Hey, come closer. We’ve got a secret to share with you. We’ll whisper it in your ear. Ready? Courts hate sealing filings. It’s an administrative pain. Plus, parties who claim confidentiality tend to be a bit promiscuous in that regard, labeling far more documents confidential than is warranted. We’ve been on both sides of confidentiality disputes, and we get how risk aversion can drive one to slap a “Highly Confidential” sticker on way too many documents. Better to err on the side of caution, right? Well, maybe not always. You know that saying about how pigs get fat and hogs get slaughtered? Parties who overdesignate documents as confidential can end up as bacon. (By that we mean that they get fried, not that they are delicious).
For an illustration of this reality, take a look at Thelen v. Somatics, LLC, 2023 U.S. Dist. LEXIS 47793 (M.D. Fla. March 21, 2023), a case that raises an unusual confidentiality issue. The plaintiff brought a product liability suit against a manufacturer and a distributor of an electroconvulsive therapy (ECT) medical device. The plaintiff alleged that he sustained permanent neurological damage from the ECT device, that the defendants knew of the risk of such injuries, and that the defendants failed to warn of those risks. The complaint included causes of action for negligence, strict liability, and breach of warranty.
The issue in this decision involved the plaintiff’s request that all of his medical records (presumably largely psychiatric) should be filed under seal. Despite the motion being unopposed, the plaintiff’s motion for sealing was denied. That fact alone should tell you how much courts disdain the sealing process.
The Thelen court began its analysis by observing that “Filing information under seal is disfavored.” There must a showing of good cause to overcome the “presumption of public access.” The plaintiff argued that his “privacy interest in maintaining the confidentiality of this sensitive material is compelling and outweighs the public interest in accessing court documents.” The Thelen court disagreed. The plaintiff, by bringing this product liability lawsuit, placed his health condition directly at issue. The information in the medical records was central to the case, as opposed to being of only marginal relevance. The plaintiff’s medical condition, including mental status before and after the ECT was front and center, and the court would need to address that issue in resolving pending summary judgment and Daubert motions.
It appears possible that the plaintiff, as is typical, hurt his cause by over-designating what he wanted sealed. According to the court, “The material proposed for sealing contains everything from general information about the Plaintiff’s medical history to very detailed information on his symptoms, medications, lifestyle, and interaction with and treatment by medical and psychological professionals.”
But the very nature of the case put all of that information in play. Moreover, the plaintiff did not claim that the information in the records was unreliable. Indeed, much of it was self-reported. In any event, the plaintiff would have the opportunity to “set the record straight in the lawsuit.”
Nevertheless, it is hard not to have some sympathy for the plaintiff. The court certainly had sympathy: “While the Court understands why Plaintiff would wish to keep from the public record information concerning the details of his medical history, and his lawyers cannot be faulted for seeking to do so, in the end once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case.” (Quotation and citations omitted.)
Most of our readers either have faced or will face the dilemma of confidentiality designations. Plus, we do not mean to be cynical, but we’ve run across some plaintiff lawyers who weren’t particularly shy about using the threat of publicity to increase their leverage. Underdesignate, and you might waive confidentiality or visit embarrassment on your client. Overdesignate, and you might provoke the judge into wholesale denial. Your client might push you towards overdesignation. If that happens, you might need to push back. Otherwise, the judge will push your confidentiality/sealing motion right into the trash bin, and there is no pushing back on that.