This case was referred to this Office to address the propriety of using a DNA test
submitted to the Agency which had been previously sealed by an Indiana state court,
in order to re-open an initial determination of survivor benefits. Based on a survey
of Indiana and federal case law, as well as the language of the protective order itself,
we believe that no applicable federal or state statute or rule prevents the Agency
from using this evidence. In the first place, the scope of the protective order sealing
the DNA test is uncertain. Furthermore, even if the intention of the state court was
to maintain strict confidentiality of the DNA results, the doctrine of sovereign immunity
prevents a state court from enforcing protective orders or asserting contempt powers
against an agency of the federal government. Therefore, we believe the Agency may
use the DNA test already in its possession to reconsider the paternity of Quentin
L~, for purposes of assigning benefits.
FACTS
According to the file, Michael L~, the number holder, died as an Indiana resident
on February 8, 2002. He was married to Tammy L~ at the time of his death. In October
2002, Tammy L~ filed for benefits for her son, Quentin L~, who was born October 7,
2002. Michael L~ was also survived by his ex-wife, Shelly K~, and her three children.
Because of the presumption of legitimacy of a child born during a marriage, see POMS GN 00306.020, benefits were awarded to Quentin L~, and adverse adjustment letters were sent to
the three children of Shelly K~, who were receiving benefits at that time. Ms. K~
protested the adverse adjustments, claiming that Michael L~ was not the father of
Quentin L~, but as she could not provide evidence of her allegation, benefits were
awarded to Quentin L~ in December 2002.
In October 2002, a Petition to Determine Beneficiary was filed in the Indiana state
probate court overseeing the disposition of Michael L~'s estate. That court ordered
DNA paternity testing, which took place September 2004. Prior to testing, Tammy L~
filed a Motion for Protective Order Pursuant to Trial Rule 26, asking the Indiana
state court to seal the DNA test. This Motion provided in part that it was necessary
to seal the record because Ms. L~ planned to object to the relevancy and admissibility
of the test. On September 9, 2004, the Indiana state probate court granted Ms. L~'s
motion, ordering that "the results from the DNA in this matter shall be sealed until
such time as the Court admits them as part of the record." The test indicated that
Michael L~ was not the father of Quentin L~. On October 21, 2004, the state probate
court issued an order and judgment finding that Quentin L~ was not the heir of Michael
L~, pursuant to a stipulation by the parties. In March 2005, the results of the DNA
test were provided to the Agency by Shelly K~'s husband.
DISCUSSION
A. Scope of the protective order.
As a general matter, court records are typically made available to the public. See Ind. S. Ct. Admin. R. 9(B), Commentary ("all persons, including members of the general public, the media, and commercial
and noncommercial entities, are entitled to the same basic level of access to court
records"). However, where a privacy interest exists that would countervail against
the policy of open access to the public, such records are restricted from public access
either as matter of course, or by court order. See id. at R. 9(D)(1) ("A court record is accessible to the public except as provided sections
(G) and (H) of this rule, or as otherwise ordered sealed by the trial court").
The September 2004 DNA test at issue was sealed pursuant to Indiana Trial Rule 26(c),
which states:
Upon motion by any party or by the person from whom discovery is sought, and for good
cause shown, the court in which the action is pending . . . may make any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including one or more of the following:
(1) that the discovery not be had;
(2) that the discovery may be had only on specified terms and conditions, including
a designation of the time or place;
(3) that the discovery may be had only by a method of discovery other than that selected
by the party seeking discovery;
(4) that certain matters not be inquired into, or that the scope of the discovery
be limited to certain matters;
(5) that discovery be conducted with no one present except the parties and their attorneys
and persons designated by the court;
(6) that a deposition after being sealed be opened only by order of the court;
(7) that a trade secret or other confidential research, development, or commercial
information not be disclosed or be disclosed only in a designated way;
that the parties simultaneously file specified documents or information enclosed in
sealed envelopes to be opened as directed by the court. If the motion for a protective
order is denied in whole or in part, the court may, on such terms and conditions as
are just, order that any party or person provide or permit discovery. The provisions
of Trial Rule 37(A)(4) apply to the award of expenses incurred in relation to the
motion.
Ind. R. Trial P. 26(c). The Indiana Supreme Court has held that Trial Rule 26(c) allows a trial court to
impose conditions on discovery, for good cause, where a party seeks judicial protection
from a perceived abuse of the discovery process. Jacob v. Chaplin, 639 N.E.2d 1010, 1012 (Ind. 1994). Indiana courts have also consistently held that
trial courts have an inherent power to prescribe the terms and conditions of discovery,
absent an abuse of discretion. Jacob, 639 N.E.2d 1010, 1012; Kristoff v. Glasson, 778 N.E.2d 465, 470 (Ind. Ct. App. 2002).
