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In re NC Swine Farm Nuisance Litigation

United States District Court, E.D. North Carolina, Western Division

January 9, 2020

IN RE NC SWINE FARM NUISANCE LITIGATION THIS DOCUMENT RELATES TO: ALL CASES

          ORDER

          W. EARL BRITT SENIOR U.S. DISTRICT JUDGE.

         This matter is before the court on the parties' joint motion to seal documents. (DE # 573.)

         I. BACKGROUND

         On 18 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.[1] (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).

         II. DISCUSSION

         “[C]ourts 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).

         The 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).

         In 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 235).

         Here, 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.

         The court considers the four documents at issue in turn.

         A. Motion and Exhibit

         The 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.

         To 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: ‘[1] whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; [2] whether release would enhance the public's understanding of an important historical event; and ...

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