Lightner v. DaVita, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03104-NYW-KAS
ANDUIN LIGHTNER, individually and on behalf of all others similarly situated,
Plaintiff,
v.
DAVITA, INC.,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Plaintiff’s Motion to Restrict Access [#110]
(“Motion”). Defendant filed a Response [#112] in opposition, and Plaintiff filed a Reply
[#119]. In accordance with D.C.COLO.LCivR 7.2(d), the Motion was publicly posted to
allow for any objections to the sealing of the documents. No timely objections were filed.
For the following reasons, the Motion [#110] is denied.
Plaintiff asks the Court to maintain the Level 1 restricted filing status of Exhibit C
[#105-1] to Defendant’s Motion to Strike because “Plaintiff previously designated [the
documents in that exhibit] as Confidential under the Protective Order entered in this
matter.” 	Motion 	[#110] 	at 	1. 	Plaintiff 	further 	states 	that 	“[t]he 	documents 	contain
confidential trade secrets, proprietary information and court records that have been
sealed by another federal judge.” Id.
I. 	Legal Standard
“[S]ecret court proceedings are anathema to a free society.” M.M. v. Zavaras, 939
F. Supp. 799, 801 (D. Colo. 1996). Under D.C.COLO.LCivR 7.2(a), “[u]nless restricted by
statute, rule of civil procedure, or court order, the public shall have access to all
documents filed with the court[.]” (emphasis added). This means that the mere “fact that
the parties agree to restriction or that there is a Stipulated Protective Order in place does
not dictate the Court’s decision or change its analysis, as the right of access belongs to
the public, which is not a party to the parties’ agreement or protective order.” E.E.O.C. v.
Columbine Health Sys., Inc., No. 15-cv-01597-MSK-CBS, 2017 WL 4163354, at *12 (D.
Colo. Sept. 19, 2017). “Thus, simply because a document is marked as ‘Confidential’
and/or ‘Subject to Protective Order’ does not mean that the Court must keep the
document restricted.” Peterson v. Pickering, No. 22-cv-00320-WJM-KLM, 2023 WL
4487674, at *1 (D. Colo. July 11, 2023).
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Documents filed in this District are presumptively available to the public, “but they
may be sealed when the public’s right of access is outweighed by interests which favor
nondisclosure.” Gen. Steel Domestic Sales, LLC v. Chumley, 129 F. Supp. 3d 1158 (D.
Colo. 2015) (citing United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997)). “Where
no reason whatsoever is set forth to restrict a document, then the public’s right of access
automatically outweighs any interests which favor nondisclosure[.]” Peterson, 2023 WL
4487674, at *1. Pursuant to the Local Rules: “If a document is filed as a restricted
document without an accompanying motion to restrict, it shall retain the restriction
selected by the filer for 14 days. If no motion to restrict is filed within such time period, the
restriction 	shall 	expire 	and 	the 	document 	shall 	be 	open 	to 	public 	inspection.”
D.C.COLO.LCivR 	7.2(e) 	(emphases 	added). 	“This 	nondiscretionary 	language 	is
mandatory and requires the Court to remove all restriction from documents filed under
restriction without an accompanying motion to restrict.” Peterson, 2023 WL 4487674, at
*1.
A party seeking to restrict a document(s) has the burden of filing a motion to restrict
(which shall itself be open to public inspection) and of justifying the request by addressing
five points:
(1) identify the document or the proceeding for which restriction is sought;
(2) address the interest to be protected and why such interest outweighs
the presumption of public access . . . ; (3) identify a clearly defined and
serious injury that would result if access is not restricted; (4) explain why no
alternative to restriction is practicable or why only restriction will adequately
protect the interest in question . . . ; and (5) identify the level of restriction
sought.
D.C.COLO.LCivR 7.2(c). Regarding the second point, “the movant shall articulate a real
and substantial interest that justifies depriving the public of access to documents that
inform[ ] the court’s decision-making process.” Preeson v. Parkview Med. Ctr., Inc., No.
15-cv-02263-MSK-KMT, 2017 WL 1197298, at *16 (D. Colo. Mar. 30, 2017)).
