[00:00:01] Speaker 02: Case number 22-7148, Fadil Abdelhadi, a balance, versus George Washington University et al. [00:00:09] Speaker 02: Ms. [00:00:09] Speaker 02: Abdelhadi for the balance, Mr. Emi for the police. [00:00:14] Speaker 01: Good afternoon, counsel. [00:00:16] Speaker 01: Ms., I think so, I think it's the afternoon now. [00:00:20] Speaker 01: Ms. [00:00:20] Speaker 01: Abdelhadi, please proceed when you're ready. [00:00:25] Speaker 03: Thank you, your honor, and good afternoon. [00:00:31] Speaker 03: I believe this case will be different from the last. [00:00:34] Speaker 03: It's not that complicated. [00:01:01] Speaker 03: Thank you. [00:01:01] Speaker 03: May please the court. [00:01:02] Speaker 03: My name is ideal. [00:01:03] Speaker 03: Abdul Haiti. [00:01:03] Speaker 03: I'm the appellant in this case, and I'm here on my own behalf. [00:01:07] Speaker 03: I'd like to reserve [00:01:11] Speaker 03: Thank you. [00:01:13] Speaker 03: This case, the law in this case is straightforward, but the record, I think, has been muddled somewhat over the course of this appeal. [00:01:20] Speaker 03: So what I'd like to do with this time is to, of course, address any questions that the court has and also to reiterate the relief that I am seeking and why the court should grant [00:01:32] Speaker 03: And also I'll be discussing the Hubbard case and its factors. [00:01:37] Speaker 03: Although I think those are well known, but I do want to clarify some facts and distinguish between what is before the court and what is not before the court in the course of discussing Hubbard. [00:01:49] Speaker 03: I am asking this court to do two things. [00:01:51] Speaker 03: First, to reverse the district court's order on appeal, and second, to enter an order or to direct the district court to place under seal the 16 documents that are an issue that contain the medical information that is an issue. [00:02:05] Speaker 03: That relief is appropriate in this case, unlike most of the cases. [00:02:10] Speaker 03: In fact, I think it's all of the cases that have been discussed in my brief in the university's reply or its brief and my reply. [00:02:19] Speaker 03: The court in this case, the district court, did not at all apply. [00:02:24] Speaker 03: We have an eight line minute order in this court's cases from Hubbard and in the 40 years since the unbroken line of cases, amplifying and reinforcing that rule. [00:02:35] Speaker 03: Where the court here has found that the district court has not adequately addressed the Hubbard factors or any one of them in some cases, the [00:02:45] Speaker 03: Remedy, the action has been to remand to reverse the district court. [00:02:50] Speaker 03: In this case, we have something different, which is no discussion of Hubbard whatsoever. [00:02:55] Speaker 03: We have an eight line minute order dealing with 16 documents. [00:02:59] Speaker 03: So reversal is the appropriate first step in this case. [00:03:04] Speaker 03: In terms of my asking the court to essentially end this case here by directing the district court to place the documents under seal, that too is appropriate, and it's warranted under precedent. [00:03:17] Speaker 03: In the case of Hardaway, for example, which did involve medical information and a medical report, I believe the language was there, this court directed the district court to place the documents under seal. [00:03:30] Speaker 03: This court also prospectively made the same directive with respect to future filings. [00:03:37] Speaker 03: I'm not asking for that. [00:03:38] Speaker 03: I am talking only here about the filings that were made by the university in September of 2022. [00:03:44] Speaker 02: In your argument about Hubbard, would you agree that district court doesn't have to cite to Hubbard for its analysis to be sustained on appeal? [00:04:00] Speaker 02: As long as its analysis covers the factors implicated or relevant in that case, that would be sufficient. [00:04:08] Speaker 03: Sure. [00:04:08] Speaker 03: I am not suggesting that this is a matter of a perfunctory citation or a missing citation. [00:04:15] Speaker 03: I'm speaking in substance of the contents of the district court's orders. [00:04:19] Speaker 03: It's eight lines. [00:04:21] Speaker 02: It makes a reference to... There were eight lines and it were covered. [00:04:24] Speaker 02: Again, I'm just saying, I think we have to focus on the substance and not whether it used particular [00:04:31] Speaker 02: Whereas if we see that it made it considered the types of considerations that are outlined in Hubbard, and you have arguments that that didn't happen here in those eight lines. [00:04:41] Speaker 02: But if the court had covered everything that's implicated, that would be sufficient. [00:04:48] Speaker 03: I believe, yes, it would be sufficient so long as in substance, the district court applied Hubbard framework and provided a full explanation. [00:04:59] Speaker 03: The district court did not do that here. [00:05:01] Speaker 02: What's missing? [00:05:02] Speaker 02: Which Hubbard factor? [00:05:04] Speaker 02: When we look at these lines here, which Hubbard factors were not considered? [00:05:08] Speaker 02: Um, but one of the Hubbard flaws. [00:05:11] Speaker 03: Okay. [00:05:12] Speaker 03: Well, first, there is no discussion of the public need. [00:05:14] Speaker 03: The first Hubbard factor. [00:05:17] Speaker 03: The district court states here the public need or access the document. [00:05:21] Speaker 02: I know, but that's not when it helps you. [00:05:23] Speaker 02: That's not a factor that's in favor of a ceiling. [00:05:27] Speaker 02: So I'm not sure why that would matter to you. [00:05:30] Speaker 03: Well, I do believe that it does matter to me because it is a Hubbard factor. [00:05:36] Speaker 03: And the public does is it's a strong presumption, of course, in favor of public access. [00:05:41] Speaker 03: But we have to remember also the purpose of the public access doctrine, which is to enable the public to monitor the business of the courts, the quintessential business being orders and other communications, judges, decisions, et cetera. [00:05:55] Speaker 03: And so the question is, what is the public need? [00:05:58] Speaker 03: And in the Hubbard case itself, the court [00:06:00] Speaker 03: the district court. [00:06:02] Speaker 03: Discussed, um, what use the public would have for the documents that were an issue in that case. [00:06:08] Speaker 03: In EEOC, for example, involving National Children's Center, the court discussed a consent decree that the district court sealed and discuss the fact that the public would have [00:06:21] Speaker 03: because it involved the enforcement by a federal agency and the National Children's Center, a provider of important services. [00:06:29] Speaker 03: So it is not, although the presumption of public access is strong, it is not a given that the public will have access to everything. [00:06:38] Speaker 03: And the court was required to consider public need. [00:06:41] Speaker 03: And most recently in in Ray LA Times, this court made that clear. [00:06:45] Speaker 02: So how is there not? [00:06:47] Speaker 02: This is a tort case for medical injuries, for injuries, physical injuries, and related matters. [00:06:57] Speaker 02: And how is the public, how is that factor going to favor you in a way that it would make sense to remand for the district court to address that factor since the public would, you know, if the court is going to, as your complaint requests, if it were to award damages against a hospital [00:07:17] Speaker 02: for engaging for asserted negligent behavior or other sort of violations that you enumerate in your complaint, isn't the public necessarily going to need to know to some extent what those medical, those injuries for which compensation was awarded? [00:07:39] Speaker 02: are so they can know whether this was, you know, was the court performing in its adjudicatory role in a sensible manner? [00:07:47] Speaker 03: Yes, I understand that. [00:07:49] Speaker 03: The public here in the redacted complaint at ECF number 14, which is the only version that the district court referenced, the public does here in the public redacted complaint have as much information as it needs. [00:08:02] Speaker 03: to understand that one count, which you're referring to, which is the negligence count. [00:08:06] Speaker 03: The others are intentional acts counts, not