SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST CROIX
PATRICK KRALIK
PLAINTIFF, CivilNo SX 19 CV 61
V ACTION FOR DAMAGES
CHRISTIANSTED RESTORATION
CORPORATION, CITE AS 2021 VI SUPER “HQ
DEFENDANTS
Appearances
Lee J Rohn, Esq
Lee J Rohn and Associates, LLC
Christiansted, U S Virgin Islands
For Plamnfl
Eric A Hiller, Esq
Justin King, Esq
Clyde & Co US LLP
Miami, Florida
For Defindant Osage STX Holdings LLC
Douglas L Capdeville, Esq
Law Offices of Douglas L Capdeville, P C
Christiansted, U S Virgin Islands
For Defendant Chrzstzansted Restoration Corporanon
MEMORANDUM OPINION AND ORDER
WILLOCKS Presiding Judge
1| 1 THIS MATTER came before the Court on Plaintiff Patrick Kralik’s (hereinafier
“Plaintiff”) renewed motion for entry of protective order,” filed on February 19, 2021 Thereafter,
Defendant Osage STX Holdings, LLC (hereinafier “Osage” or “Defendant”) filed an opposition
and Plaintiff filed a reply thereto To date, Defendant Christiansted Restoration Corporation
(hereinafter “CRC”) has not filed anything in response to Plaintiff’s instant motion
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BACKGROUND
1] 2 On February 19, 2019, Plaintiff filed a complaint against Osage in connection with an
incident that occurred on or about September 2, 2018 On September 1, 2020, Plaintiff filed a
motion to amend the complaint to add CRC as a defendant in this matter, which the Court
subsequently granted and deemed Plaintiffs first amended complaint filed on November 5, 2020
On December 28, 2020, Plaintiff filed a motion to amend the complaint to correct scriber errors,
which the Court subsequently granted and deemed Plaintiff’s second amended complaint filed on
February 16, 2021 The second amended complaint included the following causes of action Count
I negligent failure to protect (against both defendants), Count II negligent failure to render aid
(against both defendants), and Count III negligence (against both defendants)
'3 On January 13, 2020, Osage filed a motion to compel Plaintiff to execute discovery
authorizations' (hereinafier “First Motion to Compel”) An opposition and a reply were filed
thereafter On March 17, 2020, Osage filed another motion to compel discovery and compel
Plaintiff to execute discovery authorizations2 (hereinafter “Second Motion to Compel”) An
opposition and a reply were filed thereafier
1] 4 On March 18, 2020, Plaintifffiled a motion for the Court to enter a proposed confidentiality
order (hereinafter “Motion for Confidentiality Order”) Subsequently, on June 22, 2020, the Court
signed a memorandum opinion and order (hereinafter “June 22, 2020 Order”)3 whereby the Court
granted Osage’s First Motion to Compel and Second Motion to Compel, ordered that “Defendant
' Osage requested Plaintiff to execute discovery authorizations for medical records, insurance records, income tax
{:331: unemployment and workmen’s compensation records, and criminal records to discover information pertaining
2 The discovery authorizations requested in the Second Motion to Compel were the same discovery authorizations
previously requested
3 The June 22, 2020 Order was entered on June 23, 2020
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is entitled to costs and fees, including attorney fees, incurred in filing and support of these two
motions,” ordered that “Plaintiff provide the [Osage] with the properly executed releases within
FIVE (5) DAYS Delay in delivering the releases will incur sanctions in the amount of five hundred
dollars ($500 00) per each day of noncompliance with this Order,” and ordered that “Plaintiff will
supplement discovery as indicated in the text of this document within FOURTEEN (14) DAYS ”
(June 22, 2020 Order, p 6) On July 6, 2020, Plaintiff filed a motion for reconsideration of the
Court 3 June 22 2020 Order 4 On January 11, 2021, the Court found Plaintiff’s motion for the
Court to enter a proposed confidentiality order deficient and not properly before the Court, and
thereby denied said motion 5 On January 13, 2021, the Court entered an order whereby the Court
" In his motion for reconsideration, Plaintiff argued that “[r]econsideration is required here because the Court’s June
22, 2020 Order contains factual errors that led to the improper imposition of sanctions” and requested the Court to
‘rescind its order for costs and fees and a fine of$500 00 a day " (Motion for Reconsideration, pp 1, 3) Plaintiff made
the following assertions in support of his motion (i) “[1]n the first paragraph ofthe order, it indicted that Plaintiff filed
an additional Motion to Compel Discovery, and authorizations on March 17, 2020 That is in error It was Defendant
who filed the duplicative motion ” (Id , at p 1), (ii) “The Court then assumes that [Defendant filed its Second Motion
to Compel] because the authorizations were not produced, but as Plaintiff pointed out, and the Court has in its file,
Plaintiff produced the authorizations (3) three days afier their receipt on January 16, 2020 ” (1d , at p 2) (emphasis
omitted); (iii) “The Court's Order also incorrectly stated that Plaintiff conditioned the authorizations on the signing of
a Confidentiality Agreement, which was not provided until February 28, 2020 As can be seen from Exhibit “1”, there
was no such condition on the authorizations ” (1d ) (emphasis omitted); and (iv) “[E]xcept for the Criminal
Authorizations, Defendant has had authorizations fully executed since January 16, 2020 The Court’s statement that
