)). So a motion to seal must address each

document the moving party wants to seal or redact.

Courts have recognized a person’s interest in the privacy of their health

information as a legitimate basis for sealing. See, e.g., Patel v. Aetna, No. 2:17-cv-78,

2018 WL 2268147, at *1 (S.D. Ohio Apr. 3, 2018) (sealing claim forms containing

medical diagnoses, the identity of healthcare providers, prescription information, and

other personal health information); Bown v. Vore, No. 3:07-cv-375, 2009 WL 2393117,

at *5 n.2 (S.D. Ohio July 30, 2009) (sealing medical records). Indeed, Congress has

specifically recognized the importance of that privacy interest through the enactment

of the Health Insurance Portability and Accountability Act (“HIPAA”). And the Shane

Group court found that, when information is protected by statute or regulation, that

supports sealing. 825 F.3d at 308.

Courts have also recognized that a litigant’s interest in protecting sensitive

business information whose disclosure could result in competitive disadvantage can

be sufficient to support sealing. See Ethicon Endo-Surgery, Inc. v. Covidien, Inc., Case

No. 1:11-cv-871, 2017 WL 4168290, at *2 (S.D. Ohio Sept. 20, 2017) (recognizing

interest in sealing “confidential information that would otherwise allow competitors

an inside look at a company’s business strategies”); Morris v. Tyson Chicken, Inc., No.

4:15-CV-00077-JHM, 2020 WL 3442177, at *2 (W.D. Ky. June 23, 2020) (denying

motion to unseal documents that contain “confidential business information that

could harm [defendant’s] competitive standing”). Such information can include an

insurance company’s underwriting guidelines. See Kinsale Ins. Co. v. JDBC Holdings,

Inc., No. 3:20-CV-8, 2021 WL 2773002, at *5–6 (N.D. W. Va. Mar. 31, 2021) (sealing

guidelines that disclose “overall strategy and instructions for underwriting risks”);

Am. Gen. Life Ins. Co. v. Nelson, No. C19-5095RBL, 2020 WL 3488152, at *2 (W.D.

Wa. June 26, 2020) (granting motion to seal insurance company underwriting

guidelines).

Here, Frohn requests permission to file a sealed version of her Memorandum

in Opposition to Globe Life’s Motion for Summary Judgment, her Response to Globe

Life’s Proposed Undisputed Facts and Statement of Proposed Disputed Issues of

Material Fact, and the Declaration of her attorney, Todd B. Naylor, as well as

unsealed redacted versions of each. (Mot. to Seal Opp’n, Doc. 70, #4904). Frohn also

proposes to seal, in their entirety, the deposition transcript of Nicholas Danner, an

underwriter at Globe Life, along with exhibits 1–3, 6, 9, 10, 12–14, 16, 17, 19, 21, and

75 thereto, as well as exhibits 1–3, 6–13, and 16 to the Naylor Declaration. (Mot. to

Seal Danner Dep., Doc. 69, #4897; Mot. to Seal Opp’n, Doc. 70, #4905). Frohn claims

that those materials disclose the Decedent’s (her late husband Gregory Frohn’s)

personal health information, including information related to his treatment,

illnesses, infirmities, diseases, and/or health conditions. (Mot. to Seal Opp’n, Doc. 70,

#4904). Additionally, Frohn claims that other portions of the documents “discuss

Globe’s competitively sensitive and proprietary underwriting and business

information.” (Id.).

Under Shane Group, the Court must determine whether the asserted privacy

and competitive interests are compelling, whether the interests served by sealing this

information outweigh the value of public disclosure, and also whether the seal is

narrowly tailored to protect those privacy interests. With respect to the Decedent’s

confidential health information, the Court finds that this is one of the rare instances

where a party has met Shane Group’s demanding burden. In particular, the Court

agrees that exposure of the Decedent’s sensitive health information, including

information related to the Decedent’s treatment, illnesses, infirmities, diseases

and/or health conditions, would give rise to legitimate privacy concerns. Indeed, were

the Decedent alive, there would be no question that he has a compelling privacy

interest in maintaining the confidentiality of such information. Moreover, even

though a person’s privacy interests generally expire upon their death, see Cordell v.

