Sidibe v. Sutter Health

Background

This case-management order memorialized a June 10, 2021 conference about sealing issues involving trial evidence. The order addressed how the parties, defendants, and third parties should prepare trial exhibits and future sealing submissions.

Order regarding sealing and exhibits

The court deferred consideration of sealing issues until after it decides the Daubert motions and motions in limine, which concern the admissibility of expert testimony and other trial evidence. The court stated that it would not hear sealing issues at the August 5 hearing and vacated the existing deadlines for sealing motions, oppositions, and replies. Instead, the parties must file one joint administrative motion to seal with the final trial exhibits, proposed redactions, and supporting declarations from the parties and third parties, along with a proposed new schedule.

The court directed the parties to narrow and finalize their trial exhibits. It suggested that approximately 500 exhibits was an appropriate number at that stage and stated that the number should be fewer than 100 by trial. The parties must also address exhibit authenticity in advance, including through stipulations or certifications under Federal Rule of Evidence 902(11), and should stipulate to the admission of exhibits when authenticity and relevance are undisputed. The court required a sponsoring witness to provide the foundation for an exhibit, meaning the witness must support its admission and discuss it at trial.

For the sealing process, the parties, including third parties, must confer about a schedule for producing the pared-down final exhibits and briefing and hearing sealing disputes. The sponsoring parties must identify the precise portions of trial exhibits they intend to use, subject to exceptions for documents of four pages or fewer and unexpected uses such as refreshing a witness’s memory or impeachment. Only admitted portions of exhibits will go to the jury.

Before filing the joint sealing motion, the parties must meet by video or telephone with every third party seeking to seal information. They must discuss ways to avoid sealed exhibits, such as using excerpts or public stipulations. For each document a third party seeks to seal, the sponsoring party must consider whether sealing is appropriate, whether the document is likely to be used at trial, and whether it can be modified to avoid sealing. The court stated that it will make its own sealing decisions and may disagree with the parties. It also noted that the parties must show compelling reasons for sealing the material.

Filing requirements and disposition

The court required compliance with Local Rule 79-5, including submission of an unredacted version showing the proposed redactions, a complete courtesy copy, and a narrowly tailored proposed sealing order listing each document or portion sought to be sealed. The parties’ joint submission must include one chart identifying each proposed sealing or redaction, the related electronic filing document and page number, and the basis for sealing. The chart must show the proposed sealed material and the preceding and succeeding sentence for context. A highlighted version must be filed under provisional seal with a public version that redacts the highlighted material.

The court entered this case-management order regarding sealing procedures. It did not make a final determination about whether any particular exhibit or passage should be sealed.