United States District Court, E.D. North Carolina, Western Division
IN RE NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: ALL CASES
EARL BRITT SENIOR U.S. DISTRICT JUDGE.
matter is before the court on the parties' joint motion
to seal documents. (DE # 573.)
July 2019, the parties filed a joint motion to seal three
documents: (1) a motion filed at docket entry 572 (the
“Motion”); (2) a supporting exhibit filed at
docket entry 572-1 (the “Exhibit”); and (3) a
proposed order filed at docket entry 572-2. (DE # 573.) On 23
July 2019, the court provided public notice of the request to
seal and of the public's right to object within fourteen
days. (DE # 575.) On 5 August 2019, Emery P. Dalesio, a
reporter with The Associated Press, filed a response
objecting to the parties' motion to seal. (DE # 579.)
Dalesio contends “there is a significant public
interest in this case, ” (id. at 1), and that
the parties have failed to “identify a compelling
interest that would be prejudiced by public disclosure,
” (id. at 2). The parties filed a joint reply.
(DE # 581.) In their reply, the parties also identify docket
entry 577-the court's order on the motion filed at docket
entry 572-as one of the documents they request be
sealed. (Id. at 1.) As such, the court
must consider whether to seal four separate documents, that
is, the Motion, the Exhibit, the proposed order on the
Motion, and the order ruling on the Motion, (DE ## 572,
572-1, 572-2, 577).
of this country recognize a general right to inspect and copy
public records and documents.” Nixon v. Warner
Commc'ns, Inc., 435 U.S. 589, 597 (1978).
“[P]ublic access promotes not only the public's
interest in monitoring the functioning of the courts but also
the integrity of the judiciary.” Co. Doe v. Pub.
Citizen, 749 F.3d 246, 266 (4th Cir. 2014). This right
is not absolute, Nixon, 435 U.S. at 598, but
“may be abrogated only in unusual circumstances,
” Stone v. Univ. of Maryland Med. Sys. Corp.,
855 F.2d 178, 182 (4th Cir. 1988). Therefore, when a party
files a motion to seal a document, the court must: (1)
determine if there is a public right of access to the
document; (2) give the public notice of the request and a
reasonable opportunity to object; and (3) “consider
less drastic alternatives to sealing.” Stone,
855 F.2d at 181; see also In re Application of United
States for an Order Pursuant to 18 U.S.C. Section
2703(D), 707 F.3d 283, 290 (4th Cir. 2013) [hereinafter
In re Section 2703(D)]; In re Knight Publ'g
Co., 743 F.2d 231, 234 (4th Cir. 1984).
public right of access to a document may attach under common
law or the First Amendment. In re Section 2703(D),
707 F.3d at 290; In re Knight Publ'g Co., 743
F.2d at 234. For either right of access to attach, the
document must constitute a “judicial record.”
In re Section 2703(D), 707 F.3d at 290 (citing
Baltimore Sun Co. v. Goetz, 886 F.2d 60, 63-64 (4th
Cir. 1989)). A judicial record is one which “play[s] a
role in the adjudicative process, or adjudicate[s]
substantive rights.” Id. “[T]he common
law presumes a right to access all judicial records and
documents.” Id. “[T]his presumption can
be rebutted if ‘the public's right of access is
outweighed by competing interests.'” Id.
(quoting In re Knight Publ'g Co., 743 F.2d at
235). A First Amendment right of access attaches “only
to particular judicial records and documents”
which satisfy the “experience and logic test, ”
id. at 290-91 (emphasis in original) (citations
omitted), such as motions for summary judgment and documents
submitted therewith, Va. Dep't of State Police v.
Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). This
right may be overcome only by a “‘compelling
governmental interest . . . [that is] narrowly tailored to
serve that interest.'” Id. at 290 (quoting
Va. Dep't of State Police, 386 F.3d at 575);
see also Stone, 855 F.2d at 181. Thus, “the
common law ‘does not afford as much substantive
protection to the interests of the press and the public as
does the First Amendment.'” In re Section
2703(D), 707 F.3d at 290 (quoting Va. Dep't of
State Police, 386 F.3d at 575). Accordingly, if a right
of access attaches, the court “‘must determine
the source of [that right] with respect to each
document.'” Va. Dep't of State Police,
386 F.3d at 576 (quoting Stone, 855 F.2d at 181).
addition to substantive considerations, the court must comply
with certain procedural requirements before sealing a
document. See In re Knight Publ'g Co., 743 F.2d
at 235-36. The court must give the public notice of the
request and “a reasonable opportunity” to object.
Stone, 855 F.2d at 181 (citing In re Knight
Publ'g Co., 743 F.2d at 235). That is, the court
must “docket it ‘reasonably in advance of
deciding the issue.'” Stone, 855 F.2d at
181 (quoting In re Knight Publ'g Co., 743 F.2d
at 235). Additionally, the court “must consider less
drastic alternatives to sealing and, if it decides to seal
documents, must ‘state the reasons for its decision to
seal supported by specific findings, and the reasons for
rejecting alternatives to sealing.'” Id.
(quoting In re Knight Publ'g Co., 743 F.2d at
the court has complied with the notice requirements set out
by Knight. The motion to seal was filed on the
public docket on 18 July 2019. (DE # 573.) On 23 July 2019,
the court also filed a notice to the public, which provided
an additional fourteen days for the public to submit
objections to the motion to seal. (DE # 575.) Thus, the
motion was docketed, and notice provided, “reasonably
in advance of” the date of this decision. See
Stone, 855 F.2d at 181.
court considers the four documents at issue in turn.
Motion and Exhibit
parties assert that the “‘the right of access at
issue arises under the common law.'” (DE # 574, at
2 (quoting CTB, Inc. v. Hog Slat, Inc., No.
7:14-cv-157-D, 2015 U.S. Dist. LEXIS 171798, at *2-3 (E.D.
N.C. Dec. 22, 2015)).) Although the Motion and Exhibit do not
involve adjudication of the parties' substantive rights,
the Motion requests approval of the Exhibit, an
“administrative device.” (See DE # 574,
at 4.) Such approval necessitates court review and
consideration of the Exhibit. As such, these documents
require judicial action and play a role in the adjudicative
process. See In re Section 2703(D), 707 F.3d at
290-91 (holding motions through which the government requests
access to electronic communication data “are
‘judicial records' because they were filed with the
objective of obtaining judicial action or relief”). The
court therefore agrees with the parties that the common law
presumption of access attaches to the Motion and Exhibit.
overcome this presumption, “a court must find that
there is a ‘significant countervailing interest' in
support of sealing that outweighs the public's interest
in openness.” In re Section 2703(D), 707 F.3d
at 293 (quoting Under Seal v. Under Seal, 326 F.3d
479, 486 (4th Cir. 2003)). “[T]he party seeking to
overcome the presumption bears the burden of showing [such]
significant interest . . . .” CTB, Inc., 2015
U.S. Dist. LEXIS 171798, at *3.
In balancing the [movant's] interest and the public's
right to access, a court may consider the following factors:
‘ 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 ...