United States District Court, E.D. North Carolina, Western Division
E. Gates, United States Magistrate Judge
proceeding comes before the court on the motion (D.E. 104) by
petitioners to seal their response (D.E. 99) to the answer of
Branch Bank & Trust ("BB&T") to the writ of
garnishment ("response") and the six attached
exhibits (D.E. 99-1 to 99-6). The government does not oppose
the motion. The documents have been under provisional seal
pending further action by the court. For the reasons set
forth below, the motion will be allowed in part and denied in
and other collection proceedings are civil in nature and may
be filed within an underlying criminal case. United
States v. Kollintzas, 501 F.3d 796, 800 (7th Cir. 2007);
United States v. Timilty, 148 F.3d 1, 3 (1st Cir.
1998). The Fourth Circuit has directed that before sealing
publicly filed documents in a civil or criminal case 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); In re U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290
(4th Cir. 2013) (citing Va. Dep't of State Police v.
Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004));
Stone v. Univ. of Md, 855 F.2d 178, 180 (4th Cir.
order for a right of access to a document to exist under
either the First Amendment or the common law, the document
must be a 'judicial record.'" In re U.S. for
an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d
at 290 (citing Baltimore Sun Co. v. Goetz, 886 F.2d
60, 63 (4th Cir. 1989)). Documents are judicial records
"if they play a role in the adjudicative process, or
adjudicate substantive rights." Id. (citing
In re Providence Journal Co., 293 F.3d 1, 9 (1st
the documents petitioners seek to have sealed are judicial
records. Such documents are "properly . . . before the
court in the course of an adjudicatory proceeding" and
are relevant to the adjudication regarding the writ of
garnishment issued to BB&T. In re Providence Journal
Co., 293 F.3d at 9. Thus, at minimum, the common law
right of access attaches to these documents.
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 response and exhibits sought to be maintained under seal
were filed in a post-judgment garnishment proceeding and do
not seek dispositive relief. Therefore, the right of access
at issue arises under only the common law. See Va. Dep
't of State Police, 386 F.3d at 575 (noting that the
Fourth Circuit has "never held that the public has a
First Amendment right of access" to the non-dispositive
civil motion process); 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. Va. Dep't of State Police, 386
F.3d at 575. 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., 143 F.2d 231, 235 (4th Cir. 1984)).
before a court may seal a hearing or document, "it must
(1) provide public notice of the request to seal and allow
interested parties a reasonable opportunity to object, (2)
consider less drastic alternatives to sealing . . ., and (3)
provide specific reasons and factual findings supporting its
decision." Ashcroft v. Conoco, Inc., 218 F.3d
288. 302 (4th Cir. 2000) (citing In re Knight Publ'g
Co., 743 F.2d at 235-36); see also In re Washington
Post Co., 807 F.2d 383, 390-91 (4th Cir. 1986).
the court agrees that petitioners have a significant
countervailing interest in sealing petitioner's response,
as well as Exhibits 2 through 6 attached thereto. However,
there is not a significant countervailing interest in support
of sealing Exhibit 1. Exhibit 1 consists of two pages
entitled "Corporate Resolution of Universal Mania
Inc." ("corporate resolution"). See
Corporate Resolution (copy attached). The document itself
indicates that it was filed with the Cumberland County, North
Carolina register of deeds on 19 May 2017. Id. As
such, it is a public record and not subject to sealing.
the response and Exhibits 2 through 6, the court agrees that
these documents contain sensitive financial and business
information, including that of a non-party. See Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 589 (1978)
(concluding a court may seal "sources of business
information that might harm a litigant's competitive
standing"); Trapp v. Suntrust Bank, 2016 WL
6833986, at *3-4 (M.D. N.C. 18 Nov. 2016) (sealing documents
containing confidential business information); Capitol
Comm'n, Inc. v. Capitol Ministries, No.
5:ll-CV-214-BO, 2013 WL 5369421, at *l-2 (E.D. N.C. 24 Sept.
2013) (sealing documents containing financial information not
generally available to the public). Additionally, release of
the information would not enhance the public's
understanding of an historical event or hinder its
understanding of these proceedings, and the public does not
already have access to these documents. Thus, the court finds
that the common law right to access has been overcome. The
court also finds that these documents cannot be redacted in
any meaningful manner.
addition, interested parties were given a reasonable
opportunity to object. The renewed motion to seal was filed
on 9 October 2017, and no opposition to them has been filed
by any party or non-party.
THEREFORE ORDERED that defendant's renewed motion (D.E.
104) to seal is ALLOWED IN PART and DENIED IN PART as
1. Petitioner's response (D.E. 99) and Exhibits 2 through
6 (D.E. 99-2 to 99-6) shall remain SEALED until ...