Johnson et al v. City of Fayetteville et al

Filing 276

ORDER granting 224 Motion to Seal and granting 230 Motion to Seal Document. The parties are reminded to read the order in its entirety for detailed information. Signed by Magistrate Judge Robert B. Jones, Jr. on 10/6/2014. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-456-F
DARWIN JOHNSON, et al.,
Plaintiffs,

v.
CITY OF FAYETTEVILLE, et al.,
Defendants.

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ORDER

This matter comes before the court on the parties' cross motions to seal [DE-224 & DE230] several documents filed in connection with the Plaintiffs Fourth Motion to Compel [DE223] and Defendants' response. [DE-227].
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., 85 5 F .2d 178, 180 (4th Cir.
1988). The fact that the documents sought to be sealed are subject to a protective order by the
court does not relieve the parties or the court from the obligation to comply with the Fourth
Circuit's sealing regimen. See Hall v. United Air Lines, Inc., 296 F. Supp. 2d 652, 679-80
(E.D.N.C. 2003); see also Volumetrics Med. Imaging, LLC v. Toshiba Am. Med. Sys., No.1 :05CV-955, 2011 WL 2413404, at *5 (M.D.N.C. Jun. 10, 2011) (citations omitted). The common
law presumption in favor of access attaches to all judicial records and documents, whereas First
Amendment protection is extended only to certain judicial records and documents, for example,
those filed in connection with a summary judgment motion. Stone, 855 F.2d at 180 (citing

Rushford v. New Yorker Magazine, Inc., 846 F .2d 249, 253 (4th Cir. 1988)). Here, the
documents sought to be sealed relate to Plaintiffs motion to compel discovery, in particular
medical evaluations and personnel matters relating to Defendant Koehler, rather than motions
seeking dispositive relief, and therefore the right of access at issue arises under the common law.

See Covington v. Semones, No.7:06-CV-00614, 2007 WL 1170644, at *2 (W.D. Va. Apr. 17,
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
FJd 567, 575 (4th Cir. 2004), cert. denied, 544 U.S. 949 (2005). 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."' !d. (quoting Rushford, 846 F.2d at 253). "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."' !d.
(quoting In re Knight Pub!. Co., 743 F.2d 231, 235 (4th Cir.1984)). Here, the documents in
question either constitute confidential medical or state personnel records or refer to the substance
of the same, which are 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 has been
overcome.

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In addition, the public must be given notice of a request to seal and a reasonable
opportunity to challenge it. In re Knight Publishing Co., 743 F.2d at 235. Here, Plaintiffs
motion was filed August 3, 2014, and Defendants' motion was filed August 14, 2014. No
opposition to the motions has been filed by any party or non-party 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." !d. Because, as described, the documents in question contain
confidential information and are not generally available to the public, the court finds that
alternatives to sealing do not exist at the present time. Accordingly, the documents referenced
shall be sealed in accordance with Local Civil Rule 79.2 and Section T of the CM/ECF Policy
Manual.
Accordingly, the following documents shall remain under seal:
1.

Exhibit A to Plaintiff Darwin Johnson's Fourth Motion to Compel (exhibit
located at [DE-226]); and

2.

Defendants' Opposition to Plaintiff Darwin Johnson's Fourth Motion to Compel
and supporting exhibits C and D (located at [DE-227, DE-228-4, DE-228-5 &
DE-229]).

So ordered, the 6th day of October 2014.

R1ert~

United States Magistrate Judge

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