these are typical authorizations in all personal injury cases is true, but for the Criminal Authorization, which usually
requires some knowledge of prior criminal conduct before being required Nonetheless, the undersigned has provided
that authorization ” (Id ) Plaintiff also requested the Court to “rescind its order that Plaintiff produce tax returns for
ten (10) years within 14 days’ because “Plaintiff does not have possession of additional tax returns and couldn’t
possibly get them within fourteen ( 14) days given the current COVlD pandemic and delays at the IRB” and “Plaintiff
has given Defendant a tax authorization, and Defendant can acquire these records from the IRB ” (id , at pp 2 3)
5 The January 1 l, 2021 order provides, in relevant part
Plaintiff‘s one page motion is devoid of any binding authority or any legal basis to support his argument for
the Court to enter a confidentiality order Rule 11 of Virgin Islands Rules of Civil Procedure provides that
“[b]y presenting to the court a pleading, written motion, or other paper whether by signing, filing,
submitting, or later advocating it an attorney or self represented party certifies that to the best of the
person's knowledge, information, and belief, formed afler an inquiry reasonable under the circumstances
(5) that the applicable Virgin Islands law has been cited, including authority for and against the positions
being advocated by the party VI R ClV P ll(b)(5) See also In re Catalyst ng 67 VI 16 n 12(Vl
Super Ct 2015) (“The Supreme Court of the Virgin Islands has established that in order for a motion to be
properly before the court, parties must support their arguments by citing the proper legal authority, statute or
rule ”), Antilles School Inc v Lembach, 64 V l 400, n 13 (V I 2016) (“Members of the Virgin islands Bar
must be cognizant of their responsibility to serve as advocates for their clients, which includes making all
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denied Plaintiff's motion for reconsideration 6 On February 19, 2021, Plaintiff filed this instant
renewed motion for entry of protective order
necessary legal arguments ”), Simpson v Golden, 56 V 1 272, 280 (V I 2012) (“The rules that require a
litigant to brief and support his arguments before the Superior Court, are not mere formalistic
requirements They exist to give the Superior Court the opportunity to consider, review, and address an
argument”) “It is not the Court's job to research and construct legal arguments open to parties In order to
develop a legal argument effectively, the facts at issue must be bolstered by relevant legal authority, a
perfunctory and undeveloped assertion is inadequate " VI Taxi Association v West Indian Company
letled 2016 V I LEXIS 170 *4 (Super Ct Oct 18 2016) (citing Charles v CBIAcqwsmons LLC 2016
V l LEXIS 62 ‘27 n 66) see also Joseph v Joseph 2015 V1 LEXIS 43 ‘5 (Super Ct Apr 23 2015)
(the Court will not make a movant's arguments for him when he has failed to do so) As such, Plaintifi’s
deficient motion is not properly before the Court and it will be denied See V I Taxi Association 2016 V l
LEXIS 170 at ‘4 (the Court found that the plaintiff’s motions were not properly before the Com because
they were “devoid of any legal basis to support its propositions” and therefore, denied both motions)
° The January 13, 2021 order provides, in relevant part
As noted above, a proper Rule 6 4 motion must rely on one of four grounds (1) intervening change
in controlling law, (2) availability of new evidence; (3) the need to correct clear error of law, or (4) failure
of the court to address an issue specifically raised prior to the court's ruling ” V I R ClV P 6 4(1)) [n his
motion, Plaintiff argued that “[r]econsideration is required here because the Court 3 June 22, 2020] Order
contains factual errors ” However, the language of Rule 6 4 clearly only provides four grounds for
reconsideration and “factual errors” is not one of the four grounds The Court finds the pertinent language of
Rule 6 4 plain and unambiguous, and thereby the Court will give effect to the plain words of the rule See
Banks ofN S v Dore S7VI 105 113 14 (Super Ct Oct 19 2012) (citing Corraspev People 53 VI 470
480-481 (VI 2010) (“The rules of this Court are applied using the same standards which govern the
construction of statutes" and “the primary objective of the u'ial court is to give effect to plain words utilized
in the subject rule ”) People v Rivera, 54 V I 116, 125 (Super Ct 2010) (“The procedural rules of courts
are construed in accordance with the canons of statutory construction ”), In re People, 49 V I 297, 306 (V I
2007)) (“We believe the pertinent language is plain and unambiguous, thereby dispensing with a resort to the
canons of construction ”) As such, Plaintiff‘s motion, though timely filed, failed to raise an adequate ground
under Rule 64 for this Court to reconsider its June 22, 2020 Order and the Court will deny Plaintiff s motion ‘5
The Court must point out that the factual errors alleged by Plaintiff are either harmless error, or
Plaintiff‘s misconstruction of the June 22, 2020 Order, or an argument that should have been raised
previously but was not First, Plaintiff asserted that the June 22, 2020 erroneously indicated that Plaintiff
instead of Defendant filed the Second Motion to Compel While the Court inadvertently stated that Plaintiff
instead of Defendant filed the Second Motion to Compel on the first page of the June 22, 2020 Order, the