Under D.C.COLO.LCivR 7.2(d), the public is given notice when a motion to restrict
is filed and given time to object to the requested restriction: “Notice of the filing of such
motion shall be posted on the court's website on the court business day following the filing
of the motion. Any person may file an objection to the motion to restrict no later than three
court business days after posting.” This means that, “as required by Local Rule 7.2(c), it
is imperative that a motion to restrict documents clearly identify which document(s) the
party who filed the motion is seeking to have restricted in order to give the public adequate
notice pursuant to the Local Rule.” Peterson, 2023 WL 4487674, at *2. “Motions which
fail to give the public adequate notice of which document(s) is at issue must therefore be
denied.” Id.
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II. 	Analysis
Exhibit C consists of various documents totaling 77 pages, comprising of seven
components.
Initial Application (LIGHTNER 0262-0273)
The Initial Application consists of an application Plaintiff’s counsel sent to the State
Bar of Texas for review of the law firm’s advertising and solicitations to potential claimants
in Fair Labor Standards Act lawsuits. The application contains various questions about
the nature of the advertisements or solicitations, the intended geographic reach, method
of transmission, as well as counsel’s answers to those questions. Plaintiff produced these
pages in discovery (pursuant to a court order) and designated them “Confidential.”
Plaintiff claims that these pages consist of “confidential communication between
Plaintiff’s counsel and the State Bar of Texas advertising review committee[.]” Motion
[#110] at 2. However, Plaintiff does not explain the interest to be protected by redacting
these pages and why such interest outweighs the presumption of public access. Plaintiff
also does not identify a clearly defined and serious injury that would result if access is not
restricted. Instead, Plaintiff seems to argue that these pages should be redacted because
they are not relevant. See Reply [#119] at 5 (arguing that “DaVita leans on discovery
rulings to argue documents are ‘relevant,’ as if relevance in discovery decides public
access.”)
Accordingly, LIGHTNER 0262-0273 should be filed without restriction.
Email Solicitations Submitted for State Bar of Texas Review (LIGHTNER 0274-
0285)
Plaintiff claims that these email solicitations “contain trade secrets and proprietary
business content including custom creative artwork, campaign structure for counsel’s
outreach to potential opt-ins, advertisement emails, [and] messaging copy, tailored
screening questions, attorney-client fee agreement, consent forms, potential client lists
and sealed court documents[.]” Motion [#110] at 3. Plaintiff argues that “[t]hese materials
would provide competitors with a ready-made roadmap to replicate or undercut counsels’
campaigns.” Id.
In response, Defendant argues that the “messaging copy” in the email solicitations
transmitted for approval by the State Bar of Texas “were either included in the publicly-
available emails at issue, or linked in them and located on publicly-available webpages,
and therefore do not qualify to be sealed.” Response [#112] at 5. Defendant further argues
that these emails “are also substantively the same emails Plaintiff’s counsel sent out to
hundreds of individuals with whom they had no relationship[.]” Id. at 4 n.1. Most
significantly, Defendant notes that these solicitation emails were already included in
exhibits that were publicly filed on the docket in this case. Id. at 2.
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The Defending Trade Secrets Act defines trade secret broadly to include “all forms
and 	types 	of 	financial, 	business, 	scientific, 	technical, 	economic, 	or 	engineering
information,” regardless of how stored or memorialized. 18 U.S.C. § 1839(3). The owner
of 	the 	trade 	secret 	must 	have 	taken 	reasonable 	measures 	to 	ensure 	the
information’s secrecy, and the information must derive independent economic value
from not being generally known or readily ascertainable through proper means. See 18
U.S.C. § 1839(3)(A) & (B) (emphasis added).
Whether or not these emails are trade secrets, Plaintiff has not taken reasonable
measures to ensure the information’s secrecy. Most significantly, seemingly identical
emails were publicly filed on the docket as Exhibit D to Defendant’s Motion to Strike All
Consent-to-Join Forms, see [#104-4]. For example, the Court can discern no meaningful
difference between the copy depicted in Lightner 0274-0285, filed under restriction on the
docket at [#105-1] at 14-25, and the copy depicted in Lightner 0218-0229, publicly filed
on the docket at [#104-4] at 2-13.
