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

Start at June Medical Services, LLC, v. PhillipsFriday’s decision was made by the Fifth Circuit in an opinion of Judge Jennifer Walker Elrod and Judges Jerry Smith.

Doe 2 confessed to performing abortions on minors without parental consent, judicial bypass or parental consent, as well as failing to file a report of the forcible beating of a 14 year-old girl. Louisiana claimed that Doe2 admitted multiple violations to Louisiana law. See also: 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 applied to have portions of Doe 2’s testimony de-designated as confidential pursuant the protective order by the district court. Louisiana claimed that the district court’s protective order was necessary to allow the deposition to be sealed. Louisiana also argued that Louisiana had to report evidence of professional and criminal misconduct to appropriate authorities. Louisiana moved to de-designate the plaintiffs and they requested that their brief be sealed.

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 All motions must be denied.

The second sealing order was entered by a magistrate judge. 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….

The magistrate judge made another bulk sealing order in January 2020 (the third sealing or), sealing briefing on Doe 5’s motion to 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 contended that Doe 5 had publicly stated that he was an abortion provider on speeches to the press and in his personal website. He also testified as an expert witness in an abort 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…. The District Court [separated the contested documents]There are two types of information. These categories were found in the first group: court filings from this case; a transcript of proceedings in the case; correspondence between counsel; publicly accessible articles and documents from Louisiana Secretary of State’s Website. Information regarding published books, orders of the Eastern District of Louisiana district court, records regarding other cases. Online information about abortion clinics. A publication from Knights of Columbus.

However, the court of district acknowledged that “[m]The district court ordered that substantial redactions be made to the group of documents because “uch of this information has already been publicly accessible.” Louisiana, for example, was ordered to remove “sensitive information” that could compromise the privacy of Plaintiffs’ staff, doctors, patients and other associated parties. Louisiana had 60 days to follow the redaction instructions.

This was the second set of documents that the district court had to approve. It included a public obituary of a doctor who performed abortions, public arrest reports, testimony from depositions, Louisiana Department of Health and Hospitals documents, Louisiana State Board of Medical Examiners documents, and documents which identifies abortion staff or providers. The district court ordered the “remain seal” of documents in this category, as they were information that fell within the Protective Order.

Also, the legal analysis of the court:

“Judicial Records belong to the American People; they are not private documents. Und “[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. This “serves trustworthiness in the judiciary process, curbs judicial abuses and gives the public a greater understanding of the justice system including its fairness and fairness. Sealing information is strongly discouraged in the judicial system.[T]”The rationale for public accessibility is even greater” when, as in this case, there are no legal issues.[s]Questions of particular public importance

{The party doctors’ request for anonymity is … an unusual practice. Lawyers for abortion often litigate in their own name. [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, for example, acknowledged that the “internet can be used to find that information.” [he provides]”Abortion” and has filed public declarations in the past abortion litigation.

This court doesn’t usually permit parties to go anonymously on the basis of generalized concerns. We affirmed the district court’s refusal to allow a police officer to file as an anonymous plaintiff. Mckesson v. Doe (5th Cir. 2019), Refused for other reasons, 141 S. Ct. 48 (2020). This officer stated that his public job was not “public”.[]He placed his family and himself in serious danger from additional violence.” He also listed instances of violence committed against officers by political motives. But that was not enough. 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.”}

These documents are publicly accessible in the context of public records 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….

Here, the district court used an incorrect legal standard when sealing documents. Protective orders and sealing orders are subject to different legal standards. Protective orders must be granted by the district court after a finding of good cause. They can also apply to documents discovered. “At Discovery 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.'” According to both of these standards, there is a working assumption that records of judicial proceedings should not be sealed. “[C]ourts should be ungenerous with their discretion to seal judicial records ….” …

This is the only explanation that the district court gave for sealing certain categories of documents: they were “falling into bad 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. Accordingly, the district court did not provide any legal foundation for sealing those 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…. Judicial Branch is responsible for providing public access to the 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.