DeLaittre v. Berryhill, No. 2:2015cv01905 - Document 67 (W.D. Wash. 2017)
Court Description: ORDER denying plaintiff's motions to unseal, to remove confidentiality designations and for sanctions (dkts. 28 , 42 , 57 ); granting defendant's 44 Motion to File Opposition Under Seal, signed by Hon. Mary Alice Theiler. (SWT)
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DeLaittre v. Berryhill Doc. 67 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DAVID J. DELAITTRE, 11 12 CASE NO. C15-1905-RAJ Plaintiff, 10 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security 13 ORDER RE: MOTIONS TO UNSEAL, TO REMOVE CONFIDENTIALITY DESIGNATIONS, AND FOR SANCTIONS, AND MOTION TO SEAL Defendants. 14 INTRODUCTION 15 16 In motions before the Court (Dkts. 28, 42, 57), plaintiff David DeLaittre seeks to unseal 17 his pending motion for partial summary judgment regarding retaliation (see Dkt. 30), his reply to 18 defendant’s opposition to that motion (see Dkt. 54), and his opposition to defendant’s pending 19 motion for partial summary judgment (see Dkt. 39). 20 confidentiality designations made by the Social Security Administration (SSA) and sanctions for 21 overbroad designations. Defendant Nancy A. Berryhill opposes plaintiff’s motions and moves to 22 seal her opposition to plaintiff’s motion for partial summary judgment (see Dkt. 46). (Dkt. 44.) 23 For the reasons set forth below, plaintiff’s motions (Dkts. 28, 42, 57) are DENIED and Plaintiff also seeks removal of ORDER PAGE - 1 Dockets.Justia.com 1 defendant’s motion (Dkt. 44) is GRANTED.1 BACKGROUND 2 3 Plaintiff is a Regional Chief Administrative Law Judge in the Office of Hearing 4 Operations (formerly the Office of Disability Adjudication and Review (ODAR)) for the SSA. 5 He alleges violation of the Americans with Disabilities Act and his civil rights through adverse 6 employment actions by the SSA and ODAR. (Dkt. 1.) Among other claims, plaintiff alleges 7 retaliation for his engagement in protected activity (id. at 10), including, as addressed in his 8 motion for partial summary judgment (see Dkt. 30), retaliation resulting from the filing of his 9 lawsuit. 10 The parties in this case entered into a Stipulated Protective Order governing the 11 designation and treatment of confidential, proprietary, or private information or materials 12 produced in discovery. 13 disclosures or discovery responses, extends only to information or items “entitled to confidential 14 treatment under applicable legal principles,” and does not presumptively entitle the parties to file 15 confidential information under seal. (Id. at 1-2.) Confidential material includes medical records 16 and information, personnel and employment-related records, tax records, statements of any 17 current or former government employee regarding a workplace or Office of Inspector General 18 investigation, complaint, or allegation, documents related to any current or former government 19 employee’s protected activity, and any other records the release of which without a protective 20 order would potentially violate the Privacy Act, 5 U.S.C. § 552a. The parties must designate 21 only the parts of documents or other material that qualify for protection and clearly identify the 22 23 1 (Dkt. 17.) The order does not confer blanket protection on all United States District Judge Richard A. Jones referred plaintiff’s first two motions to unseal, as well as defendant’s motion to seal, to the undersigned on November 27 and 28, 2017. The undersigned also herein considers plaintiff’s related third motion to unseal, as plaintiff appears to contemplate in that motion. (See Dkt. 57 at 3.) ORDER PAGE - 2 1 protected portions. (Id. at 4-5.) 2 Plaintiff now moves to unseal briefing and attachments associated with pending motions 3 for partial summary judgment, to remove confidentiality designations, and for sanctions. 4 Defendant argues the propriety of the confidentiality designations and the filing of the summary 5 judgment briefing and attachments under seal pursuant to the protective order and in compliance 6 with applicable laws and policies. DISCUSSION 7 8 There is a “general right to inspect and copy public records and documents, including 9 judicial records and documents.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 10 (1978). The Court starts with a strong presumption favoring the public’s access to court records. 11 Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). Accord Local Civil 12 Rule (LCR) 5(g) (“There is a strong presumption of public access to the court’s files.”) This 13 presumption is “‘based on the need for federal courts . . . to have a measure of accountability and 14 for the public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. 15 Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoted and cited sources omitted). 