Opinion
Civil Action No. 97-0614
May 30, 2001
ORDER AND REASONS
Defendant Chalmette Medical Center, Inc. (formerly UHS of De La Ronde, Inc.), has filed a motion for contempt of court, seeking an order holding plaintiff's counsel, Ronald L. Wilson, in contempt of court for his alleged violation of the Joint Confidentiality Agreement and Protective Order entered in this action on May 13, 1998. Plaintiff's counsel, Ronald L. Wilson, opposes this motion.
Relevant Facts
Plaintiff Mohiuddin Yousef, who was represented at all material times by attorney Ronald L. Wilson, filed the instant Title VII employment discrimination action against Yousef's former employer, Chalmette Medical Center, on February 28, 1997. Yousef had been employed as a Medical Technologist and a Lab Supervisor for several years prior to his termination. He alleged that he was discriminated against on the basis of his Asian Indian origin and in retaliation for his participation in activities which are protected under Title VII, including testifying in a deposition in another employee's employment discrimination suit.
In the course of discovery in this action, on May 13, 1998, the parties filed a Joint Confidentiality Agreement and Protective Order, which was signed by Judge Clement for the undersigned. (Rec. Doc. No. 13). Several depositions were taken, interrogatories and requests f or production were propounded and answered, and motions for summary judgment and oppositions, with multiple exhibits were filed in this litigation. Jury trial proceeded on March 15 and 16, 1999, and the jury returned a verdict in favor of the plaintiff. At the jury trial, several exhibits were introduced into evidence and there was detailed testimony about personnel and hospital matters adduced at the trial. Judgment was entered in favor of the plaintiff in the amount of $171,500. After post-trial motions were decided, on May 11, 1999, an amended judgment in the amount of $168,500 in plaintiff's favor was entered. A judgment on attorney's fees was entered in plaintiff's favor on June 14, 1999. Defendant filed a notice of appeal on June 17, 1999 and plaintiff filed his notice of cross-appeal on July 14, 1999. On October 4, 1999, while the appeal was pending, the Court of Appeals entered an order dismissing the appeal on motion of the parties as the matter had been settled.
At no point from the date the suit was filed on February 28, 1997, including after the order dismissing the case as of settlement in October, 1999, until the instant motion for contempt was filed by Chalmette Medical Center on May 8, 2001, did the defendant ever file a motion to place any documents, exhibits, transcripts, or other attachments under seal. It was not until May 2001 that the defendant even requested from the Court the return of the exhibits which had been introduced into evidence at the trial.
Attorney Wilson filed another lawsuit against the defendant on December 20, 2000 on behalf of plaintiff Anthony Jones. Jones also worked in the laboratory of Chalmette Medical Center as a Medical Technologist and a Lab Supervisor. Wilson states in his memorandum that he was retained by Jones on December 5, 2000 to represent him in a claim he wanted to file against the defendant. On January 19, 2000, Jones filed a charge of discrimination with the Equal Employment Opportunity Commission, contending that he was a victim of employment discrimination and/or retaliation. During the period of February 3 through February 11, 2001, Jones visited the office of the Clerk of Court, United States District Court for the Eastern District of Louisiana. According to Wilson's memorandum, the purpose of Jones' visit was to research and review all discrimination and/or retaliation suits against Chalmette Medical Center. He reviewed the instant suit and read many documents which defendant contends were confidential because they were attached to memoranda filed into the record, and copied several of these documents.
In the Jones' suit, which is pending in another section of this court, defendant served Interrogatories and a Request for Production of Documents on plaintiff. Among the 90 exhibits attorney Wilson listed were the documents which were filed in the instant record and documents which had been attached to the deposition of Cindi Saucier and Robert Meyers, an employee of the defendant who testified by deposition and at trial in this suit.
There are 45 documents at issue for which defendant seeks a contempt order against Wilson for disclosing them. Thirty-four of the documents were attached to depositions of two Chalmette Medical Center employees, Cindi Saucier and Robert Meyers, who were deposed in the instant case. They were neither filed in the court record herein or used at trial. Until the instant motion for contempt was filed, the defendant never filed any motion to place either the depositions or exhibits attached thereto under seal.
Documents 34 to 45 were attached to two pleadings filed in this public record at least 2 or more years ago. The defendant never filed a motion to place these documents under seal in this record, although now, after the plaintiff has read and copied the documents which were in the public record, the hospital requests that they be sealed.
