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.