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.)

Download PDF
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 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. 2 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 ) UNITED STATES OF AMERICA, to challenge it. Knight Publishing Co., 743 F.2d at 235. Here, the motion was filed on 29 February ) ) 2012. No opposition to the motion has been filed)by ORDER DENYING APPOINTMENT any party or nonparty despite a reasonable v. ) OF COUNSEL opportunity to do so. ) (SEALED) ) CHRISTOPHER YORK MAKEPEACE, Finally, the court is obligated to consider less drastic alternatives to sealing, and where a ) ) 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 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?