Claims and Bad Faith Law Blog

THE LAW AND UNSEALING SEARCH WARRANT MATERIALS.

 

Editing (LexisNexis)

A recent decision by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia may shed some light on issues pending in the South Florida case of Trump v. United States.  The issues are masterfully laid out in the Reply Memo of the United States, here:  Download Trump v. United States Doc. No. 48 Response of USA to P's M For Judicial Oversight and Additional Relief filed August 30 2022 (S.D. Fla. No. 9.22-cv-81294-AMC).

The recent judicial decision came in the search warrant materials case of In re Application of Los Angeles Times Communic's LLC to Unseal Ct. Records, Misc. Action No. 21-16 (BAH), 2022 WL 3714289 (D.D.C. Aug. 29, 2022).  Although the L.A. Times Communications Application to Unseal Court Records case involved not private access but rather  public access to Court records, the case involved Court records which are very similar to at least some of the records sought to be unsealed in South Florida, including a search "warrant application, search warrant, supporting affidavit, and docket sheet" and "a motion and accompanying memorandum supporting continued sealing of the redacted portions of the search warrant materials[.]"   Unseal Court Records, 2022 WL 3714289, at *4.

Moreover, with the numbers of interested parties who seek to file amicus briefs or motions to intervene in the Southern District of Florida case accumulating by the day, the precise issues of public access to Court records will or may be litigated. 

For all these reasons, the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C. may enlighten the proceedings in South Florida.

There were two categories of redactions at issue in the District of Columbia case.  At least some of the materials have counterparts in the South Florida case.  The two categories of redacted materials involved in D.C. are:

(1) those aimed at protecting third-party privacy interests, including, among other things, the “private financial information” of third parties; “information gained from the cooperation of private third-party witnesses[;]; and the descriptions of DOJ's “law enforcement techniques and processes in the course of the investigation,” and (2) those meant to preserve the due process interests of investigative targets “against whom the probable cause allegations in the warrant were made” but were not charged with any criminal offenses.

Unseal Court Records, 2022 WL 3714289, at *6 (record references for internally quoted material omitted).. 

The materials sought to be unsealed are similar in both cases, the one in D.C. and the one in West Palm Beach, but the D.C. case involved a closed criminal investigation and of course the South Florida case involves search warrant and top-secret materials in what are apparently a number of ongoing investigations.  Still, the Unseal Court Records Court's resolution may be helpful in the South Florida case.

As to the first category of redacted materials, the redactions aimed at protecting the third-party privacy interests identified above -- including private financial information, information gained from witnesses, and descriptions of law enforcement techniques, sources and methods in the government's investigation -- the Court in D.C. held that the continued sealing of those materials is appropriate after considering common law and First Amendment presumptions of public access to them.  Unseal Court Records, 2022 WL 3714289, at *6.   The Court's detailed analysis is set forth in id. at *6-*7 and *10.

With respect to the second category of redacted materials, which may be accurately described as "the due process" materials, such materials require a different result depending on an examination of factors such as "misuse of a public office," whether the concealed information has already been disclosed in public, and whether disclosure would harm legitimate privacy or law enforcement interests.  Unseal Court Records, 2022 WL 3714289, at *7.  In the context of the D.C. case, the Court ordered disclosure of "DOJ's proposed redactions intended to preserve the due process interests of investigative targets" who were targets of probable cause outlined in the search warrant but against whom criminal proceedings were closed.  Unseal Court Records, 2022 WL 3714289, at *10.

In South Florida, of course, part of the materials sought to be unsealed are National Defense Information top secrets which have never been disclosed to the public by anyone at this point.  Whether they have been disclosed to anyone at all, is unknown at present.

The parties, their lawyers and the Court in the U.S. District Court for the Southern District of Florida may raise or ignore the rulings in the L.A. Times Communications Application to Unseal Court Records case in D.C.   Whatever choice they make, the Unseal Court Records decision will almost certainly be part of any appeal.

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

NATIONAL CONSUMER LAW CENTER DECEMBER WEBINARS FOR THE AGES.

The issue of confidentiality was on the table for discussion in an outstanding December Webinar put on for the National Consumer Law Center by Steve Koval, Esquire and Ahmad Keshavarz, Esquire, Don't Mess Up The Settlement Agreement!

          John Rao, Esquire of NCLC moderated another outstanding Webinar, this one presented by Phillip Robinson, Esquire and Yongmoon Kim, Esquire, Using Violations of Mortgage Servicing Rules Without Private Rights of Action as Predicates for FDCPA [Fair Debt Collection Practices Act] and UDAP [Unfair and Deceptive Acts and Practices, by whatever name] Claims.

          Alpha Taylor, Esquire of NCLC and Marissa Ditkowsky, Esquire jointly presented still another informative Webinar, The Intersection of Disability and Consumer Law.

          These Webinars were presented less than two months ago, but they are timeless.  If you have access to these NCLC Webinars, give thanks for the opportunity.  Watch, listen and learn.

          And one more that is more than worth your while ....

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

STIPULATED PROTECTIVE ORDERS ARE NOT FOR EVERYONE.

"Stipulated protective orders might be commonplace in complex commercial litigation, but nothing requires that the parties agree to one in any given case."  Perirx, Inc. v. Regents Univ. Cal., No. 2:20-cv-02212-JDW, 2022 WL 180221, at *5 (E.D. Pa. January 20, 2022).

Research resources on Discovery Confidentiality at https://www.dennisjwall.com/disc.htm.

 

Please read the disclaimer.  ©2022 Dennis J. Wall.  All rights reserved.

AND A LITTLE MAGISTRATE FROM NEVADA SHALL LEAD THEM ....

In Kinney v. GEICO Cas. Co., No. 2:20-cv-02167-GMN-DJA, 2021 WL 4851089 (D. Nev. September 3, 2021) (Albregts, USMJ), an insurance case, a U.S. Magistrate Judge refused to enter a Stipulated Protective Order written by the parties, not without modifications commanded by the law, in the eyes of the Magistrate.

          The Court added provisions required by the law throughout Federal Courts and particularly in the Ninth Circuit where this case is pending.  Some of the more significant additions demanded by the law are:

1. The Court's execution of the proposed order is not a ruling that any specific document or testimony is confidential and so a secret.
2. The "compelling reasons" burden of proof remains on the party seeking to seal. The Court explicitly set out the "compelling reasons" standard, so if any party or its lawyers did not know what that was, they do now.
3. The "good cause" exception is a narrow one, and the Court explained how this exception operates to the required default showing of compelling reasons to seal testimony or a document in the Court file.
4. Last but not least, the Court made clear that the Rules abide and trump the parties' Stipulated Protective Order wherever they may be in conflict.

The Court made all these things clear by adding the following provisions to the proposed order written by the parties, and all before the Court signed the proposed order:

• The Court has approved the instant protective order to facilitate discovery exchanges, but there has been no showing, and the Court has not found, that any specific documents are secret or confidential. The parties have not provided specific facts supported by declarations or concrete examples to establish that a protective order is required to protect any specific trade secret or other confidential information pursuant to Rule 26(c) or that disclosure would cause an identifiable and significant harm.

* * *

• Specifically, a party seeking to seal judicial records bears the burden of meeting the “compelling reasons” standard, as previously articulated in 447 F.3d 1172.  Under the compelling reasons standard, “a court may seal records only when it finds ‘a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture.” Ctr. for Auto Safety, 809 F. 3d at 1097. (quoting Kamakana, 447 F.3d at 1179). “The court must then ‘conscientiously balance[ ] the competing interests of the public and the party who seeks to keep certain judicial records secret.”  Ctr. for Auto Safety, 809 F.3d at 1097.
• There is an exception to the compelling reasons standard where a party may satisfy the less exacting “good cause” standard for sealed materials attached to a discovery motion unrelated to the merits of the case. “The good cause language comes from Rule 26(c)(1), which governs the issuance of protective orders in the discovery process: ‘The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.’ ” Id. (citing Fed.R.Civ.P. 26(c)). “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.”  Phillips v. General Motors, 307 F.3d 1206, 1210-11 (9th Cir. 2002).  

* * *

• To the extent any aspect of the stipulated protective order may conflict with this order or Local Rule IA 10-5, that aspect of the stipulated protective order is hereby superseded with this order.

Kinney v. GEICO Casualty Co., 2021 WL 4851089, at *1-*2 (emphasis by the Court).

