Baines v. City of Atlanta
Baines v. City of Atlanta
2020 WL 10070278 (N.D. Ga. 2020)
September 23, 2020

Anand, Justin S.,  United States Magistrate Judge

Attorney-Client Privilege
In Camera Review
Protective Order
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Summary
The court granted Plaintiff's second motion to file discovery under seal and Defendants' motion to file disputed documents under seal for in camera review. The court found good cause to seal the documents and emails due to medical information and communications subject to a lesser right of access, as well as emails subject to an in camera review to determine attorney-client privilege. The court ordered both parties to file their privilege logs and emails under seal.
Additional Decisions
TAMARA BAINES, Plaintiff,
v.
CITY OF ATLANTA, GEORGIA and ROBIN SHAHAR in her Individual Capacity, Defendants
CIVIL ACTION NO. 1:19-CV-0279-TWT-JSA
United States District Court, N.D. Georgia, Atlanta Division
Signed September 23, 2020

Counsel

Cheryl Barnes Legare, Marissa Torgerson, Legare, Attwood & Wolfe, LLC, Decatur, GA, Lisa Catherine Lambert, Law Office of Lisa Lambert, Atlanta, GA, for Plaintiff.
Hannah Elizabeth Jarrells, Suzanne Lewis, David E. Gevertz, Baker Donelson Bearman Caldwell & Berkowitz, P.C., Atlanta, GA, for Defendant Robin Shahar.
Anand, Justin S., United States Magistrate Judge

ORDER

*1 This action is before the Court upon three motions to file documents under seal; two filed by Plaintiff and one filed by Defendants. As explained below, Plaintiff's first Motion to File Discovery Under Seal [165] is DENIED without prejudice to be refiled in accordance with the procedures specified in the Court's recent amended Protective Order [187]. Plaintiff's second Motion to File Discovery Under Seal [182] and Defendants' Motion to File Disputed Documents Under Seal for In Camera Review [184] are GRANTED.
 
As the Court explained in its March 27 Order [110] regarding previous motions to seal, the Court's consideration of any motion to seal court exhibits or briefs starts with the presumption of public access to judicial documents. See Perez-Guerrero v. U.S. Att'y Gen., 717 F.3d 1224, 1235 (11th Cir. 2013). “What transpires in the court room is public property,” Craig v. Harney, 331 U.S. 367, 374 (1947), and this concept generally applies to what transpires on the docket of a case. This is because “[j]udges deliberate in private but issue public decisions after public arguments based on public records .... Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.” Hicklin Eng'g, L.C. v. Bartell, 439 F.3d 346, 348 (7th Cir. 2006).
 
The Eleventh Circuit, however, has drawn a distinction between discovery-related material, which is not strictly subject to the common-law right of access, and material filed with substantive pretrial motions, which generally is. See Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312–13 (11th Cir. 2001). Instead, “[w]here discovery materials are concerned, the constitutional right of access standard is identical to that of Rule 26(c) of the Federal Rules of Civil Procedure.” Id. at 1310 (citation omitted). Thus, the Court must apply the “good cause” standard pursuant to Rule 26(c) when determining whether discovery materials should be sealed. Under this standard, “[t]he prerequisite is a showing of ‘good cause’ made by the party seeking protection.” Id. at 1313. Whether good cause exists “is a factual matter to be decided by the nature and character of the information in question.” Id. at 1315. Further, “[f]ederal courts have superimposed a balancing of interests approach for Rule 26's good cause requirement. This standard requires the district court to balance the [public's] interest in obtaining access against the [litigant's] interest in keeping the information confidential.” Id. at 1313.
 
The first of Plaintiff's two motions seeks to file the transcript of the deposition of Dr. Torre Prothro-Wiley under seal. Plaintiff states that the deposition is relevant to a dispute between the parties as to emails between Plaintiff and Dr. Prothro-Wiley and that, as such, it is necessary to file the transcript. Because the “entire deposition is related to Plaintiff's mental health treatment with Dr. Prothro-Wiley,” says Plaintiff, it is subject to the terms of the Consent Protective Order [52] and may only be filed under seal. Mot. [165] at 2. The motion is not accompanied by a provisionally sealed copy of the transcript itself. Plaintiff notes that Defendants consent to the motion.
 
