Kathryn Clarke, OSB No. 79189

921 S.W. Washington, Suite 764

Portland, Oregon  97205

Phone:  (503) 224-7963

Facsimile: (503) 224-3942

E-mail address: kathrynhc@aol.com

 

Matthew Whitman, OSB No. 98376

Meyer & Wyse, LLP

621 S.W. Morrison, Suite 1300

Portland, Oregon  97205                                                                                             

Phone: (503) 228-8448

Facsimile: (503) 273-9135

E-mail address: mww@meyerwyse.com

 

Lawrence Baron, OSB No. 81144

Law Office of Lawrence Baron, P.C.

1515 S.W. Fifth Avenue, Suite 808

Portland, Oregon  97201

Phone:  (503) 417-1117

Facsimile: (503) 228-1556

E-mail address: baron@nwtriallawyers.com

 

Anne Bloom

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave. N.W., Suite 800

Washington, D.C.  20036

Phone:  (202) 797-8600

Facsimile: (202) 232-7203

E-mail address: ABloom@tlpj.org

 

Attorneys for Intervenors

 

 

 

 

 

 

UNITED STATES DISTRICT COURT

 

DISTRICT OF OREGON

 

DEBBIE FOLTZ,                                           )     No. CV-94-6293-HO

)

Plaintiff,                        )     MEMORANDUM IN SUPPORT OF

)     RENEWED MOTION TO UNSEAL

vs.                                                        )     COURT RECORDS OR TO COMPEL

)     SHOWING OF CONFIDENTIALITY

STATE FARM MUTUAL                            )

AUTOMOBILE INSURANCE                    )    

COMPANY,   an Illinois corporation,   )    

CALIFORNIA INSTITUTE OF                   )    

MEDICAL RESEARCH AND                     )    


TECHNOLOGY, INC., dba              )     

COMPREHENSIVE MEDICAL                 )

REVIEW, and RALPH                                  )

HOUSEHOLDER,                                         )

)

Defendants,                  )

)

TEXAS WATCH, CONSUMER                  )

ACTION, and UNITED                                 )

POLICYHOLDERS,                         )

)

)

Intervenors.                  )          

INTRODUCTION

Intervenors Consumer Action, United Policyholders, and Texas Watch submit this Memorandum in Support of their Renewed Motion to Unseal or Compel.  As detailed below, there has been no legally adequate showing on the record which justifies the sealing of any document currently under seal in this matter.  The fact that a document is treated confidentially between parties pursuant to a valid discovery protective order does not justify sealing that same document when it is submitted to the Court and made a part of the Court’s record.  Further, the Court has sealed certain documents sua sponte.  As to these documents, State Farm has not articulated facts which justify the Court’s decision to withdraw documents from the public file.  Whatever arguments State Farm made were ex parte, when it returned the Court’s file to the courthouse and Intervenors were not allowed to meet them.  Accordingly, all the documents sealed in this case should be restored to the public file. 

If, as may be expected, State Farm or Ms. Foltz oppose the return of specific documents to the public record, the Court should require them to provide for each such document a summary of the document’s general nature.  Then, State Farm must provide sufficient reasoning to justify the sealing of that document under controlling Ninth Circuit precedent, and an articulation of the type of harm that would be suffered should the document to be protected be released.  Intervenors should then be allowed to view any document so identified by a party, and the opportunity to rebut that party’s arguments for confidentiality where appropriate.

SEQUENCE OF EVENTS


No extensive recitation is needed regarding the underlying substantive litigation between Debbie Foltz and others against State Farm and CMR.  The following is a brief timeline of these Intervenors’ limited involvement:

·                    On May 27, 1999, the present Intervenors moved the Court both for intervention and for the Court to unseal the case file, which had been sealed pursuant to stipulation of the parties sometime in late 1998.

·                    On June 8, 1999, Defendants State Farm and CMR, together with Plaintiff Foltz (the parties), filed a joint opposition to Intervenors’ motions.  The parties opposed the grant of intervention, argued that Intervenors’ motion was improperly made for failure to confer, and opposed the substantive relief sought by Intervenors.

