Opinion
Case No. 19-cv-1653 (PJS/DTS)
2021-04-15
MARDEN'S ARK, INC., Plaintiff, v. UNITEDHEALTH GROUP, INC., Defendant.
Avi Robert Kaufman, Kaufman P.A., Stefan Coleman, Pro Hac Vice, Law Offices of Stefan Coleman, P.A., Miami, FL, Ryan D. Peterson, Peterson Legal, PLLC, Edina, MN, for Plaintiff. Bryan K. Washburn, Erin L. Hoffman, Nathan A. Brennaman, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant.
Avi Robert Kaufman, Kaufman P.A., Stefan Coleman, Pro Hac Vice, Law Offices of Stefan Coleman, P.A., Miami, FL, Ryan D. Peterson, Peterson Legal, PLLC, Edina, MN, for Plaintiff.
Bryan K. Washburn, Erin L. Hoffman, Nathan A. Brennaman, Faegre Drinker Biddle & Reath LLP, Minneapolis, MN, for Defendant.
ORDER
DAVID T. SCHULTZ, United States Magistrate Judge Defendant UnitedHealth Group, Inc. (UHG) asks this Court to reconsider its order denying the parties’ joint motion to seal documents. UHG asserts the documents should remain sealed because they describe the conduct by UHG that Plaintiff claims violated the Telephone Consumer Protection Act. It reasons that documents supporting a motion to stay are not "judicial records" because the motion was "non-dispositive," and there is thus no public interest in access to them.
UHG, however, misperceives the principles underlying why records are sealed or remain accessible to the public. The Court will not seal information that was key to its reasoning in denying UHG's motion to stay this litigation, even though that motion was non-dispositive. Because UHG has demonstrated no basis to overcome the presumption of public access that applies, UHG's motion for reconsideration is denied.
FACTS
This was an action for violation of the Telephone Consumer Protection Act (TCPA) based on UHG's contact with Plaintiff after being advised that the cell number UHG was calling no longer belonged to UHG's customer. Am. Compl. ¶¶ 36–37, Dkt. No. 25. Thirteen months into the litigation, in July 2020, UHG moved to stay the lawsuit. Mot. to Stay, Dkt. No. 52. Accompanying that motion, the parties filed memoranda and declarations in support of and in opposition to UHG's motion. The memoranda and declarations referenced information produced in discovery by UHG concerning the conduct that Plaintiff alleged violated the TCPA. In its stay motion UHG argued the Court should stay this case "to allow ‘near-identical TCPA class actions’ to proceed in other federal districts" under the first-to-file doctrine. Order 1, Dkt. No. 67. The Court denied UHG's motion. Its analysis of UHG's argument under the first-to-file doctrine rested on the similarities and lack thereof between this action and the cases pending in other federal districts. Id. at 14–16. The Court found that despite "some overlap," there was "not such substantial overlap or similarity to warrant staying [the] case." Id. at 16. The Court obtained facts key to its analysis from the material submitted in conjunction with UHG's motion that are the subject of the current motion regarding sealing. E.g. , id. at 10.
The parties settled their lawsuit on November 18, 2020. However, at the time of the Court's order denying continued sealing the case had not been settled.
The parties originally filed these materials under temporary seal, then filed a joint motion for continued sealing, requesting that the Court permanently seal six documents because they "contain[ed] information UHG designated as confidential." Pl.’s Mem., Dkt. No. 63; Kaufman Decl., Dkt. No. 64; Jt. Mot., Dkt. No. 65. The Court denied the motion, explaining in part:
Many times the justification for sealing is only that UnitedHealth designated the information as confidential. UnitedHealth's desire to keep this information secret is insufficient to overcome the presumption of the public's right of access.
Order 2, Dkt. No. 96.
UHG now asks this Court to reconsider its decision, alleging the documents are not "judicial records" and therefore there is no presumption of public access to them. It argues that the Court's review is thus limited to whether UHG has shown "good cause" under Rule 26(c) for filing the documents under seal. Def.’s Mem. 4–5, Dkt. No. 102.
