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IN THE STATE COURT OF DEKALB COUNTY
STATE OF GEORGIA
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PATRICK C. DESMOND AND MARY
C. DESMOND, INDIVIDUALLY, AND
MARY C. DESMOND, AS
ADMINISTRATRIX OF THE ESTATE
OF PATRICK W. DESMOND,
Civil Action No. 10A2864{1:;
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NARCONON OF GEORGIA, INC.
DELGADO DEVELOPMENT, INC. ,
SOVEREIGN PLACE, LLC, SOVEREIGN
PLACE APARTMENT MANAGEMENT,
INC., LISA CAROLINA ROBBINS, M.D.
THE ROBBINS GROUP, INC., and
NARCONON INTERNATIONAL,
Defendants.
PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT NARCONON OF
GEORGIA, INC'S MOTION TO KEEP CERTAIN DOCUMENTS FILED WITH THE
COURT UNDER SEAL
Defendant Narconon of Georgia, Inc. ("Narconon") has asked this Court to do something
which Georgia law does not allow -to seal a significant portion of the record in this case simply
because it has the potential to evoke negative publicity for Narconon. The potential for negative
publicity is not a legal reason for dispensing with the long recognized right of public access to
judicial records. "By their nature, civil lawsuits quite often cause litigants to experience an
invasion of privacy and resulting embarrassment, yet that fact alone does not permit trial courts
to routinely seal court records." In re Atlanta Journal-Constitution, 271 Ga. 436, 438(1999).
Moreover, the potential for negative publicity certainly does not outweigh the public's interest in
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ascertaining the truth about ongoing health and safety concerns, public misrepresentations, and
fraudulent activities associated with a local drug and alcohol rehabilitation facility.
For the reasons set forth below, and those outlined in Plaintiffs' Motion to Unseal the
Record, Plaintiffs respectfully request that the Court unseal the specified records immediately.
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I. GEORGIA LAW PRESUMES PUBLIC ACCESS TO COURT RECORDS.
In Georgia, the public and the press have traditionally enjoyed a right of access to court
records. Atlanta Journal v. Long, 258 Ga. 410, 411 (1988),
opinion corrected, 377 S.E.2d 150 (Ga. 1989).
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Public access protects litigants both present and future, because justice faces its
gravest threat when courts dispense it secretly. Our system abhors star chamber
proceedings with good reason. Like a candle, court records hidden under a bushel
make scant contribution to their purpose.
Uniform Superior Court Rule 21 reflects the courts' unyielding preference for open
judicial proceedings by establishing a presumption of public access to all records in civil cases.
Id. "The aim of this presumption is to ensure that the public will continue to enjoy its traditional
right of access to judicial records, except in cases of clear necessity." Long, at 411 (emphasis
added). The rule also preserves the right ofthe trial court to shield court records, but only in
"exceptional" cases. Id.
A party who moves to seal court records has the burden of overcoming this presumption
by demonstrating that "the harm otherwise resulting to [its privacy interests] clearly outweighs
the public interest." Unif. Super. Ct. R. 21. "The trial court has the corresponding duty to weigh
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Plaintiffs hereby incorporate by reference all arguments and citations of authority referenced in
Plaintiffs' Motion to Unseal, Plaintiffs' Supplemental Brief in Support of their Motion to Unseal,
and related hearings.
2
In an effort to distinguish the two cases with "Atlanta Journal" in their name, Plaintiffs
hereinafter cite to the Atlanta Journal v. Long case as Long, and refer to the In re Atlanta
Journal-Constitution case as Atlanta-Journal-Constitution.
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the harm to the privacy interest...against the hatm to the public interest from sealing the
documents." Long, at 414. To justify a limitation, the trial court must find that the movant's
privacy interests "clearly" outweighs the public interest in disclosure. Id. at 412. "Before it is
authorized to seal court records, the trial court must make factual findings which lead it to
conclude as a matter of law that the former clearly outweighs the latter." Atlanta Joumal-
Constitution, at 437-38.
I d.
