United States District Court, E.D. North Carolina, Southern Division
E. GATES, UNITED STATES MAGISTRATE JUDGE
case comes before the court on the motion (D.E. 57) by
defendants Michael G. Lallier; RLC, LLC d/b/a Reed Lallier
Chevrolet; MGL, Inc.; GRJ, Inc.; and Gene Reed, Jr.
(collectively "defendants") to seal five exhibits
(D.E. 53-1 through 53-5) filed in support of their motion
(D.E. 52) for entry of a protective and confidentiality
order. The motion to seal is supported by a memorandum (D.E.
58). No. opposition to the motion has been filed by plaintiff
Universal Underwriters Insurance Company ("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 exhibits relate to a motion for a protective order, 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 Rushfordv. 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)).
defendants seek the sealing of the five exhibits because they
contain confidential information relating to a non-party
minor. Defendants contend that sealing the exhibits is needed
to preserve the minor's privacy. Redacted versions of the
exhibits which protect the minor's privacy have been
filed at Docket Entry 56. The court agrees that material is
of a confidential nature. 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 4 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 exhibits contain confidential information relating to a
non-party minor and redacted versions of them have been
filed, the court finds that alternatives to sealing the
unredacted exhibits do not exist at the present time.
foregoing reasons, IT IS ORDERED that defendants' motion
(D.E. 57) to seal is ALLOWED. The Clerk is DIRECTED to
permanently seal Docket Entries 53-1 through 53-5 in
accordance with Local Civil Rule 79.2, ...