Accordingly, LIGHTNER 0274-0285 should be filed without restriction.
Links in Email Solicitations Submitted for State Bar of Texas Review (LIGHTNER
0286-0295)
This set of documents reveals the content of information seen by readers of the
aforementioned email solicitations when they click on links embedded in those emails.
At the outset, the Court notes that section header, “Links in Emails,” see Doc.
#105-1 at 26, should be filed without restriction.
The next page reveals a page on the website of Plaintiff’s counsel’s law firm
(LIGHTNER 0274) [#105-1] at 27. Plaintiff concedes that this page should not be
restricted. See Motion [#110] at 9.
Accordingly, LIGHTNER 0274 should be filed without restriction.
The next page consists of a form Attorney/Professional Services Agreement, which
readers of the email solicitations are invited to sign if they wish Plaintiff’s law firm to
represent them in the wage litigation against Davita (LIGHTNER 0288) [#105-1] at 28.
Plaintiff argues that public disclosure of this Agreement would enable competitors to
“undercut counsels’ [solicitation] campaigns” and maintains that the Agreement is
confidential. Motion [#110] at 3; Reply [#119] at 7. Defendants counter that the fee
agreement was hosted on a “live, publicly-available webpage” that “hundreds” of
solicitation email recipients could access via the email links. Response [#112] at 5.
While disclosure of fee contracts has the potential for revealing confidential
information, information such as the general nature of services performed, the matter for
which services were performed, and the fee amount is generally not privileged. Roe v.
Cath. Health Initiatives Colo., 281 F.R.D. 632, 636 (D. Colo. 2012) (citing United States
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v. Hodgson, 492 F.2d 1175, 1177 (10th Cir. 1974); In re Grand Jury Subpoenas, 906 F.2d
1485, 1492 (10th Cir. 1990)) (other citations omitted).
Based on the Court’s review, the Attorney/Professional Services Agreement does
not contain information that qualifies as a trade secret or is otherwise confidential. The
Agreement is a standard contingency agreement, which identifies the general nature of
services to be performed and generically identifies the matter as “your wage claim”. The
Agreement does not identify the jurisdiction in which the wage claim is pending or will be
filed, and it does not identify any specific client; but even if the Agreement provided that
information, the Agreement would not be confidential. See Roe, 281 F.R.D. at 636.
Further, as Defendant points out, this Agreement was accessible by “hundreds” of
solicitation email recipients. Though the Agreement itself is stamped “Confidential,”
nothing in the Agreement informs the recipient that the Agreement cannot be distributed
to anyone else. To the extent Plaintiff fears that the Agreement’s disclosure might give
some other law firm a competitive advantage, nothing in the record demonstrates that a
recipient could not (and did not) take the form Agreement to another law firm and seek a
better arrangement, such as a lower contingency fee.
Accordingly, LIGHTNER 0288 should be filed without restriction.
The next five pages (LIGHTNER 0289-0293) are a template “DaVita Wage Claim
Survey,” which recipients of the solicitation emails could complete. The survey asks
responders to provide contact information and information about their employment with
DaVita, the number of hours they worked, their ability to take meal breaks, and their
receipt of pay for meal breaks.
Plaintiff claims that these survey questions “were crafted after spending dozens of
hours on legal research to identify the key facts courts weigh heavily when determining
whether a medical facility violated wage laws by forcing medical staff to work through their
meal breaks without pay.” Motion [#110] at 4. Plaintiff further asserts that “[t]he questions
themselves are the result of an analysis performed by counsel that gives them a
competitive advantage for screening many valid claims quickly and accurately,” and the
questions “represent the key factors counsel has identified to evaluating a strong meal
break case.” Id. Plaintiff fears that the survey’s disclosure “would undercut counsels’
competitive advantage by allowing competing law firms . . . free access to their internal
strategies and methodologies.” Id.
