Shane A. Marx (Bar. No.

13293)
James H. Hunnicutt (Bar No. 9341)
David S. Dolowitz (Bar No. 0899)
DOLOWITZ HUNNICUTT
299 South Main Street, Suite 1300
Salt Lake City, Utah 84111
Tel: (801) 535-4340
Fax: (801) 535-4346
Email: shane@dolowitzhunnicutt.com
jim@dolowitzhunnicutt.com
sandy@dolowitzhunnicutt.com

Attorneys for Plaintiffs


IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


KATE DOE &
BETH ROE, as individuals and in loco parentis
for their unborn child,

Plaintiffs,

vs.

STATE OF UTAH,
GARY R. HERBERT, as Governor of Utah, &
SEAN D. REYES, as Attorney General of
Utah,

Defendants.


MOTION FOR PROTECTIVE ORDER
SEALING CASE

Case No. 2:14-cv-00061-CW-BCW

Judge Clark Waddoups
Magistrate Judge Brooke C. Wells

Pursuant to FRCP 5.2(c)(2) and DUCivR 5-2(a), plaintiffs Kate Doe and Beth Roe move
the Court for a protective order sealing this case, parallel in effect to the Order Classifying File as
Private Record, previously entered by the state court in the above-entitled matter before removal
Case 2:14-cv-00061-CW-BCW Document 10 Filed 02/05/14 Page 1 of 8


2
to this Court. The state court's Order Classifying File as Private Record is attached hereto as
Exhibit A. A proposed form of Protective Order Sealing Case is filed herewith.
BACKGROUND
1. On January 23, 2014, plaintiffs filed this case in the Third Judicial District Court
of the State of Utah, seeking the protections for their family that flow from formal legal recognition
of their marital relationship.
2. To assure the routine privacy appropriately afforded families and marriage in the
process of litigation, plaintiffs concurrently sought an Order Classifying File as Private Record
with the filing of their complaint.
3. On January 24, 2014, the Honorable Judge Robert Faust granted plaintiffs' request
for Order Classifying File as Private Record, attached hereto as Exhibit A, under the substantive
Utah law governing privacy rights in domestic and marital relations cases. Not only was there a
written order in place, Judge Faust also explicitly addressed the privacy concerns and his orders
classifying the case as private with state defendants in a hearing held on January 27, 2014. Therein,
Judge Faust expressly advised the state defendants of their obligations under his Order Classifying
File as Private Record, and he required everyone present in the courtroom to identify their
affiliation to the parties and closed the proceedings to the public.
4. The intentional disclosure or publication of a record once classified as private by
the court is contemptuous conduct and a class B misdemeanor under Utah law. UTAH CODE
78B 6-301(3), 301(5), and 63G-2-801(1)(a).
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3
5. In violation of the existing state court order and Utah law, defendants failed to take
any precautions to safeguard plaintiffs' family privacy or to comply with the existing state court
orders when they filed their Notice of Removal and a copy of the Complaint as a public record in
this Court. In doing so, defendants made the complaint widely available.
6. Plaintiffs were not immediately aware of defendant's actions until they received
multiple telephone calls regarding news articles about this case. The multiple news publications
reported information from the complaint that easily identified plaintiffs, despite their use of
protective pseudonyms in the pleadings.
7. Defendants' disregard for plaintiffs' privacy interests resulted in the intimate details
of plaintiffs' private family life widely disseminated in numerous publications, both locally and
nationally. The news publications quote from the Complaint and detail plaintiffs' relationship
history, the manner in which they conceived a child, and the date on which their child is expected
to be born. See internet search results and news articles, attached as Exhibit B.
8. As a result of defendants' actions, plaintiff's family became the target of the very
inflammatory, sensationalized, and hurtful anonymous comment against which the state court
order and law governing privacy in domestic relations is supposed to protect. See news publication
comments, attached as Exhibit C. Examples of such published comments on local news forums
include, but are not limited to, the following sampling of negative reaction:
a. "Being gay is an immoral act against God and Man. Therefore it does not
give them any kind of rights because it is a sin. It is also illogical. The human body was
not designed to support their actions. Therefore their supposed 'rights' should be denied."
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4
b. "Two women CANNOT be a couple. If two women want to live together
so be it but do don't force your immoral beliefs on innocent children!"
c. "stop the degradation of society"
d. "it's not their baby it's Doe's and some random guys baby"
e. "I don't want it presented in our society as being normal because it's not!!
and I definately [sic] don't want it being taught to my children and grandchildren in schools
as a normal family"
f. "This is stupid. Regardless of your stance on SSM, this should be
recognized as very poor parenting."
9. Defendants requested to seal the complaint in this matter only after plaintiffs
confronted them about the impropriety of their actions. Rather than express any empathy or at least
acknowledge the distress their actions caused, the state defendants blithely asserted that "Any
further action to seal the record in this matter based on the Third District Courts classification of
the state court record as private shall be the responsibility of the Plaintiffs under DUCivR 5-2.1."

