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Burroughs v. Page

United States District Court, M.D. North Carolina

October 28, 2019

REBEKAH BURROUGHS, individually and as Administratrix of the ESTATE OF TODD BRENT BURROUGHS, D.B., individually by her Guardian Ad Litem, Donald R. Vaughn, and C.B., individually by his Guardian Ad Litem, Morgan Davis, Plaintiffs,
SAMUEL S. PAGE, in his official capacity as Sheriff of Rockingham County, FRANK L. MARTIN and CHASE M. MYERS, each in his individual and official capacities, and LIBERTY MUTUAL INSURANCE COMPANY, as surety, Defendants.



         In connection with Defendants' Motion for Summary Judgement, (ECF No. 42), which will be addressed under separate order, Plaintiffs filed several documents under seal and two accompanying Motions to Seal.[1] (ECF Nos. 49, 49-1 to 49-6, 61-1 to 61-5, 61-7, 61-8.) Both motions to seal seek to permanently seal the same seven documents, ostensibly for the same purposes. (See ECF Nos. 48, 60.) Because these motions, and the documents attached, are identical, this Court will strike Plaintiffs' first motion to seal and all corresponding exhibits, (ECF Nos. 48, 49, 49-1 to 49-6), and only consider Plaintiffs' second motion to seal, (ECF No. 60), which was filed with their operative second amended brief, (ECF No. 59).

         The sealed documents attached to Plaintiffs' motion to seal include deposition transcripts from Ms. Burroughs, Myers, Martin, C.B., D.B., and Sheriff Page, as well as a photographic exhibit attached to a declaration by Plaintiffs' counsel regarding portions of a State Bureau of Investigations (“SBI”) report.[2] (See ECF Nos. 61-1 to 61-5, 61-7, 61-8.) Defendants filed a brief stating that they “have no objection” to Plaintiffs' motion to seal. (ECF No. 63 at 4.)

         “When presented with a request to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements.” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). Substantively, a district court must “first ‘determine the source of the right of access with respect to each document.'” Doe v. Pub. Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quoting Va. Dep't of State Police, 386 F.3d at 576). The Fourth Circuit has “squarely held that the First Amendment right of access attaches to materials filed in connection with a summary judgment motion.” Id. at 267. Therefore, the First Amendment right of access applies in this case, as the documents that Plaintiffs wish to seal were filed in opposition to Defendants' summary judgment motion.

         Procedurally, a district court presented with a sealing request must:

(1) provide public notice of the sealing request and a reasonable opportunity for the public to voice objections to the motion; (2) consider less drastic alternatives to closure; and (3) if it determines that full access is not necessary, it must state its reasons-with specific findings-supporting closure and its rejections of less drastic alternatives.

Id. at 272. Local Rule 5.4 outlines similar requirements.[3] LR 5.4. The burden rests on the party seeking to keep information sealed. Va. Dep't of State Police, 386 F.3d at 575.

         As a preliminary matter, it is unclear to the Court which party is asserting the confidentiality of these documents. Similar to Plaintiffs' previously documented failures to comply with this Court's Local Rules, (see ECF No. 58), Plaintiffs' motion to seal does not comply with Local Rule 5.4. Plaintiffs did not file a brief in support of their motion to seal or explain the need for confidentiality. See L.R. 5.4(b) (requiring the party asserting confidentiality to file a brief stating “the reasons why sealing is necessary”). Plaintiffs' motion to seal also does not comply with Local Rule 5.4(c), which regulates the procedure for filing a motion to seal “[i]f the party filing the documents is not the party claiming confidentiality.” L.R. 5.4(c). Local Rule 5.4(c) requires the filing party to, before filing, “confer with the party claiming confidentiality and obtain that party's position as to how much of the materials, if any, should be redacted or placed completely under seal.” Id. Such a motion to seal is also required to:

1. Confirm that the filing party has engaged in the consultation required by paragraph (c), or request to be excused from the consultation requirement for good cause;
2. State why the documents are relevant to a matter before the Court, and are not filed unnecessarily;
3. State the filing party's position on confidentiality; and
4. State that the party claiming confidentiality will have 14 days to file a Brief providing all of the information set out in paragraph (b) above.

Id. Although Plaintiffs' motion appears to “[s]tate [their] position on confidentiality” by stating that the documents “have been marked and stipulated as confidential in this case, ” Plaintiffs' motion to seal does not include any of the other required elements. (See ECF No. 60.) Because of this failing, it unclear whether Plaintiffs filed their motion on behalf of a third party claiming confidentiality and, if so, whether Plaintiffs conferred with that party to determine whether all of the filed documents actually need to be sealed.

         Defendants' brief in response to Plaintiffs' motion to seal does not cure the deficiencies in Plaintiffs' motion. (See ECF No. 63.) Although Defendants state that they “have no objection to [Plaintiffs'] filing under seal, ” (id. at 4), they do not attempt to explain “why less drastic alternatives to sealing will not afford adequate protection, ” L.R. 5.4(b), nor do they address any case law, as also required by Local Rule 5.4(b). Therefore, neither party has provided sufficient justification for sealing the documents referenced in Plaintiffs' motion to seal. (See ECF Nos. 60, 63.) Nevertheless, ...

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