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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

MICHAEL A. COX,

Petitioner,

v.

WARDEN, San Quentin State Prison,

Respondent.

No. 2:04-CV-0065 MCE CKD

DEATH PENALTY CASE

ORDER

Petitioner requests that the April 15, 2015 declaration of investigator Dorothy Ballew, 

submitted in support of petitioner’s pending motion to perpetuate testimony, be filed under seal.1 

Petitioner argues sealing is justified because the declaration contains private medical information 

of non-parties. Petitioner relies primarily upon the Health Insurance Portability and 

Accountability Act of 1996 (“HIPPA”). Respondent opposes the request because the medical 

information contained in the declaration does not amount to “medical records” under HIPPA. 

Ms. Ballew’s declaration describes her conversations regarding the medical condition of a 

mitigation witness and a juror.

2

 While there is a presumption of public access to judicial records, 

 

1

Pursuant to Local Rule 141, petitioner’s request, respondent’s opposition, and petitioner’s reply 

have all been submitted by e-mail. They will be ordered filed under seal. 

2 Ms. Ballew’s declaration also describes learning of the death of juror Diane Conen. Petitioner 

has included Ms. Conen’s obituary as a publicly-filed exhibit to his motion so the court assumes 

petitioner does not seek to keep this information confidential. (ECF No. 146-10.) It is noted, 

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this presumption may be overcome by a showing of a “real and substantial” privacy interest. 

Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1135-36 (10th Cir. 

2011). Under Federal Rule of Civil Procedure 26(c)(1), the court may, upon a showing of good 

cause, enter an order “to protect a party or person from annoyance, embarrassment, oppression, or 

undue burden or expense.” See Kamakana v. Honolulu, 447 F.3d 1172, 1180 (9th Cir. 2006) 

(party must show good cause to justify sealing information relating to a non-dispositive matter). 

A non-party’s medical information is certainly the sort of private information that may be entitled 

to protection. Eugene S., 663 F.3d at 1135-36 (sealing documents that included “the name of, 

and/or personal and private medical information” of a non-party). 

In the present case, the court finds the public interest in the medical information of the 

non-parties described in petitioner’s submitted declaration is minimal.3 While the declaration 

does not contain medical records, it contains a report of statements, or what amounts to 

statements, by persons with knowledge of these non-parties’ medical history. The court finds 

good cause to seal Ms. Ballew’s declaration.

Accordingly, IT IS HEREBY ORDERED as follows:

1. The Clerk of the Court is directed to file under seal the following documents: 

petitioner’s April 15, 2015 Request to Seal; respondent’s April 24, 2015 Opposition; 

and petitioner’s April 27, 2015 Reply.

/////

/////

/////

 

however, that petitioner does not list Ms. Conen as one of the parties whose testimony he seeks to 

preserve.

 

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In fact, the public interest is essentially non-existent at this point because neither of the nonparties described in Ms. Ballew’s declaration appears to be included in petitioner’s motion to 

perpetuate testimony. The court is therefore puzzled by the inclusion of Ms. Ballew’s declaration 

with petitioner’s motion. The court notes that should petitioner seek to perpetuate the testimony 

of any of the three people mentioned in Ms. Ballew’s declaration, the identity, though not the 

medical information, of those people should be identified in a public filing. 

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2. The Clerk is also directed to file under seal the April 15, 2015 Declaration of Dorothy 

Ballew. 

Dated: May 5, 2015

Cox mtn to perp decl seal.or

_____________________________________

CAROLYN K. DELANEY

UNITED STATES MAGISTRATE JUDGE

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