SPV LLC v. Sean Underkofler (2014)

MEMORANDUM OF DECISION IN RE MOTION TO SEAL, # 112

At issue is the defendant's motion to seal.   For the reasons set forth below, the court finds the privacy interest sought to be protected outweighs the public's interest in obtaining essentially private medical information.   The court further finds that a reasonable alternative to sealing exists in the form of redaction.   The motion is granted in part.

FACTS AND PROCEDURAL HISTORY

On April 9, 2013, the plaintiff, Cavalry SPV I, LLC, commenced this action by service of a summons and two-count complaint on the defendant, Sean Underkofler.   The defendant, who is self-represented, filed a motion to dismiss the complaint on May 21, 2013, and a motion to quash the plaintiff's discovery requests on July 17, 2013.¹  On September 24, 2013, the defendant filed the present “Motion to Seal Personal Identifying Information (PB 11–20B or PB 25–59B)” (motion to seal) and an “Addendum to his Response to Plaintiff's Objection to Defendant's Motion to Dismiss” (addendum).   The defendant moves to seal Exhibit B to the addendum, which consists of two letters written by his treating physicians, dated July 18, 2006, and January 19, 2007.   When the matter was heard at short calendar on October 28, 2013, the plaintiff represented to the court that it does not oppose the motion to seal.

DISCUSSION

Practice Book § 11–20A governs the sealing of files in civil cases.²  This section provides that an agreement between the parties is not a sufficient basis for granting a motion to seal.  Practice Book § 11–20A(c);  see also Bank of New York v. Bell, 120 Conn.App. 837, 846, 993 A.2d 1022, cert. denied, 298 Conn. 917, 4 A.3d 1225 (2010) (“The right to have documents sealed is not a right the parties have as against each other;  the court must determine the question as against the demands of the public interest” [internal quotation marks omitted] ).   Accordingly, the following subsections of Practice Book § 11–20A are relevant to the court's consideration of the present motion to seal:

“(a) Except as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.

“(b) Except as provided in this section and except as otherwise provided by law, including Section 13–5, the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited.

“(c) Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.   The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest.   An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order.

“(d) In connection with any order issued pursuant to subsection (c) of this section, the judicial authority shall articulate the overriding interest being protected and shall specify its findings underlying such order and the duration of such order.   If any findings would reveal information entitled to remain confidential, those findings may be set forth in a sealed portion of the record.   The time, date, scope and duration of any such order shall be set forth in a writing signed by the judicial authority which upon issuance the court clerk shall immediately enter in the court file and publish by posting both on the judicial branch website and on a bulletin board adjacent to the clerk's office and accessible to the public.   The judicial authority shall order that a transcript of its decision be included in the file or prepare a memorandum setting forth the reasons for its order.

“(e) Except as otherwise ordered by the judicial authority, a motion to seal or limit the disclosure of affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding shall be calendared so that notice to the public is given of the time and place of the hearing on the motion and to afford the public an opportunity to be heard on the motion under consideration.   The procedures set forth in Sections 7–4B and 7–4C shall be followed in connection with a motion to file affidavits, documents or other materials under seal or to limit their disclosure.

“(g) With the exception of any provision of the General Statutes under which the court is authorized to seal or limit the disclosure of files, affidavits, documents, or other materials, whether at a pretrial or trial stage, any person affected by a court order that seals or limits the disclosure of any files, documents or other materials on file with the court or filed in connection with a court proceeding, shall have the right to the review of such order by the filing of a petition for review with the appellate court within seventy-two hours from the issuance of such order.   Nothing under this subsection shall operate as a stay of such sealing order ․

“(j) When placed on a short calendar, motions filed under this rule shall be listed in a separate section titled “Motions to Seal or Close” and shall also be listed with the time, date and place of the hearing on the Judicial Branch website.   A notice of such motion being placed on the short calendar shall, upon issuance of the short calendar, be posted on a bulletin board adjacent to the clerk's office and accessible to the public.”  Practice Book § 11–20A.

