IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

PATRICK C. DESMOND, MARY C. DESMOND, Individually, and MARY C. § DESMOND, as Administratrix of the Estate § of PATRICK W. DESMOND § § Plaintiffs, § v. ? Civil Action File No: 10A28641-2

NARCONON OF GEORGIA, INC., NARCONON INTERNATIONAL, DELGADO DEVELOPMENT, INC., SOVEREIGN PLACE, LLC, SOVEREIGN PLACE APARTMENT MANAGEMENT, INC., LISA CAROLINA ROBBINS, M.D., and THE ROBBINS GROUP, INC.

Defendants.

DEFENDANT NARCONON OF GEORGIA, INC.'S RESPONSE TO PLAINTIFFS' CONSOLIDATED MOTION, MEMORANDUM AND SUPPLEMENTAL MEMORANDUM TO UNSEAL DOCUMENTS

COMES NOW, Narconon of Georgia, Inc. ("Defendant") in the above styled civil action and files its Response to Plaintiffs' Consolidated Motion, Memorandum and Supplemental

Memorandum to Unseal Documents showing the Court as follows:

I. STATEMENT OF FACTS

The above-referenced matter was filed on May 19, 2010, in which Plaintiffs seek damages for the alleged wrongful death of Patrick Desmond. Patrick Desmond died due to cardiopulmonary arrest secondary to a heroin overdose. In their Complaint, Plaintiffs assert a variety of causes of action against the Narconon Defendants for their alleged failure to provide safe, properly licensed, legally operated, scientifically and medically based rehabilitation treatment services to Patrick. (See generally, Complaint). Because of the nature of the discovery process, Plaintiffs have been allowed access to highly sensitive and even confidential information concerning employees and students of

Narconon of Georgia and its structure and operation. Recognizing the privacy concerns of the

Narconon Defendants, the parties entered into an agreement to treat certain documents and information confidential and limiting the use of such information as needed for this litigation.

On March 25, 2011 this Court entered a Protective Order governing the discovery in this case.

(Protective Order, attached hereto as Exhibit "A"). That order adopted the terms of a Stipulation and Confidentiality Agreement ("Stipulated Agreement") that all the parties to this case, including Plaintiffs, consented to and agreed upon. The Stipulated Agreement stated that "no copies of the Confidential Information shall be distributed to anyone.. .without the written consent of the producing party." (Stipulation and Confidentiality Agreement, 14 attached hereto as Exhibit "B"). The '"Confidential Information' includes the names and identities of employees, documents regarding the structure and operation of Narconon of Georgia, Inc. and

Narconon International, and documents regarding the students of Narconon of Georgia, Inc."

(Exhibit B, 11).

The Narconon Defendants have produced documents pursuant to the Protective Order.

Those protected documents have been discussed in and made exhibits to depositions taken in this case. It is expected that those depositions and their exhibits will be made a part of the record in this case. Indeed, the deposition of Mary Rieser has already been filed with the Court in connection with past proceedings. More recently, Plaintiffs' counsel has indicated a intent to file confidential information with the Court and, for reasons that are not clear, has expressed an objection to filing those records under seal. While the Narconon Defendants do not object to the proper use of these documents and information in this litigation, as expressed in the Protective

2 Order, the open record of this case effectively obliterates the protection provided by that order.

On May 1, 2012, Plaintiffs filed their Motion to Unseal Urgent Directive Documents,

Post Incident Documents, Board of Investigation Documents and Miscellaneous Documents. All of these documents are expressly covered by the Stipulated Agreement and this Court's

Protective Order as documents relating to Narconon of Georgia's structure, operation and its students. (Exhibit B, ^ 1). Thus, Plaintiffs' Motion seeks to directly contravene this Court's

Protective Order. Plaintiffs argument for circumventing this Court's Order is based on the idea that because they were the ones to file documents with the Court on April 16, 2012, the

Protective Order is now "moot." It is manifestly unjust to allow Plaintiffs simply disregard a

Protective Order they voluntarily entered into. Accordingly, Plaintiffs' Motion should be denied.

