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Gary v. Unum Life Insurance Company of America

United States District Court, D. Oregon

April 17, 2018

ALISON GARY, an individual, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, a Maine corporation, as administrator of the Dickstein Shapiro LLP Group Long Term Disability Plan, Defendant.

          ARDEN J. OLSON HARRANG LONG GARY RUDNICK, PC ATTORNEY FOR PLAINTIFF

          ROBERT B. MILLER KILMER VOORHEES & LAURICK, PC ATTORNEY FOR DEFENDANT

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.

         In 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.

         DISCUSSION

         Rule 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);[1] 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.

         Plaintiff 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.[2] 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.

         Defendant 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. Id.

         First, 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.

         Medical 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.

         Second, 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 interests ...


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