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Debarr v. Carpentar

United States District Court, D. Nevada

January 30, 2017

BRIAN J. DEBARR, Plaintiff,
v.
TARA CARPENTER, et al., Defendants.

          ORDER

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         Before the court is Defendants' Motion for Leave to File Certain Confidential and Highly Confidential Documents Referenced in the Renewed Motion for Summary Judgment Based on Qualified Immunity Under Seal. (Electronic Case Filing (ECF) No. 108.) Plaintiff filed a response (ECF No. 111), and Defendants filed a reply (ECF No. 113).

         I. BACKGROUND

         Defendants seek to file certain exhibits which support their renewed motion for summary judgment under seal; specifically, Exhibits H, I, J, K, L and N. (ECF No. 108 at 2.) They identify the exhibits as follows:

Exhibit H: Transcript of DeBarr Disciplinary Hearing
Exhibit I: Transcript of Gadsden Disciplinary Hearing
Exhibit J: Transcript of Peterson Disciplinary Hearing Exhibit
K: DeBarr Disciplinary Hearing Audio Recording Exhibit
L: Gadsden and Peterson Audio Recordings; and Exhibit
N: “Confidential” Deposition of Widmar

         Exhibits H, I, J and N can be found in the record at ECF Nos. 125-1, 125-2, 125-3 and 125-6, respectively. Exhibits K and L, which are audio recordings, were manually filed by Defendants.

         Defendants argue that the documents fall under the Amended Stipulated Protective Order (ECF No. 100), and contain sensitive information concerning inmates' disciplinary hearings and discuss the hearings of Plaintiffs (Plaintiff Brian J. DeBarr in this action, and Plaintiffs Chioke Gadsden and Nathan Peterson in Gadsden v. Carpenter., Case No. 3:12-cv-00098-MMD-VPC). In the case of Widmar's deposition, they argue that it discusses disciplinary proceedings of third party inmates. (ECF No. 108 at 1-2, 4.) Defendants cite Administrative Regulation (AR) 569 which states that “[i]nmate information that is not specifically approved for disclosure within an NDOC Administrative Regulation is considered confidential for purposes of disclosure, does not constitute a matter of public record, and is not to be communicated and/or released to the general public or to the news media.” (Id. at 3.) They note that courts have granted requests to file case notes under seal citing legitimate penological interests in keeping the confidential information from the public. (Id., citing Ortiz v. Cox, 2010 WL 3025199 (D. Nev. July 29, 2010)

         In his response, Plaintiff cites that he, as well as Gadsden and Peterson in their own actions, have challenged the propriety of their disciplinary hearings and specifically put them at issue; thus, they have waived any privacy right as to what took place during those hearings, and submit declarations from each of the plaintiffs to that effect. (ECF No. 111 at 2, ECF No. 111-1 (DeBarr Decl.), ECF No. 111-2 (Gadsden Decl.), ECF No. 111-3 (Peterson Decl.).) Therefore, Plaintiff contends no compelling reasons exist for sealing these documents. Insofar as Exhibit N (Widmar's deposition) is concerned, Widmar apparently discusses the disciplinary hearings of other inmates around the same time and concerning the same issue as Plaintiff's (submitting grievances concerning the pagan grounds). Plaintiff argues that Defendants' concerns are adequately addressed by redacting the names and other identifying information from the public filings. (Id. at 3.)

         In their reply, Defendants argue that regardless of the waiver by these plaintiffs, there is a question as to whether the recordings and transcripts are public records since there was no requirement that the disciplinary hearings be recorded. (ECF No. 113 at 2.) In any event, Defendants assert that the court should balance the concerns of Defendants regarding what they describe as public access to highly sensitive, confidential disciplinary proceedings which “could have serious safety and security implications” in favor of sealing the documents. (Id. at 2.) Finally, Defendants disagree with the approach of redaction for Widmar's deposition transcript. (Id. at 3.) They point out that ...


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