Looney et al v. Moore et al, No. 2:2013cv00733 - Document 44 (N.D. Ala. 2014)

Court Description: MEMORANDUM OPINION AND ORDER re 42 MOTION to Vacate (Partially) the Protective Order Entered by this Court on March 21, 2014: For the reasons stated above, the court DENIES Plaintiffs motion to vacate. This court's Protective Order will remain in effect as issued. (Doc. 41). Signed by Chief Judge Karon O Bowdre on 4/7/14. (SAC )

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FILED 2014 Apr-07 PM 02:37 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT COURT SOUTHERN DIVISION BILLY RYAN LOONEY, ET AL., Plaintiffs, v. SHEILA D MOORE, ET AL., Defendants. ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:13-CV-00733-KOB MEMORANDUM OPINION AND ORDER This matter comes before the court on Plaintiffs Motion to Partially Vacate the Protective Order Entered by this Court on March 21, 2014. (Doc. 42). For the following reasons, the court DENIES the motion. This court s Protective Order will remain in effect as issued. (Doc. 41). I. BACKGROUND This case involves a clinical research trial performed on premature infants with low birth weights. The class action suit, brought by the infant Plaintiffs, by and through their parents, alleges that the members of the University of Alabama at Birmingham Institutional Review Board, the doctor who was the principal investigator for the study, and the company that provided a device for the study were negligent and lacked informed consent, among other allegations. (Doc. 32). On March 13, 2014, Defendants filed a Motion for Protective Order. (Doc. 40). Pursuant to the court s Scheduling Order, which states that the court will grant any discovery motion unless the party opposing the motion responds within three days, the court waited three days for 1 the Plaintiffs to respond. (Doc. 38). When the Plaintiffs failed to respond within three days, the court granted the motion and entered Defendants proposed Protective Order. (Doc. 41). On March 24, 2014, Plaintiffs filed a Motion to Partially Vacate the Protective Order. (Doc. 42). In their motion, Plaintiffs asked the court to vacate a single sentence of the Protective Order: All Discovery Material produced in the above captioned action (the Litigation ) is to be used solely for the purposes of this Litigation. On March 27, 2014, Defendants filed their opposition to the motion. (Doc. 43). II. ELEVENTH CIRCUIT DISCOVERY PRACTICE The court finds that Plaintiffs motion is due to be denied on the merits because no right of public access to discovery material exists in the Eleventh Circuit. The Eleventh Circuit has repeatedly acknowledged the private nature of discovery, stating: Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1316 (11th Cir. 2001) (quoting United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986)) (emphasis in original). The Court has also found that [d]iscovery is neither a public process nor typically a matter of public record. Historically, discovery materials were not available to the public or press. United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32-34 (1984)). Further, the Circuit Court noted that private documents collected during discovery are not judicial records, that the common-law right of access does not extend to information collected through discovery which is not a matter of public record, and that the discovery process, as a matter of legislative grace, is a statutorily created forum not traditionally 2 open to the public. In re Alexander Grant & Co. Litigation, 820 F.2d 352, 355 (11th Cir. 1987) (internal citations omitted). Based on this standard of practice, the court finds that restricting the use of discovery materials to case-related purposes only, even over Plaintiffs objection, is within this court s discretion and authority even without the application of the Rule 26(c) good cause standard. By its text, Rule 26(c) applies to situations where the court is either limiting what a party has to produce at all in the discovery process, or limiting public access to documents that are actually filed in the case. Fed. R. Civ. Pro. 26(c). The disputed limitation in this case does not fall into either of these categories; Defendants are not asking the court for permission to withhold any specific information from the Plaintiffs, and are likewise not at this point asking for any specific documents to be withheld from public view once they are filed with the court. III. RULE 26(c) GOOD CAUSE As an alternative, even if the Rule 26(c) good cause standard applied, the court finds that it is met in this case. Rule 26(c) states: The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . . Fed. R. Civ. P. 26(c). The court has already expressed to the parties its concern that this potentially high profile case will be tried in the media, rather in the courtroom. Significant media coverage of the case has already occurred.1 In the interest of justice, this court is committed to giving both parties a 1 See Mike Oliver, Lawsuit says UAB study harmed premature babies, AL.com (April 18, 2014), http://blog.al.com/spotnews//print.html?entry=/2013/04/lawsuit_says_uab_study_harmed.html; Meyer Michelle, OHRP Suspends Compliance Action Against SUPPORT Study Sites Pending Public Hearing & Guidance, Harvard Law Petrie-Flom Center (June 5, 2013) 3 fair trial, which includes protecting the Defendants from the annoyance, embarrassment, [and] oppression that could occur from allowing their names to be dragged through the metaphorical mud before a jury has even made any determination of wrongdoing. At least one other court has cited the risk of excessive publicity preventing the selection of an impartial jury as legitimate support for a finding of good cause under Rule 26(c). See Anderson v. Cryovac, Inc., 805 F.2d 1, 4 (1st Cir. 1986) (overturning the district court s decision on other grounds). As such, the court finds that good cause exists to support the Protective Order as written, and Plaintiffs motion to vacate is due to be denied. IV. CONCLUSION For the reasons stated above, the court DENIES Plaintiffs motion to vacate. This court s Protective Order will remain in effect as issued. (Doc. 41). DONE and ORDERED this 7th day of April, 2014. ____________________________________ KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE http://blogs.law.harvard.edu/billofhealth/2013/06/05/ohrp-suspends-compliance-action-againstsupport-study-sites-pending-public-hearing-guidance/; Richard Knox, NIH Chief Rejects Ethics Critique Of Preemie Study, NPR (June 6, 2013), http://www.npr.org/blogs/health/s013/06/06/189156915/nih-chief-rejects-ethics-critique-ofpreemie-study; Public Citizen: Oxygen Experiment On Premature Babies is Highly Unethical, Citizen.org (June 2013), http://www.citizen.org/Page.aspx?pid=5971. 4

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