Dov v. Bureau of Prisons

“ie eee ne EEE IIE EE IE Ee ; United States Attorney Southern District of New York Chambers Street New York, New York 10007 June 23, 2020 BY ECF Honorable Sarah L. Cave United States Magistrate Judge Southern District of New York Pearl Street New York, New York 10007 Re: Dov v. Bureau of Prisons, 20 Civ. 4343 (SLC) Dear Judge Cave: This Office represents the Government in the above-referenced habeas matter. The Government writes respectfully to request permission to file under seal the petitioner’s medical records from the Bureau of Prisons. Consistent with Section 6 of this Court’s Individual Rules, these documents will be filed under seal on ECF and electronically related to this letter motion.

The government respectfully submits that sealing is appropriate notwithstanding the presumption of access discussed by the Second Circuit in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006), in light of the privacy interests of individuals in their medical records. See, e.g., Barnwell y. FCI Danbury, No. 3:10-cv-01301 (DJS), 2011 WL 5330215, at *5 (D. Conn. Nov. 3, 2011) (noting a rebuttable presumption of openness of court filings, but granting motion to seal in light of federal law’s treatment of such records as confidential pursuant to the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191 (1996)).

Courts in this District have permitted the sealing of medical records, even if specific details relating to the individual’s health appear on the record. See, e.g., United States v. Needham, ___ F. Supp. 3d __, No. 06-cr-911 (WHP), 2020 WL 2512105, at *1 n.1 (S.D.N.Y. May 15, 2020); United States v. Estevez, No. 18-cr-669 (JPO), 2020 WL 1911207, at *1 (S.D.N.Y. Apr. 20, 2020); United States v. Ebbers, 432 F. Supp. 3d 421, 423 n.1 (S.D.N.Y. 2020) (noting defendant’s waiver through “extensively citing to his medical records and medical history in his own motion, in correspondence with the Court, and in open Court during oral argument on his motion’).

Petitioner’s counsel consents to this request.

Page 2 I thank the Court for its consideration of this request.

Respectfully submitted, AUDREY STRAUSS Acting United States Attorney for the Southern District of New York By: s/ Alexander J. Hogan ALEXANDER J. HOGAN Assistant United States Attorney Chambers Street, 3rd floor New York, New York 10007 Telephone: (212) 637-2799 Facsimile: (212) 637-2786 E-mail: alexander.hogan @usdoj.gov Respondent's Letter-Motion to file Petitioner's medical records under seal (ECF No. 15) is GRANTED. The Clerk of Court is respectfully directed to close ECF No. 15.

SO-ORDERED 6/24/2020 /) yy ph A Au Te (Aran L. CAYE United States Magistrate Judge