See Defs.' Mot. to Seal Compl. 2.
10. Plaintiffs are understandably afraid that defendants' actions and the publicity it has
caused will further identify them as the plaintiffs in this case and that they will be subject to added
discrimination for their efforts to protect their family through the court process. These fears are
entirely valid given the speed with which the news of this case has spread, the nature of public
comments expressed in relation to those news stories, and the lack of any protections in Utah for
even the most basic housing and employment needs of families like that of the plaintiffs.
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5
ARGUMENT
The private nature of family relations warrant restricting nonparties' access to the record
and proceedings in this case, as the state court previously ordered prior to removal. Plaintiffs seek
judicial determination and vindication of legal protections for their family. In this process, they
are entitled to the privacy and respect traditionally afforded when family relations come before
courts.
Contrary to state defendants' position, it is not clear that the state court's Order Classifying
File as Private Record was stripped of any force in the removal process. At the very least, that
order was effective when state defendants made the complaint public, until this Court assumed
jurisdiction through removal.
Moreover, to the degree that defendants have asked this Court to exercise supplemental
jurisdiction over state law claims regarding marriage and family relations, such claims are subject
to Utah law governing the plaintiffs' substantive rights of privacy. Family privacy is one of the
most sacred interests contemplated under the law. See Griswold v. Connecticut, 381 U.S. 479, 485
(1965) (describing marriage as "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees"). To safeguard this privacy, family and domestic relations
cases are traditionally shielded from unrestricted public access. See, e.g., UTAH CODE 30-3-4(2)
and UTAH R. JUD. ADMIN. 4-202.02 (providing for private classification in divorce, child support,
custody, and parentage actions). When a child is involved, the need to maintain privacy takes on
elevated significance. See id. 78B-6-141 (mandating that adoption files be sealed); and UTAH
CODE 78B-15-105 (directing protection of the "the health safety, privacy, and liberty of a child
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6
or other individual who could be jeopardized by disclosure of identifying information" in
parentage actions).
For those reasons, Judge Faust expressly found that "Plaintiffs' privacy interests outweigh
any interest in public access to this case file and record" and the "other alternatives to closure
would not sufficiently safeguard plaintiff's privacy interests." The state defendants did not contest
plaintiffs' request or the state court's findings on this point. Consequently, Judge Faust ordered that
this case file be classified as private and protected from disclosure to nonparties. Once so classified
under Utah law, "[t]he record is private until the judge determines it is possible to release the record
without prejudice to the interests that justified closure." Id. 30-3-4(2)(c).
Despite removal, there has been no change in circumstances or other reason to believe that
the release of the record will not prejudice plaintiffs' interests in maintaining their familial rights
to privacy. Rather, the state defendants' disclosure of the complaint has demonstrated the need to
further protect this family's privacy as they seek clarification of their rights in the current political
environment. Consequently, plaintiffs respectfully request that this Court renew the state court's
order or otherwise enter an order sealing and restricting nonparties' access to any court filings or
proceedings.
CONCLUSION
Plaintiffs deserve privacy in their efforts to protect their family. A real fear of retribution
comes with public access to this case, as this animus is the very reason plaintiffs come to the court
seeking protections for their family. Public access to the filings and proceedings would discourage
plaintiffs and others like them from seeking the courts' assistance. Thus, plaintiffs respectfully
Case 2:14-cv-00061-CW-BCW Document 10 Filed 02/05/14 Page 6 of 8


7
request that the Court restrict nonparties' access to this case and enter the concurrently filed
proposed form of Protective Order Sealing Case.
DATED this 5
th
day of February , 2014
DOLOWITZ HUNNICUTT, PLLC

/s/ Shane A. Marx
SHANE A. MARX
Attorney for Plaintiffs


Case 2:14-cv-00061-CW-BCW Document 10 Filed 02/05/14 Page 7 of 8


8
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 5
th
day of February, 2014, I caused a true and correct
copy of the foregoing to be filed and thereafter served, pursuant to FRCP 5 and DUCivR 5-1, on
the following person(s), by the means indicated herein.

Joni J. Jones
Meb W. Anderson
Assistant Attorney Generals
Parker Douglas
Chief of Staff and General Counsel
OFFICE OF THE UTAH ATTORNEY GENERAL
160 E. 300 S., 6th Floor
P.O. Box 140856
Salt Lake City, UT 84114-2320
Fax: (801) 366-0101
Tel: (801) 366-0100
Email: jonijones@utah.gov
mebanderson@utah.gov
pdouglas@utah.gov
U.S. Regular Mail
Hand Delivery
Facsimile Transmission
E-Mail
X E-Filing CM/ECF