          This precise and scholarly ruling begs the question of why GEICO and the other parties need a stipulated protective order in an insurance case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

NFL SACKED BY JUDGE ALSUP AND THE LAW.

The case of Dent v. Nat'l Football League, No. C 14-02324 WHA, 2021 WL 4817749 (N.D. Cal. August 31, 2021) is a class action by former football players against the NFL alleging improper administration of pain medications.  As required by the terms of the Stipulated Protective Order the parties wrote in the case, the players filed a motion to have the Court seal the exhibits to their motion for certification of their class, for the sole reason that the NFL designated all those documents "confidential."

          The absurdity of such a common provision in SPOs became clear when the NFL did not file anything in support of the sealing request.  The NFL lost; the exhibits are not sealed.

           Reference to a stipulated protective order is insufficient to establish that the documents are sealable. Civ. L.R. 79-5(d)(1)(A). The NFL has not filed a declaration in support of sealing.

          Therefore, the motion is DENIED.

 Dent, 2021 WL 4817749, at *1.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

CALL THEM BY THEIR TRUE NAMES: THEY ARE "CONFIDENTIALITY ORDERS."

Following a rapidly accelerating trend, the Court in Loy v. BMW of N. Am., No. 4:19-CV-00184 JAR, 2021 WL 3930501 (E.D. Mo. September 2, 2021) called Stipulated Protective Orders by their true names:  "Confidentiality Orders."  They are orders written and submitted by the parties for the purpose of asking the courts to protect certain materials exchanged in discovery.  That is what they are.

          That is all they are.

          This practice is a trend accelerating in a crescendo of opinions, and it is a contemporary trend followed in the Third Circuit in particular.  Let it be followed everywhere; nothing will be lost, something will be gained and that something is how the issue is framed:  Confidentiality and the Rules of Civil Procedure.

          Parenthetically, the Court addressed two motions which implicated the "Confidentiality Orders" previously entered in that case.  One of the motions is of particular interest here.  It was a motion for contempt and sanctions, as to which the Court declined to strike affirmative defenses but reserved ruling on whether to award attorney's fees and costs in the future for discovery violations described in the opinion.

          Along with the motion for contempt and sanctions, the plaintiffs requested that the Court remove the "Confidentiality" designation from certain presentation slides which BMW designated as "Confidential" after BMW at first denied that the slides even existed.  The Court ordered BMW to submit the slides for the Court's in camera inspection.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

UNOPPOSED SEALING MAY NOT BE ENOUGH.

On August 11, 2021 we examined a case decided within the federal Sixth Circuit and how the judiciary in that case applied or did not apply Local Rules and the presumption of public access to court files.  In today's article we examine a different case decided within the Sixth Circuit by a different District Judge under Local Rules while applying the default presumption of public access to court files.

Arguing two motions to seal would have been a tough assignment in most cases.  Defendants wanted to seal parts of their motion for summary judgment in the Flint Water Cases.  They also wanted to seal four exhibits to their motion for summary judgment in these consolidated class action cases pending in the Eastern District of Michigan:

• An investigative subpoena transcript obtained from the Michigan Solicitor General's Office;
• Two expert reports, and
• The deposition transcript of an expert's testimony.

However, the defendants' sealing objectives did not stop there.  They also filed a motion to seal "'the report and deposition testimony of Class Plaintiffs' expert witness'" which was included in the defendants' motion to exclude or restrict the experts' testimony.  See In re Flint Water Cases (This Order Applies to ALL CASES), No. 5:17-cv-10164-JEL-MKM, 2021 WL 2254051, at *1 (E.D. Mich. May 12, 2021).

As the District Court ultimately pointed out in this case, Federal Courts located within the the Sixth Circuit recognize a presumption of public access to Court records.  Case law in the Sixth Circuit binds Federal Courts throughout the Circuit to carry out this presumption.

Local Rule 5.3 of the Eastern District of Michigan binds judges in the Eastern District of Michigan in particular, to the same presumption of public access to Court records.  The net effect of both the case law and the Local Rule is to require every party which asks for material to be sealed to show a compelling reason, and the District Court must recite specific findings and conclusions about every document which the Court authorizes to be sealed, "[e]ven if no party objects to a motion to seal[.]"  In re Flint Water Cases, 2021 WL 2254051, at *1.

Getting a Federal Judge to seal all of these materials, then, was not a task for the light-hearted.  It might have been hard to obtain the Court's authorization to seal the materials in question in any case, but it would certainly have looked less difficult given the added fact that the sealing motions were not opposed.  The plaintiffs did not oppose sealing any of these materials from public view.

What the Federal Judge did in response to two unopposed sealing motions is instructive to practitioners.  She did not grant the relief that the defendants requested.

An unopposed motion is a practitioner's dream.  You feel like you cannot lose, even though the final decision is up to the judge of course.  The odds do not get any better for your client's request in a case than when your client's request is not opposed by any other party in the litigation.  One unopposed motion is unusual; two unopposed motions is very rare, indeed.  Still, at the risk of repetition, it is ultimately the judge's job and not a practitioner's job to dispose of any motion.

In this case, the District Judge did not deny the sealing motions but she did not grant them either, even if both of them were unopposed.  She had previously entered a Confidentiality Order in the Flint Water Cases that required five things for any documents to be filed under seal with the authorization of the Court.  The defendants in this case apparently supplied four of those five things, but not the fifth under a Confidentiality Order prevailing in the case, which was "'a memorandum of legal authority supporting the seal.  See E.D. Mich. L.R. 5.3.'"  In re Flint Water Cases, 2021 WL 2254051, at *2.

The Court in this case accordingly required the defendants "to supplement their motions with a memorandum of law that sets forth how the [Sixth Circuit] factors apply to the items" that were requested to be sealed.  Of course, this was required by the terms of the Court's previous Confidentiality Order, but the Court patiently explained why the memorandum of law is important.  A memorandum is important "[i]n order for the Court to properly evaluate [the defendants'] requests to seal[.]"    In re Flint Water Cases, 2021 WL 2254051, at *2.

In our adversarial system, the absence of an adversary usually means that the party making its request prevails.  When a sealing motion is involved, however, the judge is always present and that means that to some degree, in the Sixth Circuit at least and particularly in the Eastern District of Michigan, the interests of the public in disclosure are represented in every case, even when no-one is present to argue in favor of disclosure to the public.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

P.S. TIMES TWO TO FACEBOOK CASE.

Earlier this week I posted an article on this Blog about the decision in a Facebook case, In re:  Facebook, Inc. Consumer Privacy User Profile Litig., No. 18-md-02843-VC (JSC), 2021 WL 3209711 (N.D. Cal. July 29, 2021) (USMJ).  Here is a link to the article:  https://insuranceclaimsbadfaith.typepad.com/insurance_claims_badfaith/2021/08/usmj-protects-facebooks-cambridge-analytica-documents-in-the-public-record.html.

    I thought about two more things regarding that decision, thus this postscript times two.  One thing is that the Magistrate Judge "grant[ed] Facebook's request to modify" a protective order entered earlier in that Multidistrict Litigation (MDL).  She did more than modify an order by granting Facebook's request, however.  Facebook asked the Magistrate Judge to change the scope of "the protections conferred by this Stipulation and Order," and she did.  In re Facebook, 2021 WL 3209711, at *4.

    So we have one party to the Stipulation in this case changing the parties' Stipulation, and we also have the Magistrate Judge changing it.  My understanding of a stipulation while practicing law for 43 years is that it always, without exception, takes all parties to the stipulation to change it.  If all the parties do not agree on what it says, then the thing is not a stipulation.  It is something else, something  as to which a Magistrate Judge can enter an order changing it, but it is not a stipulation no matter how many times they call it that.

    The second reason for this Postscript is this:  To say again what was said in the original article, the information at issue was already in the public domain.  It apparently was part of an NBC News report "that released almost 7,000 pages of the disclosed Facebook documents, including the 46 documents at issue here."  In re Facebook, 2021 WL 3209711, at *2.  The fact that they were "disclosed" was a matter for the San Mateo County Superior Court in California.  The case in which the Facebook documents were disclosed, apparently in violation of that court's protective order, is pending in that court.   It is not pending in the federal court where the MDL is centered.  It is not the job of any judicial officer in the federal court MDL to enforce orders entered by the San Mateo County Superior Court (which in any event seems fully capable of taking care of  the matter itself).