·                    The Court granted the Motion to Intervene after telephonic hearing on July 6, 1999.

·                    Intervenors and the original litigants filed further briefs on the merits of Intervenors’ Motion to Unseal prior to oral argument before the Court on October 19, 1999. During this pre-argument period, Intervenors learned that the Court’s file had not only been sealed, but had been turned over to Mr. Spooner, State Farm’s lead counsel, upon State Farm’s application to the court. 

·                    On October 19, 1999, the Court heard oral argument from Intervenors and the parties.  By Minute Order, the Court took Intervenors’ Motion to Unseal under advisement.

·                    By written Order dated December 14, 1999, the Court granted Intervenors’ Motion to Unseal

...to the extent that the file shall be unsealed with the exception that the summary judgment motions along with the motions’ supporting materials that were filed under seal prior to the sealing of the entire file shall remain sealed.  State Farm shall return the file in compliance with this Order.

Order, Docket No. 501, p. 14.


·                    On December 27, 1999, Tierney Adamson, Kevin Snead and Daniel P. Johnson (the Litigation Intervenors), persons with current claims against State Farm similar to those asserted by Ms. Foltz in the substantive litigation here, moved the Court to clarify or modify its Order of December 14, 1999.  The Litigation Intervenors argued that as to both summary judgment materials and other documents previously filed under seal by the parties, no sealing was justified unless a “proper showing” had been made by the party arguing for confidential treatment.  Accordingly, the Litigation Intervenors argued, the Court’s seal should be lifted as to all “non-confidential” materials.

·                    On January 17, 2000, Intervenors moved the Court to set a deadline by which the original file materials should be returned to the Court.

·                    The Court heard oral argument on January 25, 2000, as discussed below in more detail, and orally denied the Litigation Intervenors’ Motion to Clarify/Modify.

·                    By Order dated February 17, 2000, the Court “[clarified] the state of the case file.”  As discussed more fully below, the Court explained that it had conducted its own review of the file materials, and had concluded that some materials which had been filed under seal did not warrant protection as confidential, while some materials which had never previously been sealed, should have been.  Accordingly, the Court unsealed some documents previously filed under seal by the parties, and sealed other documents which had never previously been sealed.

·                    Since then, these Intervenors have compared the Court’s electronic docket with the documents remaining in the unsealed court file, and have further compared the current electronic docket to its docket predating the Court’s original 1998 order sealing the entire file.  Intervenors’ efforts have been aimed at understanding the parties’ efforts to maintain confidentiality prior to the 1998 order sealing the entire file, and clarifying to what extent the Court’s current Order sealing parts of the file is consistent with the parties’ own efforts during the substantive litigation to police documents they viewed as confidential.

ARGUMENT


This Court has acknowledged the controlling cases regarding the right of public access to materials filed with the court,  Hagestad v. Tragesser, 49 F.3d 1430 (9th Cir. 1995), and San Jose Mercury News v. U.S. District Court, 187 F.3d 1096 (9th Cir. 1999).  The central question, for purposes of this Motion, is whether those cases’ mandate has been satisfied with respect to the documents in the file which are sealed.  As the Hagestad court commanded, the trial court must “[take] all relevant factors into consideration...[and base] its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture...to permit appellate review of whether relevant factors were considered and given appropriate weight.”  49 F.3d at 1434.

First, the documents newly sealed by the Court since the involvement of these Intervenors must be unsealed.  The Court’s Order of February 17, 2000, sets forth only conclusions as to the necessity of sealing these documents, impermissibly bootstraps the protective orders entered in this case into the secrecy determination, and was entered after the litigating parties had an opportunity for ex parte communication, which could include the identification of documents they wanted sealed.  Second, no sufficient basis appears on the record justifying the continued secrecy of any document now under seal.  Therefore, all documents currently filed under seal should be unsealed, unless one of the parties advocating secrecy makes a particularized showing, sufficient under Ninth Circuit precedent, to overcome the presumptive right of access to each document.

I.          The sealed records must be unsealed unless the litigating parties meet their burden of demonstrating compelling reasons to deny the public its right of access as to each document in which it claims an interest in confidentiality.


