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Thomas v. Nationwide Children's Hospital, Inc.

United States District Court, S.D. Ohio, Eastern Division

March 27, 2018

DANIEL THOMAS, et al., Plaintiffs,

          Terence P. Kemp Magistrate Judge.



         This matter is before the Court on defendants Nationwide Children's Hospital, Inc., the Center for Family Safety and Healing, the Center for Child and Family Advocacy, Dr. Farah Wadia Brink, Dr. Jonathan Thackeray, and Dr. Corey J. Rood's ("Defendants") Motion to Seal Permanently Depositions and Portions of Plaintiffs' Brief in Opposition to Defendants' Motions for Summary Judgment (Def. Mot. to Seal, ECF No. 182.) Plaintiffs have filed a Memorandum in Opposition (PI. Mem. Opp., ECF No. 185), and in turn, Defendants have filed a Reply (Reply, ECF No. 186). On May 19, 2017 this Court issued an Order granting summary judgment to Defendants. (Op. & Order, ECF No. 187.) Plaintiffs filed an appeal, the Sixth Circuit entered a judgment of affirmance (ECF No. 192), and on March 8, 2018, the Sixth Circuit issued its mandate (ECF No. 193). The motions are ripe for consideration.

         I. BACKGROUND

         On March 27, 2017, the Court granted Plaintiffs' Motion to File Summary Judgment Opposition and Supporting Materials Temporarily Under Seal. (Op. & Order, ECF No. 173.) The Court further ordered that:

Any party that wishes all or any portion of the opposition and supporting materials to remain under seal shall file a motion to seal on or before April 6, 2017, supported as required by Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299 (6th Cir. 2016).


         Defendants timely moved the Court to seal permanently five depositions, and to redact portions of Plaintiffs' brief. (Def. Mot. to Seal, ECF No. 182, at p. 1.) Specifically, Defendants seek to file a redacted version of Plaintiffs' brief filed in opposition to summary judgment (ECF No. 181), and to retain under seal five deposition transcripts:

ECF No. 174, Deposition of Children's social worker Tishia Richardson and exhibits thereto;
ECF No. 176, Deposition of Children's physician, Dr. Corey Rood and two exhibits thereto;
ECF No. 178, Deposition of Cheryl Hiatt, Volume II and four exhibits thereto;
ECF No. 179, Deposition of Shawn Chambers and four exhibits thereto; and
ECF No. 180, Deposition of Children's physician Dr. Elizabeth Claxton and exhibits thereto.

(Id.) Defendants assert that "[t]hese depositions contain confidential information related to the minor-Plaintiffs' medical records, and protected health information of non-party patients of Children's." (Id.) Defendants address in detail each filing, and the supporting rationale for maintaining them under seal. In a somewhat unusual posture, Plaintiffs, who originally moved to file under seal (ECF No. 172), oppose maintaining these records under seal, and assert that "NCH cannot prevent Plaintiffs from filing their own information in the public record." (PL Mem. Opp., ECF No. 185, at p. 1.) However, as the Sixth Circuit explained in Shane Group, the parties' positions are not controlling in the Court's determination of whether records should be sealed.


         In Shane Group, the Sixth Circuit decided a case where the district court had sealed records in a class action lawsuit, including filings and 194 exhibits, such that, "at the parties' behest, it sealed from public view most of the court filings and exhibits that underlay the proposed settlement in this case." 825 F.3d, at 304. The Court noted the strong public interest in the court records in a class action case, and that "[c]lass members cannot participate meaningfully in the process contemplated by Federal Rule of Civil Procedure 23(e) unless they can review the bases of the proposed settlement and the other documents in the court record." Id., at p. 309. The Shane Group Court further explained the difference between blanket "protective orders" used during discovery, and orders to seal court records:

By way of background, there is a stark difference between so-called "protective orders" entered pursuant to the discovery provisions of Federal Rule of Civil Procedure 26, on the one hand, and orders to seal court records, on the other. Discovery concerns the parties' exchange of information that might or might not be relevant to their case. "Secrecy is fine at the discovery stage, before the material enters the judicial record." Baxter Int'l, Inc. v. Abbott Labs.,297 F.3d 544, 545 (7th Cir. 2002). Thus, a district court may enter a protective order limiting the use or disclosure of discovery materials upon a mere showing of "good cause[.]" Fed.R.Civ.P. 26(c)(1). These orders are often blanket in nature, and allow the ...

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