In the United States Court of Federal Claims
No. 11-297C
(Filed: March 17, 2017)
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DAVITA HEALTHCARE PARTNERS, * RCFC 26(c)(1); Protective Order;
INC. (f/k/a/ DAVITA INC., f/k/a TOTAL * Redactions; Public Access to Court
RENAL CARE HOLDINGS, INC., f/k/a * Documents.
MEDICAL AMBULATORY CARE *
DELAWARE, INC.), and PHYSICIANS *
DIALYSIS, INC., and PHYSICIANS *
DIALYSIS VENTURES, INC., and 175 *
DIALYSIS CENTER OWNERS (d/b/a *
1,462 DIALYSIS CENTERS), *
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Plaintiffs, *
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v. *
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THE UNITED STATES, *
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Defendant. *
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Bobby R. Burchfield and Matthew M. Leland, King & Spalding LLP, 1700 Pennsylvania
Avenue, NW, Suite 200, Washington, D.C. 20006, and Paul M. Thompson, McDermott Will &
Emery LLP, 500 North Capitol Street, NW, Washington, D.C. 20001, for Plaintiffs DaVita
HealthCare Partners Inc. and 1,236 Dialysis Center Owners (Wholly Owned Entities).
Jason A. Levine and Thomas W. Bohnett, Vinson & Elkins LLP, 2200 Pennsylvania
Avenue, NW, Suite 500 West, Washington, D.C. 20037, for Plaintiffs 175 Dialysis Centers (Joint
Venture and Managed Entities).
Benjamin C. Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr., and John S. Groat,
United States Department of Justice, Civil Division, Commercial Litigation Branch, PO Box 480,
Ben Franklin Station, Washington, D.C. 20044, for Defendant. Jason Fragoso and Frank V.
DiNicola, Department of Veterans Affairs, Office of General Counsel, of Counsel.
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ORDER
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On March 10, 2017, Defendant filed a motion for clarification or leave to file redacted
copies of documents previously filed under seal. Briefing concluded on March 16, 2017.
Defendant “proposes filing redacted versions of numerous previously-sealed filings” with
redactions of Protected Information and Protected Health Information. Defendant served its
proposed redactions on Plaintiffs. Plaintiffs opposed the motion on the grounds that the case has
been resolved and reviewing documents for redaction at this juncture would be unduly burdensome
and costly. Plaintiffs contend that the previously sealed filings “still include competitive data on
Plaintiffs’ charges for dialysis services, contract proposals, and excerpts of deposition testimony
designated ‘confidential’” as well as nonparty protected information. Plaintiffs further argue that
the cost to review these 1,645 pages of documents outweighs “the Government’s sudden purported
interest.”
The instant motion highlights an issue that continues to plague this court - - the tension
between the presumption of public access to court documents, and the interest of litigants in
protecting their proprietary or personal data from public view. Here, because Plaintiffs seek to
avoid reviewing the previously sealed filings, they have not identified the substantive harm that
they would suffer if the sensitive information in the filings were disclosed. Instead, Plaintiffs have
raised procedural barriers to engaging in a review of documents - - the fact that the case is over
and their review of voluminous documents would be costly. This Court is sympathetic to the fact
that Plaintiffs have been litigating this action for almost six years and that Defendant’s request for
redactions does come very late in the game. However, these considerations of timing and cost are
outweighed by the “strong presumption in favor of a common law right of public access to court
proceedings.” In re Violation of Rule 28(D), 635 F.3d 1352, 1356 (Fed. Cir. 2011) (citing Nixon
v. Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978) (“It is clear that the courts of this country
recognize a general right to inspect and copy public records and documents, including judicial
records and documents.”)). In determining whether to restrict the public’s access to court
documents, the Court must “weigh[] the interests advanced by the parties in light of the public
interest and the duty of the courts.” Nixon, 435 U.S. at 602.
Under Rule 26(c)(1), protective orders restricting the disclosure of information may only
be issued for “good cause.” RCFC 26(c)(1). Plaintiffs as the party seeking protection bear the
burden of demonstrating that there is good cause for restricting the disclosure of the filings. In re
Violation of Rule 28(D), 635 F.3d at 1357 (citations omitted). “For good cause to exist, the party
seeking to limit the disclosure of discovery materials must show that ‘specific prejudice or harm
will result if no protective order is granted.’” Id. (quoting Phillips v. Gen. Motors Corp., 307 F.3d
1206, 1210-11 (9th Cir. 2002)). Here, Plaintiffs have not met their burden of demonstrating
“specific prejudice” in raising generalized claims of timing and cost to maintain blanket sealing of
documents.
This Court has an obligation to determine whether filings should be made available to the
public. As the Federal Circuit recognized, this Court “cannot abdicate its responsibility to oversee
the discovery process and to determine whether filings should be made available to the public.”
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In re Violation of Rule 28(D), 635 F.3d at 1358 (quoting Procter & Gamble Co. v. Bankers Trust
Co., 78 F.3d 219, 227 (6th Cir. 1996)).
Conclusion
Defendant’s motion for leave to file redacted copies is GRANTED in part, subject to the
conditions below.
The parties shall discuss Plaintiffs’ substantive objections to Defendant’s proposed
redactions. If the parties continue to dispute what material should be redacted, they shall file a
joint notice requesting a status conference, briefly stating their disagreement.
Defendant shall not file redacted copies on the public docket until the parties agree on
redactions or the Court so orders.
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge
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