            The burden is on those who seek to keep the judicial record under seal to show that “the need for secrecy outweighs the presumption of access that normally attaches to such documents.”  Leucadia Inc. v. Applied Extrusion Technologies, Inc, 998 F.2d 157, 166 (3d Cir. 1993).  See also Republic of the Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 662 (3d Cir. 1991).  Under the common law right of access, “[t]he burden is on the party who seeks to overcome the presumption of access to show that the interest in secrecy outweighs the presumption.”  Bank of America, 800 F.2d at 344.  See also Joy v. North, 692 F.2d at 893, 897 (unsealing court records where movant had failed to demonstrate “the most compelling reasons” that disclosure would cause injury); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Lit., 101 F.R.D. 34, 43 (C.D. Cal. 1984) (unsealing court records where party seeking presumption failed to overcome “strong common law presumption of access”); In re Agent Orange Product Liability Litigation, 98 F.R.D. 539, 545 (E.D.N.Y. 1983) (unsealing court records where party seeking protection failed to demonstrate “countervailing interests sufficient to outweigh the public interest in access”).

In Leucadia, the Third Circuit determined that the district court had improperly placed the burden on the party seeking access to sealed judicial records to prove that continued secrecy was no longer required.  998 F.2d at 166-167.  The Third Circuit directed the district court to conduct “a document-by-document review of their contents,” and “to separate trade secrets and other sensitive business information from the . . . material filed with the nondiscovery pretrial motions that may properly be subject to disclosure;” and reminded the court that “continued sealing must be based on ‘current evidence to show how public dissemination of the pertinent materials now would cause the competitive harm they claim.’” Id. at 167 (citations omitted, emphasis in original); see also In re Agent Orange Prod. Liab. Litig., 821 F.2d 139, 148 (2d Cir. 1987) (where parties stipulated to umbrella protective order, district court acted within its discretion by vacating order and permitting access by intervenor to filed discovery materials “subject to a showing, on an individualized basis, of good cause for continued protection”); Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F.Supp 866, 887-89 (E.D. Pa. 1981) (reviewing documents by category for determination of good cause).


If State Farm or Ms. Foltz object to the unsealing of any record in this case, they must “demonstrate a particularized need for continuing to enforce the [protective] order.”  Leucadia, 998 F.2d at 167.  The fact a party filed a document under seal pursuant to a stipulated protective order is insufficient, by itself,  to prevent public access to the court records when that designation is challenged.  Such a designation is not predicated on any showing of a “compelling reason” with respect to the document so filed, or any judicial findings satisfying Hagestad’s requirements for overcoming the public right of access.  The papers filed in this case, including those filed under seal by the parties pursuant to protective orders, are presumptively open to public review.  Further, the “particularized showing of the need for continued secrecy” must be made on a document-by-document basis.  Leucadia, 998 F.2d at 166. 

To facilitate resolution of the Intervenors’ unsealing motion, the Court should require any party wishing to contest the unsealing of any particular documents to file an index, with supporting affidavits, explaining why the specific identified records qualify for continued secrecy under the applicable criteria.  Any records not so identified should be immediately unsealed.  Intervenors should be given an opportunity to answer any claim that sealing continues to be necessary.  The Court will then be in a position to decide whether the party desiring continued secrecy has sustained its burden.

This is precisely the relief ordered by the District Court in In re Agent Orange Product Liability Litigation, 104 F.R.D. 575 (E.D.N.Y. 1985), aff’d, 821 F.2d 145 (2d Cir. 1987), where a blanket protective order was vacated after settlement, except as to those documents which the defendants demonstrated were entitled to continued sealing.  Such a procedure is routinely used in cases arising under the Freedom of Information Act (“FOIA”).  In FOIA cases, where the burden is on the agency seeking secrecy to demonstrate why a document should not be disclosed and where only one party (not the proponent of openness) has knowledge of the contents, the courts have required the government to produce an index of the documents for which an exemption from disclosure is claimed (a so-called “Vaughn index”).  See Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973), cert. denied, 415 U.S. 1977 (1974) (prescribing indexing procedures in Freedom of Information Act case).  A “Vaughn index” must include an affidavit or affidavits describing each and every withheld document or deletion from a released document and explain why the document may be withheld under criteria set out in the statute.  See Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).  The use of Vaughn-type indices in cases challenging judicial protective orders have been recommended by other courts as well.  Washington Legal Foundation v. United States Sentencing Commission, 17 F.3d 1446, 1452 (D.C. Cir 1994) (recommending use of “Vaughn index” in common-law right of access case); Loigman v. Kimmelman, 505 A.2d 958, 964-66 (N.J. 1986 (same)).


