Opinion
Case No. 2:20-cv-01213-JCM-DJA
10-19-2020
STEPHEN TAM M.D., Plaintiff, v. UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, et al., Defendants.
ORDER
Presently before the Court is Defendants' Motion to Seal the Complaint (ECF No. 10), filed on August 7, 2020, and Motion to Seal the Motion to Dismiss (ECF No. 14), filed on August 14, 2020, and Motion to Seal the Reply to the Motion to Dismiss (ECF No. 23), filed on October 14, 2020. Plaintiff filed Responses (ECF Nos. 18-20) on September 11, 2020 and Defendants filed Replies (ECF Nos. 21-22, and 25) on October 14, 2020.
A party seeking to file a confidential document under seal must file a motion to seal and must comply with the Ninth Circuit's directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). Specifically, a party seeking to seal judicial records bears the burden of meeting the "compelling reasons" standard, as previously articulated in Kamakana. 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.
Significantly, the fact that the Court has entered a stipulated protective order and that a party has designated a document as confidential pursuant to that protective order does not, standing alone, establish sufficient grounds to seal a filed document. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9th Cir. 2003); see also Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). The Court approved the 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. If the sole ground for a motion to seal is that the opposing party has designated a document as confidential, the designator shall file either (1) a declaration establishing sufficient justification for sealing each document at issue or (2) a notice of withdrawal of the designation(s) and consent to unsealing. If neither filing is made, the Court may order the document(s) unsealed without further notice.
Defendants seek to seal the Complaint and have Plaintiff file a redacted version on the public docket including: Paragraphs 48-52, 54, 79-81, 84-88, .93-103, 106-111, 114-117, 119-124, 133, 168-169, 171, 174-176, 191-193, 198-200, 202, 209-211, and 3 of the prayer for relief section on page 27. They contend that the lower standard of good cause has been met as all aspects of the Fair Hearing process that underlie this action are privileged under the review committee privilege pursuant to NRS 49.117 to 49.123 and NRS 49.265. As such, the records and proceedings of any committee to which that privilege applies are privileged and must not be disclosed to the public or the peer review proceedings privilege is destroyed. The Court agrees that all participants had the full expectation of confidentiality under Nevada statutory law and Plaintiff was aware of such by executing the Stipulation and Agreement regarding confidentiality. It finds that Plaintiff is not prejudiced by the sealing of the complaint and good cause has been met to grant the Motion.
Defendants also seek to seal their Motion to Dismiss and Reply briefing. Similarly, they again argue that the peer review process is privileged and should be permitted to seal their briefing. Again, the Court finds that sealing is appropriate to protect this privilege, including under the higher compelling reasons standard. Plaintiff was served with the unredacted documents and the Court finds no prejudice would occur upon keeping this briefing sealed. As such, it will grant Defendants' request.
IT IS THEREFORE ORDERED that Defendants' Motion to Seal the Complaint (ECF No. 10) is granted.
IT IS FURTHER ORDERED that the Clerk of the Court shall seal the unredacted Complaint (ECF No. 1).
IT IS FURTHER ORDERED that Plaintiff shall file a redacted version of the Complaint on the docket consistent with this Order.
IT IS FURTHER ORDERED that Defendants' Motion to Seal the Motion to Dismiss (ECF No. 14) is granted and the Motion (ECF No. 15) shall remain under seal.
IT IS FURTHER ORDERED that Motion to Seal the Reply to the Motion to Dismiss (ECF No. 23) is granted and the Reply (ECF No. 24) shall remain under seal.
DATED: October 19, 2020
/s/_________
DANIEL J. ALBREGTS
UNITED STATES MAGISTRATE JUDGE