The shark image can only mean one thing – it’s time for Shark Week on the Discovery Channel!  Which also means it’s time for eDiscovery Case Week on eDiscovery Today, where we’ll cover five cases in the next five days!  In Johnson v. Coos Cnty., No. 6:19-cv-01883-AA (D. Or. June 14, 2023), Oregon District Judge Ann Aiken granted the plaintiff’s motion to unseal the plaintiff’s motion for sanctions, finding that the Wellpath defendants’ privacy concerns were outweighed by other factors in favor of disclosure.

Case Background

In this case, the Plaintiff sought to unseal the brief and exhibits in support of his Motion for Imposition of Sanctions, which sought a default sanction against the Wellpath Defendants. The Wellpath Defendants objected to the unsealing of fourteen of the sealed exhibits and to the unsealing of the portions of Plaintiff’s brief that discuss those exhibits. The other defendants in the case (County Defendants) took no position on the dispute.

Judge’s Ruling

Beginning her assessment of the dispute, Judge Aiken stated: “Historically, courts have recognized a ‘general right to inspect and copy public records and documents, including judicial records and documents.’”

She began her analysis by stating: “Here, although the parties both present arguments under the ‘compelling reasons’ standard, the Court concludes that the proper standard is ‘good cause.’ It is true that Plaintiff’s Motion for Imposition of Sanctions would, if granted in full, result in the defaulting of the Wellpath Defendants and so is ‘dispositive’ in the sense that it would terminate litigation against those Defendants. The Ninth Circuit has cautioned, however, that the distinction between dispositive and non-dispositive motions should not be applied mechanically and, for purposes of a motion to unseal, the key issue is whether the motion is dispositive of the merits of the case or if it concerns something more tangential. Here, the issue is the Wellpath Defendants’ conduct in meeting, or rather failing to meet, their discovery obligations and more particularly their duty to preserve relevant materials for discovery. This is tangential to the underlying claims and so the Court determines that the ‘good cause’ standard applies.”

Continuing, Judge Aiken stated: “If the court determines that such harm will result from the disclosure of discovery documents, then it must ‘proceed to balance the public and private interests to decide whether maintaining a protective order is necessary.’…In doing so, courts are directed to consider the following factors, which are derived from the Third Circuit’s decision in Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995): (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentially is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefiting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.”

Noting that “the Wellpath Defendants are the party opposing disclosure and so they bear the burden of demonstrating good cause to maintain protection”, Judge Aiken rejected their claim of attorney-client privilege on 12 exhibits, stating: “any privilege that once attached to these exhibits has been obviated by the Wellpath Defendants’ decision to disclose them to Plaintiff in discovery rather than assert the privilege. Many of these exhibits have been extensively redacted, reducing any risk of harm they might pose to the Wellpath Defendants. In addition, the Court observes that the Wellpath Defendants have made little effort to demonstrate that any specific harm or prejudice will result from the disclosure of the attorney-client exhibits.” She also rejected their claim that two exhibits contained proprietary information and trade secrets, stating: “the Wellpath Defendants make no effort to show that any specific harm or prejudice will result from the disclosure of Exhibits 37 and 91.”

So, Judge Aiken stated: “As a consequence, the Court concludes that the Wellpath Defendants have failed to make the threshold showing necessary to establish good cause to continue the protection of those exhibits.”

Still, she proceeded to apply the Glenmede factors, stating: “the Court concludes that, while the Wellpath Defendants have a privacy interest at stake and the disclosure of the challenged exhibits may be embarrassing to them, these considerations are substantially outweighed by the remaining factors. Plaintiff is seeking to disclose the material for a legitimate purpose. The Wellpath Defendants are not a public entity, but they are contracted to perform medical services for the County Jail and the information involved is certainly relevant to public safety. The documents implicate issues important to the public. Plaintiff has also shown that the issues raised in their motion for sanctions are relevant to similar litigation in other jurisdictions and so the Court concludes that sharing the information will promote fairness and efficiency. In sum, the Glenmede factors weigh sharply in favor of unsealing the exhibits.”

So, she granted the plaintiff’s motion to unseal the plaintiff’s motion for sanctions.

So, what do you think?  Are you surprised the Court granted the plaintiff’s motion to unseal the plaintiff’s motion for sanctions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

BTW, I’m on my first real vacation in three years (seriously! – this post was pre-scheduled!) so I may be slow to respond to comments here and on social media. 🙂

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.