    Especially when one of the federal judicial officials rules in the MDL that "it is undisputed that the 46 documents were part of the public domain at the time of designation and were not disclosed in violation" of the stipulated protective order in the federal court proceeding.  In re Facebook, 2021 WL 3209711, at *4.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

USMJ PROTECTS FACEBOOK'S CAMBRIDGE ANALYTICA DOCUMENTS IN THE PUBLIC RECORD.

"In 2016, Facebook produced one million pages of confidential documents" pursuant to a protective order entered in The San Mateo County Superior Court in California.  Facebook's production included 46 documents later at issue in a Multidistrict Litigation centered in California in 2021.  "These documents were later disclosed in violation" of the protective order entered by the California State Court.  In re Facebook, Inc. Consumer Privacy User Profile Litig., No. 18-md-02843-VC (JSC), 2021 WL 3209711, at *1 (N.D. Cal. July 29, 2021) (Corley, USMJ).

          The Facebook documents were disclosed by lawyers and parties who asserted that the documents were relevant to the Cambridge Analytica investigation.  They communicated with various media outlets about the documents.  The media outlets included The Washington Post newspaper, The Guardian newspaper, and NBC News.  NBC "published a report that released almost 7,000 pages of the disclosed Facebook documents, including the 46 documents at issue here."  In re Facebook, 2021 WL 3209711, at *2.

          The MDL (federal) court approved a Stipulated Protective Order in "August 2018," and sometime in 2019 "Plaintiffs obtained public versions of the at-issue 46 documents from the NBC News website."  In re Facebook, 2021 WL 3209711, at *3.  On March 15, 2019, the San Mateo County Superior Court wrote -- even before this happened, finding that the Plaintiffs were responsible for violating its protective order -- that the Plaintiff's conduct "'compromises the entire integrity'" not only of Stipulated Protective Orders, but all of "'American jurisprudence.'"  In re Facebook, 2021 WL 3209711, at *4.

          There is no indication how a California State Court and an MDL centered in a federal court in California could have simultaneously had jurisdiction, but they apparently did.  Without getting overly technical, it is fair to say that both courts were pissed.

          In any case, the Magistrate Judge in the MDL wrote several things that, respectfully, do not quite add up.  First, the Magistrate Judge wrote that she issued "the operative stipulated Protective Order" in August 2018 in the MDL  In re Facebook, 2021 WL 3209711, at *3.  A court never issues a Stipulated Protective Order; the parties stipulate to it.  The court approves it, modifies it, or rejects it, but no court anywhere ever "issues" it.

          Second, the Magistrate Judge loosely described the default presumption of public access to court records as "a general rule," and said that a finding of good cause is "generally" required before a court can enter a protective order but that "a court need not do so if the  parties stipulate to entry of a protective order," citing to a Ninth Circuit decision in 2002 which says no such thing.

          There is no such "general rule," it is a default presumption, and good cause is always required by Federal Rule of Civil Procedure 26(c), as well as by the Ninth Circuit Court of Appeals. 

          Third and finally, to her credit the Magistrate Judge recognized that the materials at issue, which irrespective of how they got there, were and are already in the public domain and so they are just not covered by the Stipulated Protective Order which she approved.  She accordingly held that the documents in question in the MDL were in the public domain at the time that Microsoft designated them as "Confidential--Attorney's Eyes Only" in the MDL, and "under the [MDL, Stipulated] Protective Order's plain terms, the documents are not covered."  In re Facebook, 2021 WL 3209711, at *4.

           Unfortunately, the Magistrate Judge did not end with this conclusion.  The Magistrate Judge granted Facebook's motion to modify the SPO -- which in its original iteration did not touch the materials at issue -- so that the order would now reach the material in the public domain anyway:

Accordingly, the Court grants Facebook’s request to modify paragraph 3(a) of the Protective Order as follows (additional language in italics):

However, the protections  conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order or another court’s protective order, including becoming part of the public record through trial or otherwise.

In re Facebook, 2021 WL 3209711, at *4 (italics by the Magistrate Judge, and, apparently, by Facebook).

          Who says you can't get a do-over in court?

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

BOTH THE SUBSTANCE AND THE PROCEDURE OF THE THING.

In Obertman v. Electrolux Home Care Prod's, Inc., No. 2:19-cv-02487-KJM-AC, 2021 WL 2823072 (E.D. Cal. July 7, 2021), the Court outlined both the substance and the procedure of sealing court records from public view.

            The Court concisely summarized the current law undergirding the strong, constitutional presumption of public access to court records at the beginning of its opinion.  First, the Court repeated the basic point that only judges, and not the parties or their lawyers, decide what the public can and cannot see in the records of courts.  Obertman, 2021 WL 2823072, at *1.

            Then the Court listed the substantive reasons that are currently recognized as justification for denying the public access to court records despite the default presumption that access is ordinarily required:

• Protect against promoting either private spite or public scandal;
• Protect courts from being repositories of libel; and
• Protect “'sources of business information that might harm a litigant’s competitive standing.'”

Obertman, 2021 WL 2823072, at *1.

            After repeating the substance of the presumption of public access and outlining the exceptions to that default presumption, the Court addressed the procedures widely employed for parties and their lawyers to request an exception and deny public access to court records.

            In this case, the Court summarized the procedures extant in the Ninth Circuit in which this Court sits:

• First, the judge must put the underlying motion or other document or record, into a frame whereby the judge determines whether or not the record is “'more than tangentially related to the merits of a case.'”
• If for example a motion is involved, and if the underlying motion is not tangential, then the inquiry stops because the presumption does not apply. The judge's analysis continues, however, if she finds that the underlying motion is "more than tangentially related to the merits of the case[.]"   When that determination is made, i.e., when the judge decides that the underlying motion is more than tangentially related to the merits of the case, then the party requesting to keep the record secret must provide evidence of "compelling reasons" for the secrecy.
• "Applying this standard, 'a court may seal records only when it finds 'a compelling reason and articulate[s] the factual basis for its ruling, without relying on hypothesis or conjecture,' and finds this reason outweighs the public’s interest and the presumption of public access."
• The requirement of a "compelling reasons" showing is not satisfied simply by citing to an earlier stipulated protective order, or by citing to any other previously entered "generalized protective order, including a discovery phase protective order." The requirement is satisfied instead by a showing related to the specific document or other court records as to which the party seeks to have the judge order the secrecy.

Obertman, 2021 WL 2823072, at *1.

            In the Obertman case, the request to seal judicial records concerned the plaintiff's motion to certify a class.  This motion was obviously more than tangentially related to the substance of the claim and so the "compelling reasons" requirement applied.

            The party requesting secrecy showed only that the parties in the case had all previously stipulated to a protective order.  This was hardly enough to overcome the presumption of public access to particular court records in that case.

            Among other things, the lawyers do not control the outcome of the secrecy question, the court controls that outcome.  Further, a mere stipulated protective order does not satisfy the required showing of compelling reasons to deny the public access to a specific court record.  Obertman, 2021 WL 2823072, at *2.

            Substance and procedure stated, and applied.  The Obertman decision does all of that in denying a request to bar public access to specific court records.  The presumption of public access to court records prevailed on this record.  The party seeking secrecy did not satisfy the prevailing requirement at this time, but it could try again.  "Accordingly, the request is denied, but with the possibility of renewal."  Obertman, 2021 WL 2823072, at *2 (emphasis by the Court).

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

WHO, EXACTLY, DOES JUSTICE REPRESENT?

Rights and Responsibilities.  (Florida Dep't of Agriculture & Consumer Services /  Gridview_imagefull)

On February 8, 2021 -- 19 days after the Inauguration of President Joe Biden -- Brian M. Boynton filed a motion to quash a subpoena for the deposition of Betsy DeVos.

           Mr. Boynton filed his motion in the Southern District of Florida, where DeVos was then "a part-time resident."  That was one of the places where, arguably, venue was proper for Boynton's motion to quash.  The case in which Betsy DeVos was subpoenaed for deposition is pending in the Northern District of California.

           Parenthetically, I cannot find an order granting or denying the motion, and I cannot find any evidence that Ms. DeVos has  been deposed.  I have today emailed the lead attorney who requested this deposition, Margaret E. O'Grady, Esquire and if and when I receive her Reply, I will write about it here.

