United States District Court, D. Oregon
J. OLSON HARRANG LONG GARY RUDNICK, PC ATTORNEY FOR PLAINTIFF
B. MILLER KILMER VOORHEES & LAURICK, PC ATTORNEY FOR
OPINION & ORDER
A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Alison Gary brings this Employee Retirement Income Security
Act (“ERISA”) action against Defendant Unum Life
Insurance Company of America, contending that Defendant
improperly denied Plaintiff's application for disability
benefits. Plaintiff now moves under Federal Rule of Civil
Procedure 5.2(d) for the entire administrative record, any
additions to it, as well as a Declaration and exhibits
previously filed by Defendant UNUM Life, to be filed under
seal. I grant the motion.
was employed by Dickstein Shapiro LLP as an associate
attorney, starting on September 24, 2012. Compl. ¶6, ECF
1. Plaintiff states that by November 27, 2013, she had become
totally disabled. Id. Plaintiff's physician
ordered Plaintiff to cease work. Id. On December 1,
2013, Plaintiff stopped working as an attorney. Id.
Since that time, Plaintiff has remained unemployed and under
medical treatment. Id.
2016, Plaintiff filed a claim for long-term-disability
(“LTD”) benefits under Dickstein Shapiro
LLP's Group Plan, which is administrated by Defendant.
Id. at ¶¶2, 17. On February 22, 2017,
Defendant paid Plaintiff one month's benefit under the
Plan while it completed its review of Plaintiff's claim.
Id. at ¶21. The next day Defendant denied
Plaintiff's claim. Id. at ¶22. Plaintiff
pursued an administrative appeal, and on July 28, 2017,
Defendant granted short-term-disability (“STD”)
benefits but denied LTD benefits. Id. at
¶¶23-25. On September 8, 2017, Plaintiff filed suit
against Defendant seeking recovery of LTD benefits, a
declaration of continuing benefits, and fees and costs.
See Compl. ¶¶30-62.
5.2(d) states that “[t]he court may order that a filing
be made under seal without redaction. The court may later
unseal the filing or order the person who made the filing to
file a redacted version for the public record.” The
Ninth Circuit uses a balancing test to determine under what
circumstances the filing of documents under seal is
appropriate. Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006). The court
must balance the private interests of the litigants with the
right of public access to court documents. Id. at
1178- 79. There is a “narrow range” of documents
that are exempt from the right of public access because they
have “traditionally been kept secret for important
policy reasons.” Id. at 1178 (citing Times
Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th
Cir. 1989)). If the documents are not exempted from the right
of public access then the court must apply the balancing
test. Id. at 1178. The party seeking to seal bears
the burden of overcoming the presumption of public access.
Id. When determining whether to seal evidence the
court examines whether the evidence is attached to a
dispositive or non-dispositive motion. Id. For
non-dispositive motions the court may seal evidence on a
showing of “good cause.” Id. For
dispositive motions the court may seal evidence only when a
party articulates “compelling reasons.”
Id. The higher standard for non-dispositive motions
exists because “[d]ifferent interests are at stake with
the right of access than with Rule 26(c); with the former,
the private interests of the litigants are not the only
weights on the scale.” Id. (footnote added). A
“good cause” showing, without more, will not
satisfy the “compelling reasons” test.
Id. at 1184.
argues that, when sensitive medical information warrants
protection from public disclosure, filing an ERISA
administrative record under seal is appropriate. Pl. Mot. at
4, ECF 25. Plaintiff argues that the Ninth Circuit in
Kamakana endorsed the lower court's decision
that medical records are “traditionally kept
secret” under the “compelling reasons”
test. Pl. Reply at 2, ECF 27. Plaintiff argues that her
medical privacy is a “compelling reason” under
the test. Pl. Reply at 2, 3. Plaintiff cites ten district
court cases from the Ninth Circuit as examples of instances
when medical records were sealed. Id. at 2, 3.
Plaintiff argues that she has met her burden under
Kamakana and that the record should be sealed, or in
the alternative that the portion of the record which contains
medical information be sealed. Id. Additionally,
Plaintiff incorporates by reference the arguments in her
response to Defendant's prior Rule 10 motion, which
sought to compel Plaintiff to re-file this action using her
full name instead of initials (Pl. Resp. at 5, 8, 9, ECF 15).
Pl. Mot. at 4.
argues that Plaintiff has not met her burden under
Kamakana because she has not shown a compelling
reason based on articulated facts, while avoiding hypothesis
or conjecture. Def. Resp. at 1, ECF 26. Defendant argues that
Plaintiff's fears of harm in her response to
Defendant's Rule 10 motion (Pl. Resp. at 5, 8, 9) are
insufficient to supply the Court with a compelling reason to
seal the record. Def. Resp. at 3, 4. Defendant also argues
that Plaintiff's general allegations are insufficient to
carry her motion, and that previous cases where Defendant has
agreed to seal an administrative record do not displace the
Court's obligation to apply the Kamakana test.
it is important to clarify that the “traditionally kept
secret” doctrine is entirely separate from the
“compelling reasons” test, and does not apply
here. Documents that are “traditionally kept
secret” are exempt from the right of public access. If
not exempt, then the right of public access is determined by
a balancing test. See Kamakana, 447 F.3d at 1178.
records do not fall under the “traditionally kept
secret” doctrine. See Id. (explaining that
case-law has identified only two categories of documents that
are “traditionally kept secret”: transcripts of
grand jury proceedings and warrant materials in the midst of
pre-indictment investigation); U.S. v. Index Newspapers
LLC, 766 F.3d 1072, 1084, 1085 (9th Cir. 2014)
(expanding the categories to include filings and transcripts
relating to motions to quash a grand jury subpoena, closed
portions of contempt hearings where matters presented before
a grand jury were discussed, and motions to hold a grand jury
witness in contempt). As such, because medical records are
not “traditionally kept secret, ” they are not
automatically exempted from the right of public access.
Defendant notes that the Court found that Plaintiff's
fears of specifically-alleged future harms were, in the
context of Plaintiff's Rule 10 motion, not objectively
reasonable. Defendant argues that, as a result of this
ruling, reliance on evidence from that motion is not enough
to decide this motion in Plaintiff's favor. Def. Resp. at
3, 4. Defendant admits that this argument is “not
dispositive” as to this motion. Def. Resp. at 4.
Defendant's argument is not persuasive. The
Kamakana test does not require an objective
reasonableness analysis, nor does it require a minimum
severity of harm. See Kamakana, 447 F.3d at 1178-81.
The Kamakana balancing test contemplates other