AMERICAN BOARD OF INTERNAL MEDICINE v. JAMIE SALAS RUSHFORD, M.D.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 14-cv-6428 (KSH) (CLW)

AMERICAN BOARD OF INTERNAL

MEDICINE, OPINION AND ORDER

Plaintiff,

v.

JAMIE SALAS RUSHFORD, M.D.,

Defendant.

CATHY L. WALDOR, U.S.M.J.

I. INTRODUCTION

This matter comes before the Court on Defendant’s motion for reconsideration (the

“Motion”) of the Court’s May 17, 2024 Order, (the “Order,” ECF No. 222), granting Plaintiff’s

motion to seal portions of the parties’ summary judgment briefing. (ECF No. 221). In accordance

with Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1, the Court resolves Defendant’s

application without oral argument. For the reasons stated below, Defendant’s Motion is denied.

II. BACKGROUND

The Court assumes familiarity with the facts and procedural history underlying this

matter – discussed in full in the Order – and therefore will not recite them at length here. Briefly

stated, the parties filed cross motions for summary judgment, opposition briefs, and reply

memorandums in support of their respective motions. (ECF Nos. 207, 212, 214, 215, and 216).

In its motion and reply, Plaintiff relied upon, among other things, the confidential deposition

testimony of Dr. Geraldine Luna and Benjamin Mannes. Following the summary judgment

briefing, Plaintiff moved for an order permanently sealing the “Confidential Materials,” i.e.,

confidential information consisting of (a) select deposition testimony of third-party witnesses, (b)

a confidential settlement agreement with one of those third-party witnesses; and (c) an email

between Plaintiff’s counsel and that third party witness’s counsel discussing the terms of the

confidential settlement agreement, which this Court granted on May 17, 2024.

Defendant filed an opposition to the Order, (ECF No. 223), which the Court construes as

a motion for reconsideration. (ECF No. 224). Defendant seeks reconsideration of the Order with

respect to permanently sealing the Confidential Materials, specifically with respect to witness Dr.

Geraldine Luna.1 Plaintiff filed its opposition to the Motion on June 17, 2024. (ECF No. 225).

On September 30, 2024, the Hon. Katherine S. Hayden denied Plaintiff’s motion for summary

judgment and granted Defendant’s cross motion. (ECF No. 227). Judge Hayden’s opinion, (ECF

No. 226), remains under temporary seal until the Motion at hand is decided. (ECF No. 229).

III. LEGAL STANDARD

A. Legal Standard with Respect to a Motion for Reconsideration

“[R]econsideration is an extraordinary remedy, that is granted ‘very sparingly.’” Brackett

v. Ashcroft, 2003 WL 22303078, at *2 (D.N.J. Oct. 7, 2003) (quoting Interfaith Community Org v.

Honeywell Int’l, Inc., 215 F. Supp. 2d. 482, 507 (D.N.J. 2002)). A motion for reconsideration may

be granted if: “‘(1) an intervening change in the controlling law has occurred; (2) evidence not

previously available has become available; or (3) it is necessary to correct a clear error of law or

prevent manifest injustice.’” Id. (citing Database Am., Inc. v. Bellsouth Adver. & Pub. Corp., 825

F. Supp. 1216, 1220 (D.N.J. 1993); N. River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194,

1218 (3d Cir. 1995)). Accordingly, “[m]ere disagreement with the Court’s decision does not

1 Defendant agreed to Plaintiff’s “legitimate confidentiality requests as to [Plaintiff’s former

employee Benjamin] Mannes.” (Def. Motion for Reconsideration, ECF No. 223 at 2).

suffice.” ABS Brokerage Servs., LLC v. Penson Fin. Servs., 2010 WL 3257992, at *6 (D.N.J. Aug.

16, 2010) (quoting P. Schoenfeld Asset Mgmt., LLC v. Cendant Corp., 161 F. Supp. 2d 349, 353

(D.N.J. 2001)). A party seeking reconsideration thus faces a “high burden.” Id. at *5.

