United States District Court, E.D. Pennsylvania
BERNARD F. GANSKI, JR. and LORRAINE
GANSKI V. CASSANDRA WOLFF.
MEMORANDUM OF DECISION
THOMAS J. RUETER, Magistrate Judge.
Presently before the court is plaintiffs' pro se Motion to File Documents Under Seal (the "Motion, " Doc. No. 89) and defendant's response in opposition thereto (Doc. No. 90). For the reasons set forth below, plaintiffs' Motion is DENIED.
On June 11, 2007, defendant Cassandra Wolff struck the rear of plaintiff Bernard Ganski's vehicle. Plaintiff Bernard Ganski and his wife brought suit against defendant for injuries related to the accident. Plaintiff Bernard Ganski claimed to have suffered a range of injuries resulting from the accident, including injuries to his back and knee, brain damage that resulted in linguistic deficits and loss of memory and concentration, and psychological and personality changes that caused he and his wife to separate. Ganski v. Wolff, 2012 WL 3193939, at *1 (E.D. Pa. Aug. 7, 2012). Plaintiff Lorraine Ganski claimed that her husband's injuries caused a severe strain on their marital relationship and caused her to suffer a loss of companionship with her husband. Id . Defendant stipulated that she breached her duty of care, but asserted that her negligence was not a factual cause of the injuries claimed by plaintiffs. Id . The jury returned a verdict in favor of defendant. Plaintiffs filed a motion for a new trial under Fed.R.Civ.P. 59(a)(1)(A) (Doc. No. 74). On August 7, 2012, this court denied the motion for a new trial by Memorandum of Decision (the "August 7, 2012 Decision, " Doc. No. 84) reported at 2012 WL 3193939 (E.D. Pa. Aug. 7, 2012). On April 30, 2013, the Third Circuit Court of Appeals affirmed the decision. See Ganski v. Wolff Lighting Systems, 517 F.App'x 118 (3d Cir. 2013) (not precedential).
Plaintiffs' instant Motion requests an order sealing and/or redacting portions of the docket to be applied nunc pro tunc. Specifically, plaintiffs request that pages 1, 2, 6, 9, 10 and 11 of the August 7, 2012 Decision be redacted or the entire decision be sealed. Plaintiffs assert that these pages contain "personally identifiable and protected health information along with false injurious and libelous statements." (Mot. at 1.) Plaintiffs are concerned about the availability of the August 7, 2012 Decision on websites or search engines maintained by entities such as the United States District Court for the Eastern District of Pennsylvania, Government Printing Office, FindALaw, Google, Yahoo and Bing, and other third party legal information providers, and therefore request that the August 7, 2012 Decision be sealed or redacted. Id. at 1-2.
The Third Circuit has recognized that a "common law right of access to judicial records is beyond dispute." Miller v. Indiana Hosp. , 16 F.3d 549, 551 (3d Cir. 1994). Courts have adopted a "strong presumption" in favor of openness. Id . Before sealing judicial records, the court must articulate "the compelling countervailing interests to be protected, [make] specific findings on the record concerning the effects of disclosure, and [provide] an opportunity for interested third parties to be heard." Id.
To obtain an order sealing or redacting judicial records, the moving party must show "good cause" for granting the motion. Pansy v. Bor. of Stroudsburg , 23 F.3d 772, 786 (3d Cir. 1994). Good cause is shown if "disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity." Id . (citing Publicker Indus., Inc. v. Cohen , 733 F.2d 1059, 1071 (3d Cir. 1984)). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Id . Seven factors, although neither mandatory nor exhaustive, may be considered in determining if the moving party has shown good cause: (1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public. Glenmede Trust Co. v. Thompson , 56 F.3d 476, 483 (3d Cir. 1995). In addition to granting or denying the motion outright, the court also can limit the method of disclosure. Fed.R.Civ.P. 26(c)(1)(D). Courts have significant discretion in crafting protective orders to reduce potential harm. Pansy , 23 F.3d at 787.
Here, plaintiffs bear the burden of showing good cause. Plaintiffs assert three injuries resulting from the availability of the August 7, 2012 Decision on the internet. First, the inclusion of personally identifiable and protected health information violated Bernard Ganski's rights under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), Pub.L. No. 104-191, 110 Stat. 1936. (Mot. at 2.) Second, the August 7, 2012 Decision has damaged Bernard Ganski's reputation. Id . Third, Bernard Ganski claims he is unable to secure long term employment because of the availability of the August 7, 2012 Decision on electronic sources.
A. HIPAA Violation
Plaintiffs assert that reference to his medical evidence in the August 7, 2012 Decision violates his "rights" under HIPAA. (Mot. at 2, 5-8.) HIPAA regulates the use and disclosure of individuals' health information by covered entities. See 45 C.F.R. § 164.500, et seq. Under HIPAA, the court is not a covered entity. See 45 C.F.R. § 160.103. Thus, plaintiffs' reliance upon HIPAA is misplaced.
Additionally, plaintiffs did not complain of a HIPAA violation during the trial when some of Bernard Ganski's medical information was discussed in open court and admitted into evidence. Only now that the litigation proved unsuccessful in this court and on appeal in the Third Circuit Court of Appeals, do plaintiffs seek to withdraw the evidence from public view, or to try to blunt its impact.
HIPAA regulations allow medical records to be disclosed for judicial proceedings and produced in response to a subpoena provided that certain notice requirements have been met. 45 C.F.R. § 164.512(e)(1)(ii). At no time during the discovery period or during the trial did plaintiffs complain that the Federal Rules of Civil Procedure or HIPAA requirements were violated with respect to the production and use of Bernard Ganski's medical records. See Thomas v. 1156729 Ontario Inc. , 979 F.Supp.2d ...