          Back to Mr. Boynton.  More recently, on June 7, 2021 Brian Boynton filed a reply brief for the United States to intervene for the former guy in his appeal from an order allowing E. Jean Carroll's defamation lawsuit to go forward in New York State Court.  Her defamation lawsuit had been pending in state court before the former guy's Barr removed the case to federal court.

          Mr. Boynton was reportedly hired away from a large law firm with experience in representing corporate clients, in order to assist Merrick Garland in running the Justice Department.

          The actions discussed here, and other actions known and unknown, raise urgent questions.  First:  Who, exactly, does Justice represent?

          Next, why is it in the interest of the United States not to have the testimony of Betsy DeVos under oath?

          How is it that any lawyer can argue, without consequence, that denying a rape and demeaning the victim is a part of the official duties of a President of the United States?

          I did not expect to be asking any of these questions with Merrick Garland replacing Bill Barr and Joe Biden replacing the former guy. 

          Did you?

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

NO DISPUTE, CASE OR CONTROVERSY? NO BLANKET PROTECTIVE ORDER, EITHER.

In an article on May 24, a seminal decision on blanket protective orders was discussed here in terms of the Court's rulings on secrecy and the presumption of public access.  The case is AgJunction LLC v. Ag Leader Tech., Inc., No. CV-20-02204-PHX-SPL, 2021 WL 1969523 (D. Ariz. March 9, 2021).

    The Court in this case also raised the possibility of an argument that Federal Courts lack the jurisdiction to enter blanket protective orders in the absence of a case or controversy.  Here's why it did.

    The lawyers of record wrote a proposed order in that case that was so comprehensive it would have rewritten the Federal Rules of Civil Procedure, in effect.  The proposed order contained provisions keeping a litany of things secret:

Here, the Proposed Protective Order defines “confidential” material as “any information, document, or thing, or portion of any document or thing that contains: (1) trade secrets; (2) confidential business information, including contracts or license agreements with a third party where disclosure would violate a contractual obligation of confidentiality; (3) personal identifying information, such as a Social Security number; or (4) personal health information protected by the Health Insurance Portability and Accountability Act, of the Party or a Non-Party to whom the Party or Non-Party reasonably believes it owes an obligation of confidentiality with respect to such documents, information, or material.” (Doc. 15-2 at 2). This does not meet Rule 26(c)’s threshold.

AgJunction, 2021 WL 1969523, at *1.

    The parties agreed to this multi-faceted definition of "confidential;" the lawyers stipulated to it and proposed it to a Federal District Judge.  Their problem, however, was not in their language but two-fold, first in their lack of good cause for protection, as was discussed in the previous article here and mentioned in the above quotation.

    Their problem continued with their lack of a dispute, the lack of a case or controversy that cried out for the protection of a Federal Court.  Nothing in that case had yet reached the point of a request for production, a deposition question, an interrogatory, or any objections.  There was, to say again, no case or controversy to activate the Federal Court's Article III jurisdiction.  There was only the lawyers' proposed protective order in case there would be a case or controversy over discovery or evidence later in the case, but there was not a case or controversy at the time of this decision.  Their attempt to manage the possibilities in the case was no substitute for the reality that there was no present, actual, tangible case or controversy:

    Further, no party has shown that there is an actual dispute that commands Court intervention and protection. See Fed. R. Civ. P. 26(c)(1); LRCiv 7.2. The parties remain free to mutually enter into a written agreement to facilitate the exchange of confidential disclosures without court approval or supervision. And, in the event discovery mandates disclosure of specific, harmful, confidential material, the parties will not be precluded from presenting a request to the Court at that time in a manner tailored to protect the particular interests at hand. [Citation omitted.]      Accordingly,

    IT IS ORDERED that the parties’ Joint Motion to Stay (Doc. 15) is granted in part and denied in part. The Motion to Stay is granted and the Motion for Protective Order is denied.

 

AgJunction, 2021 WL 1969523, at*2 (emphasis by the Court).

    The Court in this case did not use the words, but there was no case or controversy over the stipulated proposal for a protective order.  There was no basis for a Federal Court to act.  Federal Courts are prohibited from giving advisory opinions, there is no doubt about that.  Blanket protective orders in the absence of a dispute over discovery or the production of evidence are nothing short of mere advisory opinions, there ought to be no doubt now about that.

 

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

 

 

BLANKET PROTECTIVE ORDERS vs. BLANKET SECRECY CONTRACTS.

The difference to the parties may be compelling someone else to keep a secret (stipulated blanket protective orders entered by a Court) versus entering into written agreements enforceable as contracts to keep the same secrets (contracts).

          But to a Federal Court sitting within the boundaries of the Ninth Circuit, blanket protective orders are not particularized in that they are not directed to a particular document or to particular information for which a party pleads protection from disclosure.  They do not show any specific harm that would result if the material in question were to be disclosed.

          Since they are not particularized, i.e., not directed to particular material, they fail to show good cause for Court-ordered protection of that particular material and so they fail to meet the requirements for a protective order signed by a Court within the Ninth Circuit.   AgJunction LLC v. Ag Leader Tech., Inc., No. CV-20-02204-PHX-SPL, 2021 WL 1969523, at *1-*2 (D. Ariz. March 9, 2021).

            The Court in this case also raised the possibility of an argument that Federal Courts lack the jurisdiction to enter blanket protective orders in the absence of a case or controversy ....

To be continued ....  Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

WHO SIGNED THAT SECRET ORDER? SHH! IT'S A SECRET? WHY?

Who signed the secret order?  Is that a secret too?  Well, it is a secret, so far.  Why?  It was the official act of a person holding a judicial office in the United States District Court for the District of Columbia, and we pay that person's salary.  Comments are open.  Let's identify the official so that the public will know better who and what we are dealing with.

Image on the United States Magistrate Judge Consent Program portal on the website of the U.S. District Court for the Central District of California.

The following article is reprinted from Claims and Issues Blog, where it was originally published on Thursday, May 20, 2021.

The former justice department reportedly used a grand jury subpoena to Twitter to try to identify who was criticizing Devin Nunes on Twitter.  See Charlie Savage, Trump Justice Dept. Tried to Use Grand Jury to Identify Nunes Critic on Twitter, New York Times, online Monday, May 17, 2021.

    In response to this revelation, Washington informants tell the newspapers that the former justice department really tried to use a grand jury subpoena instead to go after critics of Mitch McConnell.

    Regardless of who they were going after in the former regime -- and we can expect many, many more stories of subpoenas and other things to come out as time goes by -- I want to take a look at the secrecy Order that a United States Magistrate Judge apparently signed giving her or his "okay" to using a grand jury subpoena without telling anyone about it.

    A little background for people who may not be familiar with the Courts.   A U.S. Magistrate Judge is not a judge.  She or he is chosen by actual Judges to help them.  Think of a U.S. Magistrate Judge as a kind of Assistant Judge.  Among other things, they review subpoenas.

    Back to the secrecy Order in this case.   I wrote that the U.S. Magistrate Judge "apparently signed" it.  The only copy we have so far is not signed.  Her or his identity is a secret.  Perhaps they are ashamed.  But in any event, their identity is a secret, so far.  Ironic, when you think that the reason for the Order itself is secrecy.

    When this unknown, unidentified Magistrate was presented with a request from the former regime to keep the subpoena a secret, the Magistrate not only granted their request but ordered Twitter "not to notify any other person of the existence" of the subpoena.

    That is why we only recently found out about the existence of the subpoena, and about the existence of the secrecy Order as well.  Not even people trying to take over the justice department for their own interests could have hidden that better.

    Oh, wait ....  Here is the Order:  Download UNSIGNED SECRET TW O.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

THE REAL SECRET ABOUT NONDISCLOSURE AGREEMENTS.

Trying to Control the Means of Communication, books, articles, cases. computers, and cd's.  (Dennis J. Wall)

The real secret about Nondisclosure Agreements is that they don't actually keep all their secrets.  See Ifeoma Ozoma, A Nondisclosure Agreement Didn't Silence Me, New York Times, Wed., April 14, 2021, at A27, https://www.nytimes.com/2021/04/13/opinion/nda-work-discrimination.html?searchResultPosition=1.

Please read the disclaimer.  ©2021 by Dennis J. Wall.  All rights reserved.

"TOO SMART BY HALF": THE TRUE STORY OF FORBIDDEN CONVERSATIONS.

Judge's Gavel.  (Sun Sentinel)

We have been looking lately at four cases of Stipulated Protective Orders, each one decided on the same day two weeks ago as these words are written.