negligence counts. [00:08:09] Speaker 03: Have nothing to do with these injuries. [00:08:12] Speaker 03: What I have redacted is not wholesale redaction. [00:08:14] Speaker 03: I have not placed it under seal entirely. [00:08:17] Speaker 03: I have redacted diagnoses. [00:08:19] Speaker 03: I have redacted names of providers. [00:08:23] Speaker 03: I have redacted essentially information that would appear in a medical record. [00:08:26] Speaker 02: Is a diagnosis not going to be relevant to the damages? [00:08:29] Speaker 02: So it uncalculated? [00:08:31] Speaker 03: Well, if the case goes forward, this case was now at the point in an order that came after the order that is on appeal here. [00:08:39] Speaker 03: The court dismissed that negligence claim not in consideration of any injury, whether it occurred by ability, anything like that. [00:08:48] Speaker 03: No, the court dismiss some of the claims or let me speak just about the negligence claim. [00:08:54] Speaker 03: It granted the university summary judgment [00:08:56] Speaker 03: in reliance on its interpretation of the District of Columbia Workers' Compensation Act that had nothing whatsoever to do with whether these injuries occurred. [00:09:05] Speaker 03: So the public, yes, does have a right of access. [00:09:07] Speaker 02: But you were the one who filed the motion to seal and we disagree with that summary judgment decision, but at the time you filed your motion to seal, which is long before the summary judgment. [00:09:17] Speaker 02: That's correct. [00:09:17] Speaker 03: It was about a month before. [00:09:18] Speaker 02: Right. [00:09:19] Speaker 02: So what would the argument be that the public would not have [00:09:23] Speaker 02: an interest in understanding exactly what the injuries were before a court of law award. [00:09:33] Speaker 03: Well, because the summary, the court's memorandum order, the dispositive order and the accompanying opinion does not discuss any of those injuries. [00:09:41] Speaker 03: It has nothing to do with them. [00:09:42] Speaker 03: And in fact, the district court confirmed that by redacting from its own memorandum opinion that it issued on November 29th, [00:09:50] Speaker 03: the very information that is an issue here. [00:09:53] Speaker 03: The public knows from the complaint, the circumstances of the accident, it knows other details about the accident and the injuries, that it doesn't know, for example, on what date or in what month plaintiff went to which provider for treatment for ex-injury. [00:10:08] Speaker 03: And I think the court should also consider my interest here in terms of privacy and the prejudice to me as the court considered the same thing in Hardaway. [00:10:17] Speaker 03: We are talking about detailed information. [00:10:19] Speaker 03: Yes, it is contained in the complaint. [00:10:21] Speaker 03: But what public interest is there in having those details? [00:10:25] Speaker 03: And the court should also take into consideration that we are talking today, unlike in the Hubbard 1980 time, we are talking about electronic access to records by anyone anywhere in the world, including through parties who sell court records. [00:10:40] Speaker 03: So why should anyone anywhere in the world have access to these details when it's not necessary to understand the nature of the allegations in the claim? [00:10:49] Speaker 03: You know, the court in the Supreme Court, for example, in the Nixon case stated that the court's dockets are not reservoirs, whether it be for libelous content or to satisfy any morbid interest, and it's not tabloid material. [00:11:05] Speaker 03: So there is no reason still that the public has [00:11:09] Speaker 03: for the purpose of the public access doctrine to monitor the judiciary, to know the details of plaintiff's injuries or any diagnoses that were made. [00:11:21] Speaker 03: And again, I've not concealed from the public the information that is needed to understand that first negligence count. [00:11:28] Speaker 03: That has not been concealed. [00:11:30] Speaker 03: And I'd like to, oh, I'm sorry. [00:11:32] Speaker 05: There's a sentence in the minute order. [00:11:36] Speaker 05: I guess it's the fourth line. [00:11:39] Speaker 05: It says on the court's review, those documents contain no medical records or details that the plaintiff herself does not already mention in the redacted amended complaint. [00:11:56] Speaker 05: Do you believe that that statement is factually correct? [00:12:00] Speaker 03: No, I believe it's factually incorrect. [00:12:02] Speaker 03: And I've discussed that in the brief. [00:12:07] Speaker 03: and in the reply brief, but it's discussed in the brief. [00:12:10] Speaker 03: That is factually incorrect. [00:12:12] Speaker 05: If it is factually, let's assume for the sake of argument that it is factually incorrect, then your position that that demonstrates an abuse of discretion. [00:12:26] Speaker 03: Yes, it does. [00:12:29] Speaker 05: And then regardless of whether Hubbard is cited or analyzed [00:12:37] Speaker 05: all of the factors of Hubbard were considered properly. [00:12:42] Speaker 05: I assume it's your argument that to the extent the district court relied on an inaccurate assessment of the facts, it's an abuse of discretion even if the district court kind of understood Hubbard completely. [00:13:00] Speaker 03: Yes, Judge Wilkins, I would agree with that. [00:13:03] Speaker 03: And I would add to it record facts that the order where it says medical records, three sentences up or two sentences up, the district court sealed one document because it contained medical provider names. [00:13:17] Speaker 03: That document is not a medical record. [00:13:19] Speaker 03: And yet it denies, as for the rest of the documents, because they are not medical records. [00:13:24] Speaker 03: So that is an internally inconsistent aspect of that. [00:13:28] Speaker 03: It is inconsistent, by the way, with the district court's June and July 2022 orders, sealing the very information that is an issue here. [00:13:37] Speaker 03: And that seal remains, except with a big hole in it that GW blew into this. [00:13:41] Speaker 03: And it is also inconsistent with the District Court's December 1st order granting my motion to redact from its first version of its memorandum that is electronically available the same references to the conditions or the diagnoses that are discussed. [00:13:58] Speaker 03: So I would agree with Your Honor and add those record facts. [00:14:01] Speaker 03: My time is up. [00:14:02] Speaker 03: And I'd like to add, if I may, one more thing that's important here. [00:14:05] Speaker 03: There is Hubbard. [00:14:06] Speaker 03: There is the abuse of discretion. [00:14:08] Speaker 03: But there's also the issue that the documents, all of them, that were generated in the DOES were filed without authorization. [00:14:18] Speaker 03: These are documents that pursuant to that agency's policy and procedure were not public. [00:14:22] Speaker 03: In the district court, with my motion to seal, I filed, I believe it was 10 exhibits. [00:14:28] Speaker 03: And a number of those addressed the fact that they were not public documents. [00:14:31] Speaker 03: I also filed a copy of the DC Court of Appeals docket sheet that, by the way, had nothing whatsoever to do with merits of any claim or any case. [00:14:40] Speaker 03: No adjudication of merits has ever occurred here. [00:14:43] Speaker 03: But I filed that docket sheet showing that the case was sealed. [00:14:48] Speaker 03: and that these documents were sealed. [00:14:49] Speaker 03: So I would just add, I know I'm out of time, but under in-race sealed cases involving the FEC, University here is the FEC. [00:14:58] Speaker 03: It is filed without authorization and this court should, as an FEC, reverse on that basis. [00:15:04] Speaker 03: It should overturn that filing. [00:15:06] Speaker 02: Do you want to talk about jurisdictional appeal? [00:15:10] Speaker 03: Yes, thank you. [00:15:13] Speaker 03: Your Honor, when this appeal was taken, [00:15:16] Speaker 03: before defendants were still in the case. [00:15:20] Speaker 03: I appealed under the collateral order doctrine. [00:15:23] Speaker 03: This is collateral to the merits, and that remains the case. [00:15:28] Speaker 03: Now, of course, subsequently, what happened is that the memorandum opinion that we were talking about in November was entered. [00:15:37] Speaker 03: And