Lord Corporation v. Hultec S&B Technical Products, Inc. et al

Filing 614

ORDER granting 447 Motion to Seal Document and granting 450 Motion to Seal Document. Signed by US Magistrate Judge James E. Gates on 9/19/2011. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

5:09-CV-205-D

LORD CORPORATION,

Plaintiff,

v.
S&B TECHNICAL PRODUCTS, INC.,
TERRAMIX S.A., and MARK A. WEIH,
Defendants.

)

)
)
)
)
)
)
)
)
)

ORDER

This case comes before the court on the unopposed motions by defendants S&B Technical
Products, Inc., Terramix S.A., and Mark A. Weih (collectively "defendants") (D.E. 447,450) to have
permanently sealed several documents filed in connection with this lawsuit (D.E. 444, 446, 449).
Both motions were supported by memoranda (D.E. 448,451). For the reasons set forth below, the
court will allow both motions.

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 to only certain judicial records and documents, for
example, those filed in connection with a summary judgment motion. [d. Here, the documents
sought to be sealed has been filed in connection with a motion in limine to exclude expert testimony,
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.D. 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."). Specifically, the
documents are defendants' memorandum of law (original version at D.E. 446, corrected version at
D.E. 449) and a declaration and exhibits in support of the motion in limine (D.E. 444).
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
Rushfordv. 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 have demonstrated that the documents in question contain confidential and
proprietary commercially sensitive information, including trade secrets and other information
relating to the chemical formulation and particular grades ofconstituent materials used in the parties'
products, information that is of utmost importance to the parties but not generally available to the
public. Based on this showing, the court 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. Knight Publishing Co., 743 F.2d at 235. Here, the motions were filed on 16

2

February 2011. No opposition to the motions have been filed by any party or non-party despite a
reasonable opportunity to do so.
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. Because, as described, the documents in question contain confidential
business information and other materials subject to trade secret protection and not generally available
to the public, the court finds that alternatives to sealing do not exist at the present time.
CONCLUSION
For the foregoing reasons, the motions to seal (D.E. 447, 450) are ALLOWED. The
documents at D.E. 444,446, and 449 shall be maintained under permanent seal in accordance with
Local Civil Rule 79.2(b), E.D.N.C.
SO ORDERED, this

a

day of September 2011.

3