*1 Before the court is Plaintiff Lyudmyla Pyankovska's Emergency Motion for Protective Order (ECF No. 93), which was filed ex parte and under seal. Although filed as a sealed, ex parte document, Plaintiff certified that she sent Defendant Sean Abid a true and complete copy of the motion via U.S. Mail on August 20, 2018 (ECF No. 93, p. 7). The clerk's office unsealed the document on September 6, 2018, because the motion did not meet the requirements under the Local Rules of Practice for filing an ex parte document. Defendant has not responded to the motion and has not requested an extension of time to respond.

The original Complaint (ECF No. 1) in this case was filed in 2016. Plaintiff filed an Amended Complaint (ECF No. 82) on June 4, 2018. Plaintiff and defendant are the parents of a minor child, born February 13, 2009. See Am. Compl. (ECF No. 82) ¶ 10. The parties divorced in February 2010, agreeing to share joint legal and physical custody of their child. Id. In August 2012, the plaintiff filed a motion in family court seeking to modify physical custody and reduce alleged arrears and child support to judgment. Id. ¶ 13. As a result, the parties eventually stipulated to an agreement resolving their disputes. Id. ¶¶ 14-16. Both parties have since remarried. Id. ¶¶ 17, 19. In June 2013, the defendant filed a motion in family court to change custody for purposes of relocation. Id. ¶ 21. The defendant's motion requested the district court to enter an order modifying the prior joint custody and parenting agreements and to award the defendant primary custody of the parties' minor child. Id. ¶ 22. In July 2013, because of the defendant's allegation of parental alienation, the assigned judge appointed an expert psychologist to conduct a child custody evaluation of the couple's minor child. Id. ¶ 25.

In December 2013 following an evidentiary hearing, the family court judge found the defendant failed to meet the standard to modify the parties' prior joint physical custody arrangement, and the parties entered into a final stipulation and order resolving all issues that was adopted and ratified by the assigned judge. Id. ¶ 27.

In January 2015, plaintiff filed another motion to hold the defendant in contempt and to modify. Id. ¶ 33. Without plaintiff or the minor child's consent, the defendant inserted a recording device inside the minor child's school backpack to secretly intercept communications among the plaintiff, her son, and husband, as well as her son's older minor sister. Id. ¶ 35. Communications were intercepted between June 2014 and January 2015. Id. ¶ 36. The defendant eventually brought the recordings to his attorney's attention of to use them in the parties' custody case. Id. ¶ 40. The defendant refused to produce the original recordings of the intercepted communications and admitted to destroying them and the devices on which they were edited. Id. ¶ 42. The parties continued to have ongoing disputes regarding their son in family court. See generally id. ¶¶ 46-81.

*2 Plaintiff alleges that after she filed this federal court complaint, an individual published the transcripts of illegally-obtained tapes on the internet to harass and embarrass her which caused her embarrassment and emotional distress, damaged her reputation, made her depressed, unable to work, and in need of urgent therapy. See generally id. ¶¶ 82-90. Based on these allegations, plaintiff asserts defendant violated federal laws, specifically 18 U.S.C. §§ 2510 and 2511 by intentionally intercepting oral communications and disclosing the contents of oral communications knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of the law. Id. ¶ 94. Plaintiff also alleges the defendant used the contents of oral communications knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communication in violation of the law. Id.

She also alleges claims for: 1) civil conspiracy; 2) a violation of NRS 200.650; 3) an “intrusion upon seclusion” claim; 4) civil conspiracy under NRS 207.400; 5) public disclosure of protected content; 6) false light; 7) a breach of contract; 8) intention infliction of emotional distress; 9) negligent infliction of emotional distress; 10) and fraud and intentional misrepresentation. She seeks damages in excess of $75,000.00, punitive damages, an order compelling the defendant to undertake a full and complete admission and retraction of all false statements, a declaration that defendant's actions were unlawful, statutory damages, general damages, injunctive relief, special damages, and costs of this action including attorney's fees, expert fees, and Nevada Supreme Court fees for appealing her family court matter.

