United States District Court, E.D. North Carolina, Western Division
E. GATES, UNITED STATES MAGISTRATE JUDGE
case comes before the court on two motions (D.E. 95, 103)
filed by defendants U.S. Flue-Cured Tobacco Growers, Inc. and
UETA, Inc. (collectively "defendants") and
unopposed by plaintiff Optima Tobacco Corporation
("plaintiff) to seal certain materials filed in support
of defendants' motions for summary judgment (D.E. 90,
92). The motions to seal are supported by memoranda.
See D.E. 96, 104. For the reasons set forth below,
the court will a low the motions to seal in part and deny
them in part.
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,
as noted, the materials sought to be sealed were filed in
connection with defendants' motions for summary judgment,
and therefore the right of access at issue arises under the
First Amendment. Rushford v. New Yorker Magazine,
846 F.2d 249, 252-53 (4th Cir. 1988).
the presumption of access under the common law is not
absolute and its scope is a matter left to the discretion of
the district court, "[w]hen the First Amendment provides
a right of access, a district court may restrict access
'only on the basis of a compelling governmental interest,
and only if the denial is narrowly tailored to serve that
interest."' Virginia Dep't of State Police
v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004).
The burden of establishing the showing necessary to overcome
a First Amendment right of access falls upon the party
seeking to keep the information sealed. Id. Specific
reasons must be presented to justify restricting access to
the information. Id. (citing Press-Enterprise
Co. v. Superior Court, 478 U.S.I, 15 (1986) ("The
First Amendment right of access cannot be overcome by [a]
this case arises from the alleged breach of a manufacturing
agreement between the parties, which operate in an extremely
competitive business. The manufacturing agreement contains a
confidentiality provision and relates to confidential and
proprietary business information. A consent protective order
was entered in this case to maintain the confidentiality of
information produced during discovery. Consent Prot. Ord.
(D.E. 85). With consent of plaintiff, defendants seek to seal
legal memoranda and other materials filed in connection with
their motions for summary judgment that they contend are
competitively sensitive and nonpublic and contain information
about pricing costs, commissions, and territory provisions.
have demonstrated that the materials attached to their
summary judgment motions (D.E. 91; D.E. 91-2 through 91-79;
D.E. 97; D.E. 97-2 through 97-5; D.E. 100; D.E. 100-2 through
100-3) contain confidential business information that is
subject to protection under a confidentiality provision in
the manufacturing agreement and consent protective order in
this case, is not generally available to the public, and does
not bear importance to any public matters. Based on this
showing, the court finds that the presumption of access to
the attached materials has been overcome. Wolfe v.
Green, No. 2:08-1023, 2010 WL 5175165, at *2 (S.D. W.Va.
15 Dec. 2010) (holding First Amendment right of access
overridden with respect to proposed redactions that included
personal financial information).
defendants have not demonstrated that the memoranda of law
filed in support of and opposition to the summary judgment
motions (D.E. 91-1, 93, 97-1, 100-1, 102) need to be sealed
in their entirety and are not amenable to redaction to
protect the confidential information contained therein.
See Cochran v. Volvo Grp. N.A., LLC, 931 F.Supp.2d
725, (M.D. N.C. 2013) (denying motion to seal entire
memorandum of law but ordering parties to file redacted
version to protect sensitive information). Notably, the
memoranda filed in support of defendants' previously
filed motions to dismiss were not filed under seal and
contain similar information. See D.E. 20, 30, 32,
34. Because of their importance to the case, sealing the
memoranda in their entirety is not warranted. See Knight
v. Manufacturers & Traders Trust Co., 84 F.Supp.3d
436, 446 (D. Md. 2015) ("[T]his 'already strong
presumption of access is further strengthened when a document
directly affects an adjudication, such as a complaint in a
motion to dismiss proceeding, as is the case here.'"
(quoting Tobacco Tech., Inc. v. Taiga Int'l. N.
V., No. CCB-06-563, 2007 WL 172524, at *1 (D. Md. 17
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
motions to seal were filed on 30 November 2018 and 4 January
2019. No. opposition to the motions has been filed 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 materials attached to the summary judgment motion contain
confidential information not generally available to the
public and not bearing importance to public matters, the
court finds that alternatives to sealing them do not exist at
the present time. The portion of defendants' motions
seeking to seal these documents (D.E. 91; D.E. 91-2 through
91-79; D.E. 97; D.E. 97-2 through 97-5; D.E. 100; D.E. 100-2
through 100-3) will therefore be allowed.
court is not persuaded, however, that redaction is not a
suitable alternative to sealing the memoranda in their
entirety. Accordingly, the portion of the motions seeking the
sealing of the memoranda will be denied. The memoranda shall
remain under seal, but the parties must file a proposed
redacted version of them or file them as a publicly filed
document, as set forth below, if they wish the memoranda to
be considered in connection with the summary judgment
foregoing reasons, IT IS ORDERED that defendants' motions
(D.E. 95, 103) to seal are ALLOWED IN PART and DENIED IN PART
portion of defendants' motions seeking the sealing of
materials attached to their motions for summary judgment
(D.E. 91; D.E. 91-2 through 91-79; D.E. 97; D.E. 97-2 through
97-5; D.E. 100; D.E. 100-2 through 100-3) are ...