Accordingly, the Court should order the parties to prepare an index in this case for any portions of sealed documents for which they claim some overriding secrecy interest.  If no such index and legal rationale is filed within 30 days, the court records should be automatically unsealed.  If such an index is filed, Intervenors should have 30 days to respond to the parties’ claims that particular documents or portions of documents should remain sealed.  Based on the factual and legal arguments presented in the index provided by the parties and any opposition of Intervenors thereto, the Court will be able to determine whether the parties have met their burden to show why continued sealing is necessary, and will be able to make the findings required by Hagestad as to whether “articulable facts” support a finding that the “strong presumption in favor of public access” has indeed been overcome.

II.        The Court’s in camera review in the presence of the litigating parties taints the Court’s decision to seal documents.

The Court’s order of December 14 set forth the scope of the relief granted in response to Intervenors’ Motion to Unseal:

The motion to unseal is granted.  However, the court finds that the summary judgment motions and supporting materials filed in this case are replete with confidential information such as private medical files and personnel information.[1]  Because of the confidential nature of the materials contained within the motions themselves and the supporting materials, the court finds compelling reason for these portions of the file to remain sealed.  Of course, confidential materials originally filed under seal pursuant to the protective orders in this case shall also remain sealed. 

December 14 Order, pp. 12-13.          


In oral argument on January 25, 2000, the Court revealed that a different sequence of events actually took place after its Order on December 14, 1999.  Instead of restoring the file to its immediately prior to the Court’s order sealing the entire file, as requested by Intervenors and apparently granted in the December 14 Order, the Court had engaged in a detailed review of the file, and drew new conclusions about which documents should and should not be sealed.  As discussed, Intervenors had only recently become aware that the court’s file–which had been sealed in its entirety–had been given over to the custody of State Farm.  Out of concern, Intervenors had filed a motion to compel State Farm to return the file to the courthouse. 

The Court explained the scenario by which the file had been returned by State Farm:  “Well, I haven’t had an ex parte argument from the other side [the litigating parties] either.  It’s true that they brought the documents in...But they brought in, and for the record, at one point after there were all these files spread out across the table, I came in and the lawyers were there, but there weren’t, no one presented legal argument on each one.  I just wanted them stacked up in some order so I had a chance to look at them.”   January 25 Hearing Transcript, p. 11, ls. 18-19, p. 12, ls. 20-23.

The Court explained that it had then reviewed the returned documents, though in response to a question from Mr. D’Amore, the Litigation Intervenors’ lawyer, the Court stated that State Farm had made no independent showing of the need for confidential treatment as to documents which the Court sealed for the first time. 

MR. D’AMORE: My main point being that is that if there’s been a showing as to confidentiality by State Farm, then that those documents should remain confidential, but if State Farm is just telling the court which documents they think should be confidential and there’s been no showing as to that, that’s what I think is going to become an issue.

 

THE COURT: No.  I did an in-camera with these documents, and that’s what my finding is based on.  I looked at them myself.  It’s not a showing on their part.

January 25 Transcript, p. 9, ls. 16-18 (emphasis added).  

Following oral argument, the Court issued an explanatory Order which read, in part,

Many documents filed in this case contain confidential information and in some instances such documents were not filed under seal.  This court is especially concerned about third party medical records contained in the documents supporting the summary judgment motions and other documents.  In light of this concern, the court has requested the parties to identify those portions of the file that contain confidential information but were not filed under seal.  The court has conducted an exhaustive review of these documents.

