United States District Court, D. Nevada
ORDER RE: ECF NO. 27
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
the court is Defendants' motion for leave to file medical
records under seal. (ECF No. 27.) Plaintiff filed a response.
(ECF No. 30.) Defendants filed a reply. (ECF No. 32.)
motion, Defendants seek to file under seal exhibits
containing Plaintiff's medical records in connection with
their opposition to Plaintiff's motion for preliminary
courts have recognized a general right to inspect and copy
public records and documents, including judicial records and
documents." Kamakana v. City and County of
Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal
quotation marks and citation omitted). "'Throughout
our history, the open courtroom has been a fundamental
feature of the American judicial system. Basic principles
have emerged to guide judicial discretion respecting public
access to judicial proceedings. These principles apply as
well to the determination of whether to permit access to
information contained in court documents because court
records often provide important, sometimes the only, bases or
explanations for a court's decision.'"
Oliner v. Kontrabecki, 745 F.3d 1024, 1025 (9th Cir.
2014) (quoting Brown & Williamson Tobacco Corp. v.
F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983)).
that have been traditionally kept secret, including grand
jury transcripts and warrant materials in a pre-indictment
investigation, come within an exception to the general right
of public access. See Kamakana, 447 F.3d at 1178.
Otherwise, "a strong presumption in favor of access is
the starting point." Id. (internal quotation
marks and citation omitted). "The presumption of access
is 'based on the need for federal courts, although
independent-indeed, particularly because they are
independent-to have a measure of accountability and for the
public to have confidence in the administration of
justice.'" Center for Auto Safety v. Chrysler
Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016),
cert. denied, 137 S.Ct. 38 (Oct. 3, 2016) (quoting
United States v. Amodeo (Amodeo II), 71 F.3d 1044,
1048 (2nd Cir. 1995); Valley Broad Co. v. U.S. Dist.
Ct., D. Nev., 798 F.2d 1289, 1294 (9th Cir.
are two possible standards a party must address when it seeks
to file a document under seal: the compelling reasons
standard or the good cause standard. Center for Auto
Safety, 809 F.3d at 1096-97. 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.'" Id. (quoting
Kamakana, 447 F.3d at 1179). The court must
"'conscientiously balance[ ] the competing interests
of the public and the party who seeks to keep certain
judicial records secret.'" Id. "What
constitutes a 'compelling reason' is 'best left
to the sound discretion of the trial court.'"
Id. (quoting Nixon v. Warner Comm., Inc.,
435 U.S. 589, 599 (1978)). "Examples include when a
court record might be used to 'gratify private spite or
promote public scandal,' to circulate 'libelous'
statements, or 'as sources of business information that
might harm a litigant's competitive standing.'"
good cause standard, on the other hand, is the exception to
public access that has been typically applied to "sealed
materials attached to a discovery motion unrelated to the
merits of the case." Id. (citation omitted).
"The 'good cause language comes from Rule 26(c)(1),
which governs the issuance of protective orders in the
discovery process: The court may, for good cause, issue an
order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or
Ninth Circuit has clarified that the key in determining which
standard to apply is whether the documents proposed for
sealing accompany a motion that is "more than
tangentially related to the merits of a case."
Center for Auto Safety, 809 F.3d at 1101. If that is
the case, the compelling reasons standard is applied. If not,
the good cause standard is applied.
Defendants seek to file exhibits under seal in connection
with their opposition to Plaintiff's motion for a
preliminary injunction. The standard for granting injunctive
relief requires the moving party to demonstrate a likelihood
of success on the merits, and the party opposing injunctive
relief to demonstrate the contrary. Therefore, the exhibits
at issue are unquestionably "more than tangentially
related to the merits of a case." Therefore, the
compelling reasons standard applies.
court, and others within the Ninth Circuit, have recognized
that the need to protect medical privacy qualifies as a
"compelling reason" for sealing records. See,
e.g., San Ramon Regional Med. Ctr., Inc. v. Principal Life
Ins. Co., 2011 WL89931, at *n.1 (N.D. Cal. Jan. 10,
2011); Abbey v. Hawaii Employers Mut. Ins. Co., 2010
WL4715793, at * 1-2 (D. HI. Nov. 15, 2010); G. v.
Hawaii, 2010 WL 267483, at *1-2 (D.HI. June 25, 2010);
Wilkins v. Ahern, 2010 WL3755654 (N.D. Cal. Sept.
24, 2010); Lombardi v. TriWest Healthcare Alliance
Corp., 2009 WL 1212170, at * 1 (D.Ariz. May 4, 2009).
This is because a person's medical records contain
sensitive and private information about their health. While a
plaintiff puts certain aspects of his medical condition at
issue when he files an action alleging deliberate
indifference to a serious medical need under the Eighth
Amendment, that does not mean that the entirety of his
medical records filed in connection with a motion (which
frequently contain records that pertain to unrelated medical
information) need be unnecessarily broadcast to the public.
In other words, the plaintiff's interest in keeping his
sensitive health information confidential outweighs the
public's need for direct access to the medical records.
however, Plaintiff's response states that he has already
put all of his relevant medical records into the public
domain. In essence, he is waiving any right to protect the
privacy of the records at issue. In their reply, Defendants
argue that in the prison context, certain items of
information have the unique potential to expose Plaintiff or
prison staff members to harm, and this includes
Plaintiff's medical records. They also assert that
Plaintiff has not provided a HIPPA waiver.
do not cite any specific concern with making the
records they have filed public. Nor do Defendants address the
fact that Plaintiff has already filed hundreds of pages of
his own medical records in the public domain. While Plaintiff
may not have executed a formal HIPPA waiver, it seems that
filing his own records in the public domain and explicitly
stating in his response that he does not wish to preserve the
confidentiality of the records filed by Defendants would
operate as a de facto waiver.
these circumstances, compelling reasons do not exist for
sealing the records, and Defendants' motion (ECF No. 27)
is DENIED. The Clerk shall
UNSEAL the records (ECF Nos. 28-1 to 28-3)
that were provisionally sealed while the motion for leave to
file under seal was pending.