ANALYSIS
The gist of UHG's argument in support of continued sealing is that the documents at issue are not "judicial records," and hence the presumption of public access does not apply. Id. UHG argues that "judicial records" are only those filed in conjunction with dispositive motions. Id. at 4. UHG relies heavily upon the opinion in FurnitureDealer.net v. Amazon.com, Inc. , No. 18-cv-232 (JRT/HB), 2020 WL 6324157 (D. Minn. Oct. 19, 2020), which distinguished material filed with discovery motions from material filed in connection with pretrial motions that require judicial resolution on the merits. Id. at *2. Though the magistrate judge in that case sealed the documents at issue because they were filed with a discovery motion, she noted her skepticism that these same documents would be sealed were they to be filed as part of a dispositive motion. Id. This comment, UHG argues, indicates that the presumption of public access applies only to material filed with dispositive motions. Def.’s Mem. 4, Dkt. No. 102.
UHG's argument fails for several reasons. First, UHG's distinction between dispositive motions on the one hand, and everything else, on the other, misstates the law. Second, the purported basis for that distinction—differentiation between "judicial records" and other material filed in federal court, though it finds limited support in some opinions within this district—conflicts with Eighth Circuit precedent. Moreover, even if there were a distinction to be made between "judicial records" and "not judicial records" the line UHG draws erects too tight a boundary around the presumption of public access. Because there is in this Court's view, considerable and avoidable confusion in this area, the Court will begin its analysis by delving into the history of the distinction between documents that are entitled to the presumption of public access and those that are not.
I. The Presumption of Public Access
As discussed in detail below, it is unclear to this Court that either the Eighth Circuit or this District has adopted the view that only certain documents filed in federal court are considered "judicial records." The analysis of this question begins with the Eighth Circuit's decision in IDT Corp. v. eBay, Inc. , 709 F.3d 1220 (8th Cir. 2013). In IDT Corp. the Eighth Circuit considered whether the trial court's denial of a motion to unseal the complaint in an antitrust suit was an abuse of discretion. Id. at 1220. The trial court had initially sealed the complaint, finding it referred to sensitive financial and technological information that had been produced in two underlying patent-infringement actions, which actions in turn had spawned the antitrust suit. The antitrust suit (and the patent infringement actions) all settled three weeks after the antitrust suit was commenced. Id. The Arkansas Public Law Center moved to unseal the antitrust complaint, which the district court denied. The Eighth Circuit affirmed the denial of the motion to unseal but remanded for consideration whether the complaint could be redacted so that portions could be made public. In deciding that the district court did not abuse its discretion in sealing portions of the complaint, the Eighth Circuit exhaustively reviewed the history of public access to documents filed in federal court, and began by noting:
There is a common-law right of access to judicial records. Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). The Court in Nixon explained that "the
courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents," but that "the right to inspect and copy judicial records is not absolute." Id. at 597-98, 98 S. Ct. 1306 (footnote omitted). This right of access bolsters public confidence in the judicial system by allowing citizens to evaluate the reasonableness and fairness of judicial proceedings, [citation omitted] and "to keep a watchful eye on the workings of public agencies." [Citation omitted.] It also provides a measure of accountability to the public at large, which pays for the courts. [Citation omitted.]
Id. at 1222.
The Eighth Circuit confirmed that the presumption of public access "applies to judicial records in civil proceedings," citing, inter alia , then-judge Scalia's opinion in In re Reporters Comm. for Freedom of the Press , 773 F.2d 1325, 1333 (D.C. Cir. 1985), which held "[it is a] given that there is a tradition of public access to court records and that that right is not absolute." 709 F.3d at 1222. The Eighth circuit then noted, in what appears to have become the source of the supposed distinction between court documents that are "judicial records" and those that are not:
The companies also do not dispute that the antitrust complaint in this case is a "judicial record" to which a common law right of access attaches. There may be a historical case to be made that a civil complaint filed with a court, but then soon dismissed pursuant to settlement, is not the sort of judicial record to which there is a presumption of public access . The companies, however, acquiesce in what appears to be a modern trend in federal cases to treat pleadings in civil litigation (other than discovery motions and accompanying exhibits) as presumptively public, even when the case is pending before judgment, or resolved by settlement.
