Filed: Dec. 31, 2014
Latest Update: Dec. 31, 2014
Summary: PLAINTIFF'S MOTION FOR LEAVE TO FILE EXHIBITS UNDER SEAL LLOYD D. GEORGE, District Judge. Plaintiff, Jonathan Cohan, by and through counsel, and pursuant to L.R. 7-2(a), 10-5(b) and Magistrate Hoffman's Order, on Jan. 30, 2014 (ECF No. 52) moves to file the following exhibits, filed in association with Plaintiff's Objection, March 5, 2014 under seal: • Exhibit 2, produced by Dr. Cohan in this action at Bates No. MOFFATT 411-446; • Exhibit 5, pro duced by Defendants in this action at Bates No
Summary: PLAINTIFF'S MOTION FOR LEAVE TO FILE EXHIBITS UNDER SEAL LLOYD D. GEORGE, District Judge. Plaintiff, Jonathan Cohan, by and through counsel, and pursuant to L.R. 7-2(a), 10-5(b) and Magistrate Hoffman's Order, on Jan. 30, 2014 (ECF No. 52) moves to file the following exhibits, filed in association with Plaintiff's Objection, March 5, 2014 under seal: • Exhibit 2, produced by Dr. Cohan in this action at Bates No. MOFFATT 411-446; • Exhibit 5, pro duced by Defendants in this action at Bates No...
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PLAINTIFF'S MOTION FOR LEAVE TO FILE EXHIBITS UNDER SEAL
LLOYD D. GEORGE, District Judge.
Plaintiff, Jonathan Cohan, by and through counsel, and pursuant to L.R. 7-2(a), 10-5(b) and Magistrate Hoffman's Order, on Jan. 30, 2014 (ECF No. 52) moves to file the following exhibits, filed in association with Plaintiff's Objection, March 5, 2014 under seal:
• Exhibit 2, produced by Dr. Cohan in this action at Bates No. MOFFATT 411-446;
• Exhibit 5, pro duced by Defendants in this action at Bates No. PLA-MS-COHAN-WORCESTER TOTAL SCORECARDS-000017;
• Exhibit 6, produced by Defendants in this action at Bates No. PLA-MS-COHAN-IDI WEEKLY TRACKING-000008;
• Exhibit 9, produced by Dr. Cohan in this action at Bates No. CHAP 007990-7994 and CHAP 008006-8014;
• Exhibit 10, produced by Dr. Cohan in this action at Bates No. MOFFATT 238;
• Exhibit 13, produced by Dr. Cohan in this action at Bates No. SALDI 49764-49768 and SALDI 49774-49777;
• Exhibit 14, produced by Dr. Cohan in this action at Bates No. SALDI 149746-49754 and SALDI 49755-49760;
• Exhibit 15, produced by Dr. Cohan in this action at Bates No. SA LDI 49884-49890 and SALDI 49892-49899;
• Exhibit 16, produced by Dr. Cohan in this action at Bates No. SALDI 18821-18827 and SALDI 18828-18834.
• Exhibit 17, produced by Dr. Cohan in this action at Bates No. SALDI 18917-18925.
• Exhibit 24, produced by Dr. Cohan in this action at Bates No. CHAP 017694.
• Exhibit 25, produced by Dr. Cohan in this action at Bates No. CHAP 017691;
• Exhibit 26 produced by Dr. Cohan in this action at Bates No. CHAP 006557-6571, CHAP 006572-6587, CHAP 41980-41983, SALDI 42033-42036, SALDI 42037-42040, SALDI 41988-41990, SALDI 42045-42048 and CHAP 006606-006607; • Exhibit 31 produced by Defendants in this action at Bates No. PLA-MS-COHAN-PBI FAQS-000001-6;
• Exhibit 32 produced by Defendants in this action at Bates No. PLA-MS-COHAN-COMP PRGM SUM-000001-2 and PLA-MS-COHAN-BRPSB-000001-5;
Magistrate Hoffman already determined that many of these documents should be filed under seal. Order, Feb. 6, 2014 (ECF No. 68). Plaintiff moves for the sealing of the listed documents because all of them have previously been designated as confidential, as a result of protective orders and/or confidentiality agreements entered in prior matters. This motion is further supported by the accompanying points and authorities.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S RENEWED MOTION TO FILE DOCUMENTS UNDER SEAL
These exhibits are all Unum's internal documents produced in discovery in accordance with a confidentiality designation to give Unum the opportunity to be heard as to whether the documents should be filed under seal. Magistrate Hoffman directed that:
If the sole ground for a motion to seal is that the opposing party (or non-party) has designated a document as confidential, the opposing party (or non-party) shall file a declaration establishing good cause for the sealing along with a proposed order, or shall withdraw the designation. The declaration shall be filed within seven days of service on the opposing party (or non-party) of the request for a sealing order. If the declaration is not filed as required, the Court may order the document filed in the public record.