Under Local Civil Rule 7.1(i), a motion for reconsideration requires a party to set forth the

“matter or controlling decisions which the party believes the Judge has overlooked.” L. Civ. R.

7.1(i). Such motion “may address only those matters of fact or issues of law which were presented

to, but not considered by, the court in the course of making the decision at issue.” Shanahan v.

Diocese of Camden, 2014 WL 1217859, at *2 (D.N.J. Mar. 21, 2014) (quoting A & L Indus., Inc.

v. P. Cipollini, Inc., 2013 WL 6145766, *1 (D.N.J. Nov. 21, 2013)) (cleaned up).

B. Legal Standard with Respect to a Motion to Seal

There is a presumptive right of public access to judicial proceedings and records2 under

the common law and First Amendment. In re Avandia Mktg., Sales Practices & Prods. Liab.

Litig., 924 F.3d 662, 672-73 (3d Cir. 2019) (hereinafter, Avandia). Local Civil Rule 5.3 requires

a party seeking to seal any part of a judicial record to show a “clearly defined and serious injury

that would result if the relief sought is not granted” and that “a less restrictive alternative to the

relief sought is not available.” L. Civ. R. 5.3(c)(3)(d) and (e). Such party also bears the burden

of demonstrating that “‘the material is the kind of information that courts will protect,’” Miller v.

Indiana Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (quoting Publicker Indus., Inc. v. Cohen, 733 F.2d

1059, 1071 (3d Cir. 1984)), and that there is “good cause” to seal the materials. Pansy v. Borough

of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994). Good cause means a showing that disclosure

would cause a clearly defined and serious injury. Id. “Broad allegations of harm, bereft of specific

2 Documents filed in connection with a motion for summary judgment, or any other “pretrial

motions of a nondiscovery nature, whether preliminary or dispositive, and the material filed in

connection therewith” are considered judicial records. Avandia, 924 F.3d at 672.

examples or articulated reasoning, are insufficient.” Avandia, 924 F.3d at 673 (quoting In re

Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001).

A sealing order can be appropriate as to the confidential information of non-party witnesses

who have not consented to their personal information being made public. Wickens v. Rite Aid

Hdqtrs. Corp., 2021 WL 5876695, at *2 (M.D. Pa. Feb. 23, 2021). Courts have recognized that

disclosure of non-party information may outweigh the right of public access to the information, as

such disclosure can cause serious harm to a non-party’s reputation and privacy interests, thereby

sufficient to overcome any presumption of public access. Id. Courts may also deny access to

settlement agreements where the parties entered into those agreements with an expectation of

confidentiality, as disclosure can “undermine both the non-party’s privacy interests and

Defendant’s ability to engage in private dispute resolution.” Wickens, 2021 WL 5876695, at *2;

see also LEAP Sys., Inc. v. MoneyTrax, Inc., 638 F.3d 216, 223 (3d Cir. 2011) (upholding the

denial of a motion to unseal documents regarding a settlement agreement after determining the

parties would not have entered into the agreement absent an assurance of confidentiality).

IV. ANALYSIS

In its Motion, Defendant does not contest the applicable legal standard relating to a motion

to seal (i.e., there has been no “intervening change in the controlling law”), nor does he argue that

“evidence not previously available has become available.” (Def. Motion for Reconsideration, ECF

No. 223 at 3); Brackett, 2003 WL 22303078, at *2. Rather, Defendant argues that the Court

misapplied the law, and therefore the Order sealing the summary judgment materials should be

overturned to correct this “clear error.” Id.

