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

Filing 359

ORDER granting 337 Motion to Seal 335 and 336 SEALED Memoranda in Support. Signed by Magistrate Judge Robert B. Jones, Jr. on 9/17/2015. (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-337]
Defendants.

filed by

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

The

Defendants seek to fi Ie their Memorandum in Support of Motion for Discovery Plan
under seal, along with their brief in support of their motion to seal.
Plaintiffs consent to the Defendants' motion.
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 (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 Jaw 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 i fthe 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-CV1016, 2010 WL 1257990, *7 n.4 (M.D.N .C.March 26, 201 0) (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." 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
August 24, 2015. No third parties or members of the press have attempted to file an
objection to the motion to seal. Defendants' brief 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 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 brief in support of Defendants' motion to extend stay and the brief in support
ofthe motion to seal, contain information that should not be released. The Court
again finds that the government's interest and the individual's interest outweighs the
public's interest in access to the relevant documents. Accordingly, the Motions to Seal
[DE-337] is ALLOWED. The Clerk of Court is DIRECTED to maintain the following
documents under SEAL:

•
Memorandum in Support of Defendants' Motion for Discovery Plan,
[DE-335];
•

Memorandum in Support ofDefendants' Motion to Seal [DE-336];

SO ORDERED. This the t"'} day of September 2015.