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

Filing 705

ORDER granting 645 Motion to Seal Document. Signed by US Magistrate Judge James E. Gates on 9/14/2012. (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 motion (D.E. 645) by plaintiff Lord Corporation, Inc.
(“plaintiff”) to have permanently sealed a document filed in connection with this lawsuit,
specifically, its response (D.E. 644) to the objections filed by defendant Terramix S.A. (“Terramix”)
to the court’s memorandum and recommendation on plaintiff’s for summary judgment and partial
summary judgment as to Terramix’s second, third, fourth, and fifth counterclaims for relief. The
motion is supported by a memorandum. (D.E. 646). 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
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. 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. Id. Here, as noted, the
document sought to be sealed has been filed in connection with or relate to a motion that seeks

dispositive relief, and therefore the right of access at issue arises under the First Amendment. See
Rushford v. New Yorker Magazine, 846 F.2d 249, 252-53 (4th Cir. 1988).
While 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, “[w]hen the First Amendment provides a right of
access, a district court may restrict access ‘only on the basis of a compelling governmental interest,
and only if the denial is narrowly tailored to serve that interest.’” Virginia Dep’t of State Police v.
Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). The burden of establishing the showing
necessary to overcome a First Amendment right of access falls upon the party seeking to keep the
information sealed. Id. Specific reasons must be presented to justify restricting access to the
information. Id. (citing Press-Enterprise Co. v. Superior Court, 478 U.S.1, 15 (1986) (“The First
Amendment right of access cannot be overcome by [a] conclusory assertion”)).
Here, plaintiff has demonstrated that the document in question contains confidential and
proprietary commercial information, including information relating to alleged trade secrets and other
highly sensitive financial and business information belonging to the parties as well as nonparties,
information which is of utmost importance to them but not generally available to the public or
bearing importance to any public matters. Based on this showing, the court finds that the
presumption of access has been overcome. Nixon v. Warner Commc’n, Inc., 435 U.S. 589, 598
(1978) (recognizing that where records contain “sources of business information that might harm a
litigant’s competitive standing,” the court may limit public access); Woven Elec. Corp. v. Advance
Group, Inc., 930 F.2d 913 (Table), 1991 WL 54118, at *6 (4th Cir. 6 May 1991) (holding that
district court could have closed courtroom and sealed trial record to protect trade secrets); Wolfe v.
Green, No. 2:08-1023, 2010 WL 5175165, at *2 (S.D. W. Va. 15 Dec. 2010) (holding that First
Amendment right of access overridden with respect to proposed redactions that included personal
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financial information); Level 3 Communications, LLC v. Limelight Networks, Inc.,611 F. Supp. 2d
572, 581-82 (E.D. Va. 2009) (“[M]any courts have considered the trade secret status of testimony
IN THE UNITED STATES DISTRICT COURT

or materials submitted to a court a significant private interest to be weighed against the common law,
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

or even the First Amendment, right of public access that would otherwise apply to them.”).
5:11-MJ-01359-JG-l

In addition, the public must be given notice of a request to seal and a reasonable opportunity

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to challenge it. Knight Publishing Co., 743 F.2d)at 235. Here, the motion was filed on 5 March
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) ORDER DENYING APPOINTMENT
2012. No opposition v. the motion has been filed by any party or nonparty despite a reasonable
to

UNITED STATES OF AMERICA,

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opportunity to do so.

OF COUNSEL
(SEALED)

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Finally, the court is obligated to consider)less drastic alternatives to sealing, and where a
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Defendant.

CHRISTOPHER YORK MAKEPEACE,

court decides to seal documents, it must “state the reasons for its decision to seal supported by
This case comes before the court on the issue ofappointment ofcounsel for Christopher York

specific findings and the reasons for rejecting alternatives to sealing in order to provide an adequate
Makepeace ("defendant"). Defendant has submitted a Financial Affidavit for purposes of such

record for review.” Id. Here, the court finds that the document in question contains confidential
appointment (CJA Form 23). Defendant has failed to complete the "Obligations and Debts" section

business and financial information and other materials subject to trade secret protection and not
of the form and has failed to enter the date on which he executed the form. Without a complete

generally available to the public, and that alternatives to sealing it do not exist at the present time.
application, the court is not able to determine whether defendant is entitled to appointment of

CONCLUSION
counsel. The appointment of counsel is therefore DENIED without prejudice to reconsideration of

For the foregoing reasons, the motion to seal (D.E. 645) is ALLOWED. The document at
such appointment after the filing of a new Financial Affidavit which contains the missing

D.E. 644 shall be maintained under permanent seal in accordance with Local Civil Rule 79.2(b),
information.

E.D.N.C.
This order shall be filed under seal.

SO ORDERED, this 14th day of September 2012.
SO ORDERED, this 23rd day of May 2011.

___________________________
James E. Gates
United States Magistrate Judge

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