Order, 2:14-19. Jan. 30, 2014 (ECF No. 52).
Dr. Cohan requests leave to file Unum documents under seal because they are subject to other court's protective orders. For example, defendants' documents produced in Saldi v. Paul Revere Life Ins. Co., et al., Civil Action No., 99-6563 (E.D. Pa.) are subject to a protective order entered by the Eastern District of Pennsylvania in its ruling on various motions to compel discovery and for protective orders. See Saldi v. Paul Revere Life Ins. Co., et al., 224 F.R.D. 169, 178 (E.D. Pa. 2004). Continued use of the documents is subject to continuing to treat them as confidential pursuant to the confidential settlement agreement entered into between the parties in Saldi. An excerpt of that settlement agreement reflecting the terms related to continued use of the Saldi documents is attached as Rubin Dec. Ex.1. Documents marked with a Moffatt Bates number and overlay, are subject to the protective order entered by the Court in August v. Provident Life and Accident Ins. Co., Case No. 2:09-cv-01951-DMG-SH (C.D. Cal.) (ECF No. 39 & 40, Rubin Dec. Ex. 2 & 3). Such documents are available for use in this matter subject to the confidential settlement agreement entered in the Moffatt case. An excerpt of that settlement agreement containing the provision relating to continued use of the Moffatt documents, including the requirement that the documents be filed under seal, is attached as Rubin Dec. Ex. 4. As recently as September, 2013, Unum asserted that at least some of the Moffatt documents, including Exhibit 5 to plaintiff's motion to compel in this case, contained confidential business information. See, Declaration of Charles Einsiedler filed in O'Leary v. National Life Ins. Co. of Vermont, et al., 2:12-cv-06882-FMO-JC (C.D. Cal.) (Sept. 18, 2013 (ECF No. 105-1)) (Rubin Dec. Ex. 5). In O'Leary, based on Mr. Einsiedler's declaration, Judge Olguin of the Central District of California granted continuing protected status to Exhibit 5 to Plaintiff's Motion to Compel in this matter. O'Leary v. National Life Ins. Co. of Vermont supra, Sept. 19, 2013 (ECF No. 107) (Olguin, J.) (Rubin Dec. Ex. 6). Do cuments produced in Chapman v. UnumProvident Corp. et al., Case No. CV 012323 (Cal. Superior Ct., Marin County), are subject to a continuing protective order in that matter which precludes disclosure or dissemination to the general public. A copy of that protective order is attached as Rubin Dec. Ex. 7. Friedman | Rubin is a signatory to the Chapman protective order and its use of the Chapman documents, including filing them under seal, is based on its continuing compliance with the protective order entered in that matter.
The documents at issue are desi gnated as confidential under the Stip. Protective Order, Jan. 29, 2014 (ECF No. 51), because they are subject to protective orders and con fidentiality agreements in other matters because designated as confidential by Unum in those other matters. Under this Court's Order, Jan. 30, 2014 (ECF No. 52), the burden now rests with Unum to use affidavits and concrete examples to demonstrate specific facts showing specific harm that will result if their confidential status is not maintained. Diamond State Ins. Co. v. Rebel Oil Co., Inc., 157 F.R.D. 691 (D. Nev. 1994) (Defendants must show that: 1) the material derives independent economic value from generally not being known to others; 2) to her persons can obtain independent economic value from its use; and 3) the materials are subject to reasonable efforts to maintain their secrecy).
If defendants make the required showing in a timely fashion, the documents identified in plaintiff's motion should be filed under seal. If defendants fail to make a satisfactory showing, the Court should file the documents in the public record.
ORDER
IT IS SO ORDERED.