Id. at 1222–23 (citations omitted). Finally, the Eighth Circuit observed, "[w]hatever the merit of a narrower approach to the meaning of ‘judicial record,’ the companies here have waived any claim to its application." Id. at 1223. That is, the litigants’ rejected the definition of "judicial record" that excluded certain categories of court-filed documents and the Eighth Circuit accepted that procedural posture.
As is readily apparent from these passages, the Eighth Circuit did not distinguish between documents filed in federal court that are "judicial records" and those that are "not judicial records." Rather, the court noted but did not endorse an approach that distinguished between judicial records to which the presumption of public access attached and those to which it did not; rather, it accepted the notion that all documents filed in federal court are "judicial records." This is a sensible conclusion, as documents filed in federal court are records of the court's activity. The Court lauded the Second Circuit's "useful" observation "that judicial records and documents generally will ‘fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance.’." Id. at 1223 (quoting United States v. Amodeo , 71 F.3d 1044, 1049 (2nd Cir. 1995) ). Even documents that the court considers "only to determine whether to seal them" enjoy a presumption of public access, but " ‘the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason.’." Id. at 1224 (quoting Amodeo , 71 F.3d at 1050 ). In short, the Eighth Circuit's opinion in IDT Corp. classifies all documents filed in federal court as "judicial records," some of which enjoy a strong presumption of public access that is difficult to overcome, while others enjoy only a weak presumption that is easily overcome.
This District's approach is perhaps less clear than the Eighth Circuit's. The beginning point for this analysis is the opinion in Krueger v. Ameriprise Fin., Inc. , No. 11-cv-2781, 2014 WL 12597948 (D. Minn. Oct. 14, 2014), decided the year after IDT Corp. In Krueger the magistrate judge observed "[t]he Eighth Circuit has not explicitly defined what constitutes ‘judicial records.’ " Id. at *9. Relying on other circuits she then crafted a definition of "judicial records," and held that a document filed in federal court must meet that definition before any presumption of public access will attach, noting that "only those documents that are relevant to and integrally involved in the resolution of the merits of a case are judicial records to which the presumption of public access attaches." Id. Applying this definition, the magistrate judge found that certain documents filed in conjunction with motions (1) to compel discovery, (2) for class certification, and (3) for summary judgment would remain sealed, while others would not. Id. at *9–26. On appeal, the district judge affirmed the magistrate judge's order as to which documents would be sealed as not "clearly erroneous or contrary to law," but did not expressly adopt (or reject) the definition of judicial records created by the magistrate judge. Krueger v. Ameriprise Fin., Inc. , 2015 WL 224705, at *9 (D.Minn. Jan. 15, 2015).
This Court is aware of 12 opinions in this district citing Krueger. The majority of those opinions have not adopted (much less applied) Krueger ’s distinction between filed documents that are "judicial records" and those that are not "judicial records." Those opinions which have adopted Krueger ’s definition of "judicial records" have confined the category of filed documents that are "not judicial records" to very discrete circumstances.
Wright v. Capella Educ. Co. , 18-cv-1062, 2021 WL 856912 (D. Minn. Mar. 8, 2021) ; ARP Wave, LLC v. Salpeter , 18-cv-2046, 2021 WL 406466 (D. Minn. Feb. 5, 2021) ; Braun v. Walz , 20-cv-333, 2021 WL 268321 (D. Minn. Jan. 27, 2021) ; Nagel v. United Food & Com. Workers Union , 18-cv-1053, 2020 WL 6145111 (D. Minn. Oct. 20, 2020) ; Willis Elecs. Co., Ltd. v. Polygroup Ltd. , 15-cv-3443, 2019 WL 2574979 (D. Minn. June 24, 2019) ; In re Bair Hugger Forced Air Warming Devices Prod. Liab. Litig. , 15-cv-2666, 2018 WL 2135016 (D. Minn. May 9, 2018) ; Inline Packaging, LLC v. Graphic Packaging Int'l, Inc. , 18-cv-3183, 2018 WL 10440721 (D. Minn. Mar. 30, 2018).
