Hospital officials pursuing a lawsuit against Dr. Abraham Betre were dealt a losing hand in a court hearing Thursday, when Judge David Mathias ruled to keep certain documents publicly available.
In the hearing, Mathias adopted a tentative ruling that denied denying the officials’ oral motion to remove from the court’s file a Separate Statement filed by the plaintiffs, Dr. Parmod Kumar, Dr. Benny Benzeevi, and Dr. Rebecca Zulim, on September 16, 2016. They sought to remove that statement and replace it with a redacted version.
The hearing was part of an ongoing case between the hospital officials and Dr. Abraham Betre, the Defendant, regarding allegations that Betre potentially divulged confidential information.
“At issue here is whether the court should, or even has authority to, relieve Plaintiffs from their mistake by removing an inadvertently filed document from the court’s file more than 30 days after it was filed and made part of the court’s public record,” the ruling read.
Robert Welsh of BakerHostetler, appearing for the hospital officials, asserted that new evidence had surfaced indicating that no mistake was made in filing the Separate Statement.
Records clearly indicate, he said, that the filing service his firm uses had been directed to file the statement under seal. Emails confirm this as well, he said.
“The record shows our intent was to file a sealed document,” Welsh said. “The fact that our filing service made an error should not be borne by either us or our clients.”
On October 20, Judge Mathias sealed the document in question for one week.
Saying he “turned the courthouse upside down” in searching for related documents, Judge Mathias told Welsh he was confident there was only ever one filing on September 16–and that was of a statement neither redacted or placed under seal.
Welsh countered that it was “improper” to use this error as a factor in the ruling.
“The document is not privileged or confidential,” Judge Mathias said.
The text of the tentative ruling, and the Separate Statement that was under consideration to be sealed, is available below.
Re: Kumar, M.D. v. Betre, D.O.
Case No.: VCU 265230
Date: October 27, 2016
Time: 8:30 A.M.
Dept. 2– The Honorable David Mathias
Motion: Hearing on Order to Show Cause re: Plaintiffs’ oral motion to remove from the court’s file Plaintiffs’ Separate Statement filed on September 16, 2016 and to replace it with a redacted copy.
Tentative Ruling: To Deny Plaintiffs’ oral motion to remove from the court’s file Plaintiff’s Separate Statement filed on September 16, 2016.
It is undisputed the court granted Plaintiffs’ request to permit certain documents to be submitted to the court conditionally under seal and to have redacted copies placed in the court file pending a final determination of Plaintiffs’ Motion to Seal Documents. Plaintiffs submitted various documents under seal in accordance with CRC 2.550-2.551 pursuant to the court’s order.
It is also undisputed on September 16, 2016 Plaintiffs filed with the court their Separate Statement which contains un-redacted references to the documents Plaintiffs’ previously submitted conditionally under seal. There is nothing to dispute Plaintiffs’ assertion that the un-redacted Separate Statement was filed by mistake.
The court issued the within OSC in recognition of the significant rights that are at issue in this case, both in regard to the individual plaintiffs and the general public.
At issue here is whether the court should, or even has authority to, relieve Plaintiffs from their mistake by removing an inadvertently filed document from the court’s file more than 30 days after it was filed and made part of the court’s public record.
There is a strong presumption that court records are open to the public. In NBC Subsidiary KNBC-TV Inc. v. Superior Court (1999) 20 Cal.4th 1178 the court addressed the question of when a court could order that proceedings in a case be closed to the public or under what circumstances transcripts could be sealed. The court in NBC, supra, established that in order to seal a court record the court, after hearing, must find, (1) there exists an overriding interest supporting closure and/or sealing; (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.
In response to NBC Subsidiary, the Judicial Council promulgated California Rules of Court rules 2.550 and 2.551 regarding the sealing of records. The rules state a presumption that records are open to the public (Rule 2.550(c) and sets forth the findings that a court must make to order that a record be filed under seal. (Rule 2.550(d). In order for a party to protect information filed under conditional seal the party must comply with Rule 2.551.
Plaintiffs Motion to Seal was heard on October 20, 2016 and was denied by the court. In weighing whether there exists an overriding interest that overcomes the right of public access to the record and whether there is a substantial probability that the overriding interest will be prejudiced if the record is not sealed the court made the following findings:
1) A significant portion of the information sought to be sealed may be found in the Valley Voice article or other related public court files;
2) The statements plaintiffs seek to protect appear to be declarants own statements and beliefs about certain issues and instances outside the peer review process. The statements are generally in the 1st person and do not quote or paraphrase peer review findings. The actual information provided that may stem from any type of peer review findings is extremely limited.
3) The plaintiffs have made public the information sought to be sealed in their separate statement filed September 16, 2016. It has already been public information for over a month; and
4) Plaintiffs voluntarily raised the issues presented in this matter by way of their complaint, and would have an expectation that the type of information at issue would be presented by the defense.
The court has inherent authority to control its files. The court has authority under CCP 436 to strike improper matter inserted in any pleading. (Olye v. Fox (2012) 211 Cal.App.4th 1036, 1069-1070.) The court’s authority must be balanced by the strong public presumption that court records are open to the public. (NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1208 fn. 25.). Balancing these competing interests, and for the same reasons stated in its order denying Plaintiffs’ motion to seal documents, the court cannot find Plaintiffs have established an overriding interest that overcomes the right of public access to the record. Accordingly, Plaintiffs’ request to remove their un-redacted Separate Statement from the court file and to replace it with a redacted copy is denied.
The court has also reviewed and considered relevant Government Code provisions, e.g. Section 68150(d) and Section 6200 that prohibit the “un-filing”, removal or destruction of documents in court files. This is of particular concern to the court because if the court were to honor plaintiffs’ request the document at issue would be removed from the court file and pursuant to CRC 2.551(b)(6) the lodged record may be returned to the submitting party, effectively permanently removing it from the court record. Loder v. Municipal Court (1976) 17 Cal.3d 859 presents, at least in arguable dicta, that the court would be precluded from returning a filed document to a party and effectively erasing any record of the filing from its system. As referenced above there are exceptions to this rule.
Plaintiffs’ authorities in support of their claim for relief are not persuasive. This is not a case of documents implicating the attorney-client privilege or any other privilege. The documents here are merely asserted to be confidential. Additionally, this case does not involve documents mistakenly delivered to opposing counsel through discovery or otherwise. The issue here is the request to remove a document from the court file that has been determined by the court not to be subject to seal based on CRC 2.550. . The decision in Doe v. Superior Court (2016) 3 Cal.App.5th 915 does not support Plaintiffs’ claims. The court in Doe specifically stated it did not involve “a circumstance in which a party waived a right to keep information confidential or sealed by inadvertently disclosing it.” (Id at p. 919.) Plaintiffs acknowledged this limitation of the Doe decision in their Reply to Defendant’s Opposition to Motion to Seal.
The court has reviewed and considered defendant Betre’s points and authorities and the amicus curie brief filed by Mr. Lampe’s office.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