 

February 17 Order, p. 2 (emphasis added).


This invitation to the original parties–and exclusion of Intervenors–is more than a harmless oversight.  As has been exhaustively briefed in this case, the court must follow a specific process before taking the extraordinary step of withdrawing court documents from the public’s view.  This process requires recognition, first, of the “strong presumption of public access” recognized in Hagestad and San Jose Mercury News.  A party which seeks to have a document withheld from the public record is seeking relief from the Court, and accordingly must overcome that presumption by providing the court with “articulable facts” which supply a “compelling reason” for the sealing of the document.  Crucially, this first step is not the last.  A party resisting sealing–invoking the public right of access–then must have an opportunity to refute or counter the arguments of the advocate of secrecy.  A judge’s decision following the presentation of only one side’s arguments does not meet procedural muster, regardless of whether the correct result is reached.  A judge’s decision reached without any argument, with no articulated basis (document by document) for preventing access, is just as suspect, particularly when that decision is made in the presence of some, but not all, of the parties.

In this case, the “[request that] the parties... identify those portions of the file that contain confidential information but were not filed under seal” was an invitation to ex parte argument, and one which could not produce a just result.  By the terms of their settlement, State Farm and Ms. Foltz  mutually agreed to pursue the sealing of the entire file.  They therefore abandoned their previously adversarial positions with respect to public access to documents filed.  Plaintiff Foltz could not thereafter be expected to resist any effort by State Farm to seal documents, and vice-versa.  Only the present Intervenors stood ready to advocate for the public’s right of access, but they were excluded. 


It is a fundamental principle of our adversarial system of justice that arguments be presented on both sides of an issue.  Here, no party was present to advocate for the public, and make the vigorous arguments against sealing that the public’s partisan should.  The public went unrepresented at this proceeding–no person with an interest in keeping the public record public was requested “to identify those portions of the file that do not contain confidential information but were filed under seal.”  The circumstances of State Farm’s return of the file to the courthouse placed the Court in an untenable position, and Intervenors should have been present.

III.       The reasons outlined in the Court’s Orders of December 14, 1999 and February 17, 2000 are inadequate to justify sealing of documents.

1.              The requirements of Hagestad and San Jose Mercury News were not met.

As detailed above, this court has two decisions which rule the sealing of court documents.  Hagestad requires the court to consider “all relevant factors” in “a determination of whether the strong presumption of access is overcome.”  49 F.3d at 1433.  After doing so, the trial court “must base its decision on a compelling reason and articulate the factual basis for its ruling,” and “it is vital for the court clearly to state the basis of its ruling, so as to permit meaningful appellate review of the whether the relevant factors were given appropriate weight.  Id.  Next, San Jose Mercury News makes it clear that the public right of access is grounded not only in the common law, but also in the Federal Rules of Civil Procedure, and that a nonparty intervenor may press both theories in seeking access to sealed documents.  187 F.3d at 1101-1102.  That case also clarified that as to material sealed under authority of a broad protective order, intervenors may require a party desiring secrecy to make its showing of good cause on a document by document rather than categorical basis (“a nonparty may...test whether the ‘good cause’ requirements of Rule 26(c) have been met with respect to a particular item of discovery.”  189 F.3d at 1103.).  Neither of the Court’s Orders in this case satisfies the stringent requirements of these Ninth Circuit precedents.

1.         The Order of December 14, 1999 did not satisfy Hagestad with respect to materials filed in connection with summary judgment motions.

This is the entirety of the Court’s ruling in its December 14, 1999, Order relating to the sealing of the summary judgment motions and supporting materials:

            [T]he court finds that the summary judgment motions and supporting materials filed in this case are replete with confidential information such as private medical files and personnel information.  Because of the confidential nature of the materials contained within the motions themselves and the supporting materials, the court finds compelling reason for these portions of the file to remain sealed. 


 

This is a declaration of a conclusion, not a “weighing” of the “strong presumption in favor of access” and “public interest in understanding the judicial process” against the likelihood that “disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets.”  49 F.3d at 1434.  Hagestad compels that this weighing be documented to permit “meaningful appellate review.”  Nor is the recitation that certain portions of the court file are “replete with confidential information” sufficient to bar the public from even one document, much less whole categories of court filings, because a compelling reason for secrecy must be articulated as to each document a party wishes to seal.