Thus, the lower state court in this case had wide discretion to issue a protective
order specifying the terms under which the DNA test could be used, including how it
could be obtained, accessed, and disseminated, and by whom. For example, in one recent
marital dissolution case in Indiana, the parties stipulated to protective orders designed
to protect the confidential status of private information obtained during discovery;
the trial court in that case issued a protective order stating that such discovery
"shall be used only for the conduct of this litigation and for no other purpose whatsoever,
and shall not be given, shown, made available, or communicated in any way" to anyone
other than individuals designated by the court order. Bobrow v. Bobrow, 810 N.E.2d 726, 729 (Ind. Ct. App. 2004). Here, the trial court issued an order
stating only that "the results from the DNA in this matter shall be sealed until such
time as the Court admits them as part of the record." Because Tammy L~ stipulated
to the fact that Quentin L~ was not the heir of Michael, the DNA test was never unsealed
and made part of the record. Given the general language of the protective order, the
intent of the Court in issuing this sealing order is unclear. See Morgan v. U.S. Dep't of Justice, 923 F.2d 195, 197-98 (D.C. Cir. 1991) (discussing different possible intention of
Court's sealing order, and resulting effects on subsequent dissemination).
Indiana courts have held that third parties cannot obtain and disseminate sealed documents
from the court file, even where the third parties obtained access to court records
prior to the protective order. See, e.g., Howard Publications v. Lake Michigan Charters, 649 N.E.2d 129 (Ind. Ct. App. 1995). However, unlike in Howard Publications, the Agency did not obtain the DNA test from the court file, but received the sealed
document through no action of its own; instead, the Agency came into possession of
the sealed DNA test through the actions of Shelly K~'s husband, a non-party. Moreover,
unlike a newspaper, the Agency has no intention of disseminating the information,
and is instead using it internally in a manner not open to the public. Any policy
interest in protecting a party "from annoyance, embarrassment, oppression, or undue
burden or expense," see Ind. R. Trial P. 26(c), is thus minimally implicated by the Agency's use of the document.
But, in the absence of guiding precedent, it is difficult to ascertain the exact scope
of the protective order and the restrictions which might limit SSA as a non-party
when, as here, the record was obtained from another non-party to the litigation. In
any event, we need not resolve the issue of scope of the protective order, given the
doctrine of sovereign immunity, discussed below.
B. Even if the Indiana trial court intended to prevent use or dissemination of the
DNA test by the litigants to a third party, it cannot enforce its protective order
or assert contempt powers against an agency of the federal government.
Even assuming that Tammy L~ or the Indiana trial court objects to the Agency's use
of the sealed DNA test, sovereign immunity prevents the Agency from exposure to any
liability resulting from use of the document. The doctrine of sovereign immunity provides
that "[t]he United States, as sovereign, 'is immune from suit save as it consents
to be sued . . . and the terms of its consent to be sued in any court define that
court's jurisdiction to entertain the suit.'" Lehman v. Nakshian, 453 U.S. 156, 160 (1981), quoting United States v. Testan, 424 U.S. 392, 399 (1976) and United States v. Sherwood, 312 U.S. 584, 586-87 (1941).
Thus, the United States, or any agency thereof, can only be exposed to legal liability
in a court of law if the United States expressly waives sovereign immunity, in the
form of a specific statutory authorization. Bosaw v. Nat. Treasury Employees' Union, 887 F.Supp. 1199, 1210 (S.D. Ind. 1995). Here, no applicable statutory authorization
would allow the Indiana trial court to enforce its protective order against the Agency.
Indeed, federal courts have uniformly held that, absent an express waiver of sovereign
immunity, contempt proceedings brought against federal officers or agencies cannot
be sustained because state courts do not have jurisdiction to enforce such contempt
actions. Schwett v. Schenk, 792 F.2d 1447, 1451-52 (9th Cir. 1986); Boron Oil Co. v. Downie, 873 F.2d 67, 70 (4th Cir. 1989) ("The [Agency] has not waived its immunity, thus
the state court (and the federal court on removal) lacks jurisdiction to proceed against
a federal employee acting pursuant to agency direction.").
While the above cases deal specifically with whether federal agencies have to comply
with state court subpoenas or other instruments compelling discovery, and rely in
part on the Touhy doctrine, we believe that the principles contained therein are applicable in this
case. See also Bosaw, 887 F.Supp. 1199, 1212 (finding upon review of the case law that where the case
originates in state court, application of the Touhy doctrine is also often accompanied by lack of jurisdiction stemming from sovereign
immunity, reflecting an overall concern with federalism). Sovereign immunity must
be expressly waived, and as that has not occurred here, we believe that the Agency
cannot be held in contempt by a state court. Accordingly, we recommend that the Agency
use the DNA test currently in its possession to re-determine whether Quentin L~ is
entitled to benefits.
CONCLUSION
The scope of the protective order issued by the Indiana lower court pursuant to Trial
Rule 26(c) appears somewhat unclear. As the Agency obtained the document through no
action of its own, and has no intention of publicly disseminating it, sealing may
not bar the Agency from use of the document. In any event, even if the state court
were to disagree with this interpretation and issue a contempt sanction, the doctrine
of sovereign immunity prevents the Agency or its employees from being held liable,
absent an express waiver of immunity, which is not present here. Thus, we do not believe
the Indiana trial court's protective order prevents the Agency from using the DNA
test record already in its possession. We therefore recommend that the Agency use
the DNA test in the re-determination of Quentin L~'s eligibility for benefits. Michael
L~'s file is returned for further processing.