United States District Court, E.D. North Carolina, Western Division
E. Gates United States Magistrate Judge.
case comes before the court on the motion (D.E. 10) by
plaintiff Optima Tobacco Corporation ("plaintiff) to
seal its unredacted complaint (D.E. 8) and Exhibit A thereto
(D.E. 9), a manufacturing agreement. The motion to seal is
supported by a memorandum (D.E. 11) and unopposed by
defendants U.S. Flue-Cured Tobacco Growers, Inc. and UETA,
Inc. (collectively "defendants"). See D.E.
26 ¶¶ 8, 9. For the reasons set forth below, the
court will allow the motion in part and deny it in part.
Fourth Circuit has directed that before sealing publicly
filed documents the court must determine if the source of the
public's right to access the documents is derived from
the common law or the First Amendment. Doe v. Public
Citizen, 749 F.3d 246, 265-66 (4th Cir. 2014); Stone
v. Univ. of Md, 855 F.2d 178, 180 (4th Cir. 1988). The
common law presumption in favor of access attaches to all
judicial records and documents, whereas First Amendment
protection is extended to only certain judicial records and
documents, for example, those filed in connection with a
summary judgment motion. Doe, 749 F.3d at 267. Here,
as noted, the documents sought to be sealed are a pleading
and exhibit thereto, and therefore the right of access at
issue arises under the First Amendment. See Rushford v.
New Yorker Magazine, 846 F.2d 249, 252-53 (4th Cir.
the presumption of access under the common law is not
absolute and its scope is a matter left to the discretion of
the district court, "[w]hen the First Amendment provides
a right of access, a district court may restrict access
'only on the basis of a compelling governmental interest,
and only if the denial is narrowly tailored to serve that
interest.'" Virginia Dep't of State Police
v. Washington Post, 386 F.3d 567, 575
(4th Cir. 2004). The burden of establishing
the showing necessary to overcome a First Amendment right of
access falls upon the party seeking to keep the information
sealed. Id. Specific reasons must be presented to
justify restricting access to the information. Id.
(citing Press-Enterprise Co. v. Superior Court, 478
U.S.I, 15 (1986) ("The First Amendment right of access
cannot be overcome by [a] conclusory assertion")).
this case arises from the alleged breach of a manufacturing
agreement between the parties. Plaintiff seeks to redact
certain portions of its complaint that relate to pricing and
volume terms contained in the manufacturing agreement. It
also seeks to seal in its entirety the manufacturing
agreement comprising Exhibit A to the complaint.
has demonstrated that certain paragraphs of its unredacted
complaint contain confidential business information that is
subject to protection under a confidentiality provision in
the manufacturing agreement, is not
generally available to the public, and does not bear
importance to any public matters. Based on this showing, the
court finds that the presumption of access to the unredacted
complaint has been overcome. Wolfe v. Green, No.
2:08-1023, 2010 WL 5175165, at *2 (S.D. W.Va. 15 Dec. 2010)
(holding that First Amendment right of access overridden with
respect to proposed redactions that included personal
plaintiff has not demonstrated that the manufacturing
agreement needs to be sealed in its entirety. Plaintiff
characterizes the manufacturing agreement as "the
contract that is at the heart of this dispute" and
"the integral document that forms the basis of
[plaintiffs] breach of contract action." Pl.'s Mem.
(D.E. 11) 3, 4. Because of its importance to the case,
sealing the manufacturing agreement in its entirety is not
warranted. See Knight v. Manufacturers & Traders
Trust Co., 84 F.Supp.3d 436, 446 (D. Md. 2015)
("[T]his 'already strong presumption of access is
further strengthened when a document directly affects an
adjudication, such as a complaint in a motion to dismiss
proceeding, as is the case here.'" (quoting
Tobacco Tech., Inc. v. Taiga Int'l. N. V., No.
CCB-06-563, 2007 WL 172524, at *1 (D. Md. 17 Jan. 2007))).
addition, the public must
be given notice of a request to seal and a
reasonable opportunity to challenge it. In re Knight
Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984). Here,
the motion was filed on 9 November 2016. No opposition to
this motion has been filed by any party or non-party despite
a reasonable opportunity to do so.
the court is obligated to consider less drastic alternatives
to sealing, and where a court decides to seal documents, it
must "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." Id. Because, as discussed,
the unredacted complaint contains confidential information
not generally available to the public and not bearing
importance to public matters, the court finds that
alternatives to sealing the unredacted complaint do not exist
at the present time. The portion of plaintiff s motion
seeking to seal its unredacted complaint (D.E. 8) will
therefore be allowed.
court is not persuaded, however, that redaction is not a
suitable alternative to sealing the manufacturing agreement
in its entirety. Accordingly, the portion of the motion
seeking the sealing of the manufacturing agreement will be
denied. The manufacturing agreement shall remain under seal
in accordance with Local Rule 79.2(b)(3), but will not be
considered by the court. If it wishes to have the
manufacturing agreement considered by the court, it may file
a proposed redacted version of it or file it as a publicly
filed document, as set forth below. Note that the public
filing of the manufacturing agreement may vitiate the grounds
for redaction of the complaint and require the court to
revisit the issue of whether the unredacted copy of the
complaint may properly be sealed.
foregoing reasons, IT IS ORDERED that plaintiffs motion (D.E.
10) to seal is ALLOWED IN PART and DENIED IN PART as follows:
portion of plaintiff s motion seeking the sealing of the
unredacted copy of ...