"It is not sufficient for the trial court to forego making findings of fact and simply
state that the public's interest in access to court records is clearly outweighed by
potential harm to the parties' privacy ... In an order sealing a court record, a trial
court must set forth factual fmdings that explain how a privacy invasion that may
be suffered by a party or parties seeking to seal a record differs from the type of
privacy invasion that is suffered by all parties in-civil suits. Otherwise, the trial
court is not justified in closing the record from public scrutiny. "
Here, Narconon is required to specifically identify what privacy interests would be
protected by keeping the record secret. It must then identify the type and magnitude of harm that
would resuit if the public gained access to the court records. Finally, Narconon must show that
this is an "exceptional" case in that the hatm it would suffer "differs in degree or kind from other
parties in civil lawsuits." Long, at 414. Nmconon, although it has been given multiple
opportunities to do so, has failed to meef any of these requirements.
Instead, Narconon has repeatedly pointed to the fact that Plaintiffs agreed to a protective
order in this case, presumably in a11 effort to somehow support its claim that all related
documents must be filed under seal. (See Def. Mot. to Seal, P. 2). However, the protective order
does not address the sealing of documents and it was not a factor that was ever contemplated or
negotiated by the parties. Protective orders entered for purposes of discovery (like the one
entered in this case) are subject to more lenient standards and procedural requirements than
requests to seal court records. Georgia's statute relating to protective orders requires only "good
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cause" for issuance of a protective order. O.C.G.A. 9-ll-26(c)(7). The rule relating to sealing
court documents, on the other hand, requires the court to make a factual fmding that, as a matter
oflaw, private interests of secrecy clearly outweigh the pubic interest of disclosure. Unif. Super.
Ct. R. 21.2.
Therefore, Narconon's reliance upon the protective order in this case is misplaced.
II. NARCONON'S RATIONALE FOR
SEALING THE RECORD IS UNSUPPPORTED.
In its Motion, Narconon outlines the categories of documents that it contends deserve
protection and in doing so identifies the following four ( 4) "privacy interests" it claims will be
affected if the records are not sealed:
1. "Privacy Interest" No. 1: Narconon's ability to get an unbiased jury
Narconon suggests that the "interests of a fair trial" support sealing the record. (Def.
Mot. To Seal, P. 5).
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It argues that the public attention on Narconon, and on this case in
particular, "is alarming and raises concerns about potential polluting of the jury pool." (See also,
Def. Mot. To Seal, P. 8, claiming: "Plaintiffs are, in effect, attempting to try this case in the court
of public opinion. The disclosure of [prejudicial information] will surely taint the jury pool").
Narconon's claim that it may not be able to get an unbiased jury is unwarranted for
several reasons. First, whether any potential jurors will actually have any knowledge of the case
because of pre-trial publicity is completely speculative. Next, the law does not support the idea
that jurors must be protected from negative pretrial publicity. The United States Supreme Court
has recognized that "pretrial publicity, even pervasive, adverse publicity does not inevitably lead
to an unfair trial." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 554, (1976). The Supreme
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Plaintiffs refer to "Defendant Narconon of Georgia, Inc.'s Motion and Incorporated Brief in
Support Thereof to Keep Certain Documents Filed with the Court Under Seal," as "Defendant's
Motion to Seal", for purposes of reference herein.
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Court again recognized as much in Gentile v. State Bar ofNevada, 501 U.S. 1030, 1054-55
(1991).
"Only the occasional case presents a danger of prejudice from pretrial publicity.
Empirical research suggests that in the few instances when jurors have been
exposed to extensive and prejudicial publicity, they are able to disregard it and base
their verdict upon the evidence presented in court."
Id. See also, Kelli Sager, Matthew Leish, In Defense of Public Trials, Litigation, Summer 2003,
at 54, 56 ("Practical experience also supports the view that juries are perfectly capable of
following instructions to reach a verdict based on the facts presented at trial, rather than
succumbing to the influence of pretrial publicity. In case after case, American juries have shown
a remarkable willingness to acquit defendants in high-profile cases, notwithstanding extensive
pretrial publicity including arguably prejudicial information-even though the defendants in
many of these cases complained before the verdict that prejudicial pretrial publicity made a fair
trial impossible").