Court correctly stated that Defendant, not Plaintiff, filed the Second Motion to Compel on the second page
and the sixth page of the June 22, 2020 Order 7 Thus, the scrivener's error on the first page was harmless
Second, Plaintiff asserted that the Court incorrectly assumed in the June 22, 2020 Order that Defendant filed
the Second Motion to Compel because the authorizations were not produced, when Plaintiff had already
produced the authorizations on January 16, 2020, three days after Defendant filed the First Motion to Compel
Plaintiff never indicated in her motion where such an assumption was made by the Court Unlike what
Plaintiff asserted, the Court did not assume nor make such a finding that Defendant filed the Second Motion
to Compel because the authorizations were not produced In the June 22, 2020 Order, the Court acknowledged
that the parties’ positions in their respective filings—to wit, Plaintiff’s opposition to Defendant 5 First Motion
to Compel indicated that Defendant sent Plaintiff revised release forms and that the issue was moot,
Defendant’s Second Motion to Compel indicated that “Plaintiff decided to execute the releases subject to a
confidentiality agreement, but the agreement was not provided to the Defendant until February 28, 2020 ”3
Thus, there is no error as alleged by Plaintiff Third, Plaintiff asserted that the Court incorrectly stated that
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“Plaintiff conditioned the authorizations on the signing of a Confidentiality Agreement, which was not
provided until February 28, 2020 ” Again, unlike what Plaintiff asserted, the Court did not assume nor make
such a finding that “Plaintiff conditioned the authorizations on the signing of a Confidentiality Agreement,
which was not provided until February 28 2020 In the June 22 2020 Order the Court acknowledged that
Defendant, in its Second Motion to Compel, indicated that “Plaintiff decided to execute the releases subject
to a confidentiality agreement, but the agreement was not provided to the Defendant until February 28,
2020 ”9 Thus, there is no error as alleged by Plaintiff Finally, Plaintiff asserted that “[t]he Court's statement
that these are typical authorizations in all personal injury cases is true, but for the Criminal Authorization,
which usually requires some knowledge of prior criminal conduct before being required ” It appears that
Plaintiff is claiming that the Court incorrectly stated that these are typical authorizations because the criminal
authorization is not ’° However, this is an argument that could have been raised before but was not More
specifically, Plaintiff had two opportunities to raise her argument regarding the criminal authorization in
his opposition to Defendant’s First Motion to Compel'I and in his opposition to Defendant’s Second Motion
to Compel'Z—and Plaintiff chose not to The Court will not let Plaintiff relitigate the issue now As noted
above. a motion for reconsideration “[i]s not a vehicle for registering disagreement with the court's initial
decision, for rearguing matters already addressed by the court, or for raising arguments that could have been
raised before but were not ” Worldw1de Flight Servzces 51 V I at 110
6 In his motion, Plaintiff requested the Court to “rescind its order that Plaintiff produce tax returns for ten
(10) years within l4 days ” However, the June 22, 2020 Order never ordered Plaintiff produce tax returns for
ten (10) years within 14 days Instead, the June 22I 2020 Order ordered Plaintiff to supplement discovery
within fourteen days Thus, even if “Plaintiffdoes not have possession of additional tax returns and couldn’t
possibly get them within fourteen (14) days given the current COVlD pandemic and delays at the IRB” as
claimed by Plaintiff, Plaintiff could still supplement his discovery responses pursuant Virgin Islands Rules
of Civil Procedure Defendant claimed in its opposition that Plaintiff has not supplemented his discovery
reSponses and thereby, Plaintiff is still not compliant with the Court's June 22, 2020 Order Plaintiff never
filed a reply to dispute Defendant’s claim
7 Page two of the June 22. 2020 Order provides, in relevant part, “The Defendant’s Second Motion was filed
more than a month afler the Opposition and Reply were filed ” (June 22, 2020 Order, p 2)
‘ The June 22, 2020 Order provides, in relevant part
In the very briefcpposition, Plaintiff’s counsel argues that this matter is moot because
Defendant’s counsel sent the release forms again properly modified—on January 13, 2020 and
the Plaintiff has been asked to go to counsel’s office to sign them (Opp’n 1 )The releases will
reportedly be sent out within thirty days, as per the request for production that they accompanied
(Id) In the Reply the Defendant argues that the Plaintiff is still attempting to delay and that waiting
an additional thirty days is unreasonable (Reply, 1 3)
The Defendant’s Second Motion was filed more than a month alter the Opposition and
Reply were filed Therein Defendant’s counsel again asserts that Plaintiff‘s counsel is ‘stonewalling
discovery’ and refining to confer (Second Mot l ) According to the Defendant, the Plaintiff
decided to execute the releases subject to a confidentiality agreement, but the agreement was
not provided to the Defendant until February 28, 2020 (Id at 3 ) On March 3 2020 the
Defendant informed the Plaintiff that it intends to proceed with these motions rather than sign the