2.         The Order of February 17, 2000 did not satisfy Hagestad with respect to any material not filed under seal by the parties.

The Court’s Order of February 17, 2000 likewise documents no weighing of the public’s presumptive right to access.  This is the entire portion of that Order regarding the sealing of documents:

The remainder of the documents identified in this court’s order of January 25, 2000, (#511) will remain sealed.  These documents are properly filed under seal pursuant to the protective orders entered in this case as they contain trade secrets, financial information, personnel files and particularly medical files of unrelated third parties.  As this court has previously stated: A collateral litigant will not be permitted to exploit another’s discovery in the sense of instituting the collateral litigation simply as a device to obtain access to sealed information.  Federal discovery may not be used to merely subvert limitations on discovery in other proceedings.  Thus, a collateral litigant has no right to obtain discovery materials that are privileged or otherwise immune from eventual discovery in the collateral litigation.

The documents sealed do contain some information that is not confidential, but redaction would effectively eviscerate the documents leaving material of insignificant benefit to any collateral litigants.

February 17, 2000, Order, p. 3.


Most of the Court’s language is evidently directed to the Litigation Intervenors’ motion to obtain access to the litigating parties’ discovery materials.  Here, the Consumer Intervenors have never moved to challenge the protective orders in place governing discovery between the parties, and do not do so here.  Leaving aside that inapposite language, the Order contains two findings: first, that certain documents in the file “contain trade secrets, financial information, personnel files and particularly medical files of unrelated third parties”; and second, that redaction of confidential information from those sealed documents would render the documents useless in other litigation.  This does not satisfy Hagestad.  The public interest in a document filed with the court is not measured by its usefulness in other lawsuits.  The “public interest in understanding the judicial process” is intrinsic in every document in the court file, and requires that court documents be sealed only when a “compelling reason” makes such sealing necessary.  A proponent of secrecy does not meet its burden by showing that a given document contains material it would prefer be held close. 

Even if confidential material is present in a document filed with the court, a party is not entitled to have that document sealed unless the likelihood that “disclosure of the material could result in improper use of the material for scandalous or libelous purposes or infringement upon trade secrets” so overbalances the strong presumption of public access that sealing is required.  The Court must so find in order to seal documents, and the February 17 Order lacks those findings.  For example, the Court’s concerns about the “medical records of unrelated third parties” are more easily dealt with by redaction of identification than by the extraordinary step of secreting documents from the public.

Further, any interest in confidentiality that State Farm might have had in documents that were submitted unsealed to the Court is erased by their having been publicly available. For example, the Court’s Order of February 2000 sealed Docket no. 29, which was filed unsealed on September 14, 1994; Docket no. 60, filed unsealed October 31, 1994; Docket no. 65, filed unsealed on November 1, 1994; and the first two attachments to Docket no. 91, filed unsealed November 17, 1994.  These are documents which were available for public viewing, and copying on demand, for four years, until the file was sealed and given over to Mr. Spooner’s office.  State Farm must allege a genuine expectation of privacy in these materials--one which would be threatened by disclosure--in order for the Court’s sealing order to be justified.  In the abstract, it would be difficult for State Farm to allege real privacy in documents which were publicly available for years. 


In this case, State Farm can make no straight-face allegation of privacy at all, because it concedes that materials which had been filed unsealed have been broadcast far and wide.  State Farm admits in its briefs since the present Intervention that Alaskan attorney Chris Battaille visited the courthouse in Eugene, copied numerous documents which State Farm wished he had not, and later filed several of these in an action against State Farm in Alaska.  See State Farm’s Response to Intervenors’ Motion to Unseal the Public Record, August 3, 1999, pp. 21-26, and attached affidavits.  Some of these public documents were thereby re-published in the Alaskan court’s public file.  State Farm can have no idea which documents were copied by Mr. Battaille, or whether he was the only person who copied these public documents.  Simply put, any document which was unsealed in this Court’s file for any length of time is “out there,” and cannot be brought back to corral.