Specifically, Defendant submits that Plaintiff did not “provide with particularity, based on

personal knowledge, any clearly defined and serious injury that would result” if the Confidential

Materials were left unsealed. (Def. Motion for Reconsideration, ECF No. 223 at 4). Defendant

alleges that Plaintiff’s claims of potential injury to Dr. Luna are “not based on personal knowledge,

and instead consists of only generalized speculation about what Dr. Luna’s interest may be.” (Id.

at 4-5). Defendant argues that the Court “overlooked” the specificity component of the legal

standard, and therefore because Plaintiff does not “clearly define” Dr. Luna’s injury, the motion to

seal must fail. L. Civ. R. 7.1(i); (Def. Motion for Reconsideration, ECF No. 223 at 4-5).

The Court disagrees that Dr. Luna would not be harmed by disclosure of the terms of the

confidential settlement agreement, for the same reasons set forth in its Order:

“First, the terms of Dr. Luna’s settlement agreement with ABIM are confidential, and she

relied upon the confidentiality of that agreement as a term of entering into it; the materiality

of that term is evidenced by the inclusion of a confidentiality clause in the settlement

agreement. Second, the email exchange between counsel that ABIM seeks to permanently

seal discusses the terms of that confidential settlement agreement. Finally, her deposition

testimony arises from her confidential settlement with ABIM. Disclosure of these

materials would harm Dr. Luna and undermine the promise of confidentiality pursuant to

which she entered into her agreement with ABIM.”

(Order ¶ 15, ECF No. 222). The Court previously found that Dr. Luna’s expectation of

confidentiality with respect to the settlement agreement overcame a presumption of public access

to the Confidential Materials, as disclosure could cause harm to her reputation and privacy interests

(Id. ¶¶ 14-15). While Defendant disagrees with this analysis, its opposition alone “does not

suffice” to overturn the Order. ABS Brokerage, 2010 WL 3257992, at *6.

Defendant also alleges that Plaintiff fails to use “the least restrictive means” to assert

confidentiality, and that any confidentiality interests of Dr. Luna “could be fully protected simply

by redacting her name from the documents.” (Def. Motion for Reconsideration, ECF No. 223 at

2). However, this Court previously found that Plaintiff demonstrated there was “no less restrictive

alternative to the relief sought,” and that while the confidential information “is necessary to the

parties’ briefing,” it must be protected from disclosure to keep it confidential. (Order ¶ 29, ECF

No. 222). The Court held that Plaintiff proposed “the most limited possible redactions of the

parties’ briefing and statement of facts”; specifically, because all of Dr. Luna’s deposition “is

confidential and arises from her confidential agreement with [Plaintiff], filing that exhibit under

seal is the only reasonable means of protecting that information.” (Id. ¶ 17). In other words, “no

less restrictive alternative” to permanently sealing the Confidential Materials is available. (Id. ¶

29). “Likewise, the entire settlement agreement and email correspondence must be filed under

seal because otherwise, the entirety of those documents would need to be redacted, leaving no

practical or material difference between or benefit to be gained by redacting those documents as

opposed to sealing the documents entirely.” (Id. ¶ 17).

Defendant’s Motion does not submit a change in controlling law regarding motions to seal,

new evidence, or that overturning the Court’s Order would “prevent manifest injustice.” ABS

Brokerage, 2010 WL 3257992, at *6. Rather, Defendant simply disagrees with the Court’s

decision to seal the Confidential Materials. This alone does not meet the “high burden” for the

Court to reconsider its Order. Id. at *5-6. Accordingly, Defendant’s opposition to, and request for

reconsideration of, the Court’s Order sealing the Confidential Materials should not be granted.

V. CONCLUSION

For the reasons stated, Defendant’s motion for reconsideration, (ECF No. 223), is denied.

Accordingly, it is on this 25th day of November, 2024,

ORDERED that Defendant’s Motion for Reconsideration of the Court’s Order to Seal the

Confidential Materials is DENIED; and it is further

ORDERED that the Confidential Materials will remain permanently SEALED.

s/ Cathy L Waldor

Hon. Cathy L. Waldor, U.S.M.J.