United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
CATHERINE C. EAGLES, DISTRICT JUDGE.
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.
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). 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.
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.
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.
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 GoDaddy.com 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.
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.”).
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
Non-Party Litigants seek to seal these reports, contending
they are protected by FERPA and contain sensitive personal
information. Ms. Qayumi opposes the request for permanent
sealing. Doc. 87 at 1-2; Doc. 96-1.
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).
“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 ...