Detective Publ’ns, Inc., 419 F.2d 989, 990 (6th Cir. 1969) (finding “the right [of

privacy] lapses with the death of the person who enjoyed it” in the tort context), that

is not true of HIPAA-protected information. Rather, HIPAA’s Privacy Rules

specifically provide that a person’s individually identifiable health information

remains protected for 50 years following the individual’s death. 45 C.F.R. § 160.103

(defining “protected health information”). In other words, Congress has recognized

that a person’s privacy interest in their medical information extends beyond their

death. It follows that Frohn has identified a compelling interest that supports sealing.

On the other side of the equation sits the public interest in disclosure. Shane

Group articulates several reasons why the public might have an interest in an open

review of a court’s docket materials. For example, a public docket ensures the public’s

right to guard against corruption and the public’s right to be on notice about what is

and what is not a violation of law. Shane Grp., 825 F.3d at 305. Likewise, the public

may have a legitimate interest in knowing the basis for the Court’s decision in a given

case. See Brown & Williamson, 710 F.2d at 1180 (“The public has a strong interest in

obtaining the information contained in the court record.”). None of those reasons,

though, appear to support access to any sensitive health information here.

The appropriateness of sealing is further confirmed in that the Decedent (or,

perhaps more accurately, Decedent’s estate) is not a party to this action. Shane Group

instructs that courts should afford third-party privacy interests substantial weight

when considering a motion to seal. Shane Grp., 825 F.3d at 308 (explaining that “the

privacy interests of innocent third parties should weigh heavily in a court’s balancing

equation”). In sum, the privacy interest in Decedent’s medical information far

outweighs the minimal public interest in disclosure of the information at issue here.

With respect to Globe Life’s sensitive business information, too, the Court

concludes that Frohn has identified a compelling interest that outweighs the value of

public disclosure. The information Frohn seeks to seal, which concerns Globe Life’s

underwriting practices, is sufficiently specific and detailed that its disclosure could

harm Globe Life’s competitive standing. Cf. Morris, 2020 WL 3442177, at *2; Kinsale,

2021 WL 2773002, at *5–6. Moreover, the Court determines that Globe Life’s

compelling competitive interest in sealing its sensitive business information

outweighs any limited impact on the public’s ability to be on notice about what

violates the law or to understand the basis for the Court’s decision in this case. See

Shane Grp., 825 F.3d at 305; Brown & Williamson, 710 F.2d at 1180. That is in part

because the specifics of Globe Life’s underwriting practices play only a limited role in

this case, in which Frohn challenges Globe Life’s decision not to pay on her life

insurance policy insuring the Decedent. (See generally Compl., Doc. 1).

The final issue the Court must address is Shane Group’s narrow-tailoring

requirement. Here, the Court has reviewed the unredacted versions of the

Memorandum in Opposition to Globe Life’s Motion for Summary Judgment, Response

to Globe Life’s Proposed Undisputed Facts and Statement of Proposed Disputed

Issues of Material Fact, and Naylor Declaration, and has confirmed that the proposed

redactions contain either the Decedent’s confidential medical information or Globe

Life’s sensitive business information. (See Mot. to Seal Opp’n, Doc. 70, #4904). The

Court has also reviewed the Danner deposition transcript and exhibits 1–3, 6, 9, 10,

12–14, 16, 17, 19, 21, and 75, as well as exhibits 1–3, 6–13, and 16 to the Naylor

Declaration, and find that either the Decedent’s health information or Globe Life’s

sensitive business information is pervasive throughout, such that it would be

impracticable to cull any portions that happen not to contain such information. (See

id., #4904–05; Mot. to Seal Danner Dep., Doc. 69, #4897).

For these reasons, the Court GRANTS Frohn’s Motion to File Danner

Deposition Transcripts and Exhibits under Seal (Doc. 69) and Motion to File

Opposition under Seal (Doc. 70) in their entirety.

SO ORDERED.

May 17, 2022

DATE DOUGLAS R. COLE .

UNITED STATES DISTRICT JUDGE