confidentiality agreement (Id) This was alter multiple attempts to set up a time to meet and confer
between January and the end of February (Id) On February 27 2020 at an agreed upon time
Defendant’s counsel called Plaintiff‘s counsel to confer and was told they would have to reschedule
due to unavailability (Id , at 4) The Defendant asserts that the Plaintiff has failed to act in good
faith (Id ) (June 22 2020 Order pp 2 3) (emphasis added)
9 See supra note 6
'° The June 22, 2020 Order provides in relevant part
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STANDARD OF REVIEW
‘5 Motions for protective orders are governed Rule 26(c) of Virgin Islands Rule of Civil
Procedure (hereinafier “Rule 26(0)”) Rule 26(c)(1) provides
(1) In General A party or any person from whom discovery is sought may move for a
protective order in the court where the action is pending or as an alternative on matters
relating to a deposition, in the court where the deposition will be taken The motion must
include a certification that the movant has in good faith conferred or attempted to confer
with other affected parties in an effort to resolve the dispute w1thout court action The court
may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or more of the
following
(A) forbidding the disclosure or discovery,
(B) specifying terms, including time and place or the allocation of expenses, for the
disclosure or discovery,
(C) prescribing a discovery method other than the one selected by the party seeking
discovery,
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or
discovery to certain matters,
(E) designating the persons who may be present while the discovery is conducted,
(F) requiring that a deposition be sealed and opened only on court order,
(G) requiring that a trade secret or other confidential research, development, or
commercial information not be revealed or be revealed only in a specified way, and
(H) requiring that the parties simultaneously file specified documents or
information in sealed envelopes, to be opened as the court directs
V I R CIv P 26(c)(1)
The Court agrees with the Defendant that Plaintiff‘s counsel is stalling Not only are these releases
standard for personal injury and discoverable, but Defendant’s counsel even edited them to include
language requested by Plaintiff's counsel
" Defendant’s First Motion to Compel requested “an order compelling plaintiff to execute authorizations to
disclose medical information, insurance information, income tax records, unemployment and workmen s
compensation records, and criminal records ” (First Motion to Compel, p 5) (emphasis added)
'2 Defendant’s Second Motion to Compel requested “an order compelling plaintiff to execute authorizations
to disclose medical information insurance information, income tax records, unemployment and workmen’s
compensation records, and criminal records ” (Second Motion to Compel, p 8) (emphasis added)
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DISCUSSION
(6 In his motion, Plaintiff argued that the Court should grant his motion for an entry of “a
[p]rotective [o]rder restricting the dissemination and/or access of his confidential information,
including, but not limited to, his tax returns, medical records, and other information that is
generally confidential, pursuant to Rule 26(c)(1)(G) ”7 (Motion, p 6) Plaintiff made the following
assertions in support of his aIgument (i) “[T]he infomation should be treated as confidential, not
unnecessarily disseminated and not filed of record without being sealed ” (Id , at p 3), (ii) “While
Rule 26(c) places the burden of persuasion on the party seeking the protective order, the burden
can be overcome by a showing of good cause showing a need for protection ”3 (Id , at p 4), (iii)
“‘Good cause’ is established on a showing that disclosure will work a clearly defined and serious
injury to the party seeking closure The injury must be shown with specificity ”9 (Id ), (iv) “The
good cause determination must balance the public’s interest in the information against the injuries
that the disclosure would cause ”'0 (Id ); (v) “It is common for medical records, tax returns, and
7 In his motion, Plaintiff noted that he had previously filed a motion for protective order and thus, Plaintiff should not
have been sanctioned for failure to answer discovery requests More specifically, Plaintiff provided
Plaintiff previously filed a “Motion for Confidentiality Order” on March 18, 2020 Given that a request for a
confidentiality order or protective order are the same, this motion is essentially a renewed motion for
confidentiality order with the technically appropriate language from V I R Civ P Rule 26
(Motion p 1 n l)
Notably, V I R Civ P Rule 37(d)(2) prohibits the entry of sanctions against a party refusing to answer
discovery requests when a motion for protective/confidentiality order is pending However, Plaintiff
concedes the oversight in failing to reference this statute in his Motion to Reconsider Court’s Order of June
22, 2020 See Mahoney v L S Holdings Inc (“Generally, the failure to respond and produce information or
documents called for in discovery “is not excused on the ground that the discovery sought was objectionable,
unless the party failing to act has a pending motion for a protective order under Rule 26(c) ”)
(Id at p 2 n 2)
3 Plaintiff referenced Bryan v US 2012 WL 5350376 at '3 (D VI Oct 30 2012) (granting a protective order
which deemed documents confidential)
" Plaintiff referenced Id
'0 Plaintiff referenced 1d