FurnitureDealer.net, Inc. v. Amazon.com, Inc. , 18-cv-232, 2020 WL 6324157 (D. Minn. Oct. 19, 2020) ; Bollom v. Brunswick Corp. , 18-cv-3105, 2020 WL 6161262 (D. Minn. Sept. 23, 2020) ; Sorin Grp. USA, Inc. v. St. Jude Med. S.C., Inc. , No. 14-cv-4023, 2019 WL 2107282 (D. Minn. May 14, 2019) ; Klein v. Prime Therapeutics, LLC , 17-cv-1884, 2018 WL 1586038 (D. Minn. Apr. 2, 2018).
Similarly, though not citing Krueger , there is an additional opinion in which a district judge affirmed a magistrate judge's order that had unsealed some, but not all, discovery documents submitted to her for the purpose of challenging the confidentiality designation of the documents under the parties’ protective order. Murphy by Murphy v. Piper , No. 16-cv-2623, 2018 WL 5875486 (D. Minn. Nov. 9, 2018). The district judge affirmed, noting that the magistrate judge "recognized the common-law right of access to judicial records but determined that the documents at issue are not yet a ‘judicial record’ to which a presumption of public access attaches." Id. at *4. The district judge did not expressly adopt or reject the Krueger doctrine that documents filed in court for purposes of obtaining a ruling might nonetheless be deemed not to be "judicial records." Id.
In contrast, several decisions from this district appear to expressly reject the distinction, holding that all documents filed with the court in conjunction with a motion that seeks a judicial decision are "judicial records" to which the presumption of public access attaches. In Aviva Sports, Inc. v. Fingerhut Direct Mktg., Inc. , 960 F. Supp. 2d 1011 (D. Minn. 2013) the court, applying IDT Corp. , found that information submitted in conjunction with the court's order on disgorgement of profits was presumptively public as "the public has a right to access documents that are submitted to the court and that form the basis for judicial decisions." Id. at 1013. In Skky, LLC v. Facebook , 191 F. Supp. 3d 977 (D. Minn. 2016) the court adhered to the same rationale, finding that documents filed with the court on a motion to transfer venue were "judicial records" to which the presumption of public access attached. Id. at 980 (citing Aviva Sports, Inc. , 960 F. Supp. 2d at 1013 ).
These decisions find further support in opinions that distinguish documents filed in court from documents that are in the court's possession but not filed with a motion seeking a judicial decision. In Greene v. Gassman , No. 11-cv-618, 2012 WL 1563927 (D. Minn. May 3, 2012), the court held there was no presumptive public right of access to internal court communications between a district judge and his or her law clerk, noting that decisions affirming the public's general right of access to public records were inapposite because they pertained to documents filed by litigants, not to internal communication between a judge and his or her law clerk. See also United States v. Adeniran , No. 11-cr-87, 2011 WL 3348033 (D. Minn. Aug. 3, 2011) (finding no presumptive public right of access to a backup audio recording of a court proceeding for which a certified transcript had been filed on ECF because the backup audio recording was not a "judicial record").
Finally, this reading of IDT Corp. is consistent with Local Rule 5.6, which states:
As a general matter, the public does not have a right of access to information exchanged in discovery; thus, protective orders are often quite broad, covering entire documents or sets of documents produced during discovery, even when most or all of the contents are not particularly sensitive. But the public does have a qualified right of access to information that is filed with the court.