after that, in March of 2023, the two remaining defendants, against whom only two negligence claims were asserted, nothing else, they were dismissed from the action without prejudice under Rule 41A2, that is by court order. [00:15:56] Speaker 03: Now, there was a second appeal from the district court. [00:15:59] Speaker 03: And in that second appeal, the question of jurisdiction was raised by this court, Luis Fonte. [00:16:06] Speaker 03: The court entered an order in July, dismissing. [00:16:09] Speaker 03: The panel did. [00:16:11] Speaker 03: I have filed a petition for rehearing. [00:16:14] Speaker 03: But my position in this appeal, and this is discussed in the reply brief, is that when this appeal was taken, it was appealable under the collateral order. [00:16:23] Speaker 02: How do you fit within the Supreme Court's decision in Mohawk [00:16:27] Speaker 02: that requires us to find, first of all, to identify what the category of information is that's subject to collateral review and to be very, very demanding and exacting in doing so. [00:16:44] Speaker 02: And so what is the category of information that you say is subject to collateral review here? [00:16:53] Speaker 03: Well, the category of information is the medical information. [00:16:56] Speaker 02: It can't be medical information can't be the category. [00:17:01] Speaker 02: You know, I see you wear glasses. [00:17:03] Speaker 02: That's a medical condition, but that's not something that could be sealed. [00:17:05] Speaker 02: It's publicly known and available. [00:17:08] Speaker 02: And your complaint has some details about your medical injuries that you aren't claiming should be sealed. [00:17:16] Speaker 02: And then there were others that you claim that you wish to have, other aspects that you wish to have sealed. [00:17:22] Speaker 02: So we couldn't define the category as medical information. [00:17:26] Speaker 02: So I'm trying to understand [00:17:28] Speaker 02: to apply the Mohawk analysis, we have to first understand what is the category that you're saying is subject to collateral review? [00:17:37] Speaker 02: What category of information has to be reviewed collaterally? [00:17:40] Speaker 03: Well, I want to, there's, it's possible that I'm not understanding your question on Mohawk and the category, but then I would give you a subset of medical, and I will give you a second. [00:17:51] Speaker 03: The subset, and that's what we're dealing with here, [00:17:54] Speaker 03: is information that comes or that has its source as a medical. [00:18:00] Speaker 03: It is one thing to observe that I wear glasses. [00:18:03] Speaker 03: It is one thing for the complaint, for example, to refer to a visibly bruised left arm. [00:18:10] Speaker 03: It is another thing entirely, the information that is an issue here and that I have sealed. [00:18:17] Speaker 03: And that is information that is sourced in a medical record. [00:18:21] Speaker 03: And so I would define that as one of the categories. [00:18:24] Speaker 03: The other, of course, is that there are documents- Being that it's in a medical record is your category. [00:18:30] Speaker 02: That's one of the two categories. [00:18:31] Speaker 02: There's nothing in the public record of this case, stuff that you have not asked to be sealed, that is also contained in a medical record? [00:18:37] Speaker 02: That's right. [00:18:38] Speaker 02: What I have asked to seal. [00:18:40] Speaker 02: Again, if you look at my brief at pages four, it's going to be a medical record that you were injured on such and such a date. [00:18:48] Speaker 03: I'm sorry? [00:18:48] Speaker 02: The medical record will include that you were injured on such a such a date and such such a place and such as such an incident and that is not something you're seeking to have sealed. [00:18:56] Speaker 02: That's in your redacted complaint. [00:18:58] Speaker 03: Yeah, let me let me actually restate my subcategory because I think it's hard. [00:19:03] Speaker 03: These categories are hard to understand. [00:19:04] Speaker 03: No, no, I understand. [00:19:06] Speaker 03: I want to I get your point and you are correct. [00:19:09] Speaker 03: That information would appear appear in a medical record. [00:19:11] Speaker 03: I'm not concerned about, that's not the information. [00:19:13] Speaker 03: I'm talking about diagnoses. [00:19:16] Speaker 03: I'm talking about provider names. [00:19:17] Speaker 03: I'm talking about, you know, the progression of an injury that is discussed in the code. [00:19:23] Speaker 03: That is not information that is revealed in the public version. [00:19:27] Speaker 02: And that is... If we were to write an opinion, the first thing we have to do is say we have jurisdiction and we would have to articulate in an opinion what category of medical information it is [00:19:38] Speaker 02: that if we were to agree with you, that is subject to collateral order review. [00:19:44] Speaker 02: And I think you're agreeing at this point that it's not all medical information. [00:19:47] Speaker 02: It's not even all medical record information. [00:19:49] Speaker 02: And so how would you, if we had to depend to you to write the opinion, say, here's a subset of medical information that has a privacy value of great importance [00:20:06] Speaker 02: to the public that Mohawks has an interest of the highest order that should be subject to collateral review. [00:20:17] Speaker 03: Well, I would say that it is information, again, that would be in a medical record, that is a diagnosis that discusses treatment, that discusses provider names, that discusses dates, that discusses one injury in particular, and I think I'm not going to mention it, but that was a protracted matter [00:20:39] Speaker 03: Um, and so those types of information I would define as the category. [00:20:47] Speaker 03: Um, I am not, you know, obviously there is a claim here that is a negligence claim and something happened and I have to discuss that and the public should be able to access that. [00:21:00] Speaker 03: But again, anything that I have not revealed in the redacted amended complaint at ECF 14 is that category. [00:21:11] Speaker 03: Now, I don't know that that gives you the definition or category that you want. [00:21:16] Speaker 03: And I understand you're referring to Mohawk, but I would also refer to the Diab case. [00:21:22] Speaker 03: that I cite in the brief where there was a question about videotapes, for example, that was a very different context, but Guantanamo Bay detainee videotapes, and there the court determined that that was a matter over which the court had jurisdiction under the Collateral Order Doctrine, notwithstanding the fact that those same videotapes were relevant to the merits. [00:21:48] Speaker 03: Uh, in that particular case. [00:21:51] Speaker 03: So I don't know. [00:21:52] Speaker 03: I mean, I don't know if your honor is asking to have a completely separable category. [00:21:58] Speaker 02: Uh, but I'm allowed to decide it case by case. [00:22:01] Speaker 02: I can't have a case specific description. [00:22:02] Speaker 02: The Supreme Court has said that. [00:22:04] Speaker 02: So that's why I'm struggling with the category here. [00:22:06] Speaker 03: Okay, well, I would say that it's the medical information subset that is diagnosis, treatment, providers, details that the public does not need to understand why this claim has been brought and that has not been revealed. [00:22:21] Speaker 03: I would add the second category, which is that there are documents [00:22:25] Speaker 03: that were not public pursuant to agency policy we are dealing here with the workers compensation scheme where medical information financial information other information will by necessity be included and that's why they are afforded those protections and. [00:22:40] Speaker 03: The filings here were made in violation of that and in violation of another court stealing order. [00:22:46] Speaker 03: And that's the DC Court of Appeals. [00:22:48] Speaker 05: Can I understand that you attached the order of the District of Columbia Court of Appeals that granted what appears to have been a consent emergency motion to seal the agency record, and it says which contains personal identifying information [00:23:09] Speaker 05: as well as medical reports. [00:23:13] Speaker 05: And it says the entire agency record is hereby sealed. [00:23:19] Speaker 05: Is there a local law or regulation