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

Filing 660

ORDER granting in part and denying in part 465 Motion to Seal Document. Signed by Magistrate Judge James E. Gates on 3/15/2012. (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.

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ORDER

This case comes before the court on the unopposed motion (D.E. 465) by defendants S&B
Technical Products, Inc., Terramix, S.A., and Mark A. Weih (collectively "defendants") to have
permanently sealed several documents filed in connection with this lawsuit, specifically, their motion
for leave to file a reply brief (D.E. 463) and proposed reply brief (D.E. 463-1) in further support of
their motion to exclude the testimony of plaintiff s expert Charles A. Daniels. The motion is
supported by a memorandum (D.E. 466). For the reasons set forth below, the court will allow the
motion in part and deny it in part.

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. Id. Here, the documents
sought to be sealed have 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.").
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 ifcountervailing 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 Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)).
Here, defendants have demonstrated that their proposed reply brief (D.E. 463-1) contains
confidential and proprietary commercially sensitive information, including trade secrets and other
information relating to the chemical formulation and particular grades of constituent 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 to the
proposed reply brief has been overcome. However, the court finds that the motion for leave to file
a reply (D.E. 463) does not contain any such confidential information and the presumption ofaccess
has not been overcome as to it.

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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 motion was filed on 23 March
2011. No opposition to the motion has been filed by any party or nonparty 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." ld. Here, the court finds that the proposed reply brief (D.E. 361-1) contains
confidential business information and other materials subject to trade secret protection and not
generally available to the public, and that alternatives to sealing it do not exist at the present time.
CONCLUSION

For the foregoing reasons, the motion to seal (D.E. 465) is ALLOWED in part and DENIED
in part. The document at D.E. 463-1 shall be maintained under permanent seal in accordance with
Local Civil Rule 79.2(b), E.D.N.C. The document at D.E. 463 shall be unsealed.

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SO ORDERED, this

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day of March 2012.

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United States Magistrate Judge

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