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

Filing 714

ORDER granting 670 Motion to Seal. Signed by US Magistrate Judge James E. Gates on 9/14/2012. (Sawyer, D.)

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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. 670) by plaintiff Lord Corporation (“plaintiff”) to have permanently sealed documents filed in connection with this lawsuit, specifically, its request for attorneys’ fees relating to its renewed motion for sanctions (D.E. 667) against defendants S&B Technical Products, Inc., Terramix S.A., and Mark A. Weih, and declaration (D.E. 668) and memorandum in support (D.E. 669). The motion is supported by a memorandum (D.E. 671). 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 documents sought to be sealed have been filed in connection with a discovery motion, 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 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, plaintiff has demonstrated that the documents in question contain 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 documents in question have 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 motion was filed on 19 March 2 ) ) ) ) UNITED STATES OF AMERICA, v. ORDER DENYING APPOINTMENT 2012. No opposition to the motion has been filed)by any party orOF COUNSEL a reasonable nonparty despite ) (SEALED) opportunity to do so. 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 documents in question contain 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 them 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. 670) is ALLOWED. The documents at such appointment after the filing of a new Financial Affidavit which contains the missing D.E. 667, 668, 669 shall be maintained under permanent seal in accordance with Local Civil Rule information. 79.2(b), 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

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