that the DC Court of Appeals was operating pursuant to? [00:23:30] Speaker 03: The D.C. [00:23:32] Speaker 03: Court of Appeals did not cite one, nor did I. No, actually, let me take a step back. [00:23:38] Speaker 03: It's not in the record. [00:23:39] Speaker 03: I did file a motion, and I should say the consent is with the D.C. [00:23:43] Speaker 03: government, with the Office of Attorney General, who is representing by the agent, not with the George Washington University. [00:23:48] Speaker 03: GW didn't oppose, and he was a full-fledged participant as an intervener. [00:23:53] Speaker 03: But I believe, and I don't want to commit to this because I'm now working from memory, but I believe that in my motion, I cited, as I did in the district court here, medical privacy regulations, federal, District of Columbia, and state, because there were two, I believe, two Maryland medical providers that were also involved here. [00:24:15] Speaker 03: And so those, I believe, were cited. [00:24:18] Speaker 03: And I'd have to go back and look at my motion to confirm that. [00:24:21] Speaker 03: But I think the district, the court of appeals took that into consideration, I have to assume so. [00:24:29] Speaker 03: And I should add, if I may, that the entire case is [00:24:32] Speaker 03: And I filed the DC Court of Appeals case, that is. [00:24:35] Speaker 03: I filed in the district court with the motion to seal an exhibit that is one of the docket pages from that case. [00:24:44] Speaker 03: And it says in red that it's sealed. [00:24:46] Speaker 03: There was no dispute as to that. [00:24:47] Speaker 03: The university chose not to address it. [00:24:49] Speaker 05: Let me ask you a different question on jurisdiction. [00:24:53] Speaker 05: Why is this something that can't be remedied after final judgment? [00:24:59] Speaker 03: because there is an injury right now. [00:25:01] Speaker 03: The documents that were filed without authorization remain on the public docket. [00:25:06] Speaker 03: Information that is sealed remains on the public docket. [00:25:11] Speaker 03: There is one word in particular, and this is discussed I believe at page four or five of my opening brief, that refers to a diagnosis. [00:25:18] Speaker 03: It appears 25 or something like that times in the university's documents that it filed. [00:25:25] Speaker 03: Meanwhile, in June and July of 2022, I followed the procedures and I requested that those that information be sealed. [00:25:34] Speaker 03: The court granted those motions. [00:25:36] Speaker 03: So what the university did was without leave to diminish the rights that I obtained in June and July and to diminish further the rights that I relied on owing to DC DOES policy and procedure and also the DC Court of Appeals ceiling. [00:25:54] Speaker 03: So there is an injury. [00:25:56] Speaker 03: It started in September of 2022 and it persists today. [00:26:01] Speaker 03: And I would also ask that if the court does remand [00:26:04] Speaker 03: To the district court, I would ask that the court direct the district court to place these documents under seal pending final resolution of the issue or the case. [00:26:13] Speaker 02: Is it your view that we have to seal something just because a local agency or a state court [00:26:24] Speaker 02: They sealed the entire case, not the smaller categories of information you're talking about. [00:26:31] Speaker 03: That's right. [00:26:32] Speaker 03: The entire case was sealed. [00:26:34] Speaker 03: Right. [00:26:34] Speaker 03: Well, this court's rules, under this circuit's rules, if a matter is sealed in the district court or in an agency, then it's sealed in this court. [00:26:42] Speaker 03: Those are federal. [00:26:43] Speaker 02: You're talking here about the districts or state for these purposes. [00:26:49] Speaker 02: We have a federal common law right of access to judicial records that we have to [00:26:54] Speaker 02: to and can't be controlled by. [00:26:56] Speaker 02: However, states might want to define their own privacy records or right of access, common law right of access to judicial records. [00:27:05] Speaker 02: But the fact that something was sealed somewhere else doesn't mean that it has to be sealed here. [00:27:11] Speaker 02: You have to make the same kind of showing. [00:27:14] Speaker 02: And for our purposes, you have the same kind of Mohawk argument to even have jurisdiction to make that showing. [00:27:21] Speaker 03: Well, Your Honor, [00:27:23] Speaker 03: Whether the federal court must defer or continue state sealing, the reality is that these documents were generated in a particular agency. [00:27:36] Speaker 02: And when you go to that agency or go to the DC Court of Appeals and say, you know, hold them in contempt or whatever, that's a different issue. [00:27:44] Speaker 02: We're not here to enforce DC employment agency, DOES rules. [00:27:50] Speaker 02: That's not our job. [00:27:52] Speaker 02: That's not the nature of your. [00:27:53] Speaker 02: And so you haven't sought an injunction or mandamus or anything like that, even assuming to do it. [00:28:02] Speaker 02: So I'm not quite sure what to do with the argument. [00:28:04] Speaker 02: These things were sealed somewhere else. [00:28:08] Speaker 02: And so it was a violation not to seal them here. [00:28:11] Speaker 02: There's plenty of times things are sealed elsewhere, even including in district courts where this court will go, well, that was way too much sealing and we're not going to enforce it. [00:28:20] Speaker 03: Well, I want to clarify my argument. [00:28:22] Speaker 03: It's not that this court is bound or the district court was bound by the ceiling order. [00:28:28] Speaker 03: It is that that ceiling order pertained to the George Washington University's conduct. [00:28:32] Speaker 03: It was a party in those cases for that administrative matter. [00:28:36] Speaker 03: And the only reason it had the documents that it filed is because it was a party. [00:28:40] Speaker 03: Now it claims that it could access them under FOIA. [00:28:42] Speaker 03: This is a new argument. [00:28:44] Speaker 03: It's not accurate. [00:28:45] Speaker 03: The university also now states that the documents have been public since September of 2022 when it filed them. [00:28:52] Speaker 03: So it's benefiting, it wants to benefit from filing them. [00:28:55] Speaker 03: The question here is about GW's conduct in filing them. [00:29:00] Speaker 03: A party, just because this is the federal court, and this has not been briefed and maybe it should be if it's a point of interest, [00:29:06] Speaker 03: But a party, you know, a court ceiling order or an agency's policy has to mean something, even in a federal system, if it originates in a state or in the district. [00:29:17] Speaker 03: Otherwise, what? [00:29:19] Speaker 03: A party comes into the federal court and a ceiling order or an agency policy becomes meaningless? [00:29:25] Speaker 02: I mean, you violated state law and you go to state court or back to the state agency to impose sanctions. [00:29:30] Speaker 02: But that's a different question from what you're asking here, I should think. [00:29:34] Speaker 03: Well, I don't think it's irrelevant under this court's law. [00:29:38] Speaker 03: I mean, again, I'll go back to the in-race sealed cases and the FEC. [00:29:44] Speaker 03: Sure, it was a federal agency. [00:29:46] Speaker 03: But what this court examined is whether the FEC filed without authorization. [00:29:50] Speaker 03: Now, that matter was governed by the Federal Election Campaign Act and by the implementing regulations that were very clear. [00:29:58] Speaker 03: But that was a source of authority that governed the conduct in that case. [00:30:04] Speaker 03: And in FEC, the court did not reach Hubbard because it decided that the filing itself was not authorized. [00:30:10] Speaker 03: Here, we have agency policy and procedure. [00:30:14] Speaker 03: I have a reliance interest. [00:30:16] Speaker 03: And I have a reliance interest as well on a DC Court of Appeals stealing matter. [00:30:20] Speaker 03: And so I believe that this court should look to the policy [00:30:25] Speaker 03: to the sealing order, sealing the whole case, as a source of authority. [00:30:31] Speaker 03: Is it like the FICA? [00:30:33] Speaker 03: No, but it is a source of authority. [00:30:36] Speaker 03: The federal courts also don't disregard state law simply because