Jackson-Heard v. Elizabeth City State University et al

Filing 27

ORDER granting 25 Motion to Seal. The Clerk shall retain the filing at Docket Entry 24 under permanent seal in accordance with Local Civil Rule 79.2, E.D.N.C. Signed by US Magistrate Judge James E. Gates on 2/11/2013. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
2:12-CV-8-BO
MARY F. JACKSON-HEARD,
Plaintiff,
v.

ELIZABETH CITY STATE UNIVERSITY
and DAVID BEJOU,
Defendants.

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ORDER

This case comes before the court on a motion (D.E. 25) filed by defendants Elizabeth
City State University and David Bejou (collectively "defendants") to seal an exhibit (D.E. 24)
filed in response to plaintiff's motion to compel (D.E. 21). The motion to seal is unopposed.
(D.E. 26). For the reasons set forth below, the court will allow the motion.
DISCUSSION

The Fourth Circuit has directed that before sealing publicly filed documents the court
must determine if the source of the public's right to access the documents is derived from the
common law or the First Amendment. Stone v. Univ. of Md., 855 F .2d 178, 180 (4th Cir. 1988).
The common law presumption in favor of access attaches to all judicial records and documents,
whereas First Amendment protection is extended to only certain judicial records and documents,
for example, those filed in connection with a summary judgment motion. !d. Here, the exhibit
sought to be sealed was filed in connection with a motion to compel discovery and not in support
of any motion that seeks dispositive relief, and therefore the right of access at issue arises under
the common law. See Covington v. Semones, No. 7:06cv00614, 2007 WL 1170644, at *2 (W.D.

Va. 17 April 2007) ("In this instance, as the exhibits at issue were filed in connection with a nondispositive motion, it is clear there is no First Amendment right of access.").
The presumption of access under the common law is not absolute and its scope is a matter
left to the discretion of the district court. Virginia Dep 't of State Police v. Washington Post, 3 86
F.3d 567, 575 (4th Cir. 2004). The presumption "'can be rebutted if countervailing interests
heavily outweigh the public interests in access,' and '[t]he party seeking to overcome the
presumption bears the burden of showing some significant interest that outweighs the
presumption."' Id. (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988)). "Some of the factors to be weighed in the common law balancing test 'include 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 whether the public has already had access to the information
contained in the records."'

Id. (quoting In re Knight Pub/. Co., 743 F.2d 231, 235 (4th

Cir.1984)).
Here, defendants seek the sealing of the aforementioned exhibit because it contains
sensitive financial information designated as confidential under the terms of the Protective Order
(D.E. 18) in this case. Defendants contend that sealing the information is needed to preserve its
confidentiality. The court agrees that the information is of a confidential nature. It therefore
finds that the presumption of access has been overcome.
In addition, the public must be given notice of a request to seal and a reasonable
opportunity to challenge it. In re Knight Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984).
Here, the motion was filed on 25 January 2013. No opposition to this motion has been filed by
any party or non-party despite a reasonable opportunity to do so.

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Finally, the court is obligated to consider less drastic alternatives to sealing, and where a
court decides to seal documents, it must "state the reasons for its decision to seal supported by
specific findings and the reasons for rejecting alternatives to sealing in order to provide an
adequate record for review."

ld.

Because, as discussed, the exhibit in question contains

confidential financial information produced pursuant to a stipulated protective order entered in
this case, the court finds that alternatives to sealing do not exist at the present time.
CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendants' motion to seal (D.E. 25) is
ALLOWED.

The Clerk shall retain the filing at Docket Entry 24 under permanent seal in

accordance with Local Civil Rule 79.2, E.D.N.C.
This, the

lL

day of February 2013.

United States Magistrate Judge

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