United States District Court, E.D. North Carolina, Western Division
E. GATES MAGISTRATE JUDGE.
case comes before the court on the consent motion (D.E. 95)
filed by defendant/counter-plaintiff Illinois Tool Works Inc.
("defendant") to maintain under seal a document
(D.E. 90) containing discovery responses submitted to the
court in opposition to a motion to compel (D.E. 85). No
response to the motion to seal has been filed by any
non-party, and the time to do so has expired. For the reasons
set forth below, the court will deny the motion to seal
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,
the discovery responses sought to be maintained under seal
were filed in connection with a motion to compel, and not in
support of any motion that seeks dispositive relief.
Therefore, the right of access at issue arises under the
common law. See Covington v. Semones, No.
7:06cv00614, 2007 WL 1170644, at *2 (W.D. Va. 17 April 2007)
("In this instance, as the exhibits at issue were filed
in connection with a non-dispositive motion, it is clear
there is no First Amendment right of access.").
presumption of access under the common law is not absolute
and its scope is a matter left to the discretion of the
district court. Virginia 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 v. New Yorker Magazine,
Inc., 846 F.2d 249, 253 (4th Cir. 1988)). "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., 743 F.2d 231, 235
(4th Cir. 1984)).
defendant seeks the sealing of the aforementioned discovery
responses because they contain confidential and commercially
sensitive proprietary business information protected by an
amended protective order entered in this case (D.E. 75). The
court agrees that the material is generally of a confidential
nature. See Doe, 749 F.3d at 269 ("A
corporation may possess a strong interest in preserving the
confidentiality of its proprietary and trade-secret
information, which in turn may justify partial sealing of
court records."). It therefore finds that the
presumption of access may be overcome.
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 at 235. Here, the motion
was filed on 21 September 2017. No opposition to the motion
has been filed by any non-party despite a reasonable
opportunity to do so.
however, 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. Defendant
conclusorily contends that alternatives to sealing are not
adequate but does not explain why the materials in question
are not amenable to redaction in part. Because defendant has
not adequately set forth such explanation, the court is
unable to conclude that alternatives to sealing the discovery
responses in their entirety do not exist at the present time.
foregoing reasons, IT IS ORDERED that defendant's motion
to seal (D.E. 95) is DENIED without prejudice. The Clerk
shall retain the filing at Docket Entry 90 under seal pending
possible resubmission by defendant of an amended motion to
seal. Any such amended motion shall be filed by 2 November
2017. Defendant shall file with any such amended motion a
redacted version of the discovery responses at issue or
explain in a supporting memorandum why such redaction is not
a feasible alternative. If defendant does not file an amended
motion by 2 November 2017 in accordance with this order, its
motion shall be deemed denied with prejudice and the
discovery responses shall be treated ...