2017 Advisory Committee Note to L.R. 5.6 (emphasis added); see also Inline Packaging, LLC v. Graphic Packaging Int'l, Inc. , 18-cv-3183, 2018 WL 10440721 (D. Minn. Mar. 30, 2018) (noting that L.R. 5.6, adopted after Krueger , does not accept Krueger ’s definition of "judicial records"). Thus, Local Rule 5.6 indicates that while documents exchanged in discovery are not presumptively public, matters filed in court, even in connection with discovery motions or solely to determine their irrelevance, are presumptively public. (As the Eight Circuit noted, however, the public's presumptive right of access to such material may be weak.)
Consistent with Eight Circuit precedent and the trend within this District, this Court rejects the proposition that any documents filed in federal court by a litigant seeking to obtain a judicial order can be deemed not to be "judicial records," depending on the nature of the motion with which they were filed. Rather, all documents properly filed by a litigant seeking a judicial decision are judicial records and are entitled to a presumption of public access. Whether the presumption of public access is overcome will depend on the strength of the presumption, which in turn depends on "the role of the material at issue in the exercise of Article III judicial power and resultant value of such information to those monitoring the federal courts." IDT Corp. , 709 F.3d at 1224. As this court succinctly stated in Truong v. UTC Aerospace Systems :
This rule, as simple and straightforward as it is, nonetheless has its subtleties. Documents submitted for in camera review are not judicial records because they are not filed with the court. In addition the public's interest in access to documents that are filed with the court but play no role in the court's decision may be weak, much the same as documents filed with the court for the limited purpose of a motion to compel discovery. In such cases, though the public interest is weak, it is not non-existent. After all, how broadly or narrowly the court applies the rules of discovery is of interest to those who monitor the federal courts. In the rare case that a document is improperly filed with the court in bad faith—that is, filed for the sole purpose of making it public—the document may not be entitled to the presumption of public access. Cf. In re Bair Hugger , 15-md-2666, 2020 WL 4035548, at *2 (D. Minn. July 17, 2020).
Unless there is a compelling reason to keep information secret, the public has a right to know what arguments and evidence have been presented to a court, so that the public can fully assess the court's exercise of its authority. Transparency is crucial to maintaining public trust in the judiciary.
439 F. Supp. 3d 1171, 1172 (D. Minn. 2020). As the eight Circuit stated in IDT Corp. , "judicial records and documents generally will ‘fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court's purview solely to insure their irrelevance.’ " 709 F.3d at 1223. "[W]here the public's interest in access is ‘weak,’ because the court considered the documents ‘only to determine whether to seal them,’ and they ‘had little to do with the district court's exercise of judicial power,’ " the presumption may be easily overcome. Id. at 1224. Where the public's interest in access is strong, such as documents filed with dispositive motions, the presumption is difficult to overcome.
II. Does the Presumption of Public Access Apply to the Documents at Issue
The presumption of public access applies to the documents at issue in this motion. The documents were filed in court with the motion to stay proceedings. The documents were relevant to the motion and the court considered the information in denying UHG's request for a stay. Thus, the documents are subject to the presumption of public access.
Whether UHG has overcome the presumption is discussed in Section III.
UHG nonetheless argues that the documents are not entitled to a presumption of public access because they are not "judicial records." It reasons that "whether a document is a judicial record depends on ‘the role of the material at issue in the exercise of Article III judicial power and resultant value of such information to those monitoring the federal courts,’ " citing Hudock. Def.’s Mem. 4, Dkt. No. 102. Thus, UHG concludes, only material related to dispositive motions are "judicial records." Id. By this logic, all non-dispositive motions and related material are not judicial records, therefore not entitled to the presumption of public access. Id.
UHG is wrong for two reasons. First, as noted above, all documents filed in federal court are judicial records and are subject to the presumption of public access. Second, even if this Court were to adopt the view that some documents filed in federal court may not be judicial records, UHG's argument would fail. None of the cases cited by UHG stand for the proposition that only dispositive motions qualify as judicial records. And for good reason, as such a rule sweeps so broadly it would put beyond reach of the public a considerable and important portion of the work of the federal courts.
