Q&A: Motion to protect court discovery documents


From The Herald Bulletin (Anderson):

Q: We’ve written extensively over the past year about a federal lawsuit against the Madison County Community Health Center over allegations of Medicaid fraud. The health center filed a motion for protective order to shield sensitive information exchanged among plaintiffs and defendant from third parties.

It would seem in our best interest to challenge this motion, but would you look at the motion and give us advice on whether we might have standing to challenge the petition and what our chances might be to prevail?

A: In looking over the motion, I see that it’s talking about discovery between the adversarial parties. Discovery doesn’t become part of the court record until one or the other side submits it to the court. The public doesn’t have a right to access discovery documents exchanged by parties to a civil lawsuit.

I don’t think you would succeed in an effort to access the discovery exchanged by the parties. If they were trying to seal documents submitted to the court, the answer would be different.

Now if you were able to determine which records are being sought for discovery from a public agency, you could make an Access to Public Records Act request from that entity.

The presumption is that public records are available for inspection and copying, limited by subject matter that the state legislature has mandated confidential or given the public agency the discretion to keep confidential.

Your staff would have to look at the allegations in the lawsuit and determine what records might shine a light on the alleged activities in order to make a records request.

Contact Steve Key, HSPA executive director and general counsel, with media law questions at skey@hspa.com or (317) 624-4427.