B.         The sealing of documents pursuant to protective orders already entered in the case was due no deference.

The Court found that certain sealed documents “are properly filed under seal pursuant to the protective orders entered in this case as they contain trade secrets, financial information, personnel files and particularly medical files of unrelated third parties.”  February 17 Order, p.3 (italics added).  This does not satisfy Hagestad’s requirement that “meaningful appellate review” of the decision to seal be possible on the face of the record..  A conclusory, approving reference to protective orders which were themselves stipulated between the parties provides a reviewing court no guidance, and begs the question of whether the protective orders are themselves valid.


Generally speaking, protective orders are irrelevant to the evaluation of secrecy of court files.  A proponent must meet a lower threshold to justify a discovery protective order than he must to justify sealing documents filed with the court.  For the Court’s analysis quoted above to satisfy Hagestad’s test, the Court would have to find that the protective orders themselves articulate facts overcoming the public’s presumed right of access to each document filed under seal.  Without that finding by the Court–and that articulation of facts within the protective orders– then the parties’ honoring the protective orders cannot bootstrap a finding that documents in the Court’s file are properly under seal.  In this case, the record lacks that finding, and those protective orders to which the public has access are inadequate to constitute the record required by Hagestad.  This is especially true because some of the protective orders entered are themselves sealed![2]

1.         FRCP 26's “good cause shown” standard may justify a discovery protective order, but not the sealing of court documents.

The Court’s February 17, 2000 Order essentially endorses the parties’ behavior pursuant to blanket discovery protective orders as justifying the sealing of portions of the Court’s file.  But the sealing of records is a far more radical step than the entry of protective orders, even the blanket protective orders which the Ninth Circuit has also disapproved.  Discovery, “which is ordinarily conducted in private[,] stands on a different footing than does a motion filed by a party seeking action by the court,” because “a motion or a settlement agreement filed with the court is a public component of a civil trial.”  Bank of America Trust and Savings Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339, 343-44 (3rd Cir. 1986).  In contrast, motions filed with the Court “are matters which the public has a right to know about and evaluate.”  Id.  Once a document is lodged with the Court, “it becomes a judicial record, and subject to the access accorded such records.”  Id. at 345.  Therefore, courts recognize that judicial records should enjoy less confidentiality protections than protective orders provide to discovery materials, and that courts can thereby avoid endorsing “what are essentially secret judicial proceedings.”  Id. 


Federal Rule of Civil Procedure 26(c) authorizes the Court to grant a protective order for discovery materials “for good cause shown” (a lesser threshold than is applied to an order sealing a court file, as shown above).  Nevertheless, even for discovery purposes the Ninth Circuit has disapproved “blanket protective orders” such as those in this case because they by definition cannot be founded on a sufficiently specific and articulated reasoning.  A litigant can protect specific materials produced in discovery from public disclosure, but not every document produced in the case.  The Ninth Circuit has made clear in Beckman Industries, Inc., v. International Ins. Co., that a blanket discovery protective order, without a showing of specific harm from disclosure, is never justified:

[A party’s reliance interest in allowing discovery or settling the case] will be less with a blanket order, because it is by nature overinclusive...because the protective order was a stipulated blanket order, [the party opposing disclosure] never had to make a ‘good cause’ showing under Fed.R.Civ.P. 26(c) of the need for protection...nor does it allege specific prejudice or harm now.  Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.

966 F.2d 470, 476 (9th Cir. 1992) (internal quotation omitted) (emphasis supplied).  

Here, the blanket protective orders to which the public has access lack the “specific examples or articulated reasoning” required by Beckman.  If the protective orders themselves do not comply with Ninth Circuit law, how can the protective orders satisfy the more stringent rules regarding the sealing of portions of the Court’s file.