In the current motion, plaintiff seeks a protective order enjoining the defendant from “blackmailing plaintiff in the civil matter, from muddying the record with threats to embarrass and humiliate her further.” The motion points out that on August 1, 2018, the court entered a discovery plan and scheduling order (ECF No. 92). Plaintiff contacted defendant to prepare an interim status report that should have been filed on August 30, 2018, and asked the defendant to file a joint protective order “that no privileged and private information will be disclosed or discussed in court pleadings and proceedings.” Defendant reportedly responded that he had no choice but to tell the full story if plaintiff does not drop her lawsuit. Plaintiff states “parties are divorced since 2010 and nothing that defendant is intended to allege was ever raised in court proceedings in any way.” Plaintiff asserts that discovery records maintained by private parties are not public and only need to be produced pursuant to a court order that reasonably limits the scope of the production. However, defendant provided a copy of plaintiff's initial disclosure to Mark Diciero who published it immediately on the Nevada Court Watchers Facebook page. Plaintiff's initial disclosure includes the list of witnesses she may use at trial with their private addresses and phone numbers, and she is concerned that people on her list will get harassed and intimidated. Mark Diciero published a statement that he read a forthcoming dispositive motion and initial disclosures in federal court that will reveal private information regarding plaintiff and it will be posted on Facebook after it gets stamped and returned. Plaintiff argues that these events and actions by the defendant will impose further stress on her and add more injury to her reputation and health.

Plaintiff claims that the defendant is not acting in good faith, but attempting to harass, annoy, and distract her. Without delving into very private details, “the letter concerns specific incidences occurring in defendant's life and the relationship between the defendant and plaintiff.” She believes the defendant is trying to use that information as some form of indication of her instability. Based on these allegations and arguments, she requests that the court “issue a protective order precluding the disclosure of Plaintiff's private information to public and impose sanctions that are proper.” The motion attaches email communications between the plaintiff and defendant as Exhibit 1, and screenshots from the Nevada Court Watchers website as Exhibits 2 and 3.

*3 As an initial matter, this motion was improperly filed ex parte and under seal.

LR IA 7-2 governs ex parte communications and provides:

The Local Rules explain that an ex parte motion or application is one that is filed with the court “but is not served on the opposing or other parties.” LR IA 7-2(a) (emphasis added). Ex parte motions or requests are generally not permitted. Id.

A party seeking to file a confidential document under seal must file a motion to seal and must comply with the Local Rules of Practice and the Ninth Circuit's directives in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). There is a strong presumption of public access to judicial files and records. Discovery papers in civil cases may not generally be filed with the court. See LR 26-8. However, civil discovery is presumptively public, and may disclosed in the absence of a protective order. Discovery responses are frequently filed with motions filed in court in support of or in opposition to requests for various forms of relief from the court. Documents filed on the public record may only be sealed with leave of court and in compliance with LR IA 10-5(a).

The Ninth Circuit has held that parties seeking to maintain the confidentiality of documents attached to most non-dispositive motions must show good cause exists to overcome the presumption of public access. Kamakana, 447 F.3d at 1179–80; but see Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092 (9th Cir. 2016) (standards courts apply to sealing requests turn on the relevance of the documents to the substantive merits of a case—not the relief sought). Parties seeking to maintain the secrecy of documents attached to dispositive (case-ending) motions must show compelling reasons to overcome the presumption of public access. Id. If a sealing order is permitted, it must be narrowly tailored. Press-Enterprise Co. v. Superior Ct. of California, 464 U.S. 501, 512 (1984). The sealing of entire documents is improper when any confidential information can be redacted while leaving meaningful information available to the public. In re Roman Catholic Archbishop of Portland, 661 F.3d 417, 425 (9th Cir. 2011).

In addition to complying with the Kamakana standards, the parties are required to follow the proper CM/ECF (case management/electronic case filing) procedures for any requests to seal judicial records. The Local Rules of Practice provide that the electronic record is the court's official record and require the Clerk of the Court to maintain the official files of all cases in electronic form. See LR IC 1-1. Pursuant to LR IA 10-5, parties and attorneys must file documents under seal using the court's electronic filing procedures:

LR IA 10-5(a).

Rule 26(c) of the Federal Rules of Civil Procedure[1] permits the court upon a showing of good cause to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” upon motion by a party or any person from whom discovery is sought. Fed. R. Civ. P. 26(c). The Supreme Court has interpreted Rule 26(c) as conferring “broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (stating that the “unique character of the discovery process” requires the trial court to “have substantial latitude to fashion protective orders”).

