United States District Court, E.D. North Carolina, Western Division
B. Jones, Jr. United States Magistrate Judge.
DOCUMENT RELATES TO: ALL CASES
matter comes before the Court on Defendant Murphy-Brown
LLC's Motion to Seal [DE-134]. Plaintiffs have responded
[DE-15 6] in opposition to the motion and all further
responsive briefing is complete [DE-164]. For the reasons set
forth below the motion is denied without prejudice.
21, 2015, this court entered the parties' consent
protective order governing the exchange of confidential
information during discovery. [DE-27]. The court also entered
an order to further detail the parties' obligations in
filing confidential materials under seal. [DE-28]. In its
production of documents during discovery Defendants
designated as confidential documents stamped MB 100103000032,
MB 100103000033, MB 100103000034, MB 100103000014, MB
100103000022 and MB 100103000061, MB 100103000062, MB
100103000063 and MB 100103000064 ("Subject
Documents"). See [DE-135-1] at 1, 3, 6.
9, 2016, Plaintiffs filed a motion to compel. [DE-117].
Specifically, Plaintiffs moved the court to compel Defendant
to produce documents that belong to non-party Smithfield
Foods, Inc. ("Smithfield") that were in
Defendant's possession, custody or control. Id.
Plaintiffs included the Subject Documents as a sealed exhibit
to their brief in support of their motion. Ex. 13
[DE-118-13]. In their brief, Plaintiffs referred to the
documents in support of their argument that the exchange of
the documents contained in Exhibit 13 between Defendant and
non-party Smithfield demonstrates sufficient control to
support an order directing Defendant produce the requested
documents, and Plaintiffs redacted the portion of their brief
which discusses Exhibit 13. [DE-118] at 9. The court denied
the motion to compel. [DE-149].
now moves to seal the Subject Documents and to maintain under
redaction that portion of Plaintiffs' brief discussing
courts of this country recognize a general right to inspect
and copy public records and documents, including judicial
records and documents." Nixon v. Warner Commc
'ns, Inc., 435 U.S. 589, 597 (1978) (internal
footnote omitted). The Fourth Circuit has directed that
before sealing publicly filed documents the court must first
determine if the source of the public's right to access
the documents is derived from the common law or from the
First Amendment. Stone v. Univ. of Md., 855 F.2d
178, 180 (4th Cir. 1988). "[T]he common law presumption
in favor of access attaches to all 'judicial records and
documents, ' [while] the First Amendment guarantee of
access has been extended only to particular judicial records
and documents [, ]" such as those filed in connection
with a motion for summary judgment. Id. (quoting
Nixon, 435 U.S. at 597 & citing Rushford v.
New Yorker Magazine, Inc., 846F.2d249, 253 (4th Cir.
1988);//? re Washington Post Co., 807F.2d383, 390
(4th Cir. 1986)).
Subject Documents are judicial records because Plaintiffs
submitted these materials in support of their motion to
compel and the court considered them in ruling on the motion,
thus they played a role in the adjudicative process. See
In re Application of the United States for an Order Pursuant
to 18 U.S.C. Section 2703(D), 707 F.3d283, 290 (4th Cir.
2013) ("[D]ocuments filed with the court are
'judicial records' if they play a role in the
adjudicative process, or adjudicate substantive
rights.") (citations omitted); United States v.
Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("[T]he
item filed must be relevant to the performance of the
judicial function and useful in the judicial process in order
for it to be designated a judicial document.").
Furthermore, because the Subject Documents are related to a
discovery motion and the discovery process is not typically
open to the public, they are not subject to the First
Amendment right to access. See 360 Mortg. Grp., LLC v.
Stonegate Mortg Corp., No. 5:14-CV-00310-F, 2016 WL
3030166, at *7 n.6 (E.D. N.C. May 25, 2016) (applying the
"experience and logic" test, which considers
whether the proceeding before the court is of the type
traditionally open to the public and whether the proceeding
benefits from public access, in determining when the First
Amendment right to access applies).
presumption of access under the common law is not absolute
and its scope is a matter left to the discretion of the
district court. Va. Dep 't of State Police v.
Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). The
presumption '"can be rebutted if countervailing
interests heavily outweigh the public interests in access,
' and' [t]he party seeking to overcome the
presumption bears the burden of showing some significant
interest that outweighs the presumption.'"
Id. (quoting Rushford, 846 F.2d at 253).
"Some of the factors to be weighed in the common law
balancing test 'include whether the records are sought
for improper purposes, such as promoting public scandals or
unfairly gaining a business advantage; whether release would
enhance the public's understanding of an important
historical event; and whether the public has already had
access to the information contained in the
records.'" Id. (quoting In re Knight
Publ. Co., 1A3 F.2d 231, 235 (4th Cir. 1984)). Finally,
prior to sealing a judicial record the court must (1) give
the public notice of the request to seal and a reasonable
opportunity to challenge it; (2) consider less drastic
alternatives to sealing; and (3) "state the reasons for
its decision to seal supported by specific findings, and the
reasons for rejecting alternatives to sealing in order to
provide an adequate record for review." In re Knight
Pub. Co., 743 F.2d at 235 (citation omitted).
court has reviewed the Subject Documents and is unable to
determine Defendant has sufficiently shown any significant
interest that outweighs the presumption of access. Defendant
argues that all of the documents contain commercially
sensitive information and data about funding and budgets for
the activities of a third-party, as well as Defendant's
strategic plan for promotion of its business. It is difficult
for the court to make this conclusion. The documents
purportedly belong to a third- party, appear unauthored by
Defendant, and Defendant does not appear to be included in
the correspondence included in the Subject Documents or to be
mentioned in the documents at all. This absence raises
questions as to the basis on which Defendant has made its
claims as to the nature of the documents. To that end,
Defendant has provided the court only with briefing
statements, which fail to provide a clear explanation as to
the nature of the documents and reasons they should remain
sealed. See Erichson v. RBC CapitalMkts., LLC, 883
F.Supp.2d 562, 574 (E.D. N.C. 2012) (nothing more than a
generalized description of documents as containing
"confidential commercial information" fails to
provide sufficient basis to overcome common law presumption
of access) (citing Nixon, 435 U.S. at 597); see
also Cochran v. Volvo Grp. North America, LLC, 931
F.Supp.2d 725, 730 (M.D. N.C. 2013) (holding that
counsel's briefing statements are not evidence, and while
the parties' stipulation or representation that the
documents contain confidential business information may be
considered as some evidence, such representations must be
weighed against competing interests) (citations omitted);
Bayer CropScience, Inc. v. Syngenta Crop Protection,
LLC, No. 1:13-CV-316, 2013 WL 12137000, at *1 (M.D. N.C.
Dec. 12, 2013) (unpublished) (statements in a brief
insufficient to justify motion to seal in the absence of a
stipulation or joint representation detailing confidential
nature of information).
the moving party must offer a factual basis on which the
court could make specific findings to justify sealing and
show that alternatives would not be sufficient.
Erichson, 853 F.Supp.2d at 574 (citing In re
Knight, 743 F.2d at 235). Here, to support its argument
that there are no such alternatives, Defendant simply offers
that courts have found no alternatives where the material to
be sealed contains sensitive business information. [DE-135]
at 5 (citing SAS Institute, Inc. v. World Programming
Limited, No. 5:10-CV-25-FL, 2016 U.S. Dist. LEXIS 61066
(E.D. N.C. May 9, 2016) (unpublished)). The court finds the
instant case distinguishable from those where the
confidential, proprietary or commercially sensitive nature of
the documents is readily apparent from the materials provided
to the court. See SAS Institute, Inc., 2016 U.S.
Dist. LEXIS 61066, at *2-3 (allowing consent motion to seal
exhibits in support of a motion for attorney's fees
containing privileged attorney invoices, time entries).
Defendant's assertion offers no factual basis on which
the court may make the requisite findings, and is especially
tenuous given the uncertain nature of the documents and the
basis on which Defendant may attest to that nature.
Accordingly, the motion is denied without prejudice. However,
the documents shall remain sealed for 14 days from the date
of this order to allow Defendant to refile ...