Case 2:18-cv-01449-MMD-CLB Document 27 Filed 11/10/20 Page 1 of 4
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`UNITED STATES DISTRICT COURT
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`DISTRICT OF NEVADA
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`Case No. 2:18-CV-1449-MMD-CLB
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`ORDER
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`ESTEBAN HERNANDEZ,
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`Plaintiff,
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`v.
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`HOWELL, et al.,
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`Defendants.
`____________________________/
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`Before the court are defendants’ motions for leave to file medical records under
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`seal in support of defendants’ response and supplemental response to plaintiff’s motion
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`for preliminary injunction. (ECF Nos. 17 & 21).
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`“Historically, courts have recognized a general right to inspect and copy public
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`records and documents, including judicial records and documents.” See Kamakana v.
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`City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (internal quotation
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`marks and citation omitted). “‘Throughout our history, the open courtroom has been a
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`fundamental feature of the American judicial system. Basic principles have emerged to
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`guide judicial discretion respecting public access to judicial proceedings. These principles
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`apply as well to the determination of whether to permit access to information contained in
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`court documents because court records often provide important, sometimes the only,
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`bases or explanations for a court’s decision.’” Oliner v. Kontrabecki, 745 F.3d 1024, 1025
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`(9th Cir. 2014) (quoting Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165,
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`1177 (6th Cir. 1983)).
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`Documents that have been traditionally kept secret, including grand jury transcripts
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`and warrant materials in a pre-indictment investigation, come within an exception to the
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`general right of public access. See Kamakana, 447 F.3d at 1178. Otherwise, “a strong
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`Case 2:18-cv-01449-MMD-CLB Document 27 Filed 11/10/20 Page 2 of 4
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`presumption in favor of access is the starting point.” Id. (internal quotation marks and
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`citation omitted). “The presumption of access is ‘based on the need for federal courts,
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`although independent—indeed, particularly because they are independent—to have a
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`measure of accountability and for the public to have confidence in the administration of
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`justice.’” Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir.
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`2016), cert. denied, 137 S.Ct. 38 (Oct. 3, 2016) (quoting United States v. Amodeo
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`(Amodeo II), 71 F.3d 1044, 1048 (2nd Cir. 1995); Valley Broad Co. v. U.S. Dist. Court-D.
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`Nev., 798 F.2d 1289, 1294 (9th Cir. 1986)).
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`There are two possible standards a party must address when it seeks to file a
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`document under seal: the compelling reasons standard or the good cause standard. See
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`Center for Auto Safety, 809 F.3d at 1096-97. Under the compelling reasons standard, “a
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`court may seal records only when it finds ‘a compelling reason and articulate[s] the factual
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`basis for its ruling, without relying on hypothesis or conjecture.” Id. (quoting Kamakana,
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`447 F.3d at 1179). “The court must then ‘conscientiously balance[ ] the competing
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`interests of the public and the party who seeks to keep certain judicial records secret.” Id.
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`“What constitutes a ‘compelling reason’ is ‘best left to the sound discretion of the trial
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`court.’” Id. (quoting Nixon v. Warner Comm., Inc., 435 U.S. 589, 599 (1978)). “Examples
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`include when a court record might be used to ‘gratify private spite or promote public
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`scandal,’ to circulate ‘libelous’ statements, or ‘as sources of business information that
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`might harm a litigant’s competitive standing.’” Id. (quoting Nixon, 435 U.S. at 598-99).
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`Center for Auto Safety described the good cause standard, on the other hand, as
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`the exception to public access that had been applied to “sealed materials attached to a
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`discovery motion unrelated to the merits of a case.” Id. (citing Phillips ex rel. Estates of
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`Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213-14 (9th Cir. 2002)). “The ‘good cause
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`language comes from Rule 26(c)(1), which governs the issuance of protective orders in
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`the discovery process: ‘The court may, for good cause, issue an order to protect a party
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`or person from annoyance, embarrassment, oppression, or undue burden or expense.”
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`Id. (citing Fed. R. Civ. P. 26(c)).
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`Case 2:18-cv-01449-MMD-CLB Document 27 Filed 11/10/20 Page 3 of 4
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`The Ninth Circuit has clarified that the key in determining which standard to apply
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`in assessing a motion for leave to file a document under seal is whether the documents
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`proposed for sealing accompany a motion that is “more than tangentially related to the
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`merits of a case.” Center for Auto Safety, 809 F.3d at 1101. If that is the case, the
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`compelling reasons standard is applied. If not, the good cause standard is applied.
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`Here, defendants seek to file exhibits under seal in connection with their response
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`and supplemental response to plaintiff’s motion for preliminary injunction (ECF Nos. 16 &
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`20) which are unquestionably “more than tangentially related to the merits of a case.”
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`Therefore, the compelling reasons standard applies.
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`This court, and others within the Ninth Circuit, have recognized that the need to
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`protect medical privacy qualifies as a “compelling reason” for sealing records. See, e.g.,
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`San Ramon Regional Med. Ctr., Inc. v. Principal Life Ins. Co., 2011 WL89931, at *n.1
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`(N.D. Cal. Jan. 10, 2011); Abbey v. Hawaii Employers Mut. Ins. Co., 2010 WL4715793,
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`at * 1-2 (D. HI. Nov. 15, 2010); G. v. Hawaii, 2010 WL 267483, at *1-2 (D.HI. June 25,
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`2010); Wilkins v. Ahern, 2010 WL3755654 (N.D. Cal. Sept. 24, 2010); Lombardi v.
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`TriWest Healthcare Alliance Corp., 2009 WL 1212170, at * 1 (D.Ariz. May 4, 2009). This
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`is because a person’s medical records contain sensitive and private information about
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`their health. While a plaintiff puts certain aspects of his medical condition at issue when
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`he files an action alleging deliberate indifference to a serious medical need under the
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`Eighth Amendment, that does not mean that the entirety of his medical records filed in
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`connection with a motion (which frequently contain records that pertain to unrelated
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`medical information) need be unnecessarily broadcast to the public. In other words, the
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`plaintiff’s interest in keeping his sensitive health information confidential outweighs the
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`public’s need for direct access to the medical records.
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`Here, the referenced exhibits contain plaintiff’s sensitive health information,
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`medical history, and treatment records. Balancing the need for the public’s access to
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`information regarding plaintiff’s medical history, treatment, and condition against the need
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`Case 2:18-cv-01449-MMD-CLB Document 27 Filed 11/10/20 Page 4 of 4
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`to maintain the confidentiality of plaintiff’s medical records weighs in favor of sealing these
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`exhibits. Therefore, defendants’ motions to seal (ECF Nos. 17 & 21) are GRANTED.
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`IT IS SO ORDERED.
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`DATED: _____________________
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`____________________________________
`UNITED STATES MAGISTRATE JUDGE
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`November 10, 2020
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