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

Filing 298

ORDER granting 289 Motion to Seal Document. Signed by Senior Judge James C. Fox on 5/7/2015. The parties are reminded to read the order in its entirety for detailed information. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No.: 5:13-cv-527-F
U.S. TOBACCO COOPERATIVE INC.,
U.S. FLUE-CURED TOBACCO
GROWERS, INC., and BIG SOUTH
DISTRIBUTION, LLC,

)
)
)
)
)

Plaintiffs,

)

)
v.
)
)
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, and EMORY
)
STEPHEN DANIEL,
)
)
)
Defendants.

ORDER

This matter is before the court on the motion to seal [DE-289] filed by
Defendants Big South Wholesale of Virginia LLC, d/b/a Big Sky International, Big
South Wholesale, LLC, Jason Carpenter, and Christopher Small (collectively, "Big Sky
Defendants").

For the reasons set forth below, the motion is ALLOWED.

The Big Sky Defendants seek to fi Ie their reply brief in response to the
Government's Response in Opposition to Defendants' Motion to Stay Amend the
Protective Order.
Plaintiffs and the Government consent to the Big Sky Defendants' motion.
The Fourth Circuit has directed thatpriorto sealingjudicial 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 (4th
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 Dep 't of State 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 ifthe 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 ofaccess 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 ofa 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 ofthe
request, or docket it "reasonably in advance ofdeciding the issue." Id 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

With respect to the pending motion to seal, the procedural requirements of In re
Knight Publishing Company have been satisfied. The motion to seal was filed on

April23, 2015. No third parties or members ofthe press have attempted to file an
objection to the motion to seal. Defendants' brief suggests that only the common law
right ofaccess 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 finds 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, the parties have
shown that the Response to the Government's Motion to Stay, along with the brief in
support ofthe motion to seal, contain information that could subject certain
individuals to physical harm and/or harassment. The Court again finds that these
individual's interest in their safety outweighs the public's interest in access to the
relevant documents. See DishNetworkL.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 sealing the plyrmemorandum withap.Jblicallyavailableredactedversioois narrowly-tailored
to protect the individuals while also providing public access to most of the
substance of the documents. The Court also finds that the reply and brief in support of
the motion to seal shall remain sealed with a redacted version of the reply being
available to the public.

Accordingly, the Motions to Seal [DE-289] is ALLOWED. The Clerk of
Court is DIRECTED to maintain the following documents under SEAL:
I.

Reply briefin response to the Government's Response in
Opposition to Defendants' Motion to Stay Amend the Protective
Order [DE-286] and the exhibit thereto [DE-286-1] and

2.

Brief in Support of this Motion to File Under Seal [DE-287].

SO ORDERED.

/

This the -~7_day of May, 2015.

enior United States District Judge