United States District Court, E.D. North Carolina, Western Division
E. Grates, United States Magistrate Judge
case comes before the court on the motion (D.E. 71) by
defendant HCL America, Inc. ("defendant") to seal
the rough draft of a deposition transcript filed by plaintiff
CDI Corporation ("plaintiff) on 2 January 2019 in
support of its motion to compel. The motion to seal is
supported by a memorandum (D.E. 72) and no opposition to the
motion has been filed by plaintiff and the time for doing so
has expired. For the reasons set forth below, the court will
allow the motion.
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 rough draft deposition transcript 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 cleat
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)).
defendant seeks the sealing of deposition transcript because
it contains confidential and commercially sensitive business
information protected by a confidentiality agreement. The
rough draft deposition transcript is not final and the
parties have not agreed on which portions shall be marked
confidential pursuant to the Consent Protective Order entered
in this case. See Prot. Ord. (D.E. 38). Defendant
contends that sealing the rough draft deposition transcript
is needed to preserve the transcript's confidentiality.
The court agrees that material is of a confidential nature,
particularly where the transcript is not in final form.
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
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 9 January 2019. No. opposition to the motion has
been filed by any party or 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 rough draft deposition transcript contains confidential
information, the court finds that alternatives to sealing the
transcript do not exist at the present time.
foregoing reasons, IT IS ORDERED that defendant's motion
(D.E. 71) to seal is ALLOWED. The Clerk is DIRECTED to
permanently seal the rough draft deposition transcript (D.E.
69) in accordance with Local Civil Rule 79.2, ...