United States District Court, E.D. North Carolina, Western Division
E. GATES, UNITED STATES MAGISTRATE JUDGE.
case comes before the court on the unopposed motion (D.E.
160) filed by plaintiff Valencell, Inc. ("plaintiff) to
maintain under seal the unredacted version of the court's
29 March 2017 Order (D.E. 147) resolving a motion to compel
(D.E. 118) filed by defendant Apple, Inc.
("defendant"). No. response to the 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
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 court order relates to a motion to compel, and
not a 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)).
plaintiff seeks the sealing of the aforementioned unredacted
court order because it contains confidential and commercially
sensitive business information protected by a confidentiality
agreement. Plaintiff contends that sealing the unredacted
order is needed to preserve the information's
confidentiality. The court agrees that the redacted 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 10 April 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 order has been redacted to preserve the confidential
information contained therein, the court finds that
alternatives to sealing the unredacted version of it do not
exist at the present time.
foregoing reasons, IT IS ORDERED that plaintiffs motion to
seal (D.E. 160) is ALLOWED. The Clerk shall retain the filing
at Docket Entry 147 under seal in accordance with Local Civil
Rule 79.2, E.D. N.C., except as may otherwise in the future
be ordered by the court.
The court notes that matters
addressed within the unredacted court order were generally
discussed in open court during the 16 March 2017 hearing on
defendant's underlying motion to compel, albeit with less
specificity than is contained in the unredacted court order.
See 16 Mar. 2017 Min. Entry (D.E. 142); 16 Mar. 2017
Trans. (D.E. 161). No. effort was made by plaintiff or any
other party to maintain the transcript of that court
proceeding under seal and accordingly it is and has been
publicly available. Because the unredacted court order
contains more detailed information and cites to documents
previously sealed by the court, the court finds that the
presumption of access nevertheless has been overcome.
Plaintiff is cautioned, however, that lack of diligence in