Impmtantly, the Gentile Court also acknowledged that the voir dire process is an
effective safeguard from any potential prejudicial effect of pre-trial publicity. Here, Narconon's
speculation that pre-trial publicity will "surely taint the jury pool," and its conclusion that it
cannot receive a fair trial, fail to take into account the fact that the Court will undoubtedly allow
the parties a full and thorough examination of the jury panel. Any "tainted" potential juror who
is unable to put aside his or her preconceived notions or biases based on pre-trial publicity will
not be allowed to serve as a juror in this case.
By its own rationale, Narconon itself is constantly tainting the jury pool when it
continues to advertise and market its program to the general public. Surely, Narconon will not
agree to suspend its own marketing scheme until after the trial in this case. See Romero v.
Drummond Co., Inc., 480 F.3d 1234, 1247 (11th Cir. 2007)("Ifthere be time to expose through
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discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy
to be applied is more speech, not enforced silence"), quoting Whitney v. California, 274 U.S.
357, 377 (1927) (Brandeis, J., concurring).
The truth is that Narconon's real concern is simply the potential that it could receive bad
publicity because of information that has been unearthed during discovery. Just because
Narconon has avid critics, however, does not mean that the public should be shielded from
infmmation that would otherwise be available to it. If this were true, all parties in civil litigation
could demand that prejudicial infmmation be fi led under seal which would effectively nullify the
rule granting public access to court documents.
Instead, under Georgia law it is clear that the potential for bad publicity or
embarrassment is no reason to seal a court record. "Embarrassment has always been a
problem in civil suits, yet traditionally it has not prompted trial courts to routinely seal
pre-judgment records. The presumption of open access that is built into Rule 21 implicitly
takes this factor into account." See Long, at 414.
In order for the Court to even consider weighing the prejudicial effect of bad publicity
against the public right to access, Narconon must be able to explain how any embanassment
would be different than that of parties in other civil suits. Id. It has failed to so.
2. "Privacy Interest" No.2: Encouragement of candid self-evaluation and
resulting "chilling effect"
Citing Georgia's medical peer-review privilege, Narconon claims that it has a "privacy
interest" because the public policy inherent within "peer review and quality assurance materials
[is to] encourage candid self-evaluation." (Def. M. To Seal, P. 5). However, the medical peer-
review privilege is explicitly limited to peer review groups which evaluate the quality and
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efficiency of professional health care providers, and even then it is limited in its application.
O.C.G.A. 31-7-130, 133.
Narconon has gone to great lengths to establish that it is not a medical facility, therefore
this privilege cannot not apply to its documents. The Georgia legislature and Georgia courts
have declined to recognize a self-critical analysis privilege to corporate-defendants like
Narconon. See Lara v. Tri-State Drilling, Inc., 504 F. Supp. 2d 1323, 1328 (N.D. Ga.
2007)("The narrow approach taken by the Georgia legislature, and the complete absenee of the
Georgia courts having recognized a self-critical analysis privilege, leads this court to conclude
that Georgia law does not allow for such a privilege").
Narconon also claims that the Post-Incident documents are inadmissible as subsequent
remedial measures, and from that, it claims that the public policy behind the :rule regarding
subsequent remedial measures is a "privacy interest" that outweighs the public interest in the
documents. However, the documents referenced by Narconon have nothing to do with
subsequent remedial measures. In fact, Narconon did nothing to change its practices after the
death of Patrick Desmond. These documents are simply factual accounts ofNarconon and
Narconon International' s investigations (or lack thereof) relating to Patrick' s death and are no
different than incident reports or witness statements recounting prior events. Even assuming that
those documents were "clearly intended to be an intemal review," Narconon provides no factual
support for its unilateral conclusion that unsealing the documents would have a "chilling effect"
on future internal assessments of its program. More importantly, it fails to differentiate itself,
and its "privacy interests" from other corporate-defendants whose internal reports are
customarily made public as part of civil litigation.
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3. "Privacy Interest" No. 3: Individual's who did not expect their writings to end
up on Internet
Narconon claims a privacy interest in the the category of documents that includes the
Knowledge Reports and the anonymous surveys because they were "clearly intended to be
private" by the individuals who authored them. Once again, Narconon fails to disclose an
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important fact about those documents- which is the fact that the names of those individuals were
redacted from those documents before they were produced to Plaintiffs. Therefore, even
Plaintiffs have not had access to the names of those students who authored those reports, except
for the few individuals who have agreed to waive their privacy rights. Accordingly, the public
will not have access to the names of the individuals who wrote Knowledge Reports and
completed surveys, and thus their interests are protected.