Rule 26(c) places the burden of persuasion on the party seeking the protective order. Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063–64 (9th Cir. 2004). The moving party must show good cause “for each particular document it seeks to protect” by demonstrating that “prejudice or harm will result if no protective order is granted.” Foltz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122, 1130 (9th Cir. 2003); see also Phillips v. General Motors Corp., 307 F.3d 1206, 1212 (9th Cir. 2002). The movant should provide “specific demonstrations of fact, supported where possible by affidavits and concrete examples, rather than broad, conclusory allegations of harm.” Beckman Indus., Inc. v. Int'l. Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). “ ‘[B]road allegations of harm, unsubstantiated by specific examples or articulated reasoning do not satisfy the Rule 26(c) test’.” In re Roman Catholic Archbishop of Portland, 661 F.3d at 424 (quoting Beckman, 966 F.2d at 476). “The party seeking the order must point to specific facts that support the request, as opposed to conclusory or speculative statements about the need for a protective order and the harm which will be suffered without one.” E.E.O.C. v. Caesars Entertainment, Inc., 237 F.R.D. 428, 432 (D. Nev. 2006) (quotation omitted). “If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary.” Rivera, 364 F.3d at 1063–64 (quoting Phillips, 307 F.3d at 1211).

The United States Supreme Court has recognized “a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Communications, 435 U.S. 589, 597 (1978). The Ninth Circuit has held that the public has a prejudgment right of access to judicial records in civil cases based on federal common law, and the Federal Rules of Civil Procedure. San Jose Mercury News, Inc. v. U.S. District Court, 187 F.3d 1096, 1102 (1999). The Ninth Circuit recognizes a strong presumption in favor of access. Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (citing Valley Broadcasting Co. v. U.S. District Court, 798 F.2d 1289 (9th Cir. 1986)). The strong presumption of public access may be overcome only “on the basis of articulable facts known to the court, not on the basis of unsupported hypothesis or conjecture.” Valley Broadcasting, 798 F.2d at 1293.

*5 Unless court records are of the type “traditionally kept secret” the Ninth Circuit recognizes a “strong presumption in favor of access.” Foltz, 331 F.3d at 1135 (citing Hagestad, 49 F.3d at 1434). Grand jury transcripts and warrant materials involved in pre-indictment investigations are two categories of documents and records which have “traditionally been kept secret for important policy reasons.” Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989). Although the federal common law right of access exists, it “does not mandate disclosure in all cases.” San Jose Mercury News, 187 F.3d at 1102. The strong presumption in favor of public access recognized by the Ninth Circuit “can be overcome by sufficiently important countervailing interests.” Id.

In the Ninth Circuit, it is “well-established that the fruits of pretrial discovery are, in the absence of a court order to the contrary, presumptively public.” San Jose Mercury News, 187 F.3d at 1103. Thus, the Ninth Circuit concluded, “[g]enerally, the public can gain access to litigation documents and information produced during discovery unless the party opposing disclosure shows ‘good cause’ why a protective order is necessary.” Phillips, 307 F.3d at 1210. “For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Id. at 1210–11. Or, as the Ninth Circuit articulated the standard in Foltz, the “burden is on the party requesting a protective order to demonstrate that (1) the material in question is a trade secret or other confidential information within the scope of Rule 26(c), and (2) disclosure would cause an identifiable, significant harm.” Foltz, 331 F.3d at 1131. “If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary.” Phillips, 307 F.3d at 1211.

In Phillips, the Ninth Circuit carved out an exception to the presumption of public access, holding that the presumption does not apply to materials filed with the court under seal subject to a valid protective order. 307 F.3d at 1213. The Phillips decision relied on the Seattle Times decision in concluding that protective orders restricting disclosure of discovery materials that are not admitted in evidence do not violate the public right of access to traditionally public sources of information. Id. at 1213 (quoting Seattle Times, 467 U.S. at 33). The Ninth Circuit reasoned that the presumption of public access was rebutted because a district court had already determined that good cause existed to protect the information from public disclosure by balancing the need for discovery against the need for confidentiality in issuing the protective order. Id. Therefore, “when a party attaches a sealed discovery document to a non-dispositive motion, the usual presumption of the public's right of access is rebutted.”

