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. ("Defendant") has moved to
seal certain portions of documents located on the docket at
[DE-161], and [DE-161-1] through [DE-161-5]. [DE-164].
Plaintiff Fredric N. Eshelman ("Plaintiff) opposes the
motion. [DE-203]. All matters raised in the briefing are ripe
for decision. The motion has been referred for disposition
pursuant to 28 U.S.C. § 636(b)(1)(A). [DE-191]. For the
reasons stated below, Defendant's motion is allowed in
part and denied in part.
October 18, 2017, Plaintiff filed a motion to compel the
production of unredacted documents responsive to Requests for
Production Nos. 10, 19-25. [DE-160]. Plaintiffs motion was
supported by his memorandum and attachments [DE-161 through
161-5], all of which are the subject of Defendant's
motion to seal. Upon their filing, Plaintiffs supportive
memorandum and attachments were sealed provisionally by the
clerk per the parties' joint protective order because
they contained materials considered confidential by one
October 23, 2017, Defendant moved to seal certain portions of
Plaintiff s memorandum and attachments on the ground that the
documents contained confidential information, as defined in
the Joint Stipulated Protective Order. Def.'s Mem.
[DE-165] at 3. On November 6, 2017, Plaintiff filed an
omnibus opposition to Defendant's motion to seal, as well
as to subsequent motions to seal filed by Defendant apart
from this one. Pl.'s Opp'n. [DE-203].
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.").
seeks to seal deposition transcripts, and the memorandum
itself to the extent it references the deposition
transcripts. Def.'s Mem. [DE-165]. Given that the
discovery process is generally not open to the public, any
right of access would arise under the common law. 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). 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.
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, 845 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)).
Defendant moves to seal Plaintiffs memorandum in support of
his motion to compel, as well as portions of the attached
exhibits. Although those submissions are currently under seal
in their entirety, pending decision by the court, Defendant
now asks the court only to keep under seal certain enumerated
portions of Mr. Zavrl's fact deposition [DE-161-1], Mr.
Auerbach's fact deposition [DE-162-2, -3], and Mr.
Auerbach's 30(b)(6) deposition [DE-161-4,
Defendant argues that the depositions contain business
information of the kind considered "confidential"
pursuant to the Joint Stipulated Protective Order, [DE-59].
Def.'s Mem. [DE-165] at 3. Defendant posits that, rather
than seal the documents in their entirety, the court should
either redact the enumerated pages and line numbers from the
attachments or require Plaintiff to re-file his motion with
only the portions of the transcripts that he contends are
required for a ruling on his motion to compel, excluding the
specific portions that Defendant considers confidential.
Def.'s Mem. [DE-165] at 1.
the court notes that Defendant has filed a subsequent motion
to seal documents with respect to Plaintiffs Statement of
Material Facts, [DE-171], regarding its Motion for Partial
Summary Judgment, [DE-169]. [DE-195]. Plaintiff attached to
his Statement of Material Facts the same depositions of Mr.
Zavrl and Mr. Auerbach that are at issue here. [DE-171-2, -5,
-8]. In its motion to seal documents as it pertains to
[DE-171], Defendant only seeks to have particular lines of
Mr. Auerbach's fact deposition sealed, and does not
request that any part of Mr. Zavrl's deposition
[DE-171-5], or Mr. Auerbach's 30(b)(6) deposition,
[DE-171-8], be sealed. Further, the particular lines of Mr.
Auerbach's fact deposition specified for sealing
pertaining to [DE-171] are not the same as those lines
specified for sealing pertaining to the instant motion,
[DE-164]. The two requests only overlap with respect to the
following portions of Mr. Auerbach's fact deposition:
43:1-52:16, 232:14-261:3, 270:15-271:18, 271:25-272:19, and
284:17-287:14. [DE-165, -195]. Accordingly, because Mr.
Zavrl's deposition, [DE-161-1], and Mr. Auerbach's
30(b)(6) deposition [DE-161-4, -5], are publicly available on
the docket and Defendant has not sought to seal those
depositions in its subsequent motion to seal, the court
denies the motion with respect to [DE-161-1, -4, and -5].
Cf. Johnson v. City of Fayetteville, No.
5:12-CV-456-F, 2014 WL 7151147, at *13 (E.D. N.C. Dec. 11,
2014) (concluding that documents initially filed under seal
in support of a motion to compel, but were later filed in
connection with the parties' dispositive motion and did
not warrant sealing, should not remain sealed, "because
the documents will now appear on the public docket, [and]
there appears to be little reason to keep another version
sealed on the docket."). For the same reason, the court
will only consider those portions of Mr. Auerbach's fact
deposition, [DE-161-2, -3], that overlap with its subsequent
motion to seal the deposition, [DE-195], namely 43:1-52:16,
232:14-261:3, 270:15-271:18, 271:25-272:19, and
court first considers that the document at issue is a
deposition transcript. The Fourth Circuit has held that, in
order for a right of access to a document to exist, the
document must be a "judicial record." Baltimore
Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989).
Further, "documents filed with the court are
'judicial records' if they play a role in the
adjudicative process, or adjudicate substantive rights."
In re U.S. for an Order Pursuant to 18 U.S.C. Section
2703(D), 707 F.3d at 290. Deposition
transcripts-"raw fruits of discovery"-are not
"judicial records" and thus the right to access
does not attach. See In re Policy Management Systems
Corp., 67 F.3d 296, 1995 WL 541623, at *3 (4th Cir.
Sept. 13, 1995).
the court has reviewed the enumerated list of page and line
numbers of the deposition, and finds that these portions do
contain sensitive business information-43:1-52:16 contains
testimony with respect to specific language of a sensitive
business contract, and 232:14-287:14 contains testimony with
respect to details surrounding the clinical trial of another
drug. Accordingly, the enumerated portions of [DE-161-2, -3]
are confidential and should remain under seal. With respect
to Mr. Auerbach's fact deposition, Plaintiff only cites
93:7-95:2 to support its argument to compel, and those lines
are not contained in the motion to seal. Pl.'s Mem.
[DE-161] at 7. Because the lines referenced in
Plaintiff's memorandum, [DE-161], do not overlap with
those contained in the motion to seal, the memorandum itself
does not contain confidential information and thus the motion
is denied with respect to [DE-161].
CM/ECF does not have the capability of maintaining under seal
certain pages or particular lines of the
attachments, the court would either be compelled to place the
entire attachments under seal, or require that the document
be refiled with the enumerated portions redacted. In light of
the court's duty to consider less drastic alternatives to
sealing, and Defendant's willingness to tailor its
request to specific portions, the court finds that refiling
the attachment with the confidential sections redacted is the
most efficient remedy. Accordingly, Defendant's motion is
DENIED with respect to [DE-161, 161-1, -4, and -5] and
ALLOWED with respect to [DE-161-2, -3]. The court orders
Plaintiff to re-file [DE-161-2, -3] such that 43:1-52:16,
232:14-261:3, 270:15-271:18, 271:25-272:19, and 284:17-287:14
are redacted, and the Clerk shall unseal [DE-161, 161-1, -4,