16 The presumption applies fully to dispositive pleadings and attachments. Kamakana v. City of 17 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). 18 The public right of access is qualified, not absolute. United States v. Bus. of the Custer 19 Battlefield Museum, 658 F.3d 1188, 1192 (9th Cir. 2011). Accord Nixon, 435 U.S. at 597. 20 Documents attached to a summary judgment motion may be filed or maintained under seal when 21 a party can “‘articulate[] compelling reasons supported by specific factual findings’” that 22 outweigh the public’s interest in access. Kamakana, 447 F.3d at 1178 (quoted source omitted).2 23 2 The Ninth Circuit has explained that compelling reasons are required when considering documents attached to a motion for summary judgment “because the resolution of a dispute on the merits, ORDER PAGE - 3 1 As a general matter, compelling reasons sufficient to outweigh the public interest and justify 2 maintaining court records under seal “exist when such ‘court files might have become a vehicle 3 for improper purposes,’ such as the use of records to gratify private spite, promote public 4 scandal, circulate libelous statements, or release trade secrets.” Id. at 1179 (quoting Nixon, 435 5 U.S. at 598). 6 The decision on access rests within the discretion of the district court, exercised with 7 consideration of the facts and circumstances at issue. Nixon, 435 U.S. at 599. In sealing or 8 retaining a seal, the court must “‘base its decision on a compelling reason and articulate the 9 factual basis for its ruling, without relying on hypothesis or conjecture.’” Kamakana, 447 F.3d 10 at 1179 (quoted source omitted). 11 Plaintiff’s summary judgment briefing is supported by and contains quotes from 12 documents and deposition transcripts designated confidential by defendant. Plaintiff states the 13 quoted portions do not contain personal or identifying information, and are no more than 14 excerpts of witness statements and transcripts establishing discriminatory conduct by ODAR 15 managers and employees. He avers defendant designated as confidential nearly every page of 16 documents produced and most witness deposition transcripts in their entirety. 17 Prior to filing his summary judgment briefing, plaintiff rejected redactions to certain 18 documents proposed by defendant as an alternative to filing under seal. He maintains the 19 20 21 22 23 whether by trial or summary judgment, is at the heart of the interest in ensuring ‘the public’s understanding of the judicial process and of significant public events.’” Kamakana, 447 F.3d at 1179 (citing Foltz, 331 F.3d at 1135-36 (“‘summary judgment adjudicates substantive rights and serves as a substitute for trial’”) (quoted sources omitted). More recently, the Ninth Circuit “ma[d]e clear that public access to filed motions and their attachments does not merely depend on whether the motion is technically ‘dispositive.’ Rather, public access will turn on whether the motion is more than tangentially related to the merits of a case.” Ctr. for Auto Safety, 809 F.3d at 1097-1102 (concluding a motion for preliminary injunction was more than tangentially related to the merits of the case and requiring compelling reasons, rather than the “good cause” exception applied to documents attached to a discovery motion unrelated to the merits of a case). ORDER PAGE - 4 1 proposed redactions conceal information necessary for proving his claim, do not allow the reader 2 to determine the information concealed, and present an attempt to hide SSA employees’ 3 misconduct. He contends the proposed redaction of the name of a specific email author and 4 interviewee make it difficult, if not impossible, to use one of the most important documents 5 supporting his theory of liability, and deny him the ability to attribute discriminatory and 6 retaliatory acts to the individual accused. (Dkt. 28 at 4-5 (citing Dkt. 29, Exs. A & C).) Plaintiff 7 observes this same individual is already identified in the complaint and that the documents at 8 issue do not provide any personal, confidential information. 9 Plaintiff maintains that, despite his repeated objections, defendant failed to provide any 10 legal authority for the confidentiality designations. He requests legal authority for each page 11 designated confidential, and an order to unseal and remove the confidentiality designation on the 12 documents and transcripts filed in support and opposition to pending motions for partial 13 summary judgment. 