United States District Court, E.D. North Carolina, Southern Division
FREDRIC N. ESHELMAN, Plaintiff,
PUMA BIOTECHNOLOGY, INC., Defendant.
B. Jones, Jr., United States Magistrate Judge
Puma Biotechnology, Inc. ("Puma") has moved to seal
documents located on the docket at [DE-79], [DE-80] and
[DE-80-1] through [DE-80-6]. [DE-84]. Puma moves also for
leave to file documents at [DE-87] through [DE-89] under
seal. [DE-90]. Plaintiff Fredric N. Eshelman
("Eshelman") opposes the motions. [DE-91]. All
matters raised in the briefing are ripe for decision. The
motions have been referred for disposition pursuant to 28
U.S.C. § 636(b)(1)(A). [DE-111]. For the reasons stated
below, Puma's motions are allowed.
February 12, 2017, Eshelman filed a motion to compel the
production of certain emails between Alan Auerbach, the CEO
of Puma, and Puma's counsel, in which Auerbach made jokes
of a disparaging and threatening nature regarding Eshelman.
[DE-79]. Eshelman's motion was supported by his brief and
attachments [DE-80 through 80-6], all of which are the
subject of Puma's motion to seal. Upon their filing,
Eshelman's motion and supportive brief and attachment
were sealed provisionally by the clerk per the parties'
joint protective order because they contained materials
considered confidential by one party.
February 21, 2017, Puma moved to seal Eshelman's motion,
brief and attachments on the grounds that the documents
contain references to material protected by the
attorney-client privilege. [DE-84]. Subsequently, on February
27, 2017, Puma moved for leave of court to file under seal
its memorandum in opposition to Eshelman's motion to
compel and supporting documents, as well as its memorandum in
support of the motions to seal. [DE-90].
August 1, 2017, the court denied Eshelman's motion to
compel finding that the communications between Auerbach and
Puma's counsel in the emails are protected from
disclosure by the attorney-client privilege. [DE-132].
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., 846 F.2d 249, 253 (4th Cir.
1988); In re Washington Post Co., 807 F.2d 383, 390
(4th Cir. 1986)). "[D]ocuments filed with the court are
'judicial records' if they play a role in the
adjudicative process, or adjudicate substantive rights."
In re Application of the U.S. for an Order Pursuant to 18
U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.
2013) (citations omitted); see also 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.").
the documents Puma seeks to seal relate to Eshelman's
motion to compel documents in discovery. Given that the
discovery process is generally not open to the public, the
right of access at issue arises under the common
360 Mort. Grp., LLC v. Stonegate Mort. Corp., No.
5:14-CV-310-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). This
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 factors
for consideration when analyzing the common law presumption
of access "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 'g Co.,
743 F.2d 231, 235 (4th Cir. 1984)).
the documents at issue either consist of a discussion between
attorney and client or discuss in detail that communication.
In light of the court's earlier ruling that the emails
are a privileged communication between attorney and client,
the presumption for access is rebutted. As the court observed
earlier, "[t]he attorney client privilege is the oldest
of the privileges for confidential communications known to
the commons law." [DE-132] at 4 (quoting Upjohn v.
United States, 449 U.S. 383, 389 (1981)). "Its
purpose is to encourage full and frank communication between
attorneys and their clients and thereby promote broader
public interests in the observance of law and administration
of justice." Upjohn, 449 U.S. at 389. The
interest served by maintaining the confidentiality of the
attorney-client communication in this case outweighs any
countervailing interest the public might have in reviewing
the document. See Burd v. Ford Motor Co., No.
3:13-CV-20976, 2015 WL 1781945, at *2 (S.D. W.Va. Apr. 15,
2015) (finding good cause to keep document of a privileged
communication between attorney and client sealed from public
addition, the public must be given notice of a request to
seal and a reasonable opportunity to challenge the request.
In re Knight, 743 F.2d at 235 (citing In re
Knoxville News-Sentinel Co., 723 F.2d 470, 474-76 (6th
Cir. 1983)). Here, the only opposition to the motion has been
from Eshelman, who argues Puma's motions to seal should
be denied because the material sought to be sealed is not
protected by the attorney-client privilege. [DE-91] at 2-3.
The court, however, determined otherwise and denied
Eshelman's motion to compel.
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." In re Knight, 743 F.2d at
235 (citation omitted). Because, as described above, the
exhibits in question contain privileged communications, the
court determines that alternatives to sealing do not exist.
Moreover, the court finds alternatives to sealing inadequate,
specifically that redaction would render the documents
meaningless and the disclosure of the remaining material
would not aid the public in understanding the issues
presented in this case.