The Court finds Plaintiff’s assertions quite interesting, especially when a very quick
internet search using the Google search engine revealed readily available surveys, which
contain similar kinds of questions that the DaVita Wage Claim Survey contains. See
“Potential 	Client 	Questionnaire 	Wage 	and 	Overtime 	Claims,” 	available 	at
https://www.fishlawfirm.com/potential-client-questionnaire-wage-and-overtime/ 	(last
visited Sept. 18, 2026); “Employment/Wage & Overtime Claims Questionnaire,” available
at 	https://www.bwlawgroup.com/questionnaires/employment-wage-overtime-claims-
questionnaire/ (last visited Sept. 18, 2026).
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The 	Court 	need 	not 	expend 	further 	resources 	on 	this 	issue. 	Accordingly,
LIGHTNER 0289-0293 should be filed without restriction.
The next two pages consist of news articles covering meal break lawsuits. Plaintiff
concedes that they should not be restricted. See Motion [#110] at 9. Accordingly,
LIGHTNER 0294-0295 should be filed without restriction.
Materials Exchanged with the Texas State Bar Advertising Review Committee
(LIGHTNER 0296-0311)
The next 16 pages contain the Texas State Bar’s response to Plaintiff’s attorneys’
request for an advertising review.
At the outset, the Court notes that LIGHTNER 0296 and LIGHTNER 0299 should
be filed without restriction because they are simply cover pages to the Texas State Bar
documents.
LIGHTNER 0297-0298 consists of the Advertising Review Committee’s response,
which identifies potential violations Part 7 of the Texas Disciplinary Rules of Professional
Conduct and requests additional information to substantiate the representations in
Plaintiff’s counsel’s submitted advertisements which were already “being disseminated to
the public.” LIGHTNER 0297. LIGHTNER 0298 expressly identifies the representations
that the Committee flagged as needing additional substantiation.
LIGHTNER 0300-0311 contain the materials that Plaintiff’s counsel resubmitted to
the Texas State Bar’s Advertising Review Committee.
Plaintiff argues that disclosure of these materials “would provide competitors with
a ready-made roadmap to replicate or undercut counsels’ campaigns.” Motion [#110] at
3. The Court has already rejected this argument.
Plaintiff further argues that her attorneys intended these documents “to be viewed
in confidence by the State Bar and the intended recipients, namely the potential plaintiffs.”
Id. at 5. Plaintiff then cites four cases involving “similar facts” in which “federal courts have
granted motions to restrict confidential documents.” Id. All four cases, however, are
distinguishable. 	None 	concern 	“similar 	facts”. 	None 	concern 	advertising 	materials
submitted to a state bar for an ethics review.
Palempalli ex rel. Cognizant Tech. Sols. Corp. v. Patsalos-Fox, No. 2:21-cv-12025-
KM-CLW, 2023 WL 3260396 (D.N.J. May 4, 2023) concerned confidential materials and
information contained in court filings and in a hearing transcript. Specifically, those
materials 	included 	confidential, 	proprietary, 	or 	commercially 	sensitive 	information
regarding the potential appointment of a committee to investigate the plaintiff’s litigation
demands and the board’s discussion of those demands. That is not the situation here.
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Stegmann ex rel. Covetrus, Inc. v. Wolin, No. 21-CV-1717 (GRB), 2021 WL
1838219 (E.D.N.Y. May 7, 2021) concerned court filings that contained confidential and
proprietary information obtained from a nominal defendant’s corporate books and files.
That is not the situation here.
Sumotext Corp. v. Zoove, Inc., No. 16-CV-01370-BLF, 2017 WL 8294292 (N.D.
Cal. Aug. 15, 2017) concerned court flings that contained the corporate defendant’s
confidential financial information and corporate emails containing sensitive corporate
information. That is not the situation here.
And, finally, In re Volkswagen “Clean Diesel” Mktg., Sales Pracs., & Prod. Liab.
Litig., No. MDL 2672 CRB (JSC), 2016 WL 11807130 (N.D. Cal. Aug. 24, 2016)
concerned whether certain nonparty employees’ names, job titles, and other identifying
information should be restricted from public disclosure to protect those individuals’ privacy
rights. That is not the situation here.