14 documents as confidential in order to deter future violation of the protective order, court rules, or 15 jurisprudence prohibiting such improper designation in an effort to conceal the illegal conduct of 16 government employees. (See Dkt. 28 at 12, Dkt. 42 at 9, and Dkt. 57 at 4.) Plaintiff also requests sanctions for the designation of “nearly all” 17 Defendant notes that the cross motions for partial summary judgment entail consideration 18 of alleged retaliation for employees’ engagement in protected activities. Defendant points to, in 19 addition to plaintiff’s activity, the protected activity of fourteen witnesses who testified in a 20 Merit Systems Protection Board (MSPB) case addressing allegations of misconduct by plaintiff, 21 and of ten witnesses who gave statements in an investigation into whether plaintiff retaliated 22 against witnesses in the MSPB matter. (See Dkts. 30 & 36.) Defendant argues maintaining 23 documents under seal would alleviate the concerns of all SSA employees about exposure to ORDER PAGE - 5 1 retaliation. (See, e.g., Dkt. 36, Ex. B at 22, 54-55 (MSPB decision pointing to testimony in 2 which SSA employees expressed fear of retaliation).) She notes that a former SSA employee has 3 expressed concern about information publicly accessible in the complaint. (See Dkt. 45.) 4 Defendant also points to the SSA’s statutory and regulatory obligations to protect the 5 privacy of its employees. See 20 C.F.R. § 401.5. Under the Privacy Act of 1974, the SSA may 6 not disclose any record contained in a system of records unless the disclosure is permitted under 7 a specific exemption. 5 U.S.C. § 552a(b); 20 C.F.R. §§ 401.10, 401.110(c). Defendant asserts 8 that, while the agency may disclose records pursuant to a discovery request under its “routine 9 use” regulations, 5 U.S.C. § 552a(b)(3), routine use does not permit the subsequent disclosures 10 that could occur if documents were made available to the public. Cf. 81 Fed. Reg. 87119, 87120 11 (2016) (permitting, as routine use, disclosure of harassment investigation files to “a court or 12 other tribunal, or another party before such court or tribunal”). 13 The Privacy Act requires the SSA to establish safeguards to insure the security and 14 confidentiality of records and protect against “any anticipated threats or hazards to their security 15 or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness 16 to any individual on whom information is maintained[.]” 5 U.S.C. § 552a(e)(10). Defendant 17 contends the public filing of the documents at issue here could result in substantial harm, 18 embarrassment, inconvenience, or unfairness to SSA employees. 19 decision discusses incidents in which plaintiff was found to have made “insensitive, offensive, 20 disrespectful, or otherwise inappropriate” comments regarding SSA employees’ race, gender, 21 ethnicity, or private information, but does not disclose the identities of third-party employees 22 discussed in such comments and was not, therefore, designated confidential. (Dkt. 36, Ex. B at 23 90); Soc. Sec. Admin. v. DeLaittre, No. CB-7521-15-0014-T-1, 2016 WL 1580140 (April 13, ORDER PAGE - 6 For example, an MSPB 1 2016). On the other hand, an investigation statement, designated confidential and taken from the 2 same email author and interviewee discussed by plaintiff in his motions to unseal, includes the 3 identities of the third-party employees and other private information, such as the disciplinary 4 histories of those employees. (Dkt. 30, Ex. Q.) 5 Defendant denies the SSA proposed unreasonable redactions or that plaintiff is entitled to 6 sanctions. (See Dkt. 44 at 6-7.) She suggests the proposed redactions served to prevent the 7 identification of uninvolved employees through revelation of the structural relationship of 8 involved employees. Defendant further asks that, if concluding documents should not be under 9 seal, the Court allow redactions of sensitive information discussed within, as well as the 10 identities of the individuals reporting or discussing such information. Defendant denies any 11 effort to conceal improper or illegal conduct, and notes the production of thousands of 12 documents, including those deemed confidential pursuant to the protective order. 13 Plaintiff has not been denied access to any of the documents designated as confidential. 14 While proposed redactions to confidential documents may have posed difficulty in crafting a 15 motion not subject to filing under seal, the confidentiality designations have not interfered with 16 or prevented plaintiff from pursuing or proving his claims. The question before the Court is 17 whether the documents at issue, and the motions quoting and attaching those documents, should 18 be available for review by the public. 