“[Practice Book] § 11–20A codifies the common-law presumption of public access to judicial documents ․” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 30, 970 A.2d 656, cert. denied sub. nom.   Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 558 U.S. 991, 130 S.Ct. 500, 175 L.Ed.2d 348 (2009).  “The presumption of openness of court proceedings ․ is a fundamental principle of our judicial system ․ This policy of openness is not to be abridged lightly.   In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public's interest in open judicial proceedings.”  (Internal quotation marks omitted.)   Bank of New York v. Bell, supra, 120 Conn.App. 846.

“[T]he Superior Court has opined that, in order to overcome the [Practice Book] § 11–20A presumption in favor of public access to judicial documents, a specific injury which would unfairly harm the parties must be shown and the sealing must be narrowly tailored to it.”  (Internal quotation marks omitted.)   Redmond v. Promotico, Superior Court, judicial district of New Haven, Docket No. CV–12–6029399–S (October 16, 2012, Wilson, J.) (54 Conn. L. Rptr. 828, 829).   Thus, the threshold inquiry in the present case is whether the defendant's privacy interest in the medical information contained in Exhibit B justifies a sealing order.³

Judges of the Superior Court have found that an individual's privacy interest in his medical records may override the public's interest in open judicial proceedings.   See Noll v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, Docket No. CV–02–4034702–S (September 16, 2008, Shapiro, J.) (citing Health Insurance Portability and Accountability Act of 1996 [HIPAA] and concluding that public had only limited interest in deponent's personal medical information but deponent had substantial privacy interest in keeping such information confidential);  accord Tauck v. Tauck, Superior Court, judicial district of Middlesex, Docket No. FA–05–4004889–S (September 21, 2007, Abery–Wetstone, J.) (emphasizing private nature of family matters and granting motion to seal where disclosure of parties' medical records might discourage them from seeking treatment).   In the present motion to seal, the defendant relies on HIPAA as support for his asserted interest in maintaining the privacy of his medical information.⁴  Here, the court finds that the defendant's privacy interest overrides the public's interest in viewing the personal medical information.   Nondisclosure in the public domain protects and advances a party's privacy concerns.   Notably, the plaintiff poses no objection to sealing such documents.

It is incumbent on this court to consider reasonable alternatives to a sealing order, such as redaction.   See Practice Book § 11–20A(c).  In undertaking this consideration, it is noted that where information is already in the public domain, no useful purpose would be served by limiting the public's access through a motion to seal.   See Sienkiewicz v. Ragaglia, Superior Court, judicial district of Fairfield, Docket No. CV–10–6008363 (March 2, 2011, Arnold, J.) (denying motion to seal where parties' filings and court's decisions in prior action contained materially all information sought to be sealed in current action).   Moreover, the privacy interest that justifies sealing personal medical information does not obtain with respect to information a party has voluntarily placed in issue in the litigation.   O'Dell v. Greenwich Healthcare Services, Inc., Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–11–6008364–S (April 25, 2013, Adams, J.) (denying motion to seal exhibits whose “contents ․ are quite thoroughly and openly discussed in memoranda and affidavits submitted in connection with [the motion for] summary judgment”).

In the present case, the defendant discusses much of the medical information contained in Exhibit B in his reply to the plaintiff's objection to the motion to dismiss.   See Docket Entry # 111.   Notwithstanding this partial disclosure, the defendant maintains a privacy interest in the undisclosed information sufficient to override the presumption of public access.   The court finds that redacting the undisclosed information, which is contained in the letter dated July 18, 2006, is a reasonable alternative to sealing that will effectively advance the defendant's privacy interest in this information.