For example, motions to amend pleadings under Rule 15, though non-dispositive, often entail consideration of the merits of a potential claim under the guise of a futility analysis. A non-dispositive order denying a plaintiff's request to amend a complaint literally defines the scope of that plaintiff's access to federal court. Those who would monitor the fairness of judicial proceedings or assess the public's confidence in the judicial system would seem to have an interest in such motions. The few cases in this District that have distinguished between filings that are judicial records and those that are not have restricted the latter category to a few, very discrete circumstances: motions testing whether the designation under a protective order of documents produced in discovery is appropriate, other discovery motions, and motions in limine resulting in exclusion of evidence at trial. Other decisions finding records in the possession of the federal court to not be "judicial records" have involved material that was not filed with the court.
E.g. , Murphy by Murphy v. Piper , No. 16-cv-2623, 2018 WL 5875486 (D. Minn. Nov. 9, 2018).
E.g. , FurnitureDealer.net, Inc. v. Amazon.com, Inc. , 18-cv-232, 2020 WL 6324157, at *2 (D. Minn. Oct. 19, 2020).
E.g. , Sorin Grp. USA, Inc. v. St. Jude Med. S.C., Inc. , No. 14-cv-4023, 2019 WL 2107282, at *3–4 (D. Minn. May 14, 2019).
E.g. , Greene v. Gassman , No. 11-cv-618, 2012 WL 1563927, at *1 (D. Minn. May 3, 2012) (internal chambers communication); United States v. Adeniran , No. 11-cr-87, 2011 WL 3348033, at *1 (D. Minn. Aug. 3, 2011) (unofficial recordings of proceedings).
Finally, UHG's suggested distinction—that only material filed with dispositive motions be presumptively public—is antithetical to the very notion of our justice system. As the Fifth Circuit recently noted:
Judicial records are public records. And public records, by definition, presume public access.
....
... Article III courts are independent, and it is "particularly because they are independent" that the access presumption is so vital—it gives the federal judiciary "a measure of accountability," in turn giving the public "confidence in the administration of justice." Put simply, protecting the public's right of access is "important to maintaining the integrity and legitimacy of an independent Judicial Branch." ...
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.
....
"Once a document is filed on the public record"—when a document "becomes a ‘judicial record’ " ... the standard for shielding records from public view is ... arduous.
Legal arguments, and the documents underlying them, belong in the public
domain.... And when the parties are mutually interested in secrecy, the judge is its only champion.
Le v. Exeter Fin. Corp. , 990 F.3d 410, 416–21 (5th Cir. 2021) (footnotes omitted).
UHG argues from a false premise that only material filed with dispositive motions are entitled to the presumption of public access. Having started from this false premise, UHG erroneously argues that it need only demonstrate good cause for its assertion of confidentiality. The presumption of public access—whether analyzed under the rubric of what is a judicial record or more directly as its own question—applies to far more than just dispositive motions.
III. Application to the Documents at Issue
A. The Public's Interest in the Documents
The analysis whether the documents at issue should remain under seal begins by determining the weight of the public's interest in access to the material. The touchstone to this analysis is again the Eighth Circuit's opinion in IDT Corp . There the court stated that the " ‘weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and resultant value of such information to those monitoring the federal courts.’ " 709 F.3d at 1224 (citations omitted). That is, the more integral the record is to the exercise of Article III power, the greater the public's interest at stake.
Motions to stay—the proceeding at issue in the instant motion—can be a matter of intense public interest as evidenced by recent media coverage of court rulings regarding staying litigation about environmental policy, religious exemptions, immigration policy, or litigation involving health insurance companies, like CIGNA, or pharmaceutical companies.
Susan H. Lent, et al., Biden Administration Revives consideration of Climate change Impacts in NEPA Reviews , Lexology, Feb. 23, 2021, https://www.lexology.com/library/detail.sapx?g=a1da79e1-c621-4495-b3c0-28d0bd454b51; accord Dino Grandoni, the Energy 202: Biden under pressure to stop utility shutoffs during pandemic , The Washington Post, Jan. 25, 2021, https://www.washingtonpost.com/politics/2021/01/25/energy-202-biden-under-pressure-stop-utility-shutoffs-during-pandemic/.
