I/P Engine, Inc. v. AOL, Inc. et al

Filing 244

ORDER TO SHOW CAUSE re 234 MOTION to Seal Portions of the Memorandum in Support of Defendants' Motion for Summary Judgment; Exhibits 4-9, 21-22, and 25-31 to the Declaration of Howard Chen in Support of Defendants' Motion for Summary Judgment; and the Declaration of Bartholomew Furrow in Support of Defendants' Motion for Summary Judgment, filed on 9/12/12, by Google Inc., AOL Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc. As outlined in this Order, the Court finds the stated basis for sealing these materilas to be manifestly insufficient to justify filing of these materials under seal. Accordingly, the Court will ORDER the parties to SHOW CAUSE why the specified materials should not be unsealed and filed in the public record. The parties are DIRECTED to appear before the Court on 9/18/12, at 12:00 noon to identify, on the record, any and all reasons why these materials should be filed under seal rather than in the public record of this case, as outlined in this order. The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. IN the interim, the Clerk shall continue to maintain the materials under seal (See Order for Specifics) Entered and filed 9/13/12. (Signed by Magistrate Judge F. Bradford Stillman on 9/13/12). (ecav)

UNITED STATES DISTRICT COURT FILED FOR THE EASTERN DISTRICT OF VIRGIN Norfolk Division I/P ENGINE, SEP 1 3 ?012 INC., CLERK, US DISTRICT COUR I" NORFOLK. VA Plaintiff, v Case v • AOL, INC., et No.: 2:llcv512 i al., Defendants. ORDER TO Before the Court Memorandum in Support Exhibits 4-9, Support of 21-22, is of the SHOW CAUSE Motion Defendants' to Seal Portions of Motion for Summary Judgment, and 25-31 to the Declaration of Howard Chen in Defendants' Motion for Summary Judgment, and Declaration of Bartholomew Furrow in Support of Defendants' for Summary Judgment defendants Inc., Google Gannet Co., the {ECF No. Inc., 234), Target Inc., and AOL filed on September 12, Corporation, IAC Search the Motion 2012, & by Media, Inc. For the reasons stated below, for the Court finds the stated basis sealing be justify Court these filing will of ORDER materials these the to materials parties to manifestly under SHOW seal. CAUSE insufficient Accordingly, why the to the specified materials should not be unsealed and filed in the public record. The defendants have asked to file under seal portions of their Memorandum in Support of Defendants' Motion for Summary Judgment, portions of the Declaration of Bartholomew Furrow, and Exhibits 4, 5, 6, 7, 8, 9, 21, 22, 25, Declaration of Howard Chen.1 information contained confidential, but 26, 27, 28, 29, 30, and 31 to the The parties have agreed that certain in "[w]hen these materials discovery should material is remain classified confidential by the parties, their classification is not binding on the court." 91, 94 Chemical Bank v. Affiliated FM Ins. Co., (S.D.N.Y. 154 F.R.D. 1994). "When presented with a motion to seal judicial records or documents, a district court must comply with certain substantive and procedural requirements." Post, 386 F.3d 567, InCt, 218 F.3d 282 procedural 576 Va. Pep't of State Police v. Wash. (4th Cir. 2004). In Ashcraft v. (4th Cir. 2000), the Fourth Circuit set out the requirements for sealing court filings. (citing Stone v. Univ. of Md. Med. Svs. Corp., (4th Cir. Conoco, Id^ at 288 855 F.2d 178, 181 1988), and In re Knight Pub. Co., 743 F.2d 231, 235-36 (4th Cir. 1984)). Local Civil Rule 5 provides further procedural guidance to litigants with respect to motions to seal filed in this district. But it is the substantive requirements that are at issue in this case. "The right of public access to documents or materials filed in a district court derives from two independent sources: the common law and the First Amendment." Wash. Post, 386 F.3d at 575. 1 Unredacted versions of these papers submitted for filing under seal have not yet been docketed. The public, redacted versions of these papers have been docketed as ECF Nos. 238-41. - 2 - This distinction is significant because »[t]he common law does not afford as much substantive protection to the interests of the press and the public as Yorker Magazine, does Inc., the First Amendment." 846 F.2d 249, 253 Rushford v. (4th Cir. the First Amendment provides a right of access, 1988). New "When 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.'" 180).2 Wash. Post, 386 F.3d 575 (quoting Stone, 855 F.2d at Moreover, "[t]he burden to overcome a First Amendment right of access rests on the party seeking to restrict access, and that party must present specific reasons in support of its position." Id. (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 15 (1986)). Noting that "summary judgment adjudicates substantive rights and serves as a substitute for a trial," the Fourth Circuit has held that "the more rigorous First Amendment standard should also apply to documents filed motion in a civil case." in connection Rushford, 846 with a summary F.2d at 252, judgment 253. The defendants have requested to file portions of the memorandum in support of their motion for summary judgment, together with 2 As this Court has previously noted, "several courts have also recognized that, in limited circumstances, certain . . . private interests might also implicate higher values sufficient to override . . . the First Amendment presumption of public access." Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d 572, 580 (E.D. Va. 2009). See generally id. at 580-83 (discussing various private interests that have been recognized). - 3 - portions of a declaration and certain exhibits in support of that motion, under seal. In support of the motion, the defendants merely characterize these materials, in conclusory fashion, as "data that is and should be kept confidential." "present[ed] See Wash. Neither they nor the plaintiff specific reasons in support of [their] position[s]." Post, 386 F.3d at 575. "The First Amendment right of access cannot be overcome by [a] conclusory assertion." Enter., has 478 U.S. See Press- at 15. Nonetheless, the Court is sensitive to the potential damage that might be done should any actual confidential information be disclosed to the public prematurely. the parties to SHOW CAUSE why Accordingly, the Court ORDERS the unredacted Memorandum in Support of Defendants' version of the Motion for Summary Judgment, the unredacted version of the Declaration of Bartholomew Furrow, and Exhibits 4, 5, 6, 7, 8, 9, 21, 22, 25, 26, 27, 28, 29, 30, and 31 to the Declaration of Howard Chen should not be unsealed and filed in the public record. The parties September 18, are 2012, DIRECTED to appear before at 12:00 noon to identify, and all reasons why these materials should be rather than in the public record of this case.3 the Court on the record, on any filed under seal The parties should 3 The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. — 4 — provide specific reasons compelling interest, less the materials IT interim, under IS SO sealing these governmental or private, restrictive way to In why serve that the Clerk compelling shall serves a and why there is no interest. continue to maintain the seal. ORDERED. CfW UNITED Norfolk, materials Virginia September \^> , 2012 - 5 - STATES MAGISTRATE JUDGE