Due to the open access to the Court's record, persons wholly unaffiliated with this litigation and whose interests are adverse to the Narconon Defendants have been provided ready access to information that the parties have agreed is confidential and should be protected. Anti-

Narconon groups are actively monitoring this litigation and have pulled pleadings, interlocutory orders, clips from video depositions, deposition transcripts, police reports, and other information and documents from the record of this case for the purpose of fueling discussion and analysis of the case on their websites. A simple search of the name "Patrick Desmond" through Google's search engine results in what appears to be something in the range of at least 200 Internet websites that discuss this litigation.

For example, a page on the Operation Clambake Message Board is devoted to this litigation. (http://ocmb.xenu.net/ocmb/viewtopic.php?t=33257). There, anyone and everyone can access documents from this case and engage in discussions about the parties, facts, witnesses, and even the judges. The concerning consequences of the availability of the record of

3 this case to the general public are illustrated by the following comment found on the Operation

Clambake Message Board:

Thank you Mary for updating and cross posting the current particulars involving this tragic case. The words coming out of NarCONon of Georgia executive director Mary Rieser,s mouth during her deposition are to say the least "Very revealing". She for all intents and purposes does not know what her own organization is about much less anything remotely relating to addiction and or drug rehabilitation services.

Though the PDF,s are huge, the content is well worth a look at. An insiders look at a scam of epic proportions.

(Excerpts from Operation Clambake Message Board at attached hereto as Exhibit A).

Indeed, two individuals who are wholly unrelated to this litigation have filed a Petition to Unseal

Documents of Record and Open Depositions. These two individuals are affiliated with the website www.reachingforthetippingpoint.net. A quick review of that website will reveal photographs of the court file in this case - and extensive discussions about the various pleadings filed by lawyers - much of which would never be admissible in front of any DeKalb County

State Court jury.

The websites cherry-pick the documents to suit their agenda - the public attack of

Narconon. They do not limit their intrusion to what may ultimately be admissible evidence before any jury that may hear this case. The commentary and conclusions drawn in the banter in these websites are not legally sound. Yet, it is all available for anyone, including the prospective jury pool for this case, to review.

II. ARGUMENT AND CITATION TO AUTHORITY

Plaintiffs' argument for lifting the seal is based on Unif. Sup. Ct. R. 21 and one Georgia

Supreme Court case. The presumption Plaintiff relies upon in Unif. Sup. Ct. R. 21, that records should be made public when they are filed with the court, does not take into consideration the

4 fact that there is a pre-existing Protective Order governing the dissemination of documents in this

case; much less a pre-existing Protective Order that Plaintiffs, the moving party, voluntarily

consented to. Plaintiffs conveniently omit the remainder of Rule 21 that states "unless public

access is limited by law or by the procedure set forth below." Id. One of these procedures is a

protective court order. See Unif. Sup. Ct. R. 21.1. Precisely the same order this Court entered

on March 25, 2011 that prohibits public disclosure of these documents.

Plaintiffs attempt to persuade the Court that Unif. Sup. Ct. R. 21 applies because

Plaintiffs filed the documents directly with the Court on April 16, 2012. However, the fact that

Plaintiffs filed the documents under seal obviously shows Plaintiffs knew the documents were

expected to be kept unpublished. More importantly, Plaintiffs came into possession of these

documents only after Defendant produced them to Plaintiffs pursuant to the very same Protective

Order they now wish to render moot. It is illogical to allow Plaintiffs to receive documents

under seal, then turn around and file them with the Court and claim they should be disclosed to

the public.

"The trial court has supervisory power over its own records and may, in its discretion,

seal documents if the public's rights of access is outweighed by a competing interest." In re

Knight Publishing Company d/b/a The Charlotte Observer, 743 F.2d 231 (4th Cir. 1984) (citing

Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978). It is proper for the Court to

conduct a balancing test in which the following factors are weighed: (1) whether the records are

sought for improper purposes, such as promoting public scandals or unfairly gaining a business

advance; (2) whether release would enhance the public's understanding of an important historical

event; and (3) whether the public has already had access to the information contained in the

records. Nixon, 425 U.S. at 597-608. The court has the authority to temporarily seal documents

5 while a motion to seal is under consideration, so that the issue is not mooted by the immediate availability of the documents. Knight, 743 F.2d at 236. Atlanta Journal v. Long, 258 Ga. 410,

369 S.E.2d 755, 757 (1988) (an order limiting access may be granted on a finding that the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.).