CONCLUSION

On the basis of the foregoing findings, the court issues the following order.   There exists a reasonable alternative to sealing in the form of redacting that information which the defendant has not previously disclosed in public filings with the court.   Accordingly, the defendant shall e-file a copy of Exhibit B from which he has redacted the fourth, fifth, and sixth sentences of the letter dated July 18, 2006.   Pursuant to Practice Book § 11–20A(d), the unredacted copy of Exhibit B lodged with the court will remain sealed for the duration of this litigation and any appeal period thereafter.   The contents may be disclosed upon further leave of the court.   Furthermore, pursuant to Practice Book § 11–20A(g), “any person affected by a court order that seals or limits the disclosure of any files, documents or other materials on file with the court or filed in connection with a court proceeding, shall have the right to the review of such order by the filing of a petition for review with the appellate court within seventy-two hours from the issuance of such order.”

It is so ordered.

Nazzaro, J.

FOOTNOTES

FN1. On November 4, 2013, the court denied both motions..  FN1. On November 4, 2013, the court denied both motions.

FN2. Preliminarily, it is noted that although the defendant titled the present motion “Motion to Seal Personal Identifying Information (PB 11–20B or PB 25–59B),” both of these Practice Book sections are irrelevant.  Practice Book § 11–20B provides in relevant part:  “If a document containing personal identifying information is filed with the court, a party or a person identified by the personal identifying information may request that the document containing the personal identifying information be sealed.”   Exhibit B does not contain any “personal identifying information” as that term is defined.   See Practice Book § 4–7(a).  Practice Book § 25–59B is also irrelevant as it pertains to the sealing of personal identifying information in family matters..  FN2. Preliminarily, it is noted that although the defendant titled the present motion “Motion to Seal Personal Identifying Information (PB 11–20B or PB 25–59B),” both of these Practice Book sections are irrelevant.  Practice Book § 11–20B provides in relevant part:  “If a document containing personal identifying information is filed with the court, a party or a person identified by the personal identifying information may request that the document containing the personal identifying information be sealed.”   Exhibit B does not contain any “personal identifying information” as that term is defined.   See Practice Book § 4–7(a).  Practice Book § 25–59B is also irrelevant as it pertains to the sealing of personal identifying information in family matters.

FN3. This inquiry is hampered by the defendant's failure to comply with Practice Book § 7–4B, which provides in relevant part:  “The motion [to seal] must be accompanied by an appropriate memorandum of law to justify the sealing or limited disclosure.”   Nevertheless, the Supreme Court has recognized “the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party.”  (Internal quotation marks omitted.)  Equity One, Inc. v. Shivers, 310 Conn. 119, 136 n.13, 74 A.3d 1225 (2013)..  FN3. This inquiry is hampered by the defendant's failure to comply with Practice Book § 7–4B, which provides in relevant part:  “The motion [to seal] must be accompanied by an appropriate memorandum of law to justify the sealing or limited disclosure.”   Nevertheless, the Supreme Court has recognized “the established policy of the Connecticut courts to be solicitous of [self-represented] litigants and when it does not interfere with the rights of other parties to construe the rules of practice liberally in favor of the [self-represented] party.”  (Internal quotation marks omitted.)  Equity One, Inc. v. Shivers, 310 Conn. 119, 136 n.13, 74 A.3d 1225 (2013).

FN4. Specifically, the defendant states that he “does not waive his right to confidentiality of his privileged medical information under HIPAA federal law protection, and has redacted some identifying confidential and irrelevant information.”   It is unclear whether the defendant relies on HIPAA as a basis for asserting a privacy interest that warrants sealing or merely as a justification for having redacted the letters.   An examination of the letters indicates that the defendant has redacted the names of the physicians who wrote them..  FN4. Specifically, the defendant states that he “does not waive his right to confidentiality of his privileged medical information under HIPAA federal law protection, and has redacted some identifying confidential and irrelevant information.”   It is unclear whether the defendant relies on HIPAA as a basis for asserting a privacy interest that warrants sealing or merely as a justification for having redacted the letters.   An examination of the letters indicates that the defendant has redacted the names of the physicians who wrote them.

Nazzaro, John J., J.