it's a different system. [00:30:42] Speaker 03: I would as well, you know, in the District of Columbia, there is also a right of public access. [00:30:47] Speaker 03: It is not that the District of Columbia Court of Appeals operates in secrecy. [00:30:51] Speaker 03: It is that it recognized a legitimate interest in restricting that act. [00:30:54] Speaker 05: Can I just clarify something? [00:30:57] Speaker 05: So is it your position that whatever was ordered sealed by the District of Columbia Court of Appeals cannot be publicly filed in the U.S. [00:31:13] Speaker 05: District Court? [00:31:16] Speaker 03: I'm not going to say that is my position as well. [00:31:19] Speaker 05: Just let me ask a different question. [00:31:25] Speaker 05: Is there anything that was ordered sealed by the District of Columbia Court of Appeals that you have publicly filed in the U.S. [00:31:36] Speaker 05: District Court or in our court? [00:31:40] Speaker 03: Um, let me, um, just I want to say the answer is no, I'm quite sure it is, but I don't want to misinform you or misspeak. [00:31:50] Speaker 03: So, uh, in the DC district court, no, I did not file, uh, any document that was under seal, nor did I file any OES document. [00:31:59] Speaker 03: And in this court, the only document that I have filed, well, actually, this is not true. [00:32:04] Speaker 03: I filed the docket sheet of the DC Court of Appeals case. [00:32:07] Speaker 03: So that's what I filed in support of my motion to seal pages of that, which you cannot access via the Court of Appeals. [00:32:14] Speaker 03: But it is known that there was a case. [00:32:17] Speaker 03: And in this court, of course, I followed with the reply brief a copy of the court of appeals order, sealing the agency record, which is distinct from the whole case being sealed. [00:32:28] Speaker 03: And I did that because the George Washington University in its brief claims that there was no such order or suggests that there was no such order. [00:32:36] Speaker 05: I guess the reason I ask what I'm getting at is the questions that were about Mohawk in categories. [00:32:48] Speaker 05: Perhaps I'm confused. [00:32:51] Speaker 05: I thought that the gist of your argument is that the category here of documents are a category of documents that are protected by local law or by a local court order. [00:33:08] Speaker 05: We can debate whether or not [00:33:12] Speaker 05: that order or that law is too restrictive or not. [00:33:19] Speaker 05: But I thought that for the Mohawk analysis, it wasn't just documents that might have some medical information or how you define diagnosis or how you kind of chop that up. [00:33:36] Speaker 05: That the category here was, this is a category of documents [00:33:41] Speaker 05: that were all have been ordered, sealed by the highest coordinate of local jurisdiction. [00:33:54] Speaker 05: that some of which have been filed in the U.S. [00:33:58] Speaker 05: District Court, and that's the category. [00:34:01] Speaker 05: When you have kind of that category, then that's for the categorical analysis, so to speak, of Mohawk, that that's the category. [00:34:13] Speaker 05: Am I misunderstanding your argument? [00:34:16] Speaker 03: Um, no, I don't think you are, but I, I think there is perhaps a gulf here. [00:34:21] Speaker 03: Um, and maybe I'm misunderstanding the question about Mohawk because the, that was a question I think that was raised with the collateral order. [00:34:30] Speaker 03: Um, but in this, if we're dealing with Hubbard, for example, and I don't want to deviate, I'm not trying to hear the question. [00:34:42] Speaker 03: Okay. [00:34:43] Speaker 00: Yeah. [00:34:44] Speaker 03: Yeah. [00:34:45] Speaker 05: So the question is, what is the category of the disorder falls within that is an appropriate category to fall within the narrow collateral order doctrine as defined by Mohawk? [00:35:06] Speaker 03: Well, I would again answer the subset of the medical and the documents that are an issue here because they were filed without authorization and they are not public. [00:35:15] Speaker 03: And GW has never in the district court shown [00:35:23] Speaker 03: Why? [00:35:23] Speaker 03: The purpose for filing the documents. [00:35:26] Speaker 03: And it has never countered the argument or the exhibits that were filed in support that the documents were not public. [00:35:35] Speaker 03: And I know this circuits, you mentioned the federal jurisdiction, this circuits rules speak to agencies and the district court, not federal agencies only. [00:35:46] Speaker 03: But the ceiling order has to mean something. [00:35:49] Speaker 03: It's not just a matter of going for contempt or sanctions or whatever the case might be. [00:35:54] Speaker 03: So I would, again, say the categories are the subset of the medical that is not revealed in the amended complaint and the documents here. [00:36:03] Speaker 03: Now, again, I'm not asking as in hard away for a prospective order here. [00:36:08] Speaker 03: I'm only speaking about prior files. [00:36:11] Speaker 03: And I think that that is a confined category. [00:36:13] Speaker 02: Thank you. [00:36:14] Speaker 01: Make sure there's no additional. [00:36:15] Speaker 02: I just wanted to follow up on Judge Wilson's question. [00:36:17] Speaker 02: When you say, I get that you haven't filed, other than the docket sheet, as you mentioned, any of the documents from this sealed matter. [00:36:28] Speaker 02: But are any of the facts contained in those documents that are all sealed under this DCCA order, are any of those facts [00:36:41] Speaker 02: made public in your complaint or your violence? [00:36:44] Speaker 03: I do discuss facts, for example, that the university in connection with an abusive process and another claim that the university and PMA management through their counsel were engaged in ex-party communications. [00:36:58] Speaker 02: I'm also assuming here, maybe I'm wrong, I don't know how the process works, but I'm just assuming that before the workers' compensation, as part of the workers' compensation proceeding, you describe at least at some level your injuries. [00:37:13] Speaker 02: when they happened and where they happened, right? [00:37:18] Speaker 02: That's right, I did. [00:37:20] Speaker 02: So there's a lot of material that was sealed by DOES that is being discussed on the public record here. [00:37:29] Speaker 03: Well, the information is not, it's not that it was sealed by the DOES, it's just not made public by the DOES and it's not. [00:37:35] Speaker 02: It's not sealed, it's just they don't share it publicly. [00:37:37] Speaker 03: Exactly, it's the DCEQA reveals that sealed it. [00:37:39] Speaker 03: I'm sorry? [00:37:40] Speaker 02: Right. [00:37:41] Speaker 02: So that's a different thing. [00:37:42] Speaker 02: But the DCCA just categorically sealed the entire proceeding, even though lots of those facts appear in your own filings. [00:37:50] Speaker 03: But it also sealed the agency record. [00:37:53] Speaker 02: I understand, but that agency, right. [00:37:55] Speaker 02: I understand. [00:37:56] Speaker 02: We keep stealing, and you're not saying that everything. [00:37:59] Speaker 02: No, I'm not. [00:38:00] Speaker 02: That should be sealed or should even fall within a category for purposes of Mohawk. [00:38:05] Speaker 03: Well, yes, but anytime there's a question of whether a document should be sealed or public access should be restricted, it is somehow relevant to the case on the merits or in substance in some way. [00:38:21] Speaker 03: And in this case, it's no different than, say, in Hardaway, where the disability was relevant to her claim for housing benefits. [00:38:29] Speaker 03: from the DC government. [00:38:32] Speaker 03: It is not different from the case in MetLife, where there was a question about a designation of a systemically important financial institution, and those were the documents that were in issue. [00:38:43] Speaker 03: So those were all related to the merits, and they were discussed in the party's filings that were not redacted or sealed. [00:38:49] Speaker 03: So my perspective, and I believe the law supports this, is just because a matter is an issue or mentioned in a filing, whether it be a complaint or in another document, it doesn't mean that there is no public access inquiry. [00:39:02] Speaker 03: because if that were the case, then there would be a lot fewer public access