Martin v. Lafon Nursing Facility of Holy Family, Inc.

Full title: CHERYL MARTIN v. LAFON NURSING FACILITY OF THE HOLY FAMILY, INC

Court: United States District Court, E.D. Louisiana

Date published: Oct 3, 2007

CIVIL ACTION No. 06-5108, SECTION: I/4 (E.D. La. Oct. 3, 2007)

Opinion

CIVIL ACTION No. 06-5108, SECTION: I/4.

October 3, 2007

ORDER AND REASONS

LANCE AFRICK, Magistrate Judge

Before the Court is a motion to unseal a protective order and for attorney's fees filed on behalf of plaintiff, Cheryl Martin, individually and on behalf of her deceased mother, Ida Antoine, and all others similarly situated.¹ For the following reasons, the motion to unseal is GRANTED, and the motion for attorney's fees is DENIED.

1 R. Doc. No. 97-2, Mem. Supp. Mot. Unseal.

BACKGROUND

On September 4, 2007, the parties filed a protective order designed to protect the production of confidential and privileged patient information.² The protective order was filed under seal.³ Plaintiffs argue that there is no legitimate reason for the protective order, itself, to remain under seal.⁴ Defendant argues that the protective order should remain sealed because it reveals the types of information to be disclosed, the manner in which and to whom it will be disclosed, and how it will be used in contacting defendant's former residents.⁵ According to defendant, revealing the "protective order and protocol to the public creates a real and genuine risk that additional requests or demands from the media and/or other lawyers will be made towards Lafon — and the fact that the information has already been disclosed to a third party gravely impacts Lafon's ability to defend against such demands and to adhere to its legal obligation to its former residents to prevent disclosure of their protected information."⁶

LAW AND ANALYSIS

I. Standards of Law A. Motion To Unseal Protective Order

When determining whether to unseal a protective order, a court must balance the public's right of access against the interests favoring nondisclosure. S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993). Public access enhances transparency and trustworthiness of the judicial process, curbs judicial abuse, and allows the public to have a better understanding of the judicial system. Weiss v. Allstate Ins. Co., No. 06-3774, 2007 WL 2377119, at *4 (E.D. La. Aug. 16, 2007). However, the right to access judicial records is not absolute. United States v. Edwards, 823 F.2d 111, 115 (5th Cir. 1987). The party seeking to seal the records has the burden of demonstrating that countervailing interests outweigh the public's right of access. The court has discretion to seal a record, but should exercise such discretion sparingly, and any doubt should be construed in favor of disclosure. Id.; Liljeberg Enters. Int'l, LLC v. Vista Hosp., No. 04-2780, 2005 WL 1309158, at *1 (E.D. La. May 19, 2005).

Having once again reviewed the protective order signed by this Court, the Court finds that the protective order simply sets forth procedures to be used to facilitate the production of information ordered by the Court. Although the defendant argues that the protective order reveals the types of information that will be disclosed, a review of this Court's amended order and reasons clearly set forth the nature of the dispute between the parties and the information requested by plaintiff. Defendant's additional argument that disclosure of the protective order will result in additional requests or demands directed to Lafon from the media and/or the lawyers is speculative at best. More importantly, however, such an argument does not outweigh the public's right of access. Any interest in secrecy is not outweighed by the presumption that public access should be afforded.

B. Attorney's Fees

Pursuant to 28 U.S.C. § 1927,⁷ attorney's fees may be awarded by the court if an attorney multiplied proceedings unreasonably and vexatiously. Proctor Gamble Co. v. Amway Corp., 280 F.3d 519, 525 (5th Cir. 2002). In order to so find, evidence of "bad faith, improper motive, or reckless disregard of the duty owed to the court" is required. Edwards v. Gen. Motors Corp., 153 F.3d 242, 246 (5th Cir. 1998). The Court declines to make such a finding.

7 Section 1927 provides, in pertinent part: "Any attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct." 28 U.S.C. § 1927 (2006).

IT IS ORDERED that the motion to unseal is GRANTED and the motion for attorney's fees is DENIED.