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

Filing 589

ORDER granting 565 Motion to Seal Case for August 24, 2016 Evidentiary Hearing . Only the parties, their counsel, counsel for the government, and court staff will be allowed in the courtroom during the proceeding. Non-party witnesses may be present in the courtroom only during their own testimony. Counsel for each party and counsel for the government are DIRECTED to submit to the court via CM/ECF a list of individuals anticipated to attend the evidentiary hearing no later than 11:59 p.m. on August 23, 2016. Signed by Senior Judge James C. Fox on 8/23/2016. (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 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/k/a UNIVERSAL SERVICES
)
CONSULTING GROUP, JASON
)
CARPENTER, CHRISTOPHER SMALL, )
EMORY STEPHEN DANIEL,
)
and other unnamed co-conspirators,
)
)
Defendants,
)
)
UNITED STATES OF AMERICA,
)
Intervenor.
)

ORDER
(UNDER SEAL)

This matter is before the court on Defendants’ motion [DE-565] to seal the courtroom
during the evidentiary hearing scheduled for August 24, 2016. For the reasons stated below, the
motion is ALLOWED.
I.

LEGAL STANDARD

A district court must follow certain procedural requirements when deciding a motion to
seal. First, the court must give the public adequate notice of and an opportunity to object to the

proposed sealing.1 Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253−54 (4th Cir.
1988). If the court decides to seal a document, it must then state its reasons supported by specific
factual findings, as well as its reasons for rejecting alternatives to sealing. Id.
Substantively, the court’s decision on a motion to seal is guided by its determination of
the source of the public’s right of access. Here, the parties agree that the public’s right of access
arises under the First Amendment. Accordingly, “access may be denied only on the basis of a
compelling governmental interest, and only if the denial is narrowly tailored to serve that
interest.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (1988) (citing Rushford, 846
F.2d at 253).
II.

DISCUSSION

The focus of the August 24, 2016 evidentiary hearing will be the extent of the work
performed by Defendants Carpenter and Small on behalf of various government agencies,
primarily the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Defendants represent
that over the course of their cooperation with the government they dealt with numerous violent
criminals. They fear that disclosure of the extent of this cooperation will endanger their lives and
those of their families. Carpenter Decl. [DE-14-1] at 2−3; Small Decl. [DE-14-2] at 2−3.
Multiple current and former ATF agents, familiar with the investigations on which Defendants
cooperated, concur in this assessment. Lesnak Decl. [DE-26-3] at 4; Whittemore Decl. [DE-264] at 2; Kaye Decl. [DE-448-14] at 4.
Throughout this litigation, Plaintiffs and Defendants have submitted numerous motions to
seal citing the sensitive nature of the information likely to comprise the bulk of the testimony at

1

At the outset, the court notes that the instant motion was filed on August 16, 2016. In the week since, no
member of the press or public has objected to the proposed sealing.

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the upcoming evidentiary hearing. Each motion has been unopposed, and each has been granted.2
The court can perceive no change in circumstance that would demand a different result for the
instant motion.
There are no adequate alternatives to sealing in this instance. The evidentiary hearing will
not address the merits of the underlying litigation. Instead, the court will consider a single
issue—the nature of Defendants’ relationship with the government. Because all testimony and
evidence presented will revolve around this sensitive topic, closing the courtroom for only part
of the proceedings is not feasible.
Because of the serious threat to the safety of Defendants and their families, and for the
reasons stated in the court’s previous orders sealing documents in this case, the August 24, 2016
evidentiary hearing will be sealed.
III.

CONCLUSION

For the foregoing reasons, Defendants’ motion [DE-565] to seal the August 24, 2016
evidentiary hearing is ALLOWED. It is hereby ORDERED that the August 24, 2016 evidentiary
hearing will be closed to the public. Only the parties, their counsel, counsel for the government,
and court staff will be allowed in the courtroom during the proceeding. Non-party witnesses may
be present in the courtroom only during their own testimony. Counsel for each party and counsel
for the government are DIRECTED to submit to the court via CM/ECF a list of individuals
anticipated to attend the evidentiary hearing no later than 11:59 p.m. on August 23, 2016.

2

See, e.g., [DE-56, -81, -107, -134, -142, -161, -211, -224, -258, -259, -260, -273, -297, -298, -319, -320, -340,
-342, -354, -358, -359, -375, -376, -386, -398, -416, -423, -485, -513, -516, -517, -519].
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SO ORDERED.
This the 23rd day of August, 2016.
__________________________
JAMES C. FOX
Senior United States District Judge

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