Jane Doe et al vs Cottage Health

Case Number

23CV03679

Case Type

Hearing Date / Time

Fri, 02/23/2024 - 10:00

Nature of Proceedings

Motion to Seal

Tentative Ruling

For the reasons set forth herein, plaintiffs’ motion will be granted.

Plaintiffs Jane Doe, K.S., and C.M. will proceed under those fictitious names, in this matter, until further order of the court.

Plaintiffs shall prepare a proposed order that specifically states the facts that the court has determined support its findings and specifically references paragraphs 34, 37, and 38 as the portions of the FAC to be placed under seal. The remainder of the FAC will be included in the public file.

Background:

This action commenced on August 23, 2023, by the filing of the original class-action complaint by plaintiff Jane Doe against defendant Cottage Health (“Cottage”) asserting causes of action for: (1) Violations of Penal Code section 630, et seq.; (2) Violations of Penal Code section 56, et seq.; (3) Violations of Business & Professions Code section 17200, et seq.; (4) Violations of California Constitution Article 1 section 1; (5) Intrusion upon seclusion; (6) Publication of private facts; and (7) Breach of confidence.

On September 1, 2023, the court granted an ex parte application filed by plaintiff and ordered that she may use a fictitious name in the proceedings.

On December 8, 2023, plaintiffs filed the operative first amended class action complaint (“FAC”). The FAC adds causes of action for violations of Civil Code section 1750 and negligence. In addition to the two additional causes of action, plaintiffs add four new plaintiffs including K.S. and C.M.

Plaintiffs allege that Cottage illegally disclosed plaintiffs’ and class members’ private information on Facebook, Google, and other to recipients. Plaintiffs further allege: “Defendant deprived Plaintiffs and Class Members of their privacy rights when it: (1) implemented technology (i.e., the Facebook Pixel and First Party cookies) that surreptitiously tracked, recorded, and disclosed Plaintiffs’ and other online patients’ confidential communications and Private Information; (2) disclosed patients’ protected information to Facebook—an unauthorized third-party; and (3) undertook this pattern of conduct without notifying Plaintiffs or Class Members and without obtaining their express written consent.” (FAC, ¶ 96.)

Plaintiffs filed the present motion to file records under seal on December 8, 2023. Plaintiffs filed a proof of service indicating that Cottage was served with the motion, via electronic mail on December 8, 2023. The motion is unopposed.

Analysis:

Plaintiffs bring the request to file under seal pursuant to California Rules of Court, rules 2.550 and 2.551. By way of the motion, plaintiffs seek to protect the true names of Jane Doe, K.S., and C.M by sealing paragraphs 34, 37, and 38 of the FAC on the grounds that the paragraphs contain the true names of Jane Doe, K.S., and C.M. and that the FAC contains confidential and sensitive health information which disclosure would harm plaintiffs.

“A strong presumption exists in favor of public access to court records in ordinary civil trials. That is because the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases.” (In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575.)

“A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules of Court, rule 2.551(b)(1).)

California Rules of Court, rule 2.551 subdivision (b)(2) requires a party requesting that a record be filed under seal must, among other things, serve on “any party that already has access to the records to be placed under seal . . . a complete, unredacted version of all papers as well as a redacted version.” Further: “The party requesting that a record be filed under seal must lodge it with the court under (d) when the motion or application is made, unless good cause exists for not lodging it or the record has previously been lodged under (3)(A)(i). Pending the determination of the motion or application, the lodged record will be conditionally under seal.” (Id. at subd. (b)(4).

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c).)

California Rules of Court, rule 2.550(d) provides:

“The court may order that a record be filed under seal only if it expressly finds facts that establish:

“(1) There exists an overriding interest that overcomes the right of public access to the record;

“(2) The overriding interest supports sealing the record;

“(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

“(4) The proposed sealing is narrowly tailored; and

“(5) No less restrictive means exist to achieve the overriding interest.”

“[A] reasoned decision about sealing or unsealing records cannot be made without identifying and weighing the competing interests and concerns. Such a process is impossible without (1) identifying the specific information claimed to be entitled to such treatment; (2) identifying the nature of the harm threatened by disclosure; and (3) identifying and accounting for countervailing considerations. The burden of presenting information sufficient to accomplish the first two steps is logically placed upon the party seeking the sealing of the documents, who is presumptively in the best position to know what disclosures will harm him and how. This means at a minimum that the party seeking to seal documents, or maintain them under seal, must come forward with a specific enumeration of the facts sought to be withheld and specific reasons for withholding them.” (H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

The court has reviewed the FAC. Plaintiffs should have directed the court to the portions of the FAC containing plaintiff’s medical information as that information is not specifically mentioned until paragraph 181 of the FAC. However, this oversight is not fatal to plaintiffs’ motion.

Weighing the interests in keeping Jane Doe’s, K.S.’s, and C.M.’s sensitive medical information private against the right to public access, the court finds that sealing the three paragraphs, each of which is simply a sentence that contains the true name of each of them, is appropriate. There is an overriding interest that overcomes the right of public access, the overriding interest supports sealing of the record, there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed, the proposed sealing is narrowly tailored, and no less restrictive means exist to achieve the overriding interest. As such, plaintiffs’ motion will be granted. Plaintiffs Jane Doe, K.S., and C.M. will proceed under those fictitious names, in this matter, until further order of the court.

The court has reviewed the proposed order and it is not acceptable. California Rules of Court, rule 2.550(e) requires an order sealing a record to: “(A) specifically state the facts that support the findings; and (B) direct the sealing of only those documents and pages, or, if reasonably practicable, portions of those documents and pages, that contain the material that needs to be placed under seal. All other portions of each document or page must be included in the public file.”

Plaintiffs will be ordered to prepare an order that specifically states the facts that the court has determined support its findings and specifically references paragraphs 34, 37, and 38 as the portions of the FAC to be placed under seal. The remainder of the FAC will be included in the public file.