cases. [00:39:07] Speaker 03: You know, I didn't file, for example, my shopping list and say, well, you know, it's irrelevant, and I filed it, and I want it sealed. [00:39:13] Speaker 03: It's irrelevant, of course. [00:39:15] Speaker 03: But that's true in all of these cases. [00:39:17] Speaker 03: And this case should be treated no differently. [00:39:20] Speaker 01: And- Let me make sure my colleagues don't have- Oh. [00:39:23] Speaker 01: We will give you time, a little time for rebuttal. [00:39:24] Speaker 01: I want to make sure my colleagues don't have additional questions. [00:39:28] Speaker 01: Okay. [00:39:28] Speaker 01: We'll give you a little time for rebuttal. [00:39:30] Speaker 03: Thank you. [00:39:31] Speaker 03: Thank you. [00:39:41] Speaker 00: Good afternoon, your honor. [00:39:45] Speaker 04: Jared Emig on behalf of the Appellee, George Washington University. [00:39:50] Speaker 04: Your honors, George Washington respectfully requests that Judge McFadden's order be affirmed. [00:39:56] Speaker 04: There is no abuse of discretion. [00:39:59] Speaker 04: And George Washington again renews its motion to dismiss. [00:40:03] Speaker 04: Respectfully, this court does not have jurisdiction to hear this appeal. [00:40:08] Speaker 04: This court has already addressed the issue or not of whether there's a judgment in this case in the subsequent appeal. [00:40:16] Speaker 04: And this court held onto the blue case because there was still this pending claim against a defendant that did not receive a dispositive motion relief. [00:40:28] Speaker 04: It means it's not a final judgment. [00:40:31] Speaker 04: So now we're left with, how does the appellant establish jurisdiction in this court? [00:40:36] Speaker 04: There's no statutory basis she can rely on. [00:40:39] Speaker 02: So can you help us with the Mohawk analysis? [00:40:41] Speaker 02: It does seem to me there's certain categories of personal medical information that are traditionally kept very private and confidential and protected. [00:40:52] Speaker 02: Is it your position that Mohawk doesn't protect any medical information ever? [00:40:58] Speaker 04: It's my position that Mohawk says there must be a conclusive order, which the minute order is a conclusive order. [00:41:05] Speaker 04: It must resolve an important question separate from the merits, which I think whether or not these records are medical records somehow. [00:41:15] Speaker 04: So, it's so intertwined with merits of this case, we don't have a separate conclusive order. [00:41:20] Speaker 02: I'm talking about just medical information, the subset of medical information. [00:41:25] Speaker 02: Can you just answer me, what is your position? [00:41:29] Speaker 02: Is it that under Mohawk, there's no definable category of medical information? [00:41:36] Speaker 02: I wouldn't go that far. [00:41:37] Speaker 02: Okay, then what definable category of medical information could be subject to review under Mohawk? [00:41:43] Speaker 04: I think if there is some mass dissemination of medical records at an institution, applying a specific case, whether documents. [00:41:52] Speaker 02: What? [00:41:52] Speaker 02: I don't understand. [00:41:53] Speaker 02: I don't understand why it has to be mass or not. [00:41:55] Speaker 02: I'm trying to understand what medical information you think would be the type of category that would be subject. [00:42:02] Speaker 02: I don't care whether it's a mass dissemination or a single dissemination. [00:42:05] Speaker 04: I think some type of medical information that would cause irreparable harm to the patient. [00:42:12] Speaker 04: That there's a privacy interest that might. [00:42:15] Speaker 02: So someone someone was a victim of a sexual assault rape. [00:42:21] Speaker 02: Is that the type of that type of any of the hospital treatment and they diagnose that this was the result of, you know, forcible trauma. [00:42:29] Speaker 04: That would probably be information that would need to be protected and need to be addressed. [00:42:33] Speaker 02: Because? [00:42:35] Speaker 04: Because it's so private and there's privacy. [00:42:38] Speaker 02: I don't know how so private is a category. [00:42:40] Speaker 02: I'm really struggling with what the category should be here. [00:42:42] Speaker 02: And so you're not willing to, your position is not that medical information just doesn't qualify under Mohawk, that there's some category. [00:42:48] Speaker 02: And I'm trying to get from you how you articulate that category so we can see how that compares to how she articulates the category. [00:42:56] Speaker 04: My recollection of Mohawk is it does not say question dealing with medical records automatically applies for a collateral appeal. [00:43:05] Speaker 02: It didn't involve medical records. [00:43:06] Speaker 02: So of course it did not say that. [00:43:08] Speaker 04: What I'm saying is Mohawk tells us it has to be something important. [00:43:12] Speaker 04: It can't be appealed ever upon a final judgment. [00:43:17] Speaker 04: And it involves some question of law. [00:43:19] Speaker 02: So I envision... It can't be remediated by appeal after a final judgment. [00:43:25] Speaker 02: Okay. [00:43:25] Speaker 02: So, what is this category of medical information that would fall within that? [00:43:31] Speaker 04: It would have to be some, you know, I'm trying to come up with some idea that would fit within those MOHA category. [00:43:37] Speaker 02: I mean, if she were to show and to argue that the subset that she's talking about here would result in irreparable injury for ABC reasons, then you would agree. [00:43:48] Speaker 02: It sounds like. [00:43:49] Speaker 04: For these facts, I would not because there was no, [00:43:52] Speaker 04: medical information being conveyed in those 16 exhibits, other than the one joint pre-hearing statement. [00:43:59] Speaker 02: If she were to argue irreparable injury in the district court to agree with her, I see you would argue there's no irreparable injury. [00:44:06] Speaker 02: But your category was information, medical information, private medical information that could result in irreparable injury. [00:44:14] Speaker 02: If she made that showing, then she would, in your view, have the type of category of information that would be subject to review. [00:44:22] Speaker 04: This case, no, Your Honor, because. [00:44:24] Speaker 02: Even if the district court found it was a reprobable injury? [00:44:26] Speaker 02: Would it cause a reprobable injury? [00:44:28] Speaker 04: Because under this case, Ms. [00:44:30] Speaker 04: Abdelhadi has consistently put within the public spectrum. [00:44:33] Speaker 02: I'm not asking you to answer a different question. [00:44:35] Speaker 02: If she argued and the district court ruled the disclosure of this subset of information is intimate private medical information, not traditionally shared with the public, even in litigation, and disclosure would cause a reprobable injury. [00:44:52] Speaker 02: District Court made those findings after you argued against them. [00:44:57] Speaker 02: Would you still be here arguing that's an impermissible category for Mohawk purposes? [00:45:02] Speaker 04: Yes, Your Honor. [00:45:03] Speaker 04: I don't think it rises. [00:45:04] Speaker 02: I thought you said that was your category, was irreparable injury. [00:45:06] Speaker 04: I'm saying there could be a situation where a disclosure of medical records for medical information could rise to the level of irreparable injury. [00:45:16] Speaker 04: I'm saying in this case, we're nowhere. [00:45:18] Speaker 02: Okay, you're right. [00:45:19] Speaker 02: We're not communicating. [00:45:21] Speaker 02: But I said if the district court found a reprobate, then it would be a Mohawk category. [00:45:26] Speaker 02: You're saying it shouldn't find it here, but if it did, it would be a Mohawk category. [00:45:32] Speaker 05: Part of the problem here, and it's not just a problem in your brief, Mr. Immigrant, but we ordered the parties to brief jurisdiction. [00:45:46] Speaker 05: And we said in our order from the special panel to not incorporate by reference what you had put in your motion. [00:45:59] Speaker 05: Your brief on page one said, well, we incorporate by reference what was in our motion. [00:46:05] Speaker 05: And there's no argument in your brief about jurisdiction. [00:46:12] Speaker 05: balance brief. [00:46:13] Speaker 05: There's no real