The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
INTRODUCTION Plaintiff Joy R. Whipple, M.D. (Dr. Whipple) filed a complaint against defendant Unum Group Corporation (Unum) alleging defendant violated the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq., in denying plaintiff disability benefits. (Docket 1). Unum admits the group disability insurance plan (Plan) with plaintiff's employer is subject to ERISA. (Docket 10). Unum admits it is both the insurer and the claims administrator of the Plan. (Docket 37-1, ¶ 2). Plaintiff filed a motion to compel to determine bias and conflict of interest by defendant in denying plaintiff benefits. (Docket 29). Defendant resists plaintiff's motion. (Docket 35).
On November 4, 2011, while plaintiff's motion was pending, the court entered an order requiring compliance with Fed. R. Civ. P. 5.2 and D.S.D. Civ. LR 5.2. (Docket 32). The court determined plaintiff's submission of exhibit 4 contained the employer's social security number, a personal identifier subject to protection under the E-Government Act of 2002, Fed. R. Civ. P. 5.2, and D.S.D. Civ. LR 5.21. Pending the redaction and refiling of exhibit 4, the court directed the Clerk of Court to restrict public access to Docket 31. (Docket 32).
On January 17, 2012, the court entered an order granting plaintiff's motion to compel. (Docket 40). On January 19, 2012, following an ex parte telephone call from defense counsel, the court directed the Clerk of Court to restrict access to the order of January 17 to court users and case participants pending resolution of an anticipated defense motion to seal and motion for a protective order. Id. That same day, January 19, 2012, plaintiff filed a redacted version of exhibit 4. (Docket 41-4). Plaintiff redacted from the exhibit the employer's social security number as contemplated by the court's order of January 17.*fn1
On January 20, 2012, defendant filed a motion to seal and a motion for a protective order. (Docket 43). Defendant's motions requested the court (1) seal plaintiff's attorney's affidavit exhibit (Docket 31-4) and the income amounts in lines 4-8 of the order granting plaintiff's motion to compel (Docket 40); (2) direct the income listed in plaintiff's exhibit 4 (Dockets 31-4) and the order (Docket 40) not be published by any third party; and (3) order the income information disclosed pursuant to the order (Docket 40) be subject to a protective order for confidentiality. Defendant proposed a protective order. (Docket 43-1).
On January 23, 2012, defendant filed amended motions to seal and for a protective order. (Docket 47). The amended motions expanded defendant's requests to include plaintiff's counsel's affidavit (Dockets 41 & 46). Id. On January 25, 2012, defendant separately filed a motion for an expedited order restricting access to exhibit 4 (Docket 41-4) and the income amounts on page 4 at lines 4-8 of the court's order (Docket 40). (Docket 48). That same day defendant filed a second amended motion for a protective order. (Docket 49). This motion again requests the court issue a protective order covering the income documents previously produced (Docket 31-4, 41-4, & 46-4) and any income information produced pursuant to the order (Docket 40) compelling discovery. Id. On January 25, defendant filed a second amended motion to seal, clarifying defendant's request that the court seal all income information previously filed (Dockets 31, 41 & 46) in the form of W-2s and 1099s. (Docket 50).
Following briefing, defendant's motions are ripe for resolution. For the reasons stated below, defendant's motions to seal and motions for a protective order are granted in part and denied in part.
MOTIONS TO SEAL It is undisputed there was no protective order entered by the court and in place prior to defendant's production of 2010 W-2s for four Unum employees and a Form 1099 for one independent contractor ("2010 income records") to plaintiff.*fn2 Defendant argues it thought there was an agreement with plaintiff that a protective order would eventually be entered and, in the meantime, plaintiff's counsel would handle the 2010 income records in a confidential manner. (Docket 54, p. 8). "In good faith and with an agreement that the documents would be treated as confidential, Unum did, however, subsequently produce the [2010 income records] . . . ." (Docket 35, p. 2).*fn3
Defendant calls this a "process of confidentiality." (Docket 54, p. 8). It argues Unum took "measures and engage[d] in a process to protect the information before providing it to Plaintiff." Id. First, Unum informed plaintiff it "considered income of third parties to be confidential, which was one of the reasons [defendant] requested Plaintiff agree to the protective order." Id. This declaration originates beginning with defense counsel's e-mail of February 1, 2011. (Docket 55-1). "I am attaching a protective order for confidentiality particularly because you are requesting financial information from third parties." Id. Defense counsel asked plaintiff to review the draft stipulation and sign it so defendant could get it filed with the court. Id. The e-mail concluded "[i]f you have suggested changes or would like to further visit about this matter, please let me know. Thank you." Id. The next day plaintiff's e-mail in response stated, "I will look over the protective order." Id.
The issue of a protective order came off the table on February 9, 2011, while the parties focused on mediation of plaintiff's claim. Defense counsel's e-mail stated, "I will hold off on further responding to the discovery requests, and we will hold off on working out the protective order language. In the event mediation does not resolve the case, we will then discuss the discovery and protective order issues . . . ." (Docket 53-1).
After mediation was unsuccessful counsel again discussed discovery issues. On April 12, 2011, defense counsel's e-mail stated, "May 18 I get you what discovery we agree to give you, as my client is not willing to turn over everything you've asked for." (Docket 53-2). This e-mail went on to discuss the need for plaintiff to file a motion to compel and after entry of the court's order the parties could complete discovery. Id. There is no mention of a protective order in this e-mail. Id.
On May 12, 2011, defense counsel's next e-mail addressed discovery and a protective order. "You asked me to let you know which of the individuals from whom you seek financial information were W2 vs 1099 individuals. Here is the list. I understand you will review this email and then let me know whether you will agree to a protective order being entered. As I explained, UNUM is willing to provide some financial information with a protective order. I will be out most of today, but back in Friday if you would like to further visit. Thank you." (Docket 53-3).
Without further discussion or resolution of the draft protective stipulation of February 2, 2011, defendant served plaintiff with defendant's answers to plaintiff's interrogatories on June 1, 2011.*fn4 (Docket 53-4). It is the court's understanding defendant provided plaintiff with the 2010 income records with the June 1, 2011, discovery. See Dockets 53-4 & 53-7. Neither defense counsel's cover letter nor ...