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Qayumi v. Duke University

United States District Court, M.D. North Carolina

May 1, 2018




         In this Title IX suit, the plaintiff, Ariana Qayumi, contended that the defendant Duke University's response to her sexual assault by two other students was clearly unreasonable, depriving her of access to educational opportunities and forcing her to transfer to another school. Ms. Qayumi seeks to seal some of the evidence submitted in connection with Duke's summary judgment motion. Two non-litigant students who were accused of the assault and a third student allegedly involved with them in another assault join in her request and also seek to seal additional evidence, as well as certain portions of some of the summary judgment briefing and their own motion to seal.

         I. Background

         “The courts of this country recognize a general right to inspect and copy . . . judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). This right of public access to judicial records derives from the First Amendment and the common law. Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004). When a party asks to seal judicial records, the court “must determine the source of the right of access with respect to each document, ” and then “weigh the competing interests at stake.” Id. at 576 (quoting).[1] The Court must also (1) give the public notice and a reasonable opportunity to challenge the request to seal; (2) “consider less drastic alternatives to sealing;” and (3) if it decides to seal, make specific findings and state the reasons for its decision to seal over the alternatives. Id.

         “The common law presumption in favor of access attaches to all judicial records and documents, ” but the “First Amendment guarantee of access has been extended only to particular judicial records and documents.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988). Judicial records are “documents filed with the court . . . [that] play a role in the adjudicative process, or adjudicate substantive rights.” In re Application of U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013) (collecting cases). To the extent the court does not rely on a document to reach its decision, the document is not a judicial record and no right of access applies. Hunter v. Town of Mocksville, 961 F.Supp.2d 803, 806 (M.D. N.C. 2013) (citing In re Application, 707 F.3d at 290-91); see also United States v. Moussaoui, 65 Fed.Appx. 881, 889 (4th Cir. 2003) (observing some court-filed documents “may not qualify as judicial records at all”). The more rigorous First Amendment standard applies to documents filed in connection with a summary judgment motion in a civil case. E.g., Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014).

         The public's right of access “may be abrogated only in unusual circumstances.” Stone, 855 F.2d at 182. The party seeking to limit public access bears the burden to show that sealing is appropriate. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). The First Amendment right of access to judicial records “yields only in the existence of a compelling governmental interest . . . that is narrowly tailored to serve that interest.” In re Application, 707 F.3d at 290.

         The party seeking to seal must provide specific reasons to support its position. Va. Dep't of State Police, 386 F.3d at 575; Press-Enter. Co. v. Superior Court of Ca., Riverside Cty., 478 U.S. 1, 15 (1986) (holding that “the First Amendment right of access cannot be overcome by [a] conclusory assertion”). Claims of confidentiality for court filings cannot be made indiscriminately and without evidentiary support. Bayer CropSci. Inc. v. Syngenta Crop Prot., LLC, No. 13-CV-316, 2013 WL 12137000, at *1 (M.D. N.C. Dec. 12, 2013); accord LLC v. RPost Commc'ns Ltd, No. CV-14-00126, 2016 WL 1158851, at *2 (D. Ariz. Mar. 24, 2016) (“[B]road allegations of harm, unsubstantiated by specific examples of articulated reasoning [are] not enough to overcome the strong presumption in favor of public access.”). Statements in a brief are not evidence, INS v. Phinpathya, 464 U.S. 183, 188 n. 6 (1984), and are insufficient to justify a motion to seal.

         II. Notice

         The Court has complied with the notice requirements set forth in Stone and Rushford. Duke, Ms. Qayumi, and the Non-Party Litigants filed these motions to seal between January and February 2018. Docs. 67, 70, 74, 82, and 91. Ms. Qayumi objects to the sealing of Docs. 71-1, 71-3, 71-4, 71-5, 71-6, 71-8, 71-22, 83-1, 77, and 78. Doc. 87; Doc. 96-1. No. other entity has objected to any of the motions to seal. See Mears v. Atl. Se. Airlines, Inc., No. 5:12-CV-613-F, 2014 WL 5018907, at *2 (E.D. N.C. Oct. 7, 2014) (“The filing of a litigant's motion to seal . . . is sufficient to provide public notice and opportunity to challenge the request to seal.”).

         III. Analysis

         The public has a strong interest in transparency at the summary judgment phase. See Rushford, 846 F.2d at 252 (“If the case had gone to trial and the documents were thereby submitted to the court as evidence, such documents would have been revealed to the public and not protected”). As noted supra, the party seeking to limit public access bears the burden to show that sealing is appropriate.

         A. Exhibits

         1. Law Enforcement Reports

         The Non-Party Litigants seek to seal these reports, contending they are protected by FERPA[2] and contain sensitive personal information. Ms. Qayumi opposes the request for permanent sealing. Doc. 87 at 1-2; Doc. 96-1.

         FERPA specifically excludes from its definition of “education records” those records “maintained by a law enforcement unit of the educational agency or institution that were created by that law enforcement unit for the purpose of law enforcement.” 20 U.S.C. 1232g(a)(4)(B)(ii). Moreover, two of the movants themselves did not act in a way consistent with their now-claimed privacy interests. One of the movants allowed the other to observe and film sex acts with a third student; they then showed the sex video to others and publicly discussed the sex acts with others. They have not explained why it was not harmful for them to show the video to others and yet it is harmful for their conduct in and surrounding the video to be discussed in public court filings. See Jennings v. Univ. of N.C. at Chapel Hill, 340 F.Supp.2d 679, 683-84 (M.D. N.C. 2004) (discussing relevance of expectation of privacy to decision on motion to seal).

         The “mere fact” that a public filing “may lead to a litigant's embarrassment … will not, without more, compel the court to seal its records.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006). Here, the students make no evidentiary showing that they will be harmed at all, and generalized claims of injury to reputation or relationships are insufficient to justify sealing. See Pub. Citizen, 749 F.3d at 270 (noting that this “Court has never permitted wholesale sealing of documents based upon unsubstantiated or speculative claims of harm”); see also Arnold v. Pa. Dept. of Transp., 477 F.3d 105, 110 (3d Cir. 2007) (observing ...

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