U.S. Tobacco Cooperative Inc. et al v. Big South Wholesale of Virginia, LLC d/b/a Big Sky International et al

Filing 224

ORDER granting 216 Consent Motion to Seal. Signed by Senior Judge James C. Fox on 10/21/2014. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Civil Action No. 5:13-CV-00527-F

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U.S. TOBACCO COOPERATIVE INC.,
U.S. FLUE-CURED TOBACCO
GROWERS, INC., and BIG SOUTH
DISTRIBUTION, LLC,
Plaintiffs,

.v.

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BIG SOUTH WHOLESALE OF
VIRGINIA, LLC, d/b/a BIG SKY
INTERNATIONAL, BIG SOUTH
WHOLESALE, LLC, UNIVERSAL
SERVICES FIRST CONSULTING, A/KIA
UNIVERSAL SERVICES CONSULTING
GROUP, JASON CARPENTER,
CHRISTOPHER SMALL, EMORY
STEPHEN DANIEL, and other unnamed
co-conspirators,
Defendants.

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ORDER

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TillS MATTER is before the Court on the Plaintiffs' Motion to Seal pursuant to FED. R.
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Civ. P. 5.2, Local Civil Rule 79.2, and Section T of the CMIECF Policy Manual. For the reasons
set forth below, the motion is ALLOWED.
Plaintiffs seek to submit under seal their Second Amended Complaint; publicly file,
under partial seal, a redacted version of Plaintiffs' Second Amended Complaint; and file under
seal their brief in support of their Motion to Seal.

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The Fourth Circuit has directed that, prior to sealing judicial records, a district court
must first determine the source of the public's right to access the judicial records: the common
law or the First Amendment. Stone v. Univ. of Md., 855 F.2d 178,180 (4t Cir. 1988). If the
common law right of access to judicial records applies, there is a presumption of public access

to judicial records, which can only be rebutted if countervailing interests outweigh the public's
interest in access. 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 historic event; and whether the public already had access to the information
contained in the records." Virginia Dept. ofState Police v. Washington Post, 386 F.3d 567, 575
(4th Cir. 2004) (quoting In re Knight Pub/. Co., 743 F.2d 231,235 (4th Cir. 1984)). Where the
First Amendment guarantees access to judicial records, such access may be denied only on the
basis of a compelling governmental interest or other higher value, and only if the denial is
narrowly tailored to serve that interest or value. See Stone, 855 F.2d at 180; see also Haas v.
Golding Transp., Inc., No. 1:09-CV-1016, 2010 WL 1257990, *7 n.4 (M.D.N.C. March 26,

2010) (substituting "higher value" for "governmental interest" in the context of a civil case
involving nongovernmental litigants).
In weighing the competing interests between the presumption of access and the
asserted reason for sealing, a court must comply with the procedure set forth by In re Knight
Publishing Company.

First, a court must give the public notice of a request to seal and a

reasonable opportunity to challenge it. 743 F.2d at 235.

Although individual notice is not

necessary, a court must notify persons present in the courtroom of the request, or docket it
"reasonably in advance of deciding the issue." /d. A court must consider less drastic alternatives
to sealing, and if it 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." Id

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With respect to the pending Motion to Seal, the procedural requirements of In re Knight

Publishing Company have been satisfied.

No third parties or members of the press have

attempted to file an objection to the Motion to Seal. Plaintiffs' briefing suggests that only the
common law right of access applies to the documents at issue in the pending motion to seal, and
the Court has not located any authority to the contrary. For the reasons stated in the Court's
November 12, 2013, Order [DE-56], the Court fmds that the parties have demonstrated that there
is a significant countervailing interest in support of sealing that outweighs the public's right in
access to the documents. Specifically, Plaintiffs have shown that their Second Amended
Complaint, as well as the brief in support of their Motion to Seal, contain information that could
subject certain individuals to physical harm and/or harassment. The Court again finds that these
individuals' interests in their safety outweigh the public's interest in access to the relevant
documents. See Dish Network L.L.C. v. Sonicview USA, Inc., No. 09-CV-1553 L(NLS), 2009
WL 2224596, at *7 (S.D. Cal. July 23, 2009) (finding that protecting the identities of individuals
who had served as confidential informants, and thereby protecting them from being subjected to
threats of physical harm, outweighed the presumption of access to court records). Additionally,
the Court finds that redacting Plaintiffs' Second Amended Complaint, while filing the unredacted version of the document under seal, is narrowly-tailored to protect the individuals
while also providing public access to most of the substance of the documents. The Court also
finds, however, that the memorandum filed in support of Plaintiffs' Motion to Seal cannot be
redacted in any meaningful manner, and therefore may be sealed in its entirety.

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The Motion to Seal is ALLOWED. The Clerk of Court is DIRECTED to maintain the
following documents under SEAL:

(a) Plaintiffs' Memorandum in Support of Plaintiffs' Motion to Seal; and
(b) Plaintiffs' Second Amended Complaint.

SO ORDERED.
This the~ day of October

'2014.

~C. Fox
Senior United States District Judge

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