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Friedman v. Sebelius

December 7, 2009


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No. 31



This matter comes before the court on the defendants' motion to unseal this case. The plaintiffs are current and former executives of the pharmaceutical company Purdue Frederick Company, Inc. ("Purdue"). Plaintiff Michael Friedman is the former president and chief executive officer of Purdue, plaintiff Paul D. Goldenheim is Purdue's former chief scientific officer and plaintiff Howard R. Udell is the executive vice president and chief legal officer of the company. In April 2008, the plaintiffs sought to enjoin the defendants, Inspector General ("IG") Daniel R. Levinson and former Secretary of the United States Department of Health and Human Services ("HHS") Michael Leavitt, from issuing notices that would render them ineligible to participate in federal health care programs. The court dismissed the plaintiffs' claims in December 2008. The defendants now move to unseal the case, and the plaintiffs oppose the motion. Because the relevant factors weigh in favor of unsealing the case, the court grants the defendants' motion.


In May 2007, the plaintiffs pleaded guilty in the United States District Court for the Western District of Virginia to a single misdemeanor count of misbranding a drug in violation of 21 U.S.C. § 333(a)(1). See United States v. Purdue Frederick Co., 495 F. Supp. 2d 569, 570 (W.D. Va. 2007); see also Am. Compl. ¶ 28. They were convicted under the "responsible corporate officer" provision of 21 U.S.C. § 333, which establishes that executive officers may be convicted of strict liability misdemeanors if their company misbrands a drug in violation of 21 U.S.C. § 331(a). See 21 U.S.C. § 333(a)(1); Am. Compl. ¶ 30. As a result of this misdemeanor conviction, the IG of HHS issued "exclusion notices" to the plaintiffs, making them ineligible to participate in federal health care programs for a period of twenty years. Am. Compl. ¶ 34.

On April 4, 2008, the plaintiffs sought an injunction in this court to prevent HHS from excluding them from federal health care programs, claiming that exclusion would destroy their careers. Pls.' Mot. for Prelim. Inj. at 1-2. The exclusion was to become effective on April 20, 2008, at which time their notices would be made publicly available. Id. at 1. The plaintiffs simultaneously sought an order sealing the entire case because they claimed that they would be irreparably harmed if the notices, which were attached as exhibits to the plaintiffs' motions for a preliminary injunction, became public. See generally Pls.' Mot. to Seal. The court granted the motion to seal the case, see Order (Apr. 4, 2008), and issued a temporary restraining order enjoining the defendants from making the plaintiffs' exclusion public, see Order (Apr. 8, 2008), but ultimately granted the defendants' motion to dismiss on the grounds that the plaintiffs had failed to exhaust their administrative remedies with HHS, see Mem. Op. (Dec. 5, 2008) at 14. Thus, on January 13, 2009, the plaintiffs' names were added to HHS's "exclusions database," see Pls.' Opp'n to Defs.' Mot. to Unseal Docket ("Pls.' Opp'n") at 1, with the date of their exclusion listed as April 20, 2008, see Defs.' Mot. to Unseal Docket ("Defs.' Mot.") at 2. The defendants then filed the instant motion to unseal the docket, which the plaintiffs oppose. The court now turns to the applicable legal standard and the parties' arguments.


A. Legal Standard for a Motion to Unseal Documents

"[T]he starting point in considering a motion to [un]seal court records is a 'strong presumption in favor of public access to judicial proceedings.'" United States ex rel. Schweitzer v. Oce, N.V., 577 F. Supp. 2d 169, 171 (D.D.C. 2008) (alteration in original) (quoting Equal Employment Opportunity Comm'n v. Nat'l Children's Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996)); see also In re Sealed Case, 237 F.3d 657, 666 (D.C. Cir. 2001) (citations omitted). Although strong, this presumption is not absolute. The Supreme Court has stated that "[e]very court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978) (internal citations omitted). "Courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption . . . or as sources of business information that might harm a litigant's competitive standing." Id.

Whether the public should have access to judicial records and proceedings is a decision "best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon, 435 U.S. at 599 (cited in United States v. Hubbard, 650 F.2d 293, 316-17 (D.C. Cir. 1980)). To aid the court's analysis, the D.C. Circuit has established a six-factor balancing test for determining whether documents should be sealed. These factors are: (1) the need for public access to the documents at issue; (2) the extent to which the public had access to the documents prior to the sealing order; (3) the fact that a party has objected to disclosure and the identity of that party; (4) the strength of the property and privacy interests involved; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced. Johnson v. Greater Se. Cmty. Hosp., 951 F.2d 1268, 1277 n.14 (D.C. Cir. 1991) (citing Hubbard, 650 F.2d at 317-22).

Moreover, this Circuit has determined that "where both the public interest in access and the private interest in non-disclosure are strong, partial or redacted disclosure would satisfy both interests." Hubbard, 650 F.2d at 324-25. The district court may exercise its discretion to grant or deny a motion to seal in part or whole. Id. at 324.In exercising that discretion, "it is imperative that the district court articulate its reasons for electing to seal or not to seal a record." Nat'l Children's Ctr., Inc., 98 F.3d at 1410 (citing Johnson, 951 F.2d at 1277-78).

B. The Court Grants the Defendants' Motion to Unseal the Docket

To determine whether this action should be unsealed, the court examines the case in light of the six factors articulated in United ...

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