The Ninth Circuit comprehensively examined the presumption of public access to judicial files and records in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). There, the court recognized that different interests are at stake in preserving the secrecy of materials produced during discovery, and materials attached to dispositive motions. Citing Phillips and Foltz, the Kamakana decision reiterated that a protective order sought under the Rule 26(c) may be issued once a particularized showing of good cause exists for preserving the secrecy of discovery materials. “Rule 26(c) gives the district court much flexibility in balancing and protecting the interests of private parties.” 447 F.3d at 1180. The Kamakana court, therefore, held that a “good cause” showing is sufficient to seal documents produced in discovery. Id.

*6 However, the Kamakana decision also held that a showing of “compelling reasons” is needed to support the secrecy of documents attached to dispositive motions. A showing of “good cause” does not, without more, satisfy the “compelling reasons” test required to maintain the secrecy of documents attached to dispositive motions. Id. The court found that:

Id. Kamakana recognized that “compelling reasons” outweigh the public's interests in disclosure and justify sealing records exist when court records may be used to gratify private spite, permit public scandal, circulate libelous statements, or release trade secrets. Id. at 1179 (internal quotations omitted). However, the “mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” Id. (citing Foltz, 331 F.3d at 1136). To justify sealing documents attached to dispositive motions, a party is required to present articulable facts identifying the interests favoring continuing secrecy, and show that these specific interests overcome the presumption of public access by outweighing the public's interests in understanding the judicial process. Id. at 1181 (internal citations and quotations omitted).

Rule 5.2 and LR IA 6-1 govern privacy protection for filings made with the court and is applicable to personal identification information such as social security numbers, dates of birth, names of minor children, home addresses, and financial account information. Court filings containing personal identification information must be redacted unless the court orders otherwise. Fed. R. Civ. P. 5.2(a); LR IA 6-1.

Finally, medical information has special protection under federal law. The Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104–191, 110 Stat. 1936, was enacted with the stated purpose of improving the “efficiency and effectiveness of the health information system through the establishment of standards and requirements for the electronic transmission of certain health information.” By enacting HIPAA, Congress recognized “the importance of protecting the privacy of health information.” Webb v. Smart Document Sols., LLC, 499 F.3d 1078, 1084 (9th Cir. 2007) (internal quotation omitted).

HIPAA's privacy provisions allow for disclosure of medical information in the course of judicial proceedings, but places requirements on both the individual providing the information and the party seeking it. 45 C.F.R. § 164.512(e); Crenshaw v. MONY Life Ins. Co., 318 F. Supp. 2d 1015, 1029 (S.D. Cal. 2004). Under § 164.512(e)(1)(i), a litigant may obtain medical information “in response to a court order or to a subpoena, discovery request, or other lawful process, even if not accompanied by a court order, if the party seeking the information makes reasonable efforts to secure a qualified protective order.” Hutton v. City of Martinez, 219 F.R.D. 164, 167 (N.D. Cal. 2003). A qualified protective order must prohibit the parties from “using or disclosing the protected health information for any purpose other than the litigation” and require the return or destruction of the protected health information (including all copies made) at the end of the case. 45 C.F.R. § 164.512(e)(1)(v) (emphasis added). Where no protective order is in place to safeguard a party's privacy, “HIPAA's disclosure procedures apply.” Crenshaw, 318 F. Supp. 2d at 1029. Statutory penalties for HIPAA violations range from $100 to $50,000 for each violation. 42 U.S.C. § 1320d-5.

*7 The court appreciates that both sides are representing themselves and that it is difficult to prosecute and defend a federal lawsuit. This order is intended to provide both sides with guidance on the law applicable to disclosure of materials exchanged in discovery and filings with the court. Both sides are advised to carefully review this order, the Federal Rules of Civil Procedure, the Local Rules of Practice and the substantive law governing their claims and defenses. The parties are also cautioned that the court simply will not tolerate attempts to use discovery and other papers filed with the court to be used in a smear campaign against one other. A myriad of sanctions are available to the court to correct and, if necessary, punish a party who engages in improper conduct.

On the merits, plaintiff's motion does not claim that any witnesses she disclosed in her mandatory initial disclosures have been intimidated or harassed, only that she fears this will occur. Plaintiff does not describe the type of private information she fears the defendant, her ex-husband, will disclose. She has simply not met the standard for issuance of a protective order.

Accordingly,

IT IS ORDERED that Plaintiff's Motion for Protective Order (ECF No. 93) is DENIED.

DATED this 16th day of October, 2018.

All references to a “Rule” or “Rules” in this Order refer to the Federal Rules of Civil Procedure.