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personal financial information to be deemed confidential ”'1 (Id , at pp 4 5), (vi) “Although it is
necessary in personal injury actions to produce medical records, the medical records should be
deemed confidential ”'2 (Id , at p 5), (vii) “Tax returns are not necessarily required to be produced,
but if the documents are produced, should be deemed confidential ”'3 (Id ), (viii) “The Virgin
Islands Superior Court ‘recognizes that tax returns are traditionally considered confidential
documents and that there are a variety of laws protecting the disclosure of non public personal
financial information ”" (Id , at pp 5 6), (ix) “Given the strong public policies favoring a
protective order deeming medical records, tax returns, and private financial information as
confidential, Plaintiff has shown good cause for the need for a protective order ” (Id , at p 6), (x)
“When balancing the strong public policy of confidentiality of such records against the public’s
interest in the infomation, the balances weigh almost completely in favor of protection of the
documents ” (Id ), and (xi) “There is no public interest in the access or dissemination of Plaintiff’s
medical records, tax returns, or private financial infomation ” (Id)
1] 7 In its opposition, Osage argued that Plaintiff’s motion should be denied because despite
being styled as a “renewed motion,” Plaintiff’s motion is really a motion for reconsideration and
Plaintiff is not entitled to such extraordinary remedy (Opp , p l 2) Osage made the following
assertions in support of its argument (i) ‘Even if this Court decides to consider the merits of
plaintiff’s motion (which it should not) plaintiff has failed to demonstrate what information is
” Plaintiff referenced Wallace v Corp
2009 WL 587283 at ‘2 (D V 1 June 5, 2009) (providing there is a strong
policy in favor of protecting the privacy of patient medical records), Arwdson v Buchar,
2018 WL 10613032, at l'9
(V1 Super June6 2018)
45 CFR § 164 512 Abdallahv Abdel Rahman
2016 WL 5394759 at *3 (V1 Super
Sep 23 2016) (recognizing tax returns and non public personal financial information are considered confidential)
'2 Plaintiffreferenced Mahoneyv LS Holdings Inc
2013 WL 12314888 at ’2 (D V1 Aug 6 2013)
'3 Plaintiff referenced Mahoney, at *3
” Plaintiff referenced AbdaIIah
2016 WL 5394759
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privileged or confidential” and “[t]here is simply no basis for entry of a confidentiality order where,
as here, plaintiff has put his medical history and income at issue ” (Id , at p 2), (ii) “Plaintiff does
not get a ‘second bite of the apple’” by filing a “‘second motion With the hindsight of the Coun’s
analysis’ raising previously unpresented arguments, that ‘should have been raised in the first set
of motions ”’ (Id ), (iii) Plaintiff failed to argue any of the enumerated factors set forth in Rule 6
4 of the Virgin Islands Rules of Civil Procedure (Id , at p 3), (iv) “Plaintiffs contention that all
discovery is ‘confidential’ flies directly in the face of Rule 26(b)(1) which explains that ‘[p]arties
may obtain discovery regarding any nonprivileged matter ”’ (Id ), (v) “Plaintist unemployment,
workmen’s compensation, medical, and insurance records are not confidential ” (Id ), (vi) “In this
territory, where a party’s physical condition is a factor or element of the party’s claims, no patient
physician privilege exists, pursuant to 5 V I C § 855 [sic] ”‘5 (Id , at pp 3 4), (vii) “The same
applies with respect to the production of tax returns where the parties are, as here, conducting
discovery on damages ”'6 (Id , at p 4), (viii) The proposed protective order “is not only
unwarranted, but it is unconscionany broad” to wit, “It gives plaintiff the unfettered right to
‘designate any information (regardless of form) which is produced or furnished’ to be
confidential ” (Id ), (ix) “[A] confidentiality order in this case would be totally impractical and
would overburden the Court and the parties” because “[i]f all discovery was deemed confidential,
including the medical history upon which plaintiff seeks recourse, it would inevitably result in this
Court getting bogged down with the ‘in camera’ inspections contemplated by paragraphs 6 and 7
of the Proposed Order ” (Id , at p 5), (x) “It would needlessly result in countless hours redacting
'5 Osage referenced Aubamv Kazz Foods ofthe V1 Inc
2013 WL 3155804 at *1 (VI Super June 14 2013)
"5 Osage referenced Mahoney
2013 WL 12314888 at ‘2
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information that is not otherwise confidential, slow down discovery, and skirt the good faith
conferral requirements already provided by the Rules ” (Id ), (xi) The proposed protective order is
“defective” because it requires the parties to self seal in violation of the Virgin Islands Rules of
Civil Procedure (Id , at pp 5 6), (xii) “Any alleged ‘privacy’ is already protected under [Rule 5 2
and Rule 26(c) of the} Virgin Islands Rules of Civil Procedure ”—to wit, “[w]here, Rule 5 2 gives
litigants ‘Privacy Protection for Filings Made with the Court’ including what information is to be
redacted, Rule 26(c) gives him an opportunity to move for a protective order afier he has ‘conferred
or attempted to confer’ to resolve the dispute ” (Id , at p S n 3), and (xiii) “Even when stipulated
by adverse parties, the Court must weight any interests in confidentiality against that of the public