Furthermore, these documents do not relate to specific treatment of individuals enrolled
in Narconon, but instead provide evidence of safety issues, including rampant drug and alcohol
use, at Narconon's housing facility. Many of the reports are authored by staff members, not
students. The only privacy interest Narconon could possibly have relating to those documents is
potential harm to its reputation. Again, Georgia law is clear that this is not a valid reason for
sealing court records.
4. "Privacy Interest" No.4: Future operations ofNarconon
Lastly, Narconon claims that a group of documents relating to statistical information
constitutes "commercial information" entitled protection under O.C.G.A. 9-11-26(c)(7). From
that, it concludes that those documents should not be unsealed. This argument fails for several
reasons. First, Narconon provides no facts that support the claim that the documents in question
actually contain any confidential commercial information. Next, Narconon fails to explain what
prejudicial effect the public disclosure of the documents would have on its "future operations."
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The law requires more than blanket conclusions to support a finding that the release of
information would cause harm to a corporate-defendant's business. See Long, at 414 (Holding
that the findings and conclusions by the trial court must explain "how" the harm would affect a
party); See also, Mosallem v. Berenson, 76 A.D.3d 345, 350, 905 N.Y.S.2d 575, 579
(20 1 O)("The sealing motion below was accompanied solely by the affirmation of an attomey
who did not purport to have any personal knowledge of the documents. No affidavits were
submitted by any of the defendants, the authors of the documents or the participants in the events
recorded therein. Thus, there is no evidence in the record as to why the documents are so
confidential or sensitive that public access to them should be restricted.")
In fact, a review of the documents reveals just the opposite. The Information Center
Repotis only provide information in the form of statistical data about Narconon for a two (2)
week period over (4) four years ago. It includes data such as: the number of students who were
enrolled during that period oftime (referred to as "Bodies in the Shop" by Narconon); the
number ofletters mailed by Narconon for that period oftime; the number of bills paid during
that period of time; and the number of ads run during that period of time. The corresponding
graphs compare those weeks to the prior four ( 4) to five (5) months. The documents do not
contain trade secrets or any information that could possibly cause others to gain a competitive
commercial advantage over Narconon. Therefore, the information is not commercially sensitive.
ill. THE PUBLIC HAS A SIGNIFICANT INTEREST IN THE RIGHT TO ACCESS
THE COURT RECORD IN THIS CASE.
Narconon has failed to produce the required evidence in support of any legitimate private
interests, therefore the presumption in favor of open access should control, without the need to
consider the weight of the public interest. However, because this case involves issues uniquely
related to public safety and consumer fraud, the public has a heightened interest in access to the
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court records. See Lederman v. Prudential Life Ins. Co. of Am., Inc., 385 N.J. Super. 307, 322,
897 A.2d 362, 371 (2006) "A profound public interest is implicated when matters of 'health,
safety and consumer fraud are involved").
Specifically, the documents in question, along with the depositions and other evidence in
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the record, illustrate the following:
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There was widespread drug and alcohol use by students and staff at prior to
Patrick Desmond's death.
The staff at Narconon was improperly trained and unqualified to assist in proper drug
and alcohol counseling.
Severe safety issues relating to the operation of housing at Narconon existed prior to
Patrick' s Death.
Narconon misrepresented to Patrick Desmond's family and the Florida Drug Court
that it was a residential facility.
Narconon misrepresented to the public the program's success rate and the
effectiveness of the vitamin and sauna routine.
Narconon misx_epresented to th_e public its connec1ion to the Churcltof Scientology.
Narconon misrepresented to state licensing agencies critical facts about the operation
of the program, including misrepresentations about staff training, number of
employees, and status of employees.
Prior to Patrick Desmond's death, Narconon was operating illegal housing as part of
its program and illegally accepted money for student housing.
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In of Plaintiffs' request to unseal documents in this case, Plaintiffs attach hereto the
depositions that have been taken in this action, which are replete with examples of public safety
concerns related to the N arconon Defendants.