Because Plaintiff has provided neither persuasive, applicable authority nor a
compelling reason, LIGHTNER 0300-0311 should be filed without restriction.
Restricted Filings in Southern District of Texas Case (LIGHTNER 0312-321)
The next 10 pages consist of court filings related to Southern District of Texas case
number 4:13-cv-03375.
Plaintiff concedes that the electronic notification concerning a Southern District of
Texas court filing should not be restricted. See Reply [#119] at 8. Accordingly, LIGHTNER
0314 should be filed without restriction.
LIGHTNER 0315-0321 consists of the first seven pages of a Joint Motion for Final
Approval of Rule 23 Class Action Settlement that was filed in 4:13-cv-03375 (S.D. Tex.).
All the parties’ names are redacted. Defendant argues that “the redactions imposed,
together with the fact that some of the pages of the motion were not included with
Plaintiff’s production . . . means that any sensitive information has likely already been
protected from public view.” Response [#112] at 6. The Court agrees. Accordingly,
LIGHTNER 0315-0321 should be filed without restriction.
Texas State Bar Approval Letter (LIGHTNER 0322-0325)
At the outset, the Court notes that LIGHTNER 00322 is a cover page and,
therefore, should be filed without restriction.
LIGHTNER 00323-0325 is the Texas State Bar Advertising Review Committee’s
Notice of Approval, which concludes that Plaintiff’s counsel’s resubmitted advertising
materials comply with the Texas Disciplinary Rules of Professional Conduct that govern
attorney 	advertising. 	The 	undersigned 	quoted 	from 	the 	Notice 	of 	Approval 	when
addressing Plaintiff’s counsel’s lack of candor with the court when counsel represented
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that the Advertising Review Committee reviewed every advertising communication “with
a fine-tooth comb” and concluded that the statements did not contain misleading
statements of fact or law or any kind of unreasonable promise or expectation that a
particular result was guaranteed or likely. See Recommendation [#134] at 19-20. The
undersigned 	further 	concluded 	that 	“[Plaintiff’s 	counsel’s] 	representation 	that 	the
[Advertising Review] Committee reviewed the advertisements with a ‘fine-tooth comb’ is
inaccurate 	and 	misleading 	and 	violates 	the 	Standards 	of 	Professional 	Conduct,
D.C.COLO.LAttyR 2, and Colorado Rule of Professional Conduct 3.3.” Id. at 21. The
Court further warned Plaintiff’s counsel “that any further misrepresentations will likely
result in sanctions, referral to the Committee on Conduct, or both.” Id.
While the undersigned’s admonishment of Plaintiff’s counsel may not be material
to 	the 	resolution 	of 	Plaintiff’s 	claims, 	“[t]he 	public 	has 	a 	fundamental 	interest 	in
understanding the disputes presented to and decided by the courts, so at to assure that
they are run fairly and that judges act honestly.” Huddleson v. City of Pueblo, 270 F.R.D.
635, 636 (D. Colo. 2010) (citing Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461
(10th Cir. 1980)). Here, the public has a fundamental interest in understanding why the
Court has questioned Plaintiff’s counsel’s candor.
Because Plaintiff has provided neither persuasive, applicable authority nor a
compelling reason, LIGHTNER 00323-0325 should be filed without restriction.
Final Approved Emails (LIGHTNER 0326-0338)
At the outset, the Court notes that LIGHTNER 00326 is a cover page and,
therefore, should be filed without restriction.
LIGHTNER 00327-0338 are the final State Bar-approved emails that Plaintiff’s
counsel disseminated to hundreds of prospective plaintiffs. These emails should be filed
without restriction for the same reasons that the emails at LIGHTNER 0274-0285 should
be filed without restriction. Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Restrict Access [#110] is
DENIED.
IT IS FURTHER ORDERED that Exhibit C [#105-1] to Defendant’s Motion to Strike
should be unrestricted and the Clerk of Court shall lift the Level 1 restriction.
Dated: September 20, 2026
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