United States District Court, D. Minnesota
David Feinwachs, Individually, and as Relator for United States of America, Plaintiffs,
Minnesota Hospital Association and MCCA, Defendants.
E. Wojtalewicz, Esq., Wojtalewicz Law Firm, Ltd., Appleton,
Minnesota, for Plaintiff.
Elizabeth S. Gerling and Lee A. Lastovich, Esqs., Jackson
Lewis P.C., Minneapolis, Minnesota, for Defendants.
E. RAU, UNITED STATES MAGISTRATE JUDGE
matter comes before the undersigned on Plaintiff David
Feinwachs's (“Feinwachs”) and Defendants
Minnesota Hospital Association (“MHA”) and
MCCA's, a subsidiary of MHA (collectively,
“Defendants”), cross-motions for Further
Consideration of Sealing [Doc. Nos. 145, 157]. This matter
was referred to the undersigned pursuant to 28 U.S.C. §
636 and District of Minnesota Local Rule 72.1. For the
reasons stated below, the Court grants Defendants' Motion
for Further Consideration of Sealing, and grants in part and
denies in part Feinwachs's Motion for Further
Consideration of Sealing.
underlying litigation involves Feinwachs's allegations
that he was improperly terminated from his job as general
counsel for Defendants. See generally (Third Am.
Compl.) [Doc. No. 43]. Currently before the Court are the
parties' motions regarding the continued sealing of
documents [Doc. Nos. 115, 118-127, 131, 135-137] originally
filed under seal. In support of continued sealing, the
parties also filed additional documents under seal which the
Court reviews for continued sealing when analyzing the
parties' respective motions. See [Doc. Nos. 146,
148-150, 152-153, 162-165, 168-171].
required under the Local Rules, the parties first submitted a
Joint Motion Regarding Continued Sealing (“Joint
Motion”) [Doc. No. 142]. Of the identified documents,
the parties agreed that Brunner deposition excerpts [Doc. No.
137] should not remain sealed. See (Joint Mot. at
13-14). The parties could not agree on the remaining
documents. (Id. at 1-13). The Court denied the
parties' Joint Motion. (Text Only Order Dated June 27,
2017) [Doc. No. 143]. The parties filed their respective
Motions for Further Consideration of Sealing thereafter.
(Pl.'s Motion for Further Consideration of Sealing);
(Defs.' Motion for Further Consideration of Sealing).
respect to Feinwachs's Motion for Further Consideration
of Sealing, Feinwachs asserts that his medical information
should not be disclosed because he is asserting
“‘garden variety' emotional distress
damages” as a result of “being fired from a
29-year career” and has not put his medical condition
at issue because he “did not seek treatment for the
emotional distress, and will not be calling an expert witness
on the subject.” (Pl.'s Mem. for Mot. for Further
Consideration of Sealing, “Pl.'s Mem. in
Supp.”) [Doc. No. 146 at 2]. As a result, Feinwachs
“requests prevention of any such disclosure at hearings
or trial of this case, or to the public in any manner.”
(Id. at 1). In support, Feinwachs submitted a
memorandum, a declaration, and exhibits, each filed under
seal. See (Pl.'s Mem. in Supp.); (Decl. of David
Feinwachs for Mot. for Further Consideration of Sealing,
“Feinwachs Decl. in Supp. of Sealing”) [Doc. No.
148]; (Ex. 1 to Feinwachs Decl. in Supp. of Sealing) [Doc.
No. 149]; (Ex. 2 to Feinwachs Decl. in Supp. of Sealing)
[Doc. No. 150]. Also, as required under the Local Rules,
Feinwachs submitted a Meet and Confer Statement [Doc. No.
152] and a Proposed Order [Doc. No. 153] along with his
motion. See LR 7.1. The Meet and Confer and Proposed
Order were also filed under seal. (Meet & Confer
Statement); (Proposed Order).
object to Feinwachs's Motion for Further Consideration,
in large part because Defendants assert that Feinwachs is
attempting to improperly use the sealing rules as an ad hoc
motion in limine. See generally (Defs.'
Resp. to Pl.'s Mot. for Further Consideration of Sealing
“Defs.' Resp.”) [Doc. No. 168]. Defendants
argue that “Local Rule 5.6 does not allow Plaintiff the
opportunity to litigate trial issues before Summary Judgment
is even decided.” (Id. at 3). In particular,
Defendants assert that Chief Judge Tunheim's practice
pointers state unequivocally that “he decide motions
in limine.” (Id.). Defendants,
however, do “not oppose continued sealing of
Plaintiff's deposition testimony concerning his medical
information filed as an exhibit in support of Summary
respect to Defendants' motion and relevant to the
determination before the Court, Feinwachs brought both
federal and state actions related to his termination from
MHA. See (Def.'s Mem. in Supp. of Mot. for
Further Consideration of Sealing, “Defs.' Mem. in
Supp.”) [Doc. No. 159 at 2]; (Pl.'s Mem. Opposing
Defense Mot. for Further Consideration of Sealing,
“Pl.'s Resp.”) [Doc. No. 173 at 2-3]. As a
result, certain documents in the Ramsey County District Court
action were filed under a protective order. See (Ex.
49, Attached to Decl. of Elizabeth S. Gerling, “Gerling
Decl.”) [Doc. No. 117-3 at 200-22] (copies of two
orders: (1) the Ramsey County protective order; and (2) an
order denying Feinwachs's motion in Ramsey County
District Court to modify the protective order).
hearing before the undersigned on the parties'
cross-motions, Feinwachs asserted that many documents filed
under seal in this case do not merit protection on the basis
of the protective order filed in Ramsey County District Court
because the documents were publically available. In support
of this argument, Feinwachs filed a declaration stating he
was able to obtain certain documents at the Minnesota Court
of Appeals. See (Second Decl. of David Feinwachs on
Continued Sealing Mot. of Defs., “Second Feinwachs
Decl.”) [Doc. No. 177].
however, argue that the Ramsey County District Court
judge's protective order has not been vacated.
See (Second Decl. of Elizabeth S. Gerling,
“Second Gerling Decl.”) [Doc. No. 178
¶¶ 8-11, 13]. Defendants assert that many of the
documents proffered by Feinwachs in support of his argument
that documents are publically available are not the documents
at issues in Defendants' Motion for Further Consideration
of Sealing. (Id. ¶ 3). To the extent that
Feinwachs was able to obtain any of the documents at issue,
Defendants are unsure why Feinwachs was able to obtain them,
but surmise it was because he was a party to the litigation
in Ramsey County District Court. (Id. ¶ 12).
Regardless, because the Ramsey County District Court
judge's protective order is still operative, Defendants
argue that it controls and that documents subject to it
should remain sealed. See (id. at
¶¶ 14-15); (Def.'s Mem. in Supp at 2-3, 11-15).
Feinwachs has justified continued sealing for only some of
the documents he requested, the Court grants in part and
denies in part Feinwachs's Motion for Further
Consideration of Sealing. Furthermore, because the documents
at issue in Defendants' Motion for Further Consideration
of Sealing are subject to a Ramsey County District Court
judge's protective order, this ...