Matthew Davidson & Trey Range III, OFCCP Indicates Intent to Rescind Trump-Era Rule Expanding Exemptions for Religious Contractors , JDSupra, Feb. 23, 2021, https://www.jdsupra.com/legalnews/ofccp-indicates-intent-to-rescind-trump-97399913/.
Dorothy Atkins, 9th Circ. Stays TPS Suit to Await Biden's Immigration Actions , Law360, Feb. 17, 2021, https://www.law360.com/articles/1356034/9th-circ-stays-tps-suit-to-await-biden-s-immigratin-actions.
Katie Keith, Risk Corridors Litigation: The Gift That Keeps On Giving , HealthAffairs, May 15, 2020, https://www-healthaffairs-org.ezproxy.lib.ntust.edu.tw/do/10.1377/hblog20200515.640959/full/.
Nathan Hale, Judge Pans Cigna Bid to Delay Arbitration In MDL , Law360, Dec. 22, 2020, https://www.law360.com/articles/1340345/judge-pans-cigna-bid-to-delay-arbitration-in-mdl.
Christopher Rowland, OxyContin settlement snag: Arizona objects to stay of litigation against Purdue Pharma and Sacklers , The Washington Post, Oct. 8, 2019, https://www.washingtonpost.com/business/economy/oxycontin-setlement-snag-arizona-objects-to-stay-of-litigation-against-p;urdue-pharma-and-sacklers/2019/10/08/88105058-e9da-11e9-85c0-85a098e47b37_story.html.
Though such motions are non-dispositive they speak directly to concerns regarding access to the federal courts. When litigation is stayed, a plaintiff's day in court is postponed; when a motion to stay is denied, a defendant is made subject to the burdens—time, expense, publicity—that attend litigation. How and why a court decides whether litigation must be stayed or may proceed are matters in which the public has keen interest, even when the litigation is merely between private litigants.
This case is analogous to Skky, LLC v. Facebook, Inc. There, the defendant moved to transfer venue of a patent infringement action from the District of Minnesota to the Northern District of California and sought leave to file under seal documents submitted in support of that motion. The court denied the motion. In assessing the weight to be given the presumption of public access the district court observed:
A motion to transfer venue ... implicates public interests, including "the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law." Documents submitted to this Court that may form the basis for this Court's decision whether to transfer venue are valuable to the public's confidence in the judicial system and the public's ability to monitor, measure, and hold accountable the federal courts, especially when the decision will implicate public interests. Indeed, Defendants’ forthcoming motion to transfer venue will implicate important public interests in both Minnesota and California, including but not limited to the utilization of judicial resources. Thus, the presumptive right of public access that applies to all judicial documents is particularly strong with respect to Defendants’ documents seeking a transfer of venue in this case.
191 F. Supp. 3d at 980–81 (alteration in original) (citations omitted).
The public's interest in a motion to stay litigation is not unlike its interest in a motion to transfer venue. Therefore, this Court finds that the presumption of public access to the documents at issue requires a compelling need to justify sealing from public view.
B. Has UHG Overcome the Presumption of Public Access
In determining whether the documents at issue should remain under seal this Court must balance the public's right of access against the potential harm to UHG from that access. Skky, LLC , 191 F. Supp. 3d at 981. Here the information at issue includes: records of calls, including internal call notes; information about UHG's insured; information about proprietary terms of agreements and confidential policies with vendors; information about UHG's vendors and the telephone numbers they used; UHG's confidential business policies; and the identity of the UHG division and phone number used for making the calls at issue. It should be noted that to the extent this information includes personally identifying information, including that of persons who are not litigants (e.g. the identity and telephone numbers of non-party UHG insureds) that information must be redacted pursuant to Federal Rule of Civil Procedure 5.2. Accordingly, the Court has already ordered this material sealed and the information is not at issue in this motion. Order 2, Dkt. No. 96.