meaningful argument on jurisdiction. [00:46:19] Speaker 05: And I guess I just feel like it'd be remiss of me to not, um, admonish both of you for not following our orders. [00:46:31] Speaker 05: This is important. [00:46:34] Speaker 05: We need to know whether we have jurisdiction over this appeal or not. [00:46:39] Speaker 05: My apologies. [00:46:41] Speaker 05: But yet, you know, it was something that wasn't deemed important enough to fully brief as we asked you to. [00:46:51] Speaker 05: That bothers me. [00:46:53] Speaker 04: Your honor, I apologize for that. [00:46:54] Speaker 04: I think we're cognizant of the page order. [00:46:56] Speaker 04: We should not have disregarded your order. [00:47:00] Speaker 04: Say that we did address it in a motion to dismiss. [00:47:04] Speaker 04: I believe it's still pending. [00:47:05] Speaker 04: We should not have referenced it in brief. [00:47:10] Speaker 04: but I don't think our argument has changed since we filed the pending motion to dismiss. [00:47:18] Speaker 05: So help me get the answer to Judge Millett's question. [00:47:26] Speaker 05: What is the category for Mohawk purposes with respect to [00:47:32] Speaker 05: medical diagnoses or medical information? [00:47:37] Speaker 05: Are you saying that you're not saying that it's never a collateral order? [00:47:43] Speaker 05: You're just saying only sometimes it is. [00:47:45] Speaker 05: Well, when is it and when is it? [00:47:48] Speaker 04: Governor, I cannot come up with a finite set when it is or when it isn't. [00:47:54] Speaker 04: What we have here is a typical motion to seal that addresses things that are not medical records. [00:48:02] Speaker 04: that are documents that were put into place, called into issue by an affidavit that Ms. [00:48:08] Speaker 04: Abelhady filed in response to our motions to dismiss a motion for summary judgment. [00:48:18] Speaker 04: She opposed those by way of an affidavit contradicted prior affidavit that contradicted her complaint. [00:48:27] Speaker 04: In her complaint, in her prior affidavit, she says, I was injured this worker's compensation claim. [00:48:32] Speaker 04: I filed for worker's compensation benefits. [00:48:35] Speaker 04: I received benefits. [00:48:38] Speaker 04: We litigated it, went up through a formal hearing level. [00:48:43] Speaker 04: The formal hearing was dismissed. [00:48:45] Speaker 04: That was all in the public record at the stage that we filed our dispositive motion. [00:48:53] Speaker 04: Ms. [00:48:53] Speaker 04: Abdelhadi filed this [00:48:56] Speaker 04: second affidavit in support of her opposition to my motions for summary judgment. [00:49:03] Speaker 04: In that affidavit, she reversed course and said, I wasn't working, this case wasn't subject to workers' compensation. [00:49:12] Speaker 04: George Washington filed a reply saying that this was tantamount to a sham affidavit because it contradicted her prior affidavit. [00:49:21] Speaker 04: Judge McFadden agreed with us and he went through [00:49:25] Speaker 04: explicit detail in his memorandum order stating that Ms. [00:49:30] Speaker 04: Ablohade's affidavit was a sham affidavit. [00:49:36] Speaker 04: In order to prove that her affidavit was a sham affidavit, we needed to put into evidence the worker's compensation documents. [00:49:44] Speaker 05: That's fine. [00:49:45] Speaker 05: I guess none of that answers the question though. [00:49:48] Speaker 05: I mean, you can put classified information into evidence. [00:49:53] Speaker 05: whether you needed to put it into evidence has nothing to do with whether that has to be on the public record. [00:50:02] Speaker 05: And I guess what I'm trying to understand is what is the category of medical type of information that the question of whether or not it can be put on the public record is sufficiently important and collateral enough that that's appealable. [00:50:25] Speaker 05: How do we know it when we see it? [00:50:27] Speaker 05: I understand you don't think that this case is one of those cases, but we need to know how to identify it. [00:50:35] Speaker 04: I think if it has identifying insurance information, if it were to have diagnoses, physical examination results, medications, that type of information, that would rise to the level of something that the court should consider sealing. [00:50:54] Speaker 04: that apply to Hubbard. [00:50:57] Speaker 04: We don't have any of that in this case. [00:50:58] Speaker 04: Diagnoses, you agree? [00:51:01] Speaker 04: Diagnoses, except to the extent, and this is the critical point, and I think this is why Judge McFadden's minute order applied with Hubbard, except to the extent that it had already been disclosed. [00:51:14] Speaker 02: That's not the jurisdictional question. [00:51:16] Speaker 04: No, Your Honor, and I'm blending. [00:51:18] Speaker 02: You're trying to go over there. [00:51:19] Speaker 02: I'm blending in. [00:51:20] Speaker 02: We don't even talk about that. [00:51:21] Speaker 02: We've got jurisdiction. [00:51:22] Speaker 02: I mean, you represent a hospital. [00:51:25] Speaker 02: that must have enormous amounts of medical information at its hand. [00:51:31] Speaker 02: And I would think that your client would have a view on whether someone can compel it to just throw all that stuff into a public record or that there are things that it says, no, no, these things should not be subject to public filing. [00:51:48] Speaker 02: And if you order me to, I'm gonna challenge that on appeal. [00:51:54] Speaker 04: I guess where I'm having trouble with, and I understand that Ms. [00:52:01] Speaker 04: Abdelhadi has created this subset under Mohawk, what would be a permissible interlocutory order? [00:52:08] Speaker 04: And she says medical records. [00:52:11] Speaker 02: Okay, I'm locking- Back off that. [00:52:13] Speaker 02: She started talking about a subset of ones and I think she included diagnosis, which you just said, you agree the diagnosis as well. [00:52:20] Speaker 04: That's set forth in a medical record. [00:52:23] Speaker 04: That might start talking about sufficient questions. [00:52:26] Speaker 02: The doctor's oral announcement of a diagnosis wouldn't be protected, only the medical record documenting it. [00:52:33] Speaker 04: But this is where it blends in, and it has to blend in respectfully to the merits of the argument. [00:52:39] Speaker 02: It can't. [00:52:41] Speaker 01: It can't. [00:52:42] Speaker 01: I don't know how else. [00:52:43] Speaker 01: Well, we have to decide whether we have jurisdiction before we get to the merits. [00:52:46] Speaker 01: So we can't blend jurisdiction and the merits. [00:52:49] Speaker 01: We have to define what's appealable and what's not without peeking ahead to the merits. [00:52:54] Speaker 04: But she is not requesting in this case that a medical record be sealed and that this court has jurisdiction to address the issue of whether or not a medical record concealed. [00:53:07] Speaker 04: She submitted 16 exhibits. [00:53:09] Speaker 04: None of them are medical records. [00:53:11] Speaker 04: They're just not. [00:53:13] Speaker 04: The only one that had reference to physicians was the one that Judge McFadden actually sealed. [00:53:20] Speaker 04: So what are we left with? [00:53:21] Speaker 04: We're left with is there a jurisdiction [00:53:25] Speaker 04: to this court to grant an interlocutory appeal on a personal injury case when there's evidence on the record of a workers' compensation case? [00:53:36] Speaker 04: We can't. [00:53:36] Speaker 02: Mohawk says this is not a case by case determination. [00:53:41] Speaker 02: So whatever happened in this case doesn't matter. [00:53:43] Speaker 02: And now I'm trying to get back to the point that she said diagnoses, you said diagnoses. [00:53:50] Speaker 02: Some of the sealed information here is of a diagnosis. [00:53:54] Speaker 02: But that information is now, or some of the information that she wishes to have sealed is of a diagnosis. [00:53:59] Speaker 02: If you agree on that circle, then the district court may have erred on, you would have to be telling me to err, because you think diagnosis is a category. [00:54:11] Speaker 04: I look at, and I think I'm blending what may be sealable, what may generate an appeal under Mohawk. [00:54:22] Speaker 04: may be sealable in this report if it's medical record making reference to a diagnosis as opposed to another document that references the