United States District Court, E.D. North Carolina, Western Division
E. GATES UNITED STATES MAGISTRATE JUDGE
case comes before the court on the consent motion (D.E. 113)
filed by defendant/counter-plaintiff Illinois Tool Works Inc.
(“defendant”) to maintain under seal an
unredacted discovery response by defendant (D.E. 108) filed
by plaintiff/counter-defendant Thompson Automotive Labs, Inc.
(“plaintiff”) as an exhibit in opposition to
defendant's motion for leave to file a second set of
amended affirmative defenses and counterclaims (D.E. 101).
Defendant has filed with its motion to seal a redacted
version of the exhibit (D.E. 114-1). No response to the
amended motion to seal has been filed, and the time to do so
has expired. For the reasons set forth below, the court will
allow 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 unredacted discovery response was filed in connection
with a motion for leave to file amended affirmative defenses.
While there is not a clear consensus as to the appropriate
level of protection to be afforded to a document filed in
connection with a motion to amend, because the exhibit does
not play a substantial role in the adjudicative process or
determination of substantive rights, it appears that the
right of access at issue arises under the common law. See
ATI Indus. Auto., Inc. v. Applied Robotics, Inc., No.
1:09-CV-471, 2014 WL 2607364, at *4-5 (M.D. N.C. 11 Jun.
2014) (noting lack of consensus in Fourth Circuit as to which
standard applies for sealing of documents related to a motion
to amend pleadings); see also In re U.S. for an Order
Pursuant to U.S.C. Section 2703(D), 707 F.3d 283, 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
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 unredacted
discovery response because it contains confidential and
commercially sensitive proprietary business information
protected by an amended protective order entered in this
case. See D.E. 75. The court agrees that the
material is 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 has been 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 3 November 2017. No opposition to the motion has
been filed by any 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 exhibit has been redacted to the extent
possible to preserve the confidential information contained
therein, the court finds that alternatives to sealing the
unredacted version do not exist at the present time.
foregoing reasons, IT IS ORDERED that defendant's motion
to seal (D.E. 113) is ALLOWED. The Clerk shall retain the
filing at Docket Entry 108 under seal in accordance with
Local Civil Rule 79.2, E.D. ...