19 The motions now subject to review do not easily allow for an individualized analysis of 20 the many different documents quoted in and attached to the summary judgment briefing. Neither 21 party takes the opportunity to distinguish between the documents designated and not designated 22 confidential, or to address the confidentiality designations disputed on a document-by-document 23 basis. The parties, instead, focus on or provide examples in relation to only a few individual ORDER PAGE - 7 1 documents. Also, while plaintiff asserts “nearly all” documents and entire deposition transcripts 2 have been improperly designated confidential, the Court lacks specific information allowing for 3 a conclusion as to the merits of that contention. Nonetheless, having considered the arguments 4 as raised by the parties, and balancing the strong presumption of public access to court files with 5 the competing interests set forth by defendant, the Court finds compelling reasons to retain the 6 confidentiality designations and to maintain the summary judgment briefing and attachments 7 under seal. 8 As defendant observes, this case involves allegations of retaliation and the fear of 9 retaliation by a number of current SSA employees, including, but not limited to, plaintiff. (See, 10 e.g., Dkt. 29, Exs. A-D, Q-S, CC; Dkt. 36, Ex. B at 22, 54-55.) Plaintiff’s motion for partial 11 summary judgment, in particular, directly addresses both his claim of retaliation and the 12 protected activities of other SSA employees. 13 confidential involve or relate to allegations, complaints, and investigations of alleged retaliatory 14 and other discriminatory acts, and protected activity of current SSA employees. Some of the 15 documents include personal information about SSA employees and implicate the SSA’s 16 obligations under the Privacy Act. (See, e.g., Dkt. 29 at Ex. Q.) SSA employees identified and 17 discussed in the documents are not limited to plaintiff and other individuals named in the 18 complaint. Documents plaintiff seeks to deem non- 19 Removal of the confidentiality designations exposes plaintiff and other SSA employees 20 to the possibility of retaliation, and to the disclosure of information that could result in 21 substantial harm, embarrassment, inconvenience, or unfairness. Maintaining the confidentiality 22 designations will minimize the possibility of harm to SSA employees identified and/or discussed 23 in the documents. It will further avoid a chilling effect on SSA employees exposed or subject to ORDER PAGE - 8 1 retaliatory or other discriminatory acts, and/or engaging in protected activity. To the extent the 2 documents discuss or reveal information about third parties not identified in or directly related to 3 the allegations in plaintiff’s complaint, the need for confidentiality is particularly compelling. 4 See Shane Grp., Inc. v. Blue Cross Blue Shield, 825 F.3d 299, 308 (6th Cir. 2016) (“‘[T]he 5 privacy interests of innocent third parties should weigh heavily in a court’s balancing 6 equation.’”) (quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)). However, 7 the mere fact a document relates to an SSA employee discussed in the complaint does not nullify 8 the above-described compelling considerations warranting confidentiality and the protection of 9 privacy. 10 Defendant, in sum, identifies compelling considerations “outweigh[ing] the general 11 history of access and the public policies favoring disclosure, such as the ‘public interest in 12 understanding the judicial process.’” Kamakana, 447 F.3d at 1178-79 (quoted sources omitted). 13 The Court finds no basis for removing the confidentiality designations, unsealing the summary 14 judgment briefing and attachments, or for sanctions against defendant. 15 confidentiality designations should remain pursuant to the Stipulated Protective Order entered in 16 this case and in accordance with the SSA’s obligations under the Privacy Act, and the briefing 17 quoting and attaching those documents should remain under seal. Defendant’s 18 The Court further takes note of the Stipulated Protective Order’s recognition that its 19 protections “do not cover information that is in the public domain or becomes part of the public 20 domain through trial or otherwise.” (Dkt. 17 at 2.) This Order should be understood to apply at 21 this juncture and extend to consideration of the pending motions for partial summary judgment, 22 and not addressing considerations as to the use, relevance, or admissibility of evidence at trial. 23 /// ORDER PAGE - 9 CONCLUSION 1 2 Considering the facts and circumstances at issue in this case, the Court finds compelling 3 reasons to maintain confidentiality designations and the filing of the summary judgment briefing 4 and attachments under seal, and concludes those reasons outweigh the public’s interest in access 5 to the Court’s files. 6 designations, and for sanctions (Dkts. 28, 42, 57) are DENIED, and defendant’s motion to file 7 her opposition under seal (Dkt. 44) is GRANTED. 8 DATED this 11th day of December, 2017. 9 Accordingly, plaintiff’s motions to unseal, to remove confidentiality A 10 Mary Alice Theiler United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER PAGE - 10
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