          The lesson to be learned here is that these four SPOs are not simply typical of each other; they are typical of SPOs in thousands of cases in all types of litigation in the 21st Century.

          One of the more chilling provisions that lawyers have written into their SPOs concerns what they call "SCOPE."  This is the provision in which they say how far they intend their order to reach.  In that paragraph, the lawyers have all agreed that the Protective Order they are proposing will cover any "conversations" that they may have "that reveal Protected Material."

         In some cases, such as Premier Valley Bank in the Eastern District of California, the lawyers have agreed that "Protected Material" is what they say it is; when they have written "CONFIDENTIAL--ATTORNEYS' EYES ONLY" on disclosure or discovery material, then it is protected from public view.  Premier Valley Bank, 2021 WL 1164684, ¶ 2.11, at *2.  In other cases, including in the Central District of California, recent provisions have lowered the bar for recognizing "Protected Material" to material on which the lawyers have written, simply, "CONFIDENTIAL."  E.g., Diarian, 2021 WL 1163962, ¶ 2.13, at *3; Ramos, 2021 WL 1163575, ¶ 2.14, at *2; Orellana, 2021 WL 1163234, ¶ 2.14, at *3.  In all these cases as in most SPOs if not every SPO, the lawyers prevent material from being disclosed because they say it should not be disclosed.

         This may prove to be "too clever by half," as they say.   If "conversations" about confidential material disclosed or discovered in one case are prohibited in other cases, then the lawyers who wrote these agreements seem to have prohibited themselves  from representing the same clients on the same issues in future cases.  This can have real and not simply theoretical consequences, of course.

         For example, the defendant in the Orellana case is Target.  It is reasonably foreseeable that Target will be accused in other cases -- including in future cases -- of many of the same things that Target is accused of in the pending Orellana case.  If that ever happens, then the same lawyers may be prohibited from having "conversations" necessary to defend their client, Target, in any of those cases.

         This provision has echoes of the record in a recent Nondisclosure Agreement or NDA case in the Southern District of New York.  The record in that case reflects that the political campaign that wrote the NDA in that case, also attempted to enforce it in an earlier proceeding by alleging that a former campaign employee violated the NDA "'when she and her attorneys made statements about her lawsuit ....'"  Denson v. Donald J. Trump For President, Inc., No. 20 Civ. 4737 (PGG), 2021 WL 1198666, at *6 (S.D.N.Y. March 30, 2021) (emphasis added).  The Court ruled that the threatened enforcement of this sort of contract that restricts speech, 2021 WL 1198666, at *10, was invalid and unenforceable.

         The SDNY Court's reasoning concerning a Campaign's NDA is instructive concerning SPOs which have similar secrecy provisions.  "As to the scope of the [nondisclosure] provision" in that case, "it is -- as a practical matter -- unlimited."  It was unlimited in its vagueness, 2021 WL 1198666, at *14, just as the SPOs are equally unlimited in their own vagueness.

         Further, the New York Federal Court ruled, "[w]hether the scope of the restrictions in the non-disclosure provision is reasonable must be considered in light of what the Campaign contends are the 'legitimate interests' protected by this provision."  2021 WL 1198666, at *15.  "But even with respect to those categories the terms are not defined," and people purportedly bound by the secrecy provision are left with no idea how to comply with it. 

         "The non-disclosure provision's vague, overbroad, and undefined terms also render it unduly burdensome."  In short, because the effect of these burdens "is to chill the speech" of Campaign workers "about matters of public interest, the non-disclosure provision is harmful not only to them but also to the general public."  2021 WL 1198666, at *15.

         The same could be said of the Stipulated Protective Orders' "vague, overbroad, and undefined" terms such as "Protected Material" marked as 'Confidential' or 'Confidential-Attorney's Eyes Only' by the pens of lawyers, and such as undefined "conversations" that somehow "reveal Protected Material."

         One further thought, which the Federal Judge expressed in the case in the Southern District of New York.  Even if the Court were to set aside other standards of analysis in that case, "the non-disclosure provision is unenforceable under basic principles of contract law."  2021 WL 1198666, at *16.  It is impossible for a person "to know what speech she has agreed to forego" under such provisions, so that the supposed contract simply does not exist, there being "no possibility of mutual assent."  2021 WL 1198666, at *16.

         It seems equally impossible for a person to know what kind of speech she or he has agreed to forego in the stipulations quoted in the series of articles under discussion here.  If it is impossible for a person to know what "conversations" or speech she or he has agreed to forego under such provisions, the supposed stipulation is similarly void for vagueness, ineffective as a contract and unenforceable.  Submitting such provisions to a Federal Judge or Magistrate should not turn them into gold by some judicial alchemy; unenforceable provisions do not become enforceable simply because they have been signed by a judge.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.   

TO WHOM IT MAY CONCERN: QUESTIONS ABOUT YOUR SECRECY AGREEMENTS.

There is just enough time for a few questions in this special Thursday edition of Insurance Claims and Bad Faith Blog.                                                                                                                                                                                                                                                         

1. How did it happen that so many lawyers in so many cases used the same language for their Stipulated Protective Orders?  The lawyers in these and other cases used much the same language when they drew up their Stipulated Protective Orders.  Some of that language has already been quoted in past articles posted here.

          At the moment, I have been addressing three unrelated cases from the Central District of California because they were all decided on the same day.  The lawyers in these cases all used the same or substantially similar language when they wrote and signed the proposed orders they sent to the Courts in their separate cases.

         I cannot find a Model Protective Order in the Local Rules of the Central District of California and these stipulations did not reference any.  So where did this same language come from, to which each of these lawyers had the same access?  If any readers know the answer to this question, or if any reader knows of a Model Protective Order, please let me know.  I gratefully appreciate the information in advance.

2. Who drew up these stipulations for protective orders in these cases?  In many cases it is impossible to tell who drew up the Stipulated Protective Orders that somehow find their way to Judges and Magistrates, who sign them.  In most cases, the dockets just do not reveal how these proposed orders got to there in the first place.

          In at least one of these three cases, on the other hand, the docket reveals who filed the proposed order.  Clearly, the party that files the proposed order is the party that wants it the most.  It is reasonable to assume of course that the party that wants it the most is also the party that wrote it.  In the Orellana case, it was Target, the main defendant, that filed the proposed Stipulated Protective Order.   Orellana v. Target Corp., DE 30, proposed Stipulated Protective Order (C.D. Cal. Case No. 2:20-cv-06665 SVW (KSx)). 

3. What do they mean when they say "return or destroy" any material in "any format reproducing or capturing any of the Protected Material"?  In basic terms, a "return or destroy" provision requires that a person bound by the Protective Order shall either return what all the lawyers call "Protected Material" in all these cases, or destroy it.  The Premier Valley Bank stipulation in a fourth case is typical.  The Premier Valley Bank case was also decided on March 26, 2021, but in the Eastern and not the Central District of California.  It is typical in this regard not only among the subset of what has now become four cases, but it is also typical of the SPO case law at large.

         The Premier Valley Bank stipulation contains the requirement in its "return or destroy" provision that "'all Protected Material' includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material."  Premier Valley Bank v. Nguyen, No. 1:20-CV-00900-NONE-EPG, 2021 WL 1164684, ¶ 13,  at *7 (E.D. Cal. March 26, 2021) (emphasis added).  What does this mean?  Each of the three Central District cases contains the identical language that has been quoted here.  However, none of these cases offers much if any insight into what this language means.

         In particular, the reach of this provision to "any other format" "capturing any of the Protected Material" is vague.  It is also overly broad.  A Nondisclosure Agreement purporting to keep matters from being disclosed was recently held void for vagueness and overbreadth in Denton v. Donald J. Trump for President, Inc., No. 20 Civ. 4737 (PGG), 2021 WL 1198666 (S.D.N.Y. March 30, 2021).  If the same reasoning is applied to the language quoted here, it too should be held "invalid and unenforceable" for the same reasons.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

(Image = Editing,  LexisNexis.)

THREE FROM THE C.D.: "GOOD CAUSE STATEMENT" IN ALL OF THEM.

(Editing.  Lexis/Nexis)

Continuing our look at the three cases decided by Magistrates in the Central District of California on the same day (March 26, 2021), each of the three contained orders with this same language in the lawyers' "Good Cause Statement":

This action is likely to involve ... private information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted.