*2 Without the ability to review the full transcript of the deposition at issue, the Court cannot grant Plaintiff's first motion as filed. Although the motion correctly recites language from the original Consent Protective Order—which the Court recognizes was in effect at the time the motion's filing—mandating that parties present a motion for leave to file documents under seal and receive the Court's approval before filing a physical copy of the documents in a sealed envelope, this instruction has been superseded in the Court's most recent amendment to the Protective Order. Under the amendment, a party seeking to file documents under seal must first electronically file the documents under a provisional seal, concurrently with a motion for their sealing. See Order [187] at ¶ 8. Plaintiff must therefore refile the motion.
 
Plaintiff's second motion seeks to file two sets of responses to subpoenas under seal. Although the motion does not itself state why the documents should be filed under seal, the grounds for sealing are apparent. As the Court stated in its March 27 Order, Plaintiff “has a strong privacy interest in her medical information at least in the context of [ ] discovery disputes,” which are subject to a “somewhat lesser right-of-access.” Order [110] at 3. The provisionally sealed documents, which Plaintiff cites to as exhibits in her pending Motion for Sanctions [179], consist largely of medical records and communications, including a portion of a deposition transcript, which reference Plaintiff's medical conditions in detail. The Court thus finds good cause to seal the documents under Rule 26(c).
 
Defendants' motion seeks to file under seal redacted and unredacted versions of certain emails they have redacted or withheld from Plaintiff in the course of discovery, which they have been ordered to produce for an in camera review to determine whether and to what extent they are shielded from production by attorney-client privilege. Defendants file their motion pursuant to the Court's previous Order directing the parties to file under seal copies of the disputed records and privilege logs related to any requested in camera review for attorney-client privilege. See Order [172] at ¶ 4.[1] The Court finds good cause to seal these documents pending the Court's review for attorney-client privilege.
 
*3 Accordingly, Plaintiff's first Motion to File Discovery Under Seal [165] is DENIED without prejudice to be refiled in accordance with the procedures specified in the Court's recent amended Protective Order [187]. Plaintiff is ORDERED to do so within fourteen (14) days of the date of this Order. Plaintiff's second Motion to File Discovery Under Seal [182] and Defendants' Motion to File Disputed Documents Under Seal for In Camera Review [184] are GRANTED. The Clerk is DIRECTED to seal the subpoena responses filed by Plaintiff [181], permitting access only to the Court, its personnel, the parties, and their counsel. The Clerk is further DIRECTED to seal the emails filed by Defendants [183], permitting access only to the Court, its personnel, Defendants, and their counsel.
 
The Court notes that this Order, or any order allowing sealing for purposes of discovery-related disputes, does not imply that any sealed document will continue to be afforded sealed status for purposes of trial or merits-related motions such as for summary judgment. To the contrary, the strong presumption will be that no document or testimony will be sealed for such proceedings even if related to medical issues. A substantial burden will fall to the proponent of sealing any such evidence.
 
IT IS SO ORDERED this 23rd day of September, 2020.
 

Footnotes
The parties have mutually requested that the Court conduct in camera reviews of certain emails each side has redacted and/or withheld from discovery altogether on the basis of attorney-client privilege. In granting the parties' requests for the in camera reviews, the Court ordered the parties to move to file the disputed emails under seal and to provide it with electronic courtesy copies of the same. See Order [172] at ¶ 4. Both parties have provided the Court with electronic courtesy copies of the redacted and unredacted versions of the disputed emails and related privilege logs, and Defendants here file their privilege log and seek to file their redacted and unredacted/withheld emails under seal. However, Plaintiff has not yet filed her relevant privilege log or moved to file her disputed emails under seal. Plaintiff is ORDERED to do so within fourteen (14) days of the date of this Order.
Similarly, the parties have requested that the Court review in camera certain medical records which Defendants have requested but not received from Plaintiff. In granting Defendants' request for such a review, the Court ordered Plaintiff to file records responsive to the request under seal and to provide it with electronic courtesy copies of the same. See Order [172] at ¶ 8. Plaintiff has provided electronic courtesy copies of the records along with proposed redactions but has not moved to file the same under seal. Plaintiff is ORDERED to do so within fourteen (14) days of the date of this Order. Although the Court previously instructed the parties to move to file under seal physical copies of the records at issue in the in camera reviews, Plaintiff may move to file these documents electronically as stated in the amended Protective Order [187].