diagnosis. [00:54:34] Speaker 04: They're two different things. [00:54:36] Speaker 04: When I look at Mohawk and it says the order must be inclusive, it must resolve important questions separate from the merits, [00:54:44] Speaker 04: And most importantly, it must be effectively unreviewable on appeal. [00:54:49] Speaker 04: And I use Mohawk from that perspective. [00:54:52] Speaker 02: OK. [00:54:52] Speaker 02: So if diagnoses are just not supposed to be out there, that's something people are entitled to keep private, not put on the public record for the world to see. [00:55:00] Speaker 02: That's not going to be effectively reviewable on appeal after a trial when it's all put out there in the public. [00:55:08] Speaker 02: And nowadays, it's electronically available to many people. [00:55:12] Speaker 02: It's not going to be. [00:55:14] Speaker 02: It's not going to be reversible. [00:55:16] Speaker 02: It's not going to be remediable on appeal. [00:55:18] Speaker 04: I disagree, Your Honor. [00:55:19] Speaker 04: I'm talking about a diagnosis contained in a medical record. [00:55:22] Speaker 04: I know we can't go case by case, but Your Honor did bring an element into that. [00:55:29] Speaker 04: Every personal injury case makes allegations about duty, breach, and injuries that's in there. [00:55:36] Speaker 04: And that's what Ms. [00:55:37] Speaker 04: Abdelhadi did in this case. [00:55:39] Speaker 04: Her diagnosis is all over the records. [00:55:43] Speaker 04: She filed the original complaint. [00:55:44] Speaker 04: It was unsealed for almost a month. [00:55:48] Speaker 04: That unsealed complaint, in addition to all the tortuous activity that she's alleging my client did, she specifically alleges all of her injuries, medical providers, care. [00:56:05] Speaker 04: It's all in there. [00:56:06] Speaker 04: And then when she sealed her complaint and her amended complaint, she continued to [00:56:13] Speaker 04: injuries or bruises or hematoma where she was treated. [00:56:18] Speaker 04: So the fact that there's diagnosis in something other than a medical record, it's not a violation of, I don't see a violation of Hubbard. [00:56:28] Speaker 04: In a way, it's a distinguishable way. [00:56:31] Speaker 04: And I don't see it as giving grounds for a basis under Mohawk to file an interlocutory appeal. [00:56:38] Speaker 01: Make sure my colleagues don't have additional questions for you. [00:56:40] Speaker 01: Thank you, Mr. Emick. [00:56:44] Speaker 01: Thank you. [00:56:45] Speaker 03: I mean, look, the [00:56:55] Speaker 03: try to understand. [00:56:57] Speaker 03: I would just back on Mohawk and jurisdiction. [00:57:00] Speaker 03: And Your Honor, I take your point about not addressing it in the brief. [00:57:04] Speaker 03: And this is not to comment on the quality of the discussion. [00:57:08] Speaker 03: That's obviously for the court to decide. [00:57:09] Speaker 03: But the opening brief of the appellant did discuss jurisdiction. [00:57:14] Speaker 03: So I just wanted to note that. [00:57:16] Speaker 03: In terms of the Mohawk, it's my understanding in that case that the imperilment of attorney-client privilege was not reviewable because there was no irreparable injury, that that could be addressed after review or adjudication on the merits. [00:57:36] Speaker 03: In this case, we're not talking about that privilege. [00:57:38] Speaker 03: And again, I would keep my subset at the subset of medical records and the documents in issue here. [00:57:43] Speaker 03: But here, there is no way to address this after adjudication on the merits. [00:57:49] Speaker 03: In this case, by the way, is stalled. [00:57:51] Speaker 03: There is nothing happening in the district court right now. [00:57:53] Speaker 03: It's all in this court. [00:57:55] Speaker 03: So on the Mohawk, if that's a better understanding of the question, I would stick with my subset, but again, say there is irreparable injury. [00:58:04] Speaker 02: The university subset again is please do not define it by and things in this case. [00:58:10] Speaker 02: Can you articulate your subset in a way that would govern other cases as well? [00:58:16] Speaker 03: Okay, I would articulate it as information that is universally or generally regarded as private, and that is not necessary for the public to understand, and that is subject to a privilege. [00:58:31] Speaker 03: I would add this, you know, after a comment, I don't know if it has to be all of those things conjunctive, but that is subject to a privilege that is held by the individual. [00:58:40] Speaker 03: And where there are standards of waiver, by the way, they talk about waiver, whether that privilege is waived. [00:58:45] Speaker 03: I'm not talking about attorney-client, I'm talking about medical privacy. [00:58:48] Speaker 03: So maybe those are some general criteria. [00:58:52] Speaker 03: But I'm not looking to make criteria, and I understand the interlocutory appeal question. [00:58:58] Speaker 03: But I am sticking with the facts in this. [00:59:02] Speaker 03: But there is a privilege and there is universal recognition of that private information. [00:59:08] Speaker 03: The university just, I believe, conceded diagnoses. [00:59:12] Speaker 03: It stated treatment and medication. [00:59:14] Speaker 03: The medical information in issue here discusses courses of treatment. [00:59:18] Speaker 03: It doesn't name a prescription. [00:59:20] Speaker 03: But there was clearly, that's equivalent to medication. [00:59:23] Speaker 03: It was to treat the injuries. [00:59:25] Speaker 03: The university also states that it didn't disclose medical information. [00:59:29] Speaker 03: That is false. [00:59:31] Speaker 03: And it's a repetition of a false statement that it's made throughout this case. [00:59:35] Speaker 03: Again, at my brief on page five, I discussed that the university's filings, including the 16 documents that it screenshotted in some of its replies, [00:59:49] Speaker 03: mentioned one particular diagnosis 25 times, although that was under seal in the district court. [00:59:58] Speaker 03: In terms of the irreparable injury, the primary injury here is not one that's well understood, I believe, generally speaking. [01:00:05] Speaker 03: We don't have expert material on that. [01:00:07] Speaker 03: But again, the public doesn't need to know those details. [01:00:10] Speaker 03: And in the Hardaway case, the court considered the interest specific that the party there had. [01:00:17] Speaker 03: I am an attorney. [01:00:18] Speaker 03: And I think that with one injury in particular, the public doesn't know what happened subsequently, what the course of it is. [01:00:27] Speaker 03: But I clearly have an interest in not disclosing that and making it available to anyone, any in the world, to read and to make assumptions about no one in the public is going to be making diagnoses or using that for any other purpose. [01:00:41] Speaker 03: And they know what happened in this case from the public complaint. [01:00:44] Speaker 03: So I have an interest. [01:00:46] Speaker 03: George Washington knows that very well. [01:00:48] Speaker 03: And for whatever reason, not a good reason that it's articulated continues to publicize this information by putting it on the public docket. [01:00:59] Speaker 03: I have to, I apologize. [01:01:01] Speaker 01: If you have one very brief point, you can make it, but. [01:01:04] Speaker 03: One very brief and I thank you for that because the university has again stated that the plaintiff filed a sham affidavit. [01:01:12] Speaker 03: And I want to point the court to my reply brief at page 12. [01:01:17] Speaker 03: That is not an accurate narrative. [01:01:20] Speaker 03: It doesn't cite what that was, because that's not something that's an injurious statement to make that someone has filed a sham affidavit, and that someone's also a lawyer. [01:01:33] Speaker 03: And I discussed that in detail in my Rule 54B motion. [01:01:37] Speaker 03: That's not part of this record. [01:01:38] Speaker 03: It's at 68.1. [01:01:39] Speaker 03: But since the university here repeats these claims, which are not accurate, I wanted to respond to that. [01:01:45] Speaker 03: And I thank the court for the additional time. [01:01:47] Speaker 01: Thank you. [01:01:48] Speaker 01: Thank you, Ms. [01:01:48] Speaker 01: Abilfati. [01:01:50] Speaker 01: Thank you, Mr. Amick. [01:01:51] Speaker 01: Take this case under submission.