2.         Protective orders in this case cannot justify the continued sealing of documents filed with the court.

Intervenors have reviewed several protective orders entered in this case:

·                   A protective order submitted by State Farm and signed by Judge Hogan on December 21, 1994, provided for the confidential treatment of essentially all information obtained while the underlying substantive litigation was suspended pending State Farm’s motion for disqualification of Mr. Sayer and the Gatti firm.  This Order provided that all information submitted to the Court be submitted under seal.  The Order contains no findings justifying such sealing.  See Ex. 1.


·                   The Court’s written Order in response to State Farm’s motion to dismiss (#11), CMR and householder’s motion to dismiss(#25), and State Farm’s motion for a protective order (#73), contained a protective order.  Pursuant to the Order, “protected material” was required to be filed under seal, and “protected material” included personnel files, the parties’ financial information, and trade secrets.  No findings were made justifying the order to file documents under seal, and no provision was made to challenge a party’s unilateral designation of a document as “protected.”  See Ex. 2, pp. 5-6.

·                   A lengthy protective order prepared by State Farm and signed by Judge Hogan on January 23, 1998, provided that “Confidential Information means all information produced in any form, including printed or electronically recorded documents, in connection with the discovery processes in the above-entitled cases” and provided that all such “Confidential Information” be filed with the court only under seal.  See Ex. 3.  This blanket protective order included no factual findings justifying its entry, as required by Beckman.

Stunningly, Docket no. 280, a stipulated protective order entered on February 10, 1997, and the operative protective order for much of the substantive litigation, is itself sealed.  It is hard to believe that the parties would stipulate to a protective order containing “trade secrets, financial information, personnel files [or] medical files of unrelated third parties,” which would justify sealing this procedural document.  But its sealing makes analysis of the Court’s decision on sealing–which relied on the protective orders–next to impossible.

None of these orders can justify the continued secrecy of even one document.  As to the three attached as exhibits, each lacks any findings which would support a Hagestad finding of necessity, and is overbroad as well.  It is worth repeating: not only must the Court’s weighing process be documented to satisfy Hagestad, but any “compelling reason” found must be apparent in the record.

CONCLUSION


The Court should order that any materials sealed for the first time since the involvement of the present Intervenors in June, 1999, be unsealed.  The Court should also order that any materials filed under seal by the parties pursuant to protective orders entered in this case will be unsealed, unless any party within 30 days submits a detailed index of, as well as legal rationale for, any documents or portions of documents that party contends should remain under seal.  If such an index is filed, Intervenors should have 30 days to respond to the parties’ claims that particular documents or portions of documents should remain sealed, if necessary.  If such a challenge is raised, the Court will have the factual and legal arguments presented in the index provided by the parties and any opposition of Intervenors thereto.  The Court should then determine whether the parties have met their burden to show why continued sealing is necessary, and make the findings required by Hagestad whether “articulable facts” support a finding that the


“strong presumption in favor of public access” has indeed been overcome.

 

Respectfully submitted,

 

                                                                                                                                                Kathryn Clarke, OSB No. 79189

921 S.W. Washington, Suite 764

Portland, Oregon  97205

Phone:  (503) 224-7963

 

Matthew Whitman, OSB No. 98376

Meyer & Wyse, LLP

621 S.W. Morrison, Suite 1300

Portland, Oregon  97205

Phone: (503) 228-8448           

 

Lawrence Baron, OSB No. 81144

Law Office of Lawrence Baron, P.C.

1515 S.W. Fifth Avenue, Suite 808

Portland, Oregon  97201

Phone:  (503) 417-1117

 

Anne Bloom

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave. N.W., Suite 800

Washington, D.C.  20036

Phone:  (202) 797-8600

 

Attorneys for Intervenors


 



[1]  The Court stressed in its Order, and in its subsequent Order of February 17, 2000, that the decision to seal documents was largely motivated by concerns for the confidentiality of third-party medical records and personnel records.  But neither State Farm nor the Court has offered any explanation why the privacy rights of third parties would not be adequately protected by the less intrusive remedy of redaction of identifying information from specific documents, rather than the extraordinary and disfavored step of sealing entire documents.

[2]  Docket No. 280 is sealed.  This was apparently the operative protective order in this case from February 10, 1997, until January 23, 1998, when the stipulated protective order at Docket No. 422 was entered.