“[M]aterial filed with discovery motions is not subject to the common-law right of access . . . .”
How later courts described this case
- “[M]aterial filed with discovery motions is not subject to the common-law right of access . . . .”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
TINA BROWN,
Plaintiff,
v. Case No: 6:23-cv-1925-JSS-LHP
BP EXPLORATION & PRODUCTION
INC. and BP AMERICA
PRODUCTION COMPANY,
Defendants
ORDER
This cause comes before the Court following a hearing at which the Court
addressed BP Defendants’ Motion for Protective Order Regarding Privilege Log
(Doc. No. 45), and all filings related thereto, as well as Plaintiff’s Motion to Seal
Pursuant to L.R. 1.11 (Doc. No. 49), and all filings related thereto. See Doc. Nos. 64,
73. Prior to the hearing, the Court conducted an in camera review of the documents
at issue in BP’s motion (Doc. No. 45, see also Doc. No. 47), to consider BP’s claims of
attorney-client privilege and work product protections over certain documents.
See Doc. No. 52. A portion of the hearing was also conducted in camera with BP’s
counsel to discuss the application of the attorney-client privilege and work product
protections to four specific documents at issue. This Order memorializes the
rulings made at the hearing.
Accordingly, for the reasons set forth on the record at the hearing, it is
ORDERED as follows:
1. Plaintiff’s Motion to Seal Pursuant to L.R. 1.11 (Doc. No. 49), is
GRANTED. Given that this is a discovery-related dispute, having
considered Local Rule 1.11 and the Eleventh Circuit’s standard for sealing,
the Court finds good cause to seal the exhibit (Doc. No. 49-1) at this time. See
generally Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312
(11th Cir. 2001) (“[M]aterial filed with discovery motions is not subject to the
common-law right of access . . . .”). Thus, absent further Order of the Court,
the Dr. Naomi Oreskes Report shall remain under seal (Doc. No. 49-1), and
will be considered for purposes of resolution of BP’s Motion (Doc. No. 45)
alone. As set forth on the record at the hearing, this Order authorizing
sealing does not provide any substantive ruling regarding the Dr. Naomi
Oreskes Report, nor may any party rely upon this Order sealing the Dr.
Naomi Oreskes Report to support a request for any substantive ruling in the
case outside of resolution of BP’s motion (Doc. No. 45).
2. BP Defendants’ Motion for Protective Order Regarding Privilege Log
(Doc. No. 45) is DEFERRED in part and DENIED in part.
a. The motion (Doc. No. 45) is DENIED to the extent that BP’s
objections to production of PM-46 based on attorney-client privilege
and/or work product protections are OVERRULED. BP shall
produce PM-46 to Plaintiff within seven (7) days of this Order.
b. Following in camera review of the documents, and an in camera
discussion with BP’s counsel at the hearing, BP’s objections to
production of the remainder of the documents at issue based on
attorney-client privilege and/or work product protections are
SUSTAINED at this time, to include: PM-04 through PM-19; PM-21
through PM-23; PM-27 through PM-29; PM-33 through PM-44; PM-47;
PM-51; PM-54 through PM-71; PM-73 through PM-77 (conference calls,
agendas, and meeting minutes); PM-20 and PM-31 (monitoring and
sampling data); PM-01 and PM-32 (draft presentations); and PM-02,
PM-25, and PM-26 (responses to inquiries from media or government).
The Court found that all of these documents contain information
protected by the attorney-client privilege and/or work product
doctrine, and redaction of the privileged material from these
documents would be impracticable.
c. BP’s motion (Doc. No. 45) is otherwise DEFERRED in its
remainder pending briefing from the parties on the crime-fraud
doctrine, as requested by Plaintiff, Doc. No. 48, at 10, and as discussed
with the parties at the hearing.
d. Within seven (7) days of the date of this Order, Plaintiff shall file
a brief, not to exceed ten (10) pages in length, limited solely to
application of the crime-fraud exception to the documents at issue for
which the attorney-client privilege/work product protection
objections have been sustained by this Order. Any argument raised
in briefing unrelated to the crime-fraud exception or the specific
documents at issue in BP’s motion will not be considered. Failure to
file a brief by this deadline will result in a waiver of any argument that
the crime-fraud exception applies.
e. Within seven (7) days of the filing of Plaintiff’s brief, BP shall file
a response brief, not to exceed ten (10) pages in length, also limited
solely to the applicability of the crime-fraud exception to the
documents at issue and the issues raised by Plaintiff’s brief.
f. The parties shall attach to their briefing any documentation that
they wish the Court to consider in resolution of this issue, see Local
Rule 3.01(f), except the parties may refer back to the now-sealed Dr.
Naomi Oreskes Report (Doc. No. 49-1), without refiling, as
appropriate. As discussed at the hearing, the Court has not
considered the pre-hearing notices filed by both parties and the
attachments related thereto (Doc. Nos. 68, 70, 71), as they were made
without leave of Court. Accordingly, Plaintiff's motion to seal related
thereto (Doc. No. 72) is DENIED as moot.
DONE and ORDERED in Orlando, Florida on July 9, 2025.
LESLIE AN PRICE
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Counsel of Record
Unrepresented Parties
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