UHG argues that the remaining information should be sealed because "it is not publicly available and contains confidential commercial information the disclosure of which could harm UHG in the marketplace." Def.’s Mem. 5, Dkt. 102. As the court stated in Skky, LLC , when confronting a similar assertation:
Defendants make no effort to support these bare assertions with any evidence. On its face, the information Defendants seek to file under seal is not the type of sensitive information that might typically be subject to an order to seal, such as financial data, proprietary or trade secret information, or personal health details.... If Defendants have a factual basis for requiring this information to be sealed, it is Defendants’ duty to present that basis; the Court will not speculate based on broad, unsupported attorney advocacy. On this record, Defendants have not presented any factual basis for sealing this information from public access.
In this case UHG has similarly made bald assertions of its need for sealing devoid of any evidence. This Court has reviewed the documents at issue. The documents at issue—a declaration and attachments (written discovery) and a memorandum of law—are not themselves business records but are alleged to contain sensitive information. There are six categories of such information. By far the most frequently referenced information is that UHG " ‘grabbed and activated by mistake’ Plaintiff's, ‘and a few other deactivated numbers’ and then made repeated, and, by definition, unsolicited, prerecorded voice calls to them." Kaufman Decl. ¶ 5, Dkt. No. 64. This information, produced in discovery by UHG, is repeated in many of the documents which UHG seeks to seal. UHG's attempt to conceal this information from public view fails. First, as noted above, UHG has not even argued the proper legal standard; nor has it demonstrated how the information would cause competitive harm. Though the information may be embarrassing, it reveals nothing about UHG's proprietary system or contracts. Moreover, the information is the very heart of Plaintiff's allegations against UHG—it is what the lawsuit is about. The public's interest in the information is manifest and UHG has shown no basis on which this Court could find that UHG has overcome the presumption of public access.
The second category of information UHG seeks to seal are the dates on which it called Plaintiff's cell phone number (apparently not realizing that the number was no longer assigned to its insured). Again, these facts do not reveal anything about UHG's proprietary business systems or contracts and pose no realistic threat of causing competitive harm.
The third piece of information UHG asks to seal is its description of how it obtained the cell number and its insured's permission to contact it. There is nothing proprietary or competitively sensitive on the face of this information and UHG has provided no evidence to establish that its disclosure poses any threat of competitive harm.
The fourth category of information pertains to the fact that UHG's vendors (whose identities are also revealed) are responsible for tracking stop or opt-out requests. This is hardly surprising or competitively sensitive information.
The fifth category of information is a log of calls that includes notes of the calls made or attempted to be made (Dkt. No. 64-4). The Court has reviewed the content of the notes. There is nothing proprietary or sensitive in this information.
Finally, UHG seeks to seal some of its objections to written discovery. See , e.g., Kaufman Decl. Ex. C, Dkt. No. 64-3. The Court cannot fathom how UHG's pat objections to discovery—which contain no actual information—can possibly be deemed confidential or proprietary, let alone how their disclosure could cause competitive harm.
In short, UHG has blindly designated information as "proprietary" apparently in hopes that bald assertions of competitive harm will induce the Court to seal these documents. Even if "good cause" were the applicable standard (and it is not) UHG's argument amounts to little more than the incantation of buzzwords that provide no substantive justification for sealing. UHG's motion is denied.
ORDER
For these reasons, IT IS HEREBY ORDERED:
1. Defendant UnitedHealth Group, Inc.’s Motion for Further Consideration of Sealing [Dkt. No. 100] is DENIED .
2. Plaintiff Marden's Ark shall refile a public redacted version of Docket No. 64-1 by April 20, 2021 redacting only phone numbers and names of non-party individuals.
3. The Clerk shall keep Docket No 64-1 under temporary seal pending another Order from this Court.
4. The Clerk shall immediately unseal these documents:
a. Memorandum of Opposition, Docket No. 63;
b. Declaration of Avi Kaufman, Docket No. 64;
c. Exhibit C, Docket No. 64-2;
d. Exhibit D, Docket No. 64-3;
e. Exhibit F, Docket No. 64-4.