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

Filing 708

ORDER granting 632 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 unopposed motion (D.E. 632) by defendants S&B
Technical Products, Inc., Terramix S.A., and Mark A. Weih (collectively “defendants”) to have
permanently sealed a document filed in connection with this lawsuit, specifically, its response (D.E.
631) to objections filed by plaintiff Lord Corporation (“plaintiff”) to the court’s memorandum and
recommendation on plaintiff’s motion to exclude the opinions and testimony of defendants’ expert,
Ronald J. Lewarchik. The motion is supported by a memorandum (D.E. 633). 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, the document
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 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, 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 Publ. Co., 743 F.2d 231, 235 (4th Cir.1984)).
Here, defendants have demonstrated that the document in question contains confidential and
proprietary commercially sensitive information, including financial and business information of the
parties and nonparties which relate to the trade secrets at issue 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 and nonparties but not generally available to
the public. Based on this showing, the court finds that the presumption of access to the document
in question has been overcome.

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

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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UNITED STATES OF AMERICA,

to challenge it. Knight Publishing Co., 743 F.2d at 235. Here, the motion was filed on 29 February
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2012. No opposition to the motion has been filed)by ORDER DENYING APPOINTMENT
any party or nonparty despite a reasonable
v.
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OF COUNSEL
opportunity to do so.
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(SEALED)
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CHRISTOPHER YORK MAKEPEACE,

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

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. 632) is ALLOWED. The document at

such appointment after the filing of a new Financial Affidavit which contains the missing

D.E. 631 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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