/s/ Shane A. Marx


Case 2:14-cv-00061-CW-BCW Document 10 Filed 02/05/14 Page 8 of 8





EXHIBIT
A




Case 2:14-cv-00061-CW-BCW Document 10-1 Filed 02/05/14 Page 1 of 3
Shane A. Marx (Bar. No. 13293)
James H. Hunnicutt (Bar No. 9341)
David S. Dolowitz (Bar No. 0899)
DOLOWITZ HUNNICUTT
299 South Main Street, Suite 1300
Salt Lake City, Utah 84111
Tel: (801) 535-4340
Fax: (801) 535-4346
Email: shanedolowitzhunnicutt.com
jimdolowitzhunnicutt.com
sandydolowitzhunnicutt.com
Attornevs for Plaintiffs
IN THE THIRD JUDICIAL DISTRICT COURT
IN AND FOR SALT LAKE COUNTY, STATE OF UTAH
KATE DOE &
BETH ROE, as individuals and in loco parentis Ior
their unborn child,
PlaintiIIs,
vs.
STATE OF UTAH,
GARY R. HERBERT, as Governor oI Utah, &
SEAN D. REYES, as Attorney General oI Utah,
DeIendants.
ORDER CLASSIFYING FILE AS PRIVATE
RECORD
Case No.
THE HONORABLE
THIS MATTER comes beIore the Court by way oI plaintiIIs' Motion and Memorandum
to ClassiIy File as Private Record, pursuant to Utah Rule oI Judicial Administration 4-202.04(2)
(C)(iv). Having reviewed the pleadings and weighed the various interests involved, THE
COURT HEREBY ORDERS, AD1UDGES, AND DECREES THAT:
The Order of Court is stated below:
Dated: J anuary 24, 2014 /s/ Robert Faust
10:05:24 AM District Court J udge
J anuary 24, 2014 10:05 AM 1 of 2
Case 2:14-cv-00061-CW-BCW Document 10-1 Filed 02/05/14 Page 2 of 3
1. The PlaintiIIs' privacy interests outweigh any interest in public access to this case
Iile and record;
2. Any other alternatives to closure would not suIIiciently saIeguard plaintiII's
privacy interests;
3. This case includes a claim to adjudicate parentage, which is classiIied as private
in Utah Rule oI Judicial Administration 4-202.02(4)(B)(viii);
4. This case and associated Iilings and docket are classiIied as private, as
contemplated and governed in Utah Rule oI Judicial Administration 4-202.02(4)(A); and
2. The plaintiIIs may proceed under the protective pseudonyms, Kate Doe and Beth
Roe.
IT IS SO ORDERED.
BY THE COURT:
Electronic signature, date oI entry, and judicial seal at top.
Third District Court Judge
2
J anuary 24, 2014 10:05 AM 2 of 2
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EXHIBIT
B




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EXHIBIT
C




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Shane A. Marx (Bar. No. 13293)
James H. Hunnicutt (Bar No. 9341)
David S. Dolowitz (Bar No. 0899)
DOLOWITZ HUNNICUTT
299 South Main Street, Suite 1300
Salt Lake City, Utah 84111
Tel: (801) 535-4340
Fax: (801) 535-4346
Email: shane@dolowitzhunnicutt.com
jim@dolowitzhunnicutt.com
sandy@dolowitzhunnicutt.com

Attorneys for Plaintiffs


IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF UTAH, CENTRAL DIVISION


KATE DOE &
BETH ROE, as individuals and in loco parentis
for their unborn child,

Plaintiffs,

vs.

STATE OF UTAH,
GARY R. HERBERT, as Governor of Utah, &
SEAN D. REYES, as Attorney General of
Utah,

Defendants.


PROTECTIVE ORDER SEALING CASE

Case No. 2:14-cv-00061-CW-BCW

Judge Clark Waddoups
Magistrate Judge Brooke C. Wells

THIS MATTER comes before the Court by way of plaintiffs' Motion for Protective Order
Sealing Case. Having reviewed the basis of record herein and Pursuant to FRCP 5.2(d), (e)(2) and
DUCivR 5-2(a), THE COURT HEREBY ORDERS THAT:
Case 2:14-cv-00061-CW-BCW Document 10-4 Filed 02/05/14 Page 1 of 2


2
1. Plaintiffs have a substantive right to privacy in judicial proceedings involving their
marital and family relations under Utah law.
2. Plaintiffs' privacy interests outweigh any interest in public access to this case file
and record.
3. Any other alternatives to closure would not sufficiently safeguard plaintiff's privacy
interests.
4. Access to the filings and proceedings in this case shall be limited to the parties.
Nonparties shall not be permitted remote electronic access to any document filed with the Court.
5. Unless otherwise waived by plaintiffs, defendants have the affirmative duty to
safeguard all documents filed by either party with the Court. Under no circumstances shall
defendants disseminate or otherwise further permit nonparty access to the filings in this case.
IT IS SO ORDERED on this day of , 2014
BY THE COURT:


HONORABLE CLARK WADDOUPS
District Court Judge
HONORABLE BROOKE C. WELLS
Magistrate Judge
Case 2:14-cv-00061-CW-BCW Document 10-4 Filed 02/05/14 Page 2 of 2