to open court records ”'7 (Id , at p 6)
1! 8 In his reply, Plaintiff again argued that the Court should grant Plaintiff‘s motion for entry
of a protective order Plaintiff made the following assenions in support of his argument (i)
“Plaintiff’s Motion is a renewed motion and not a motion for reconsideration ” (Reply, p 2), (ii)
“This Court did not address the merits of Plaintiff’s prior motion and denied it because Plaintiff
failed to cite legal authority” and “[i]n his renewed motion, Plaintiff has cited substantial legal
authority in order to prevent the manifest injustice of having his confidential information available
for public dissemination ”'8 (Id , at pp 2 3), (iii) “Defendant incorrectly acts as though Plaintiff
refuses to produce his medical records, tax returns and personal financial information ” (Id , at p
3), (iv) “Plaintiff concedes that ‘it is necessary in personal injury actions to produce medical
records,’ but that ‘the medical recorded should be deemed confidential” and “[i]n fact, Plaintiff
'7 Osage referenced Newton v Hess 011 Virgin Islands Corp
2018 WL 1913836 at l"5 (V 1 Super Apr 23 2018)
'3 Plaintiffreferenced Peoplev Hatcher
68 VI 362 376 (Super Ct March 19 2018)
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has produced his tax returns, his medical records but simply seeks an agreement with Defendants
that they be used solely in this case and not be made public or disseminated to third parties
unrelated to this litigation ” (Id ), (iv) The proposed protective order “is appropriate because the
language is not overly broad, and the PPO does not authorize self sealing,” and in fact, it “itemizes
appropriate documents to be deemed confidential ” (Id , at pp 3 4); and (v) Rule 5 2 of the Virgin
Islands Rules of Civil Procedure is not adequate in protecting Plaintiffs privacy in this instance
(Id at p 4 n 4)
I Plaintiff’s Motion
1| 9 The Court finds Osage’s argument that Plaintiff‘s motion should be construed as a motion
for reconsideration unpersuasive “A motion for reconsideration is proper when the court has erred
by not applying new law, by applying existing law incorrectly, or by neglecting to consider an
issue the parties raised before the court ruled [] [b]ut a motion for reconsideration is not proper
when presenting new facts, raising new issues, or making new arguments ” Hatcher, 68 V I 376
Here, Plaintiff renewed his motion for a protective order afier the Court denied his Motion for
Confidentiality Order because the Court found that “Plaintiff’s deficient motion is not properly
before the Court” given that it was “devoid of any binding authonty or any legal basis to support
his argument ” Thus, the basis for Plaintiff’s instant motion was not to point the Court to new law,
or to alert the Court to clear error, or to identify an issue the Court had overlooked Instead, Plaintiff
filed a renewed motion to properly bring his motion for a protective order before the Court with
arguments supported by proper authority As such, Plaintiff is making a renewed motion for a
protective order, not a motion for reconsideration
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II Sanctions
1] 10 In his motion, Plaintiff argued in the peripheral19 that it was not proper for the Court to
order sanctions in its June 22, 2020 order because Plaintiff’s Motion for Confidentiality Order was
pending and thus, sanctions were not proper under Rule 37(d)(2) of the Virgin Islands Rules of
Civil Procedure 2° However, the time for Plaintiffto move for reconsideration of the June 22, 2020
has passed under to Rule 6 4 of the Virgin Islands Rules of Civil Procedure 2' In fact, Plaintiff
admitted that he failed to timely raise this argument in his motion for reconSIderation filed on July
6, 2020 22 As such, the Court need not address Plaintiff‘s argument as to sanctions in this
Memorandum Opinion and Order 23
III Protective Order
1 11 Rule 26 of the Virgin Islands Rules of Civil Procedure (hereinafier “Rule 26”) governs
discovery Rule 26(b)(1) provides that “[u]nless otherwise limited by court order, the scope of
discovery is as follows Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense Information within this scope of discovery need not be
'9 See supra, footnote 7
2" Rule 37(d)(2) ofthe Virgin Islands Rules ofCivil Procedure provides that “[a] failure described in Rule 37(d)(1)(A)
is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending
motion for a protective order under Rule 26(0) ” V I R CIV P 37(d)(2)
2' Rule 6-4 of the Virgin Islands Rules of Civil Procedure provides that “a party may file a motion asking the court to
reconsider its order or decision within 14 days atter the entry of the ruling, unless the time is extended by the court ”
v1 R Clv P 64(a)
22 In his motion, Plaintiff stated that "Plaintiff concedes the oversight in failing to reference this statute in his Motion
to Reconsider Court’s Order of June 22, 2020 ” (Motion, p l n l)
23 The Court will nevertheless note its concern with Plaintiff‘s Motion for Confidentiality Order, which failed to
“include a certification that the movant has in good faith conferred or attempted to confer with other affected parties
in an effort to resolve the dispute without court action” as required under Rule 26(c)(l) and as noted above, Plaintiff‘s
one page motion was devoid of any binding authority or any legal basis to support his argument for the Court to enter
a confidentiality order See supra footnote 5 The Court is concerned that, by permitting a party to hastily file a motion
