Moss et al v. Smithfield Packing Company, Inc.

Filing 102

ORDER denying 65 Motion to Seal. Renewed Motion to Seal shall be filed by September 30, 2011. Signed by Magistrate Judge James E. Gates on 9/7/2011. (Heath, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

5:09-CV-42-H

KEOSHA HORNE and NETTIE TYSON, on
behalf of themselves and all others similarly
situated,
Plainti ffs,

v.
SMITHFIELD PACKING COMPANY, INC.,
Defendant.

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ORDER

This case comes before the court on the unopposed motion (D.E. 65) by plaintiffs Keosha
Horne et ai. ("plaintiffs") to have permanently sealed several documents filed in this case. The
motion was not supported by a memorandum, in violation of Local Civil Rule 7.1 (d), E.D.N.C. For
the reasons set forth below, the court will deny the motion without prejudice.
DISCUSSION
The Fourth Circuit has directed that before sealing publicly filed documents the court must
first 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. ofMd., 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 only to certainjudicial records and documents, for
example. those filed in connection with a summary judgment motion. Jd. Here, the documents
sought to be sealed have been filed in connection with a motion for class certification as a collective
action pursuant to the Fair Labor Standards Act, and not in support of any motions that seek
dispositive relief, and therefore the right of access at issue arises under the common law. See

Covington v. Semones, 2007 WL 1170644, at *2 (W.O. Va. 17 April 2007) ("In this instance, as the
exhibits at issue were filed in connection with a non-dispositive 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 ofState Police v. Washington Post, 386
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)). In addition, the public must be given
notice of a request to seal and a reasonable opportunity to challenge it. Knight Publishing Co., 743
F.2d at 235. 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." Id.
In their motion, plaintiffs have not provided sufficient argument to support sealing. Nor have
they adequately demonstrated to the court that there are no alternatives to sealing each of the
documents in their entirety, such as redaction of the purportedly confidential information.

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Consequently, the court concludes that plaintiffs have failed to adequately support their motion to
seal.

CONCLUSION
For the foregoing reasons, the motion to seal (D.E. 65) is DENIED WITHOUT PREJUDICE.
Any renewed motion shall be supported by a memorandum stating with specificity and citation to
applicable legal authorities the basis upon which the movant contends the presumption of access has
been overcome and upon which less drastic alternatives than the relief proposed are not adequate.
Such renewed motion shall be filed no later than 30 September 2011. The Clerk is DIRECTED to
maintain the proposed sealed documents (D.E. 64-1 to 64-20) under temporary seal until such time
as the court has ruled on any renewed motions to seal with respect to those documents. If no
renewed motion to seal is filed by 30 September 2011 with respect to any of the proposed sealed
documents, the Clerk is DIRECTED to unseal such documents.
SO ORDERED, this ~ day of September,

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J
s E.
es
United States Magistrate Judge

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