United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
ERISA action, the plaintiffs have sued the defendants
alleging that they breached their fiduciary duties and
committed prohibited transactions in administering the
BB&T Corporation 401(k) Savings Plan. The parties have
filed a consolidated motion to seal in which the defendants
seek to fully or partially seal eleven documents and the
plaintiffs seek to fully seal one document, all of which were
filed in connection with the defendants' summary judgment
motion. The Court will grant the motion to the extent it
seeks to seal documents for which a party has established a
compelling interest that outweighs the public's right to
access; otherwise the motion is denied.
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. 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.;
Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
253-54 (4th Cir. 1988).
First Amendment guarantee of access extends only to
particular judicial records. 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). Because the
public has a right to attend trials and oversee the courts,
the First Amendment protects the public's right to access
“the evidence and records filed in connection with
summary judgment proceedings.” E.g., Doe
v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014).
derived from the common law or the First Amendment, the
public's right of access “may be abrogated only in
unusual circumstances.” Stone, 855 F.2d at
182. 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; see also Shane Grp., Inc. v. Blue Cross Blue
Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016)
(“In class actions-where by definition some members of
the public are also parties to the case-the standards for
denying public access to the record should be applied with
particular strictness.”) (citing In re Cendant
Corp., 260 F.3d 183, 194 (3d Cir. 2001)). The party
seeking to limit public access bears the burden to show that
sealing is appropriate. Rushford, 846 F.2d at 253;
see Pub. Citizen, 749 F.3d at 272.
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
Cal., 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. 13CV316, 2013 WL 12137000, at *1 (M.D.
N.C. Dec. 12, 2013); accord GoDaddy.com, LLC v. RPost
Commc'ns Ltd, No. CV1400126, 2016 WL 1158851, at *2
(D. Ariz. Mar. 24, 2016) (“Broad allegations of harm,
unsubstantiated by specific examples of articulated reasoning
[are] not enough to overcome the strong presumption in favor
of public access.”).
Court has complied with the notice requirements set forth in
Stone and Rushford. The parties filed this
motion to seal in April 2018. Doc. 336. The plaintiff objects
in whole or part to the sealing of nine documents that the
defendants seek to seal. See, e.g., Doc. 368 (chart
listing objections to Docs. 324, 325, 331-1, 331-2, 331-3,
331-5, 331-6, 334, and 335). No other person or entity has
objected to the motion. See Mears v. Atl. Se. Airlines,
Inc., No. 5:12CV613F, 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.”).
Court finds that the First Amendment right of access applies
to the documents because they were filed in connection with
the summary judgment motion. See Pub. Citizen, 749
F.3d at 267 (explaining that the First Amendment protects
public access to “the evidence and records filed in
connection with summary judgment proceedings”).
Documents with Confidential Business Information
defendants seek to seal documents on the basis that they
contain confidential business information. “Business
information that might harm a litigant's competitive
standing” may be a sufficient interest to overcome the
First Amendment right of access. Nixon, 435 U.S. at
598 (holding that “the common-law right of inspection
has bowed before the power of a court to insure that its
records” do not serve “as sources of business
information that might harm a litigant's competitive
standing”); see also Pub. Citizen, 749 F.3d at
269 (indicating in dicta that a company's “strong
interest in preserving the confidentiality of its proprietary
and trade-secret information . . . may justify partial
sealing of court records.”).
order to determine whether the motions to seal should be
granted based on claims of confidential business information,
the Court evaluates: whether the party has shown that the
information sought to be sealed is confidential; whether
disclosure would harm the party's competitive standing or
otherwise harm its business interests; whether the motion is
narrowly tailored; and whether the interests in
non-disclosure are compelling and heavily outweigh the
public's interest in access to the information. In
weighing the competing interests, the Court considers, among
other things, whether access to the evidence is needed to
understand the Court's decision on summary judgment and
the degree of harm that disclosure would be likely to cause.
RIS Customer Spreadsheet (Doc. 374)
defendants move to seal a spreadsheet that lists
institutional customers of BB&T's Retirement and
Institutional Services (e.g., 401k plans) as well as
information on the mutual funds available through those plans
and on whether fees that those mutual funds provide to RIS
are rebated to the institutional customer. Doc. 346 at 10-11.
The plaintiffs have objected to the full sealing of this
document and have proposed limiting the sealing to the
specific customer names. Doc. 346 at 11.
defendants support their motion with the affidavit of Steven
Reeder, a Senior Vice President and Benefits Manager at
BB&T Corporation, which states that the spreadsheet
contains “highly sensitive customer information that
BB&T does not routinely disclose” and that
“disclosure of this information could hamper
BB&T's competitive standing in the
marketplace.” Doc. 336-1 at ¶¶ 2, 5. While
Mr. Reeder's affidavit does not explain why the
information is sensitive or discuss how disclosure could
hamper BB&T's competitive standing, counsel asserts
in the briefing that BB&T's competitors could use
this information to target customers and undercut BB&T.
Doc. 346 at 10. To some extent the face of the document
itself supports the inferences counsel draws in the brief.
This is sufficient to establish a compelling interest in
sealing the customer names. However, BB&T has not pointed
to any non-conclusory evidence tending to support its
assertion that disclosure of the other information on the
spreadsheet would cause it harm, especially if the customer
names are sealed.
plaintiffs relied on this spreadsheet to support their
assertion that the BB&T 401k plan is treated differently
than other 401k plans because the BB&T Plan does not
receive rebates from RIS and as a result pays more in fees
than similarly situated plans. See Doc. 346 at 11.
This evidence was integral to the Court's decision to
deny summary judgment on Counts I, VI, and VII. See
Doc. 369 at 13-15, 25. Because this information was a primary
consideration in the Court's decision on summary judgment
the public has a strong interest in access to the
weighing the interests of the defendants and the public, the
Court will limit the sealing of the spreadsheet to the
customer information provided in the first three columns on
the left (i.e., PLANKEY, PlanNam, and Omni Plan ID). The
customer names provided in the spreadsheet are not necessary
for the public's understanding of the issues decided on
summary judgment and may not even be relevant. Sealing this
information will protect BB&T's compelling business
interests by limiting a competitor's ability to target
BB&T's customers. As BB&T has not submitted
evidence to support its contention that it would be harmed by
disclosure of other information on the form so long as the
customer names are not disclosed, and as that information is
necessary to facilitate public understanding, the Court will
not seal the entire document.
The Deposition of ...