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Narconon continues to operate illegal housing as part of its program.
Prior to Patrick's death, Narconon International had intimate knowledge about safety
issues at Narconon's housing.
Narconon International exercised day-to-day control over its centers, including the
facility in Georgia, but failed to remedy the safety issues relating to housing.
Narconon International had knowledge of the Georgia facility repeatedly holding
itself out to be a residential facility.
In fact, as recently as last week, NBC aired an expose on the Narconon rehabilitation
programs in the United States, and in particular three (3) recent deaths at a Narconon facility in
Oklahoma. The purpose of that broadcast was to investigate a number of public safety concerns
related to the Narconon program and its facilities. For a link to a video of the program, see:
http://www.youtube.com/watch?v=RrLcWiTdMB4.
The fact that a national news organization has raised the issue of potential safety issues
associated with Narconon facilities confirms that there is a strong public interest in the matters
directly related to this litigation.
IV. CONCLUSION
For obvious reasons, Narconon does not want the facts that have been uncovered in this
case brought to the public's attention. If people knew the truth about Narconon, they may
choose not to enroll their family members in the program. If drug courts appreciated the reality
ofthe housing aspect ofNarconon, they might not approve it for participants in their drug courts.
If state agencies were aware ofthe actual training (or lack thereof) ofNarconon staff, Narconon
could very well lose its license to run a drug and alcohol rehabilitation facility. It is not
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surprising that Narconon has asked the Comito allow this litigation to go forward under a shroud
of secrecy.
This is not supposed to happen, however, in Georgia. In fact, the reasons why Narconon
wants the record to be sealed are the same reasons why the public should have access to the
records. In other words, if there was ever a case where the public deserves access to court
records, this is it.
Accordingly, Plaintiffs respectfully request that the Court unseal the specified documents
and refuse any future request to seal information in this case unless the Narconon is able to meet
the test set out in Rule 21.
Respectfully submitted this the 24th day of August, 2012.
400 Colony Square
1201 Peachtree St., NE
Suite 900
Atlanta, GA 30361
Telephone: (404) 961-7650
Facsimile: (404) 961-7651
HARRIS PENN LOWRY DELCAMPO, LLP
l i . ~
eorgia Bar No: 330315
DD.MANTON
Georgia Bar No. 868587
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INDEX OF DEPOSITIONS ATTACHED WITH RESPONSE
1. Allison Riepe
2. Brad Taylor
3. Clark Carr
4. Claudia Arcabascio
5. Don Delgado
6. Dr. Casal
7. Dr. Go witt
8. Dr. Kent
9. Dr. Robbins
10. Dr. Roy
11. Dr. Rushing
12. Elizabeth Backus
13. James McLaughlin
14. Jamie Thompson
15. Jette McGregor
16. Lisa Mooty
1 7. Maria Delgado
18. Mark O'Donnell
19. Mary Desmond
20. Mary Rieser 2.23.11
21 . Mary Rieser 9.14.11
22. Nick Parsons
23. Nina Edidin
24. Patrick Desmond
25. Randy Taylor
26. Tracey Stepler
27. Y arko Manzanares
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CERTIFICATE OF SERVICE
This is to certify that I have this day submitted PLAINTIFFS' RESPONSE IN
OPPOSITION TO DEFENDANT NARCONON OF GEORGIA, INC'S MOTION TO
KEEP CERTAIN DOCUMENTS FILED WITH THE COURT UNDER SEAL
via U.S. Mail proper postage prepaid, addressed as follows:
David E. Root, Esq.
Cheryl H. Shaw, Esq.
Carlock Copeland & Stair, LLP
191 Peachtree Street, NE
Suite 3600
Atlanta, GA 30303
Attorneys for Narconon International
This the 24
111
day of August, 2012.
StevanA Miller, Esq.
Barbara Marschalk, Esq.
Drew, Eckl & Farnham, LLP
880 W. Peachtree Street
P.O. Box 7600
Atlanta, Georgia 30357
Attorneys for Narconon ofGeorgia, Inc.
HARRIS PENN LOWRY DELCAMPO,
LLP
i l l ~
G.etrgia Bar No: 330315
/fED D. MANTON
/ Georgia Bar No. 868587
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