These are important interests which outweigh the general right to public access.

Plaintiffs are simply attempting to misguide the Court in thinking a public policy interest has now been created in disclosing these documents because the Georgia Healthcare Facility

Regulation Division (GHFRD) recently investigated Defendant's facility. First, in no way do the documents Plaintiff filed under seal relate to this recent site inspection. A 2012 site inspection by the GHFRD is an unrelated, collateral issue to an event that occurred four years previously.

Further, immediately after the 2012 GHFRD site inspection, Defendant prepared a plan of correction to rectify any issues found in the inspection and that plan of correction has been approved by the state. (See Mary Rieser Affidavit, 15; Exhibit B to Rieser Affidavit). Thus, even if there is some conceivable public policy interest in viewing the sealed documents, any alleged problems have been addressed and remedied. The true purpose, therefore, behind

Plaintiffs' Motion to Unseal Documents is to prejudice the public against this Defendant, which clearly prevents this Defendant from having a fair trial.

While Narconon's privacy rights and the intrusion upon them by these propaganda websites standing alone is good cause for the Court to maintain the existing protective order in this case, the interests of a fair trial also support the sealing of the record. The volume of websites devoted to this litigation is alarming and raises concerns about potential polluting of the jury pool. This concern will extend through the trial, where undoubtedly it will be the natural instinct of curious jurors to "Google" Patrick Desmond and/or Narconon during the course of the

6 trial. That search will lead them straight to the many websites whose sole purpose is to convict

Narconon in the court of public opinion and which employ the use of potentially inadmissible evidence and legally unsound commentary to do so.

The case Plaintiffs cite, Atlanta Journal v. Long, 258 Ga. 410 (1988), is inapposite to the facts of this case. In Atlanta Journal, a trial court's protective order was based solely upon the movant's privacy interest in avoiding embarrassment from disclosing documents to the public.

Id. at 759, fn. 8. Here, Defendant has far more important reasons for protecting its privacy than mere embarrassment: to protect proprietary information relating to its policies and procedures, to secure confidential records relating to alcohol and drug abuse patients, and maintaining the confidential nature of its personnel files. The documents Plaintiffs seek to publicly disclose will jeopardize all of these privacy concerns, all of which are recognized as possessing a legitimate privacy interest. See McGinn v. McGinn, 273 Ga. 292, 540 S.E.2d 604 (2001) (reversing and remanding for entry of a protective order that protects proprietary information); 42 U.S.C.A. §

290dd-2 ("Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall.. .be confidential); 42 C.F.R. § 2.64 (limiting disclosure of patient records to those persons whose need for the information is the basis of the order and shall "include such other measures as are necessary to limit disclosure for the protection of the patient. . .; for example, sealing from public scrutiny the record of any proceeding for which disclosure . .. has been ordered.");

Georgia precedent recognizing the confidential nature of personnel files, see, e.g., Dikeman v.

Mary A. Stearns, P.C., 253 Ga. App. 646, 560 S.E.2d 115 (2002); Kobeckv. Nabisco, Inc., 166

7 Ga. App. 652, 305 S.E.2d 183 (1983); Mixon v. City of Warner Robins, 209 Ga. App. 414, 448

S.E.2d 377 (1994); Conway v. Signal Oil & Gas Co. 229 Ga. 849, 194 S.E.2d 909 (1972); A

Southern Outdoor Promotions, Inc. v. National Banner Co., 215 Ga. App. 133, 449 S.E.2d 684

(1994).

Furthermore, Plaintiffs have misstated and incorrectly shifted the burden to this

Defendant to require it come forward with evidence that their privacy interest in these documents clearly outweighs the public interest. The Georgia Supreme Court in Atlanta Journal, supra, stated that the "party who moves to seal court records has the burden of overcoming this presumption." Id. at 414, 369 S.E.2d at 759. Defendant is not moving to seal the court records—they are already sealed. Rather, Plaintiff is asking that the documents become

"unsealed." Plaintiffs, therefore, have the burden of showing why their consent to a Protective

Order that governs these documents should be disregarded. They cannot unilaterally revoke their consent to the Stipulated Agreement. If the Court were to put this stipulated confidential information in an open record, it would defeat the purpose of a Protective Order.

