(Florida Department of Agriculture and Consumer Services)
"Plaintiff David DeHate filed his complaint on October 18, 2019, alleging claims for negligence and premises liability arising from an incident at defendant's store in Hemet, California, in which a former employee of defendant allegedly dropped a pallet of flooring material on plaintiff's foot." DeHate v. Lowe's Home Ctrs., LLC, No. ED CV 19-2505-JGB (SPx), 2020 WL 7084551 (C.D. Cal. Oct. 8, 2020) (USMJ).
Plaintiff filed suit against Lowe's for alleged negligence and premises liability, and Lowe's removed the case to federal court. In light of subsequent rulings, certainly, this was a good tactical move.
Lowe's had a surveillance video which showed the accident apparently. From the beginning of the suit, DeHate asked Lowe's to give him the surveillance video and documents related to the accident. Likewise, once the lawsuit was removed to federal court, Lowe's never stopped asking for a stipulated protective order that would limit use of the surveillance and any of the documents to DeHate's use in this lawsuit only.
Ultimately, Mr. DeHate's lawyer verbally agreed to limit use of the material to the current lawsuit only. This was not good enough for Lowe's, which understandably wanted the agreement committed to writing. Lowe's filed a motion for a protective order, there being no stipulated protective order.
Viewing the surveillance tape would reveal the location of the cameras in the Lowe's store. If that information was released to third parties outside the lawsuit, the world would know, essentially, where the cameras were hidden in that store. "Shoplifters beware," was basically Lowe's cry about the surveillance tape. The Magistrate heard the cry, looked at the record in this case, and granted the motion for protective order regarding the surveillance video. See DeHate, 2020 WL 7084551, at *3.
The documents in question reflect Lowe's surveillance practices and procedures so they too were ruled protected here. DeHate, 2020 WL 7084551, at *3.
These rulings came without discussion of any public interest in access to these materials. Perhaps the public had no interest given the nature of the materials, but perhaps it did. We do not know because there was no discussion in the Magistrate's opinion. Consideration at least of the public's interest in access to judicial proceedings seems to be a requirement in the Ninth Circuit where the Central District of California -- in which these rulings were made -- is located of course.
If Lowe's asked for a protective order, it had to show the Court what it wanted the Magistrate to protect. To protect those materials from public view, Lowe's would ordinarily have had to request that they be sealed before Lowe's filed them with its motion for a protective order. Yet there is no mention of this in the opinion.
Further, Ninth Circuit case law apparently would treat the motion in this case as a "non-dispositive motion" but would still require the moving party to show "good cause" for the secrecy. Lowe's may have satisfied this standard; certainly this Magistrate was satisfied with two declarations which Lowe's filed in support of its motion. One declaration was from the store manager; the other declaration was from the lawyer for Lowe's. See DeHate, 2020 WL 7084551, at *1-*4. But if Lowe's satisfied the "good faith" standard, we do not know because this Magistrate did not address the question.
We only know that the Magistrate said that her rulings were good for the parties. She balanced DeHate's and Lowe's' interests here. DeHate, 2020 WL 7084551, at *4. That is as far as she went, however. Her rulings were like a return to the "before time," when publicly funded litigation was viewed strictly as the private preserve of private parties.
She did not put the public's interest on her scales and balance the public's interest in accessing any of the materials, however. The public's interest in access to judicial proceedings is guaranteed by the Constitution and by the common law in most American jurisdictions. As a result, that interest is not lightly ignored.
The point is not that this Magistrate's discovery rulings were wrong. She may have been right ultimately. But the point is greater than that: Because she did not tell us where the public came in, we will not know whether and what role the public right of access may play here, will never know how the interests of the public may affect disclosure of any of the materials at issue in this discrete case. That seems to be why the Ninth Circuit has shaped procedures for judges and magistrates to follow in all cases.
That the Magistrate did not follow them in this case is a loss for the Court system and for the public, which pays for that system.
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