(Italics and boldface added.)¹

          In each case, this is the opening statement of the lawyers' Good Cause Statement, their lede if these were journalists writing a report for a newspaper, presenting their Statement of Good Cause to the Judge so that she or he will enter this protective order.

          The first question that arises from this single sentence is what exactly is the "private information" the lawyers had in mind?  Presumably, the rest of their Good Cause Statement will tell you, their reader, all they want you to know.  You be the judge.  Whether what the lawyers tell you is enough for you to know what they are talking about when they say, "private information," is up to you just as it will be up to their judge.

          A second question concerns when and whether "special protection from public disclosure" is "warranted."  In the past, Courts in the Ninth Circuit where these orders were entered have struck down so-called "confidentiality" provisions based on a statement that the lawyers would only designate things as "confidential" when they had a "good faith belief" that the things were in fact confidential.

         In each of these cases decided on March 26th, "good cause" was mentioned exactly once after the title.  Lawyers who practice in Federal Court know that they can only obtain a protective order for "good cause shown" to the Federal Court.  After the title of their Good Faith Statement in these three cases, the lawyers wrote a long paragraph without ever referring to "good cause," until they reached the end.  Then they declared that they would designate information "confidential" only when they had a "good faith belief" that the information they designate "confidential" is, in fact, confidential and that there is "good cause" to seal it from public view.  The reason that the old language was rejected by the Courts in the Ninth Circuit (and by many Courts in other Circuits) is because it gave too much power to the vague "good faith beliefs" of lawyers.

          Unfortunately, this present language is not an improvement over the past.  It is nondisclosure in a new shroud.  The new suffers from the same illness as the old.

          Last but far from least is the most important thought of all behind the Stipulated Protective Order.  The lawyers declare that they all seek special protection from public disclosure in their unique cases -- so unique that the same exact words are used by every lawyer in three separate cases -- "from use for any purpose other than prosecution of this action."

          I have been involved in trials since the 1970s.  I know enough  about trials to wonder what information is EVER used exclusively for "prosecution of this action," such that you would want to bar its use "for any purpose other than prosecution of this action."  I can't think of any.  Do you think otherwise?

          The real purpose comes clear now.  The real purpose is to prevent the use of information concealed by the lawyers in one case ever to be used in any other case "other than prosecution of this action."

To be continued ....

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

¹I do not like ellipses much.  Those are the three periods (...) that indicate that what we are reading is not the full quote.  As noted, the opening words of the Good Cause Statement are substantively identical in each of the "three cases from C.D.," with a few variations on the words chosen by the different lawyers in the different cases.  Here then is the statement in full:

This action is likely to involve commercial, financial, proprietary, and/or other private information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted.

This or very similar language is found in Diarian, 2021 WL 1163962, at *1; Orellana, 2021 WL 1163234, at *1 (which adds the words that this action is likely to involve "trade secrets, pricing lists and other valuable research, development" and "technical"), and Ramos, 2021 WL 1163575, at *1 (which substitutes the word, "confidential," for "commercial" in the above-quoted provision).

PUMPING OUT PROPOSED SECRECY ORDERS, GOOD CAUSE IN HIDING.

(Image via Central District of California website)

In three cases decided on the same day, three different U.S. Magistrate Judges in the Central District of California granted three of the same Stipulated Protective Orders, without saying why.

          Each of the three Stipulated Protective Orders said the same thing, except in one case the parties added the additional words I have [bracketed] in the quotation below:

[Disclosure and discovery activity] Discovery in this action [are] is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the Court to entire the following Stipulated Protective Order.

          We may never know why any of these three actions actually required "special protection from public disclosure" and "from use" beyond use in the lawsuit.  Not a single one of the three proposed Stipulated Protective Orders said what the case was about.

          Neither did the Magistrate Judges say what any of the cases was about in any of these three orders.

          Each of the three Magistrate Judges said that they entered the Stipulated Protective Orders because the parties in the case showed "good cause," but we will never know what the good cause shown may have been because none of the three said in any of the three cases what was shown or by whom or when, at least before they entered their orders.

          These are the three cases:  

Diarian v. First Transit, Inc., No. 2:20-cv-02957-FMO (AFMx), 2021 WL 1163962 (C.D. Cal. March 26, 2021) (Alexander F. MacKinnon, USMJ);

Orellana v. Target Corp., No. 2:20-cv-06665 SVW(KSx), 2021 WL 1163234 (C.D. Cal. March 26, 2021) (Karen L. Stevenson, USMJ), and

Ramos v. FCA US LLC, No: 2:20-cv-10440-DMG-AGR, 2021 WL 1163575 (C.D. Cal. filed March 26, 2021) (Alicia G. Rosenberg, USMJ).

We are not done.  To be continued ....

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

IT MIGHT ABUSE DISCRETION, BUT HAPPY ST. PATRICK'S DAY ANYWAY!

 

(Photo by Dennis Wall)

"The district court abused its discretion in permitting Defendants and the DEA to file their pleadings under seal."  In re:  Nat'l Prescrip. Opiate Litig. (HD Media Co. v. U.S. Dep't of Justice), 927 F.3d 919, 939 (6th Cir. June 20, 2019).

           The appellate panel followed this reasoning tree. First, there is a distinction in the Sixth Circuit (as in many courts) "between secrecy in the context of discovery," which is subject to a "good cause" showing, "and secrecy in the context of adjudication, which is generally impermissible due to the 'strong presumption of openness' of court records."  In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 938-39 (emphasis added).  The line of demarcation between discovery and adjudication is crossed when the material in question is put in the court file.  At that point, the public presumptively has access to it.  See In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 939.

           This "strong presumption in favor of openness" can be overcome and documents can be sealed from public view when, first, the party seeking to seal the information shows a compelling reason to seal them and, second, the seal is "'narrowly tailored to serve that reason.'"  In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 939 (citations omitted).

           This case dealt with the issue of sealing or redacting "pleadings, briefs, or other documents that the parties have filed with the court, as well as any reports or exhibits that accompanied those filings[.]"  In other words, it was not merely the sealing of "pleadings and briefs" filed in the court file that was at issue in this case.  Also at issue was the sealing of "any reports or exhibits" attached to them and therefore also "filed with the court[.]"  These are all "the sort of records" subject to the presumption of public access and therefore subject to the compelling-reasons-and-narrowly-tailored standard before such records may be sealed away from public view.  See In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 939.

           In this case, these documents also merited a further, stronger presumption "in favor of openness, ... given the paramount importance of the litigation's subject matter."  In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 939.

            Following this reasoning tree to the end, a two-judge majority on the appellate panel held that "[t]he district court abused its discretion in permitting Defendants and the DEA to file their pleadings under seal."  In re:  Nat'l Prescrip. Opiate Litig., 927 F.3d at 939.

The panel's ruling has never been appealed.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

PRESUMPTION OF PUBLIC ACCESS, BUT NO REVERSAL IN FIFTH CIRCUIT.

(Photo © Dennis J. Wall)

Of all Federal Courts, one of the ones you might least expect to uphold the presumption of public access to court records is the Fifth Circuit Court of Appeals.  Yet that is exactly what they have done.

           In what the Court itself described as a "run-of-the-mill case," a unanimous panel chose to identify the differences among a protective order, a stipulated protective order, and sealing evidence.  The entire opinion is worth reading. 

           Here is the reason for decision:

    Judicial records belong to the American people; they are public, not private, documents. Certainly, some cases involve sensitive information that, if disclosed, could endanger lives or threaten national security. But increasingly, courts are sealing documents in run-of-the-mill cases where the parties simply prefer to keep things under wraps.

    This is such a case. The secrecy is consensual, and neither party frets that 73 percent of the record is sealed. But we do, for three reasons. First, courts are duty-bound to protect public access to judicial proceedings and records. Second, that duty is easy to overlook in stipulated sealings like this one, where the parties agree, the busy district court accommodates, and nobody is left in the courtroom to question whether the decision satisfied the substantive requirements. Third, this case is not unique, but consistent with the growing practice of parties agreeing to private discovery and presuming that whatever satisfies the lenient protective-order standard will necessarily satisfy the stringent sealing-order standard.

Hoa Le v. Exeter Fin. Corp., ___ F.3d ___, No. 20-10377, 2021 WL 838266, at *5 (5th Cir. March 5, 2021).

