Defenders of Wildlife, et al v. North Carolina Department of Transportation, et al

Filing 56

ORDER denying 51 Motion for Reconsideration - The record shall be filed electronically in accordance with the local rules within twenty-one (21) days hereof. The federal defendants are reminded that a separate case has been created, with case number 2:12-mc-00001-FL, for filing of the record.Signed by District Judge Louise Wood Flanagan on 03/21/2012. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:11-CV-35-FL

DEFENDERS OF WILDLIFE and
NATIONAL WILDLIFE REFUGE
ASSOCIATION,
Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION;
JOHN F. SULLIVAN, III, Division
Administrator, Federal Highway
Administration; and EUGENE A.
CONTI, JR., Secretary, North Carolina
Department of Transportation,
Defendants,
and
CAPE HATTERAS ELECTRIC
MEMBERSHIP CORPORATION,
Intervenor-Defendant.

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ORDER

This matter comes before the court on motion of federal defendants John F. Sullivan, III and
the Federal Highway Administration (“FHWA”) for reconsideration (DE # 51), filed February 3,
2012. The federal defendants inform that the other parties to this action consent to the requested
relief. The issue raised is ripe for adjudication. For the following reasons, the federal defendants’
motion is denied.

BACKGROUND
Plaintiffs Defenders of Wildlife and National Wildlife Refuge Association filed complaint
on July 1, 2011, praying therein for declaratory judgment and for certain injunctive relief related to
the planned replacement of Bonner Bridge, which bridge spans the Oregon Inlet and connects Bodie
and Hatteras Islands.
The parties’ joint report and plan, filed October 19, 2011 and adopted by the court on
November 1, 2011, established that the federal defendants would file the administrative record (the
“record”) on or before January 31, 2012. On January 27, 2012, the federal defendants asked the
court for permission to lodge the record on a portable hard drive in lieu of filing hard copies or filing
in CM/ECF. The court initially allowed this request. However, by order entered February 2, 2012,
the court notified the parties that, due to computer security issues, the public terminals in the clerk’s
office are not configured to accept a portable hard drive. Reference was made as well to the Eastern
District of North Carolina’s Electronic Case Filing Administrative Policies and Procedures Manual.
Moreover there is concern about maintenance of the record for extended period if received in the
manner requested, where a portable hard drive may be susceptible to deterioration over time.
Accordingly, the court rescinded its order allowing the federal defendants to lodge the record on a
portable hard drive and directed them to file the record in CM/ECF.
On February 13, 2012, the federal defendants filed the instant motion for reconsideration.
They seek permission to (1) provide the record to the clerk’s office on CDs or DVDs, or, in the
alternative, to (2) compile at the conclusion of briefing and submit to the court a Joint Appendix that
would include all of the pages cited by the parties in their memoranda.

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DISCUSSION
The federal defendants first informed in their memorandum that the record consists of more
than 11,000 individual .pdf files, measuring in total twenty-eight gigabytes. Counsel for the federal
defendants has since informed the clerk of court, however, that the file size has been reduced
through optimizing to eight gigabytes.
“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.” Virginia Dept. of State
Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). “Publicity of such records, of course,
is necessary in the long run so that the public can judge the product of the courts in a given case.”
Id. (quoting Columbus-American Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 (4th
Cir. 2000)); see also In re Orion Pictures Corp., 21 F.3d 24, 26 (2d Cir. 1994) (noting that the
preference for public access “helps safeguard the integrity, quality, and respect in our judicial
system”)). The public’s right to access judicial records is particularly vital where, as here, the case
involves an issue of great public concern. Disposition of this matter will affect the lives of many
North Carolina residents and visitors to the Outer Banks.
The public terminals in the clerk’s office are not configured to accept CDs or DVDs, just as
they cannot accept portable hard drives. Further, where the parties and the court will have access
to the entire record, the undersigned cannot permit the federal defendants to make available to the
public only a condensed Joint Appendix at the conclusion of briefing. This would both limit and
substantially delay the public’s access to the record, where briefing in this matter is not scheduled
to conclude until August 31, 2012.

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Although the record is lengthy, it is not so voluminous as to preclude electronic filing as
required by Local Civil Rule 5.1, particularly now that the federal defendants have succeeded in
substantially reducing the file size to about eight gigabytes. The electronic filing requirement
promotes the administration of justice by providing more efficient maintenance of court records and
improved public access to case file information.
CONCLUSION
Accordingly, the consent motion for reconsideration (DE # 51) is DENIED. The record shall
be filed electronically in accordance with the local rules within twenty-one (21) days hereof. The
federal defendants are reminded that a separate case has been created, with case number
2:12-mc-00001-FL, for filing of the record. Counsel may contact the clerk’s office for further
guidance in filing the record in CM/ECF.
SO ORDERED, this the 21st day of March, 2012.

LOUISE W. FLANAGAN
United States District Court Judge

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