Therefore, the Narconon Defendants request that this Court enforce the existing

Protective Order agreed to by the parties and previously signed by this Court to adequately protect the privacy interests of the Narconon Defendants. During discovery, confidential information was exchanged between the parties and produced by certain non-parties. In order to protect against the unauthorized dissemination of that information, a confidentiality agreement and protective order was entered by the court upon consent of all parties. Maintaining the existing protective order would give effect to the parties' intention to protect against the unauthorized disclosure of confidential and proprietary information and will protect against polluting of the jury pool. Further, no harm would result to the public from such limitation of

8 access.

III. CONCLUSION

Pursuant to Uniform State Court Rule 21.1, and for good cause shown, this Defendant respectfully requests that the Court deny Plaintiffs' Motion to Unseal Documents so as to

adequately protect the privacy interests of the Narconon Defendants and give effect to the

Protective Order entered in this case.

Respectfully submitted this 31st day of May, 2012.

DREW ECKL & FARNHAM, LLP

Stevan A. Miller Georgia Bar No. 508375 Barbara A. Marschalk Georgia Bar No. 324498 880 W. Peachtree St., NW (30309) P.O. Box 7600 Atlanta, GA 30357-0600 Telephone: (404) 885-1400 Facsimile: (404) 876-0992 E-mail: [email protected] E-mail: [email protected] Attorneys for Defendant Narconon of Georgia, Inc.

3297691/1 5346-81580

9 IN THE STATE COURT OF DEKALB COUNTY STATE OF GEORGIA

PATRICK C. DESMOND, MARY C. DESMOND, Individually, and MARY C. DESMOND, as Administratrix of the Estate of PATRICK W. DESMOND

Plaintiffs, v. Civil Action File No: 10A28641-2

NARCONON OF GEORGIA, INC., NARCONON INTERNATIONAL, DELGADO DEVELOPMENT, INC., SOVEREIGN PLACE, LLC, SOVEREIGN PLACE APARTMENT MANAGEMENT, INC., LISA CAROLINA ROBBINS, M.D., and THE ROBBINS GROUP, INC.

Defendants.

5.2 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I am counsel for Defendant Narconon of Georgia, Inc. and that I have this day served a true and correct copy of the foregoing Defendant Narconon of Georgia, Inc. 's Response to Plaintiffs' Consolidated Motion, Memorandum and Supplemental Memorandum to Unseal Documents upon counsel for all parties by United States Mail, addressed as follows:

Rebecca Franklin, Esquire Robert G. Tanner, Esquire Franklin Law, LLC. Jeffrey N. Amason, Esquire 400 Colony Square Scott Kerew, Esquire 1201 Peachtree Street, NE, Suite 900 Weinberg Wheeler Hudgins Gunn & Dial, Atlanta, GA 30361 LLC 3344 Peachtree Rd., Suite 2400 Atlanta, GA 30326

Sean L. Hynes, Esquire Stephen G. Lowry, Esquire Downey & Cleveland, LLP Jeffrey R. Harris, Esquire 288 Washington Avenue Jed D. Manton, Esquire Marietta, GA 30060 Harris Perm Lowry DelCampo, LLP 400 Colony Square 1201 Peachtree Street, NE, Suite 900 Atlanta, GA 30361 David F. Root, Esquire Cheryl Shaw, Esquire Carlock, Copeland & Stair, LLP 191 Peachtree Street, N.E. Suite 3600 Atlanta, Georgia 30303

This 31st day of May, 2012.

Barbara A. Marschalk Georgia Bar No. 324498

DREW, ECKL & FARNHAM, LLP 880 West Peachtree Street (30309) P.O. Box 7600 Atlanta, Georgia 30357-0600 Telephone: (404) 885-1400 Facsimile: (404) 876-0992 E-mail: [email protected] Attorneys for Defendant Narconon of Georgia, Inc. 3297691/1 5346-81580

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