           After losing its head in this rousing tribute to public access, the Fifth Circuit panel returned to its normal and affirmed a summary judgment for the defendant.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

HEARING WITHOUT FORM, SEALING WITHOUT GOOD CAUSE SHOWN.

Courtroom (Pacific Standard)

In Hunter v. Booz Allen Hamilton, Inc., No. 2:19-cv-411, 2021 WL 790208 (S.D. Ohio March 2, 2021) (Vascura, USMJ), a U.S. Magistrate Judge held an "informal" conference during which she formally ruled.

    The plaintiffs in the case requested an "informal" conference to resolve their dispute with the defendants over the defendants' response to production requests.  Hunter, 2021 WL 790208, at *2.   They got their wish.  The Magistrate Judge held the conference and resolved the dispute by ruling that the Defendants need not supplement their production.  She repeated this ruling in a written opinion issued by the Court.  Hunter, 2021 WL 790208, at *2.     

    After issuing a formal ruling at an "informal" conference in Court, and confirming it in writing, the Magistrate Judge officially issued another ruling that the Clerk of Court should mark "SEALED" all the documents that the parties submitted during the conference and that the parties had marked "Confidential" or "Highly Confidential."  Hunter, 2021 WL 790208, at *4.   That was enough for the Magistrate.  There was no other "good cause" shown for sealing the documents.

   Federal Rules of Civil Procedure 5.2(e) and 26(c)(1) both require a showing of good cause before documents and other evidence can be sealed by a Federal Judge or Magistrate Judge.  With the exception of Hunter v. Booz Allen Hamilton, Inc., of course.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

GIVING SHAPE TO SHAPE-SHIFTING STIPULATED PROTECTIVE ORDERS: GOOD CAUSE.

Editing.  (LexisNexis)

"The parties must provide the requisite good cause, which is missing from their pending motions."  Thus did the Court succinctly summarize its ruling in Ramos v. Continental Auto. Sys's, Inc., No. 18-1900-pp, 2020 WL 8617482, at *1 (E.D. Wis. Sept. 3, 2020). 

    In the eyes of the Federal judge in that case, the parties and their lawyers showed no more good cause than their agreement to keep various things "confidential."  This by itself was not good cause, the Court ruled:

    The court acknowledges that the parties have stipulated that they will maintain the confidentiality of certain documents. Paragraph 8 of their stipulated protective order states that all confidential information that is filed with the court must be filed in an envelope marked sealed and such information shall be kept under seal until further order of the court. Dkt. No. 19 at 5; Dkt. No. 20. However, this court requires that the parties comply with General Local Rule 79(d) and Seventh Circuit case law, providing good cause for the requested relief.

Ramos, 2020 WL 8617482, at *1.

     The requirement of good cause determined the outcome.  In moving to seal certain documents, the party requesting confidentiality did not show good cause at that time.  The lack of good cause took the vitality out of that request.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

NO SECRETS ON GEORGE WASHINGTON'S BIRTHDAY & NEVER IN SIXTH CIRCUIT.

George Washington Statue (University of Washington)

In Sweeney v. Nationwide Mut. Ins. Co., No. 2:20-cv-1569, 2020 WL 8265654 (S.D. Ohio Oct. 6, 2020), a United States Magistrate Judge applied settled Sixth Circuit case law and denied permission to file an Amended Class Action Complaint in secret and under seal.

    The excuse offered by the parties in that case was that they had agreed to keep things a secret that showed up in the amended complaint.  "The parties’ agreement to maintain confidentiality, standing alone, does not constitute a compelling reason for filing under seal."  Sweeney, 2020 WL 8265654, at *1.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

THIS FEDERAL JUDGE GAVE A DAMN.

 

(Thomson Reuters West via LinkedIn)

PUBLIC ALLOWED TO ACCESS TESTIMONY ABOUT MEDICAL IMPLANTS THAT ALLEGEDLY MAIM AND KILL.

"This multidistrict litigation proceeding ('MDL') involves personal injury cases brought against Defendants C. R. Bard, Inc. and Bard Peripheral Vascular, Inc. (collectively, “Bard”). Bard manufactures and markets medical devices, including inferior vena cava ('IVC') filters. The MDL Plaintiffs have received implants of Bard IVC filters and claim they are defective and have caused Plaintiffs to suffer serious injury or death."  In re:  Bard IVC Filters Prod's Liab. Litig., No. MDL 15-02641-PHX-DGC, 2021 WL 462592, at *1  (D. Ariz. MDL Case No. 15-02641-PHX-DGC Feb. 9, 2021).

           The Court explained what an IVC filter is made to do:  "The IVC is a large vein that returns blood to the heart from the lower body. An IVC filter is a small device implanted in the IVC to catch blood clots before they reach the heart and lungs."  Bard IVC Filters, 2021 WL 462592, at *2.

           The Court also summarized the plaintiffs' claims as a result of allegedly suffering "serious injury or death" from their use of the defendants' IVC filters:

           The MDL Plaintiffs allege that Bard filters are more dangerous than other IVC filters because they have higher risks of tilting, perforating the IVC, or fracturing and migrating to vital organs. Plaintiffs further allege that Bard failed to warn patients and physicians about these higher risks.

Bard IVC Filters, 2021 WL 462592, at *3. 

           The defendants defended on many grounds not pertinent to this particular article.  What is pertinent are the defendants' claims that voluminous deposition testimony should not be made available to the public, nor should the public see reams of documents, all introduced at trial.

           In this case, the Court disagreed.  The Court attached an Exhibit to the Order cited above listing the testimony and exhibits that were introduced into evidence at a bellwether trial in this Multi-District Litigation, and that the Court held accessible by the public despite the parties' Stipulated Protective Order and despite the defendants' claims of confidentiality.

           This Court's landmark ruling and detailed list of dozens of depositions and multiple Trial Exhibits can be found here:  In re:  Bard IVC Filters Prod's Liab. Litig., Doc. No. 21727-2, Court's List of Publicly Accessible Trial Testimony and Exhibits, Filed Nov. 13, 2020 (D. Ariz. MDL Case No. 15-02641-PHX-DGC), Download In re Bard IVC Filters Prods Liab. Litig. Doc. No. 21727-2 Court's List of Publicly Accessible Trial Testimony and Exhibits at a Bellwether Trial Not Confidential Filed Nov. 13 2020 (D. Ariz. MDL Case No. 15.02641.PHX.DGC).

           The Court's treatment of these arguments is noteworthy for several reasons, among them that an ancillary purpose of an MDL, not the main purpose certainly but nonetheless in the reported cases a side-effect if you will, is to shield from public view allegedly harmful behavior on a massive scale.

Another reason is the time it must have taken and the resources that were required to address these issues and compile this list in massive litigation like this.

           This federal judge clearly gave a damn.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

CHALLENGING CONFIDENTIALITY OF "CONFIDENTIAL" DESIGNATIONS: FOUR RULES TO LIVE BY.

 

(Image by NASA)

 

Lawyers tend to write broadly when they write stipulations for protective orders.  They give themselves powers to designate evidence "Confidential" and "Highly Confidential -- Outside Attorneys' Eyes Only."  This is what they did in their stipulated protective order in the case of Edwards Vacuum, LLC v. Hoffman Instr. Supply, Inc. d/b/a His Innov's Grp., No. 3:20-cv-1681-AC, 2021 WL 186932 (D. Or. January 19, 2021).

Except that in that case the lawyers' powers were challenged.  Well, more precisely, some of the powers exercised by some of the lawyers were challenged.

The plaintiff's attorneys designated a lot of deposition testimony either as "Confidential" or as "Highly Confidential."  The defendants challenged these designations with a "Motion to Compel De-Designation of Certain Deposition Testimony."   The defendants' motion was granted in part and denied in part, but the lesson that this case holds lies much more in the way in which the Court reached its decision, than in the decision in this particular case.

"Four legal principles are particularly relevant to Defendants' motion to de-designate, or redesignate, the confidentiality restrictions under the Protective Order of certain deposition testimony of Plaintiff's witnesses."  Edwards Vacuum, 2021 WL 186932, at *1.

Transcribed into a numbered list, here are the four legal principles which this Court applied when one set of lawyers requested relabeling the "Confidential" and "Highly Confidential" designations that another set of lawyers had  placed on deposition testimony:

    1.    The first legal principle, said the Court, was "'well-established,'" which it is at least in the Ninth Circuit where this District Court sits. That is the legal principle that discovery is "'presumptively public'" unless and until a Court has ordered otherwise.  Edwards Vacuum, 2021 WL 186932, at *1.