The Protective Order
The Joint Confidentiality Agreement and Protective Order ("the Protective Order") provides that the term "litigation" means the instant civil action, Mohiuddin Yousuf v. UHS of DeLaRonde, Inc., No. 97-0614, Section E, pending in this court, and any consolidated civil action, until final judgment is reached or a settlement is confected. The scope of the Agreement includes all information provided during the course of the Litigation, including written or oral, which meets the definition of "Confidential Information." "Confidential Information" includes (A) information stamped "Confidential — Disclosure of this [Document/Information] is Restricted," (B) all information that includes, makes reference to, or is derived from, confidential information; (C) any information pertaining to salaries, raises, performance evaluations, disciplinary actions, complaints, warnings, reprimands, suspensions, separations from employment, or terminations of hospital employees who are not parties to the Litigation; (D) the designation on the first page of a document that the document is confidential operates as a designation that the entire document is confidential. The Agreement also states in Paragraph III that:
E. Information that is confidential and is disclosed at the deposition of a present or former officer, director, employee, or agent of a party, or of independent experts retained by the attorney for the party for purposes of the Litigation, or of a third party may at the time of its disclosure during the course of the taking of the deposition be designated on the record by any party or the testifying third party as confidential, and there shall be specifically noted on the record of the deposition the testimony or other material which contain the confidential information and are subject to the provisions of this Agreement. Any information disclosed at such deposition that is not designated on the record as confidential, and has not been so designated in accordance with this Paragraph 3, may be designated as confidential by a party or the third-party deponent by notifying counsel within thirty (30) days after receipt of the transcript of such deposition, of the specific pages and liens of the deposition transcript or the specific exhibit or exhibits to the deposition that contain confidential information. . . . Each party shall attach a copy of such written statement or statements to the face of the transcript and each copy thereof in its possession, custody or control.
F. A party shall not be obligated to treat any information as confidential unless and until it is so designated in accordance with the provisions of this Paragraph, except as hereinabove provided in this Paragraph.
Rec. Doc. No. 13 ( italics added).
The Agreement further provided that "Confidential Information" shall not be used for any purpose other than preparation for or participation in the Litigation. There is a section in the agreement entitled "Filing with Court", which states:
In the event that a party wishes to use any confidential information as an exhibit to any affidavit, brief, memorandum of law, or other paper filed with a court, or desires to refer thereto in any pleading or other paper filed with the court, or in any oral recitation in open court, such items shall be filed under seal, submitted in camera, or otherwise adequately protected to prevent disclosure to persons or entities not covered by this Agreement, and it shall be the responsibility of the party making such use of the confidential information to prevent the unauthorized disclosure thereof.
Rec. Doc. No. 13, p. 7.
In the event of inadvertent disclosure, the agreement provides that:
Inadvertent failure to designate a document, information, or testimony as confidential shall not operate as a waiver of the right to make such designation when the error is discovered, but no person subject to this Agreement shall be subject to any sanction or liability for actions with regard to such information that were taken prior to the designation of the document, information or testimony as confidential.
Rec. Doc. No. 13, pp. 8-9.
The reasons supporting the entry of the protective order, as stated in the motion, are that "[t]he information requested is private and is held in confidence by UHS of De La Ronde, Inc. If disclosed without the protections and limitations agreed to by the parties in the Joint Confidentiality Agreement and Protective Order, individuals who are not parties to this Litigation will be embarrassed and forced to suffer the consequences of having their private employment information made public indiscriminately." Rec. Doc. No. 13.
Discussion
Defendant Chalmette Medical Center seeks an order holding plaintiff's counsel Wilson in contempt of court and the imposition of sanctions. Wilson opposes the motion, contending that defendant did not abide by the terms of the protective order in this suit, did not take steps to insure that the information was placed under seal or otherwise not filed in the record, that there was no good cause to enter the protective order in the first place, and that the information would have been discoverable in theJones suit regardless of this protective order.
While criminal contempt is a crime and such criminal penalties may not be imposed without observance to those Constitutional protections afforded to criminal proceedings, civil contempt sanctions, or penalties designed to compel future compliance with court orders, may be imposed in ordinary civil proceedings upon notice and an opportunity to be heard. Civil contempt proceedings are coercive and may be avoidable through obedience. International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 826-7, 114 S.Ct. 2556-7 (1993). A civil contempt sanction is remedial and for the benefit of the complainant. Id.
