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

Filing 810

ORDER granting 757 PROPOSED Sealed Motion; denying 763 Motion for Reconsideration; and denying 784 PROPOSED Sealed Motion. Signed by US District Judge Terrence W. Boyle on 5/19/2017. Counsel is reminded to read the order in its entirety for important deadlines and information. (Stouch, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-527-BO

U.S. TOBACCO COOPERATIVE, INC.,
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Plaintiffs,

v.

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ORDER

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BIG SOUTH WHOLESALE OF VIRGINIA,)
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)
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Defendants. )

This cause comes before the Court on emergency motions for partial and full
reconsideration pursuant to Fed. R. Civ. P. Rule 54(b) of the Court's order of December 7, 2016.
[DE 757; 763]. Also before the Court is a motion to intervene in this matter by John Doe. [DE
784]. This matter having been recently reassigned to the undersigned, a status conference was
held on May 17, 2017, at Elizabeth City, North Carolina at which the parties through counsel
appeared. For the reasons discussed more fully below, the government's motion for partial
reconsideration is granted, defendants' motion for full reconsideration is denied, John Doe's
motion to intervene is denied, and the seal applied to a large portion of the record in this case is
lifted.
BACKGROUND
Because the parties in this matter are familiar with the factual and procedural background
of this case, the Court declines to repeat it here. Relevant to the instant motions, by order
entered December 7, 2016, the Court, Fox, J., lifted the seal as to all documents in the case,

removed the designation of "highly confidential" from information related to Carpenter and
Small's government cooperation, and denied all pending motions to seal. [DE 655]. The Court
further ordered that the lifting of the seal on documents in this case would be delayed for fortyfive days from the date of entry of the order. The delay has since been extended by order of the
Court and remains in place.
DISCUSSION
A Court retains inherent authority to reconsider its orders prior to entry of final judgment.
See Fed. R. Civ. P. 54(b); Fayetteville Inv'rs v. Commercial Builders, Inc., 936 F.2d 1462, 1469
(4th Cir. 1991). The government has provided the Court with a persuasive argument to narrowly
modify its order lifting the seal from documents filed in the case. The relief it has requested in
its motion is therefore granted, and upon lifting of the seal pseudonyms shall be used for "Target
A" and any subsidiaries, principal employees. Should review of the record reveal any other
information that would directly identify "Target A," that information shall be redacted and filed
under seal under separate cover. The parties are cautioned against liberal-or-overuse of the
sealed designation.
Defendants Carpenter and Small have also sought reconsideration ofthis Court's
December 7, 2016, order, asking that all documents filed under seal remain under seal. The
countervailing factors which support lifting the seal in this case have become no less compelling
since entry of the Court's 7 December order, and the Court will not re-impose what amounted to
a blanket seal in this case based upon the arguments in Carpenter and Small's motion. Their
motion is therefore denied.
The Court has further considered the arguments of John Doe, a proposed intervenor for
the purpose of protecting his identity. Doe's request to intervene as a party in this matter under

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Fed. R. Civ. P. 24 is denied; however, in light of the government's position on the motion, the
Court will allow the ultimate relief requested by Doe and order that a pseudonym be substituted
for Doe and his companies in all public filings in this case.
CONCLUSION
For the foregoing reasons, the government's motion to reconsider [DE 757] is
GRANTED; Carpenter and Small's motion to reconsider [DE 763] is DENