Fifth Circuit Opinion Criticizing Excessive Sealing in Challenge to Louisiana Abortion Restrictions

Start at June Medical Services, LLC, v. PhillipsFriday, the Fifth Circuit ruled in favor of. Judge Jennifer Walker Elrod joined Judges Jerry Smith, Andrew Oldham, and voted for.

Doe 2, during a March 2019 deposition, admitted that she failed to report the forcible sexual assault of a 14-year-old girl and performed an abortion on a minor with parental consent. She also acknowledged failing to keep medical records. Louisiana alleges that Doe 2 has admitted to numerous violations of Louisiana law. Please see La. Stat. Ann. § 14:403 (requiring mandatory reporters to report sexual abuse of a minor); La. Stat. Ann. § 40:1061.14 (requiring parental consent for abortions performed on minors); La. Stat. Ann. § 40:1061.19 (explaining records requirements for abortion facilities), and also that Doe 2 stated that Doe 5 had violated the standard of care for second-trimester abortions.

Louisiana sought to remove portions of Doe 2’s testimony from being considered “confidential”, pursuant to the protective order issued by the District Court. Louisiana said that Louisiana needed to disclose evidence of misconduct and criminal offenses to authorities and therefore, the deposition should be unsealed. Louisiana opposed the motion to de-designate plaintiffs, and requested to seal their opposition brief.

Louisiana requested to include public documents in the evidence record to support its argument, but did so without violating the interpretation by the district court of the sealing, protective and pseudonym orders. Also, Louisiana did not wish to be penalized for seeking to seal public records. Louisiana filed a subsequent motion. pro forma motions to seal the documents that it wanted to add to the judicial record, … and argued that its pro forma Motions must be rejected and documents sealed should not be signed.

A sealing order was issued by the magistrate judge (the second sealing or). Public records include many that can be accessed online. Many of these records are also accessible through PACER. Journal of Medical Regulation, Christian Science Monitor, Rolling Stone, New York TimesPlease see the following: The AdvocateThe following are excerpts of a book and a public order that was entered by the Eastern District of Louisiana as part of a subpoena enforcement case. Blank consent forms were also obtained from a clinic. Also, correspondence concerning deposition scheduling. The magistrate judge also sealed a redacted brief that Louisiana proffered for public filing and publicly filed federal district court complaints submitted by Louisiana to show that doctors who provide abortions in surrounding states routinely litigate in their own names….

Jan 2020: The third bulk sealing order was entered by the magistrate judge. This sealed briefing regarding Doe 5’s motion for quash. Louisiana opposed the motion, and because it supported its opposition with publicly available documents about doctors who provide abortions, Louisiana again—to comply with the protective order—moved pro forma To seal its own files. Louisiana claimed that Doe 5 identified himself publicly as an abortion provider, in speeches and on his website to the media, as well as as being a witness in an abortion case.

The magistrate judge sealed all of the documents at issue, including newspaper articles, online news reports, public records available from the Board of Medical Examiners’ website about non-party abortion providers, a journal article, a public court order, the sealing order itself, and a pleading that no one asked be sealed….

In November 2020, the district court entered the order at issue in this appeal—a ruling on Louisiana’s challenges to the first, second, and third sealing orders…. District court [separated the contested documents]The information was divided into two categories. This first group included the following categories: court files in this instance, a transcript of proceedings, communications between counsel, public articles, documents from Louisiana Secretary of Stat’s website, information concerning published books and orders from the Eastern District of Louisiana. It also contained information on other cases.

Even though the court of district acknowledged that “[m]”Much of this information was already publically available,” the court ordered significant redactions of documents within this group. Louisiana had to delete “sensitive information that could be harmful to the privacy or health of patients, staff and physicians associated with the Plaintiffs”. Louisiana had 60 days to follow the redaction instructions.

A second collection of documents created by the District Court consisted of the following categories: an official obituary of a physician who gave abortions; arrest reports that were available online, deposition testimony, Louisiana Department of Health and Hospitals records, Louisiana State Board of Medical Examiners documentation, documents identifying staff members or abortion providers, and medical information of patients. As the Protective Order covers information in the group of these documents, the court directed that the records be sealed.

The court’s legal analysis

“Judicial records are the property of the American people. They are open to all, and not just private documents. Also,[t]Access to the judicial records of the public is an essential element of rule of law. The public is entitled to transparent, fair and impartial court proceedings. The right is intended to increase trustworthiness and curb abuses in the judicial process. It also serves to give the public an improved understanding of the system as well as a better sense of its fairness. We strongly disapprove of sealing any information in the judicial records.[T]The justification for public access in this case is “even greater”.[s]These are matters that have a particular public interest.”

{The party doctors’ request for anonymity is … an unusual practice. For many reasons, abortion providers litigate under their names. [Examples omitted. -EV] They also—as licensed professionals—operate under their own names and are often already known or knowable by other means. Doe 2 stated in his deposition, “You can find out that from the internet.” [he provides]He has made public declarations regarding past abortion cases.

Furthermore, parties cannot proceed anonymously under generalized circumstances. We affirmed the district court’s refusal to allow a police officer to file as an anonymous plaintiff. Mckesson v. Doe (5th Cir. 2019), Other grounds:, 141 S. Ct. 48 (2020). The officer claimed that the public nature of his work was “puttiable”.[]”He and his family were in danger from additional violence,” he stated. He then listed some examples of violent acts committed against police officers to achieve political ends. This was insufficient. Because Officer Doe’s incidents were not directly related to the suit, we supported the rejection by District Court. Indeed, “Officer Doe conceded that he had received no particularized threats of violence since filing his lawsuit.”}

Publicly available documents include those that are It is already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record….. It is impossible to seal publicly available information. In so holding, we align with the Supreme Court and our sister circuits….

This district court also applied the incorrect legal standard to seal documents. There are different legal standards that govern sealing and protective orders. Protective orders are subject to a district court finding “good cause”, and can be applied to discovery documents. The district court must find “good cause” and protect documents produced in discovery. Discover A stipulated protective order pursuant to Rule 26(c), may be appropriate at this stage when the parties exchange information.  But at the adjudicative Stage, materials are entered into the court records. The standard for protecting records from the public eye is much more difficult. The “stricter balancing” test is needed to seal judicial records and block public access.  To decide whether something should be sealed, the court must undertake a “‘document-by-document,’ ‘line-by-line’ balancing of ‘the public’s common law right of access against the interests favoring nondisclosure.'” The working presumption under both standards is that the judicial records shouldn’t be sealed. “[C]ourts should be ungenerous with their discretion to seal judicial records ….” …

The only reason the district court granted for sealing whole categories of documents was because they “fall into” its hands.[]The Protective Order is clearly visible.” The fact that a document is eligible for protection under Rule 26(c), for discovery does not mean it must be sealed after it has been placed in the Protective Order. judicial record. This was because the district court had not provided any valid legal basis to seal these documents. District court committed an error in failing to give reasons for sealing those documents.

Also, the district court erred in failing to examine all documents separately. It is the solemn duty of the judge to scrupulously examine each document sought to be sealed…. The Judicial Branch has the responsibility and duty to provide public access to all judicial records. … It is not easy, but it is fundamental….

This opinion, which was published in early 2012, offers a similar critique of excessive sealing in an Fifth Circuit non-abortion court.