Attorney Wilson does not dispute defendant's contention that the documents listed in the Jones pretrial order would fall under the definition of "Confidential" in the Agreement. He contends, however, that because a large portion of those documents were filed in this record, no party ever moved to place them under seal, and his client discovered the documents by reviewing the record, he should not be found in contempt of court as to those documents. Defendant does not agree that the fact they were filed in the record as attachments to memoranda removes them from the protections afforded by the Agreement and Protective Order.
As the remaining documents, these documents were attached to the depositions of witnesses deposed in connection with this case, and although the depositions were not filed in the record, there is no evidence before the Court that defendant took steps to ensure that the depositions would be sealed and all of the documents placed under seal. If either party had moved to introduce those depositions at trial, due to the unavailability of the witness deposed to appear live, those depositions would have been introduced into evidence.
The public has a common law right to inspect and copy judicial records, and a right of access to judicial proceedings. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1312 (1978);Securities and Exchange Commission v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). While the public's right is not absolute, and the court has supervisory power over its own records and files and may deny access, "the district court's discretion to seal the record of judicial proceedings is to be exercised charily." Id; Federal Savings Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1986). In deciding to seal the record, the court must balance the public's common law right of access against the interests favoring nondisclosure. Van Waevenberghe, 990 F.2d at 848.
The documents at issue are internal records of the hospital concerning salaries, personnel records, administrative memoranda, and human resources information. They appear to be of little interest to any person other than a current or former hospital employee. While the stated purpose of the motion for the protective order was to prevent embarrassment to hospital employees or former employees, the complainant here is not an employee but the hospital. The reasons underlying the motion for contempt is that the documents are being introduced by a hospital employee in support of his claim of disparate treatment and as such, at least facially, have some relevance to his claim. As such, such documents may well be discoverable in the other proceeding.
At any rate, it is the disclosure to a hospital employee which the defendant is seeking contempt for, not to protect a hospital employee from embarrassment. The hospital takes the interesting position that documents which are undoubtedly "confidential" under the Order's definition become public records when they are used at trial, but are not public records when they are filed in the record, not placed under seal, and left in the record for three years for public inspection. The hospital also seems to believe that it is the arbiter of which confidential documents may be disclosed, and if it chooses to list the documents, use the documents at trial, or attach documents which are undoubtedly confidential to its memoranda to be filed in the record or to a deposition, it is not in violation of the order and it can use the documents to further its position. The hospital's argument is that plaintiff's use of confidential documents to prove its case or disprove the defendant's defense will subject plaintiff's counsel to contempt sanctions, but the hospital is free to use confidential documents to bolster its defense at will. This is directly contrary to the stated reason for the entry of the protective order, i.e., to protect employees from embarrassment, not to help either the plaintiff or the defendant in the litigation.
This Court presided over this litigation from its inception to its conclusion. Neither the plaintiff nor the defendant made any effort to keep any information confidential in the motion practice stage of the proceedings or at trial. The defendant made no efforts to seal any exhibits or retrieve the exhibits after the case settled. The record stood available for inspection for a number of years. Virtually all of the evidence adduced by either side was information which would have fit the definition of "confidential" in the protective order, but no effort was made by defendant to keep the information "confidential" so as to minimize embarrassment to employees.
The Court finds that civil contempt sanctions are not warranted. Some of the documents were in the record for a number of years and defendant took no step to protect them from public disclosure. Plaintiff Jones had every right to inspect the public record and to read and copy those documents. As to the documents attached to the depositions of witnesses in this action, those documents were not placed under seal and they may well be otherwise discoverable. Whether or not the documents are discoverable and relevant is a question for the judge presiding over the Jones litigation.
The Court finds no cause to impose civil sanctions against attorney Wilson. If any party wishes to ensure that documents marked confidential are not disclosed in the other litigation, such request should be directed to the court presiding over that action. As far as defendant's request to seal the documents which have been in the record for three years, it is plain to the Court that no purpose would be served by such an action as the documents have long been available to the public and any embarrassment to the employees involved has already been caused.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of Chalmette Medical Center, Inc., formerly UHS of De La Ronde, Inc., for contempt of court be and is hereby DENIED.