    2.    "Second, a party's confidentiality designations must be reasonably and narrowly tailored to protect the confidential information the party seeks to shield from further disclosure. In other words, an 'across-the-board' designation is improper, even if some confidential information may be found within the broader designation. As several district courts have explained, a party misuses a protective order when it over-designates discovery materials in that way."  Edwards Vacuum, 2021 WL 186932, at *2.

       3.    "Third," the parties' stipulation for a protective order was written by the lawyers and not by the judge. A stipulated protective order is not dispositive of the outcome even when a stipulation written by the lawyers is accepted by the Court for an order.  In other words, "the fact that the parties may have stipulated to a protective order is not itself a basis for sealing or otherwise restricting access to any specific discovery material."  Edwards Vacuum, 2021 WL 186932, at *2.

    4.    "Finally," said the Court, numerous decisions have established that "'mere embarrassment'" is not enough. Good cause for a protective order requires much more.  If embarrassment is involved, then the embarrassment must "'be particularly serious or substantial'" in order to demonstrate good cause for a judge to enter a protective order.  Edwards Vacuum, 2021 WL 186932, at *2.

The District Judge in this case applied these four legal principles to the deposition testimony which had been designated "Confidential" or "Highly Confidential" by one set of attorneys in the case.  The judge took unusual pains to review and report his rulings on what must have been several hundreds of pages of testimony from four witnesses.  See Edwards Vacuum, 2021 WL 186932, at *4-6.

The extraordinary effort by the District Judge in this case is worthy of attention and, more than that, worthy of high praise.  But the lesson of this case is not in the decision itself, as was said earlier.

The lesson of this case is in the Court's summary of four mandates, four "legal principles," required by the case law of any stipulated protective order submitted by the lawyers in any case.

Please read the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

ONCE SECRET, ALWAYS SECRET? MAYBE, IF IT'S A STIPULATED ORDER.

 

A physician named Jalowsky was represented in an insurance bad faith case by lawyers who had received discovery in an earlier case from the current defendants, the Unum Group of insurance companies.

Dr. Jalowsky "intends to issue" a subpoena for the information from his own attorneys.  However, the attorneys had received the information subject to a protective order, apparently a stipulated protective order, in the earlier litigation.

The order provided that the information could only be used in the earlier case.  It is common for stipulated orders to have an "only-in-this-case" limitation on the use of evidence.

After discovery closed in the bad faith case, Dr. Jalowsky's lawyers asked Unum for permission to use the evidence in question in the bad faith case, a delay which was fatal in the eyes of the Magistrate Judge, as it turned out.  We may never know what the result might have been if, as the Magistrate Judge suggested, the attorneys had carefully crafted a timely request for production of the same materials in the insurance bad faith case.

In any event, Unum refused Dr. Jalowsky's request to use the materials in question in his insurance bad faith case.

Rather, Unum filed a motion to quash the subpoena and for a protective order.  To say again, the Court revealed that Jalowsky "intends to issue a subpoena" -- how and through whom, it is not clear from the opinion -- against his own attorneys for documentation they had gotten ahold of in the earlier litigation.

The U.S. Magistrate Judge quashed the subpoena and granted Unum's motion for (another) protective order.  The material in question was subject to an order in the earlier case which limited the use of that material to that case, meaning the case in which the material was produced in the first place.  There are no exceptions, said the Magistrate Judge in Jalowsky v. Provident Life & Acc. Ins. Co. and Unum Grp., No. CV 18-279-TUC-CKJ (LAB), 2020 WL 8184343, at *1 (D. Ariz. June 19, 2020) (USMJ).

Counsel for plaintiffs should exercise caution when entering into stipulations for secrecy:  Their clients in later cases may be barred from using the evidence in their cases.

Counsel for defendants should be aware of the same thing.

Please see the disclaimer.  ©2021 Dennis J. Wall.  All rights reserved.

U.S. MAGISTRATE JUDGE NAILS THE LAW OF STIPULATED PROTECTIVE ORDERS.

 

(Pacific Standard)   A United States Magistrate Judge nailed it in American Fam. Mut. Ins. Co. v. Whirlpool Corp., No. 1:20-cv-00302-WCL-SLC, 2021 WL 118826 (N.D. Ind. January 12, 2021).  Specifically, she nailed a proposed stipulated protective order, sending it back to the lawyers for corrections.

First, the proposed protective order submitted by the lawyers in this insurance coverage case "fails to set forth narrow, demarcated categories of legitimately confidential information. Instead it defines 'Confidential Information' with vague categories such as 'confidential business and commercial information, contracts, and other highly confidential proprietary information....' (ECF 18 § C). Generic terms such as 'confidential,' 'proprietary,' and the like are far afield from a narrowly demarcated category."  American Family Mutual Insurance Co., 2021 WL 118826, at *1.

Next, the proposed stipulation to secrecy did not present legally sufficient reasons for a protective order from a Federal Court sitting in the Seventh Circuit.  The lawyers were required instead to describe the information to be sequestered from public view, and then to "'show that substantial privacy interests outweigh the presumption of public access to discovery material.'"   American Family Mutual Insurance Co., 2021 WL 118826, at *1.

Further, the stipulated order submitted in this case proposed that the Court retain jurisdiction over the parties after the litigation ended.  "The Court, however, is unwilling to enter a protective order that suggests it retain jurisdiction of any kind after resolution of the case."   American Family Mutual Insurance Co., 2021 WL 118826, at *2.

"Finally," the U.S. Magistrate Judge ruled, that the proposed protective order in this case failed because it was not "'explicit that either party and any interested member of the public can challenge the secreting of particular documents.' [Citizens First Nat'l Bank of Princeton v.] Cincinnati Ins. Co., 178 F.3d [943,] at 946 [(7th Cir. 1999).]. The instant proposed order, however, does not contain this language. '[T]he public at large pays for the courts and therefore has an interest in what goes on at all stages of a judicial proceeding.'  Id. at 945.”  American Family Mutual Insurance Co., 2021 WL 118826, at *2.

There are one or two more points that the U.S. Magistrate Judge made in her concise, cogent opinion in this case.  What has been summarized here is enough to show that she nailed it.

The name of the United States Magistrate Judge?  Susan Collins.

Remember that name!

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

"WHERE'S THE BEEF?" WHERE'S THE PUBLIC IN THIS?

(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.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.

SAYIN' DON'T MAKE IT SO: "CONFIDENTIAL" DESIGNATIONS v. PUBLIC RIGHTS.

(Image by NASA)

The recent decision in Plexxikon Inc. v. Novartis Pharm's Corp., No. 17-cv-04405-HSG, 2020 WL 7027432 (N.D. Cal. November 30, 2020), explores what seems to be all the necessary issues that surround getting a Federal Court to seal a document in a case in the Ninth Circuit and perhaps the nation.

First, there is the question of the American public's right of access to documents filed in court cases.  If the document is part of a filing submitted to a Court when asking the Court for a ruling, then the document is presumptively accessible to the public and it cannot be sealed without a showing of "extraordinary circumstances."  Plexxikon Inc., 2020 WL 7027432, at *1.

In contrast, if the document is not part of a filing designed to elicit a dispositive ruling from the Court, i.e., if it is attached to "a non-dispositive motion," then the party seeking to seal it must instead show "good cause" to seal it.  The showing of "good cause" to seal is a "particularized showing" of specific harm or prejudice that would happen to the party seeking to seal a document if the document is not sealed.  Plexxikon Inc., 2020 WL 7027432, at *2.

In either situation, the party asking a judge to seal a document must do more than say that it is "confidential" or "highly confidential" just because a stipulated protective order allows that party to say those words.  In the view of the federal judge in this case, that is all that the party did when it asked the Court to allow it to file a second motion for summary judgment, asked the Court to seal attachments to its motion requesting leave, and also asked the Court to seal the party's objections to a Magistrate's Recommendation against sealing.  Plexxikon Inc., 2020 WL 7027432, at *2-*3.

Saying that the documents were "highly confidential" did not make them so, the Court ruled in effect.

The sealing motions were denied even applying the lower standard of "good cause" in this case.  Plexxikon Inc., 2020 WL 7027432, at *3.

Please read the disclaimer.  ©2020 Dennis J. Wall.  All rights reserved.