for a protective under without the required Rule 26(c) certification and without any properly supported arguments, it
would promote gamesmanship in discovery practices whenever a party is faced with a motion to compel and wants to
avoid sanctions
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Memorandum Opinion and Order 202] VI SUPER
Page 13 of 17
admissible in evidence to be discoverable ” V I R CIv P 26(b)(l) Rule 34 of the Virgin Islands
Rules of Civil Procedure (hereinafter “Rule 34”) requires a party to produce any relevant records
in its possession so the requesting part may inspect or copy them 24 Here, Osage sought to discover
information pertaining to Plaintiffs medical records, insurance records, income tax records,
unemployment and workmen’s compensation records, and criminal records by requesting Plaintiff
to execute relevant discovery authorizations Osage vehemently opposed Plaintiff’s instant motion
for an entry of a protective order and argued that Plaintifi‘ should be required to produce the
requested records In fact, based on some of Osage’s assertions, it appears that Osage
misunderstood Plaintiff’s argument relating to confidentiality as one for privilege However,
Plaintiff did not raise the privilege issue in his instant motion and Plaintiff made it very clear that
he did not “object to the production of the requested information” but requested that such
information “be used solely in this case and not be made public or disseminated to third parties
unrelated to this litigation ” (Reply, p 3)
1| 12 Discovery does not automatically become a part ofthe court file and thus, does not perforce
become accessible to the public See V I R CW P 5(d)(l)(C) (“Whether the case is governed by
the Electronic Filing Rules or papers are being filed conventionally, disclosures under Rule
26(a)(1) or (2) and the following discovery requests and responses must not be filed until they are
used in the proceeding or the court orders filing depositions, interrogatories, requests for
documents or tangible things or to permit entry onto land, and requests for admission ”) (emphasis
2“ Rule 34(a) provides that “[a] party may serve on any other party a request within the scope of Rule 26(b) ( l) to
produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in
the responding party's possession, custody, or control (A) any designated documents or electronically stored
information including writings, drawings, graphs, charts, photographs, sound recordmgs, images, and other data or
data compilations stored in any medium from which information can be obtained either directly or, if necessary,
afler translation by the responding party into a reasonably usable form V I R CIV P 34(a)(l)(A)
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Memorandum Opinion and Order 2021 VI SUPER
Page 14 of 17
added) Nevertheless, given the potentially private and intrusive nature of the information
contained in Plaintiff” 3 medical records, insurance records, income tax records, unemployment and
workmen’s compensation records, and criminal records, the Court finds that there is good cause
to “issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense” by specifying the terms for such discovery, such as limiting its
disclosure to others As such, the Court will grant Plaintiffs motion as to its request for an entry
of a protective order Additionally, although CRC has not filed anything in response to Plaintiff’s
instant motion, the Court presumes that, CRC, a defendant defending the same causes of action in
this matter as Osage, will also want access to such discovery As such, the Court will deny
Plaintiff’s motion as to its request for the Court to enter Plaintiff‘s proposed protective order and
order Plaintiff, Osage, and CRC to meet and confer and make a good faith effort to resolve their
concerns” without court action and submit a joint stipulated protective order
1| 13 While unfiled discovery is not necessarily accessible to the public, when discovery is
submitted as a basis for adjudication, it does become a part of the court file and become accessible
to the public Here, the issue of whether a document covered by the protective cover should be
sealed when filed with the Court was indirectly raised to wit, Plaintiff included a clause in his
proposed protective order26 and Defendant argued that the proposed protective order was defective
2‘ Osage raised several concerns regarding the proposed protective order, such as it being “unconscionany broad,
“impractical," “defective,” ‘slow down discovery, ’ and redundant under Rule 5 2 of the Virgin Islands Rules of Civil
Procedure
2‘ Plaintiff‘s proposed protective order provided, inter aha
9 Confidential Information to be Filed with Court under Segl
The portion of the transcript of every deposition and all exhibits, answers to interrogatories and
responses to request for production filed with the Court which contain designated Confidential Information
and all portions of all pleadings, motion, briefs, memoranda or other documents filed with the court
purporting to reproduce or paraphrase Confidential Information, shall be filed in sealed envelopes or other
appropriate sealed containers on which shall be endorsed the title of this action, an indication of the nature
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Memorandum Opinion and Order 202] VI SLPER ]: (lg
Page 15 of 17
by requiring the parties self sealing documents 27 At this juncture, the Court finds that it is
premature and impractical for the Court to anticipate what discovery materials will be filed in this
matter to determine whether such document should be sealed by weighing the competing interests
of public access and personal privacy If, and when, a party wishes to file a document under seal,
then the party must make such request separately with proper briefing As such, the Court will also
order that the protective order will not, by itself, authorize the filing of any document under seal
and that any party wishing to file a document, whether it is designated as confidential or not, in
connection with a motion, brief, or other submission to the Court must make such request
separately with proper briefing
CONCLUSION
11 14 Based on the foregoing, the Court will (i) grant Plaintiff’s motion as to its request for an
entry of a protective order, (ii) deny Plaintiff‘s motion as to its request for the Court to enter
Plaintiff’s proposed protective order, (iii) order the parties to meet and confer and make a good
faith effort to resolve their concerns without court action and submit a joint stipulated protective
of the contents of such sealed envelope or other container, the words “CONFIDENTIAL PROTECTIVE
ORDER” and a statement substantially in the following form
CONFIDENTIAL
This envelope contains a portion ofa deposition transcript, document or information which
has been designated as confidential and is not to be opened and its contents are not to be
disclosed to any person other than the Court or its Clerks except by order of the Court, or
upon the stipulation of the parties
Only those portions ofthe deposition transcript, answers or responses that are designated as confidential will
be filed under seal upon approval by the Court
If the Recipient Party desires to make Confidential Information a matter of public record by filing
such Confidential lnfonnation with the Court, the Recipient Party must notify the Designating Party at least
ten (10) days prior to filing any such Confidential Information to allow the designating Party to make
application to the Court for sealing the Confidential Information for good cause
27 In its opposition, Osage argued that the proposed protective is “defective” because it requires the parties to self seal
in violation of the Virgin Islands Rules of Civil Procedure” and that “the Count must weight any interest in
confidentiality against that of the pubic to open court records ” (Opp , pp 5 6)
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Page 16 of 17
order, and (iv) order the joint stipulated protective order to include a clause stating the following
“This Order does not, by itself, authorize the filing of any document under seal Any party wishing
to file a document, whether it is designated as confidential or not, in connection with a motion,
brief, or other submission to the Court must make such request separately with proper briefing ”
Accordingly, it is hereby
ORDERED that Plaintiff” s renewed motion for an entry of a protective order is
GRANTED as to its request for an entry of a protective order It is further
ORDERED that Plaintiff's renewed motion for an entry of a protective order is DENIED
as to its request for the Court to enter Plaintiff’s proposed protective order It is further
ORDERED that, within twenty (20) days from the date of entry of this Memorandum
Opinion and Order, Plaintiff, Osage, and CRC shall meet and confer and make a good faith
effort to resolve their concerns without court action and file a joint stipulated protective order
In the event that the parties cannot agree to all the clauses of a joint stipulated protective order,
then (i) the parties shall submit a joint stipulated protective order with all the clauses that the
parties agreed on and (ii) each party shall submit his/its own separate list of proposed clauses that
the parties did not agree on It is further
ORDERED that the joint stipulated protective order shall include the following clause
Filing of Confidential Information This Order does not, by itself, authorize the filing of
any document under seal Any party wishing to file a document, whether it is designated
as confidential or not, in connection with a motion, brief, or other submission to the Court
must make such request separately Wlth proper briefing
ORDERED that while the entry of a protective order is pending, the parties shall continue
with their respective discovery requests and productions not related to Osage’s request to Plaintiff
for the execution of medical records, insurance records, income tax records, unemployment and
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Memorandum Opinion and Order 2021 VI SUPER UL
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workmen’s compensation records, and criminal records The parties shall continue to abide by the
deadlines set forth in the amended scheduling order, entered on December 28, 2020 And it is
further
ORDERED, within three (3) days from the date of entry of the protective order,
Plaintiff shall produce discovery in connection with Osage’s request for the execution of discovery
authorizations for medical records, insurance records, income tax records, unemployment and
workmen’s compensation records, and criminal records
k
DONE and so ORDERED this I 3y day of Wfi2021
ATTEST M XMX
Tamara Charles HAROLD W L WILLOCKS
Clerk of the Court Presiding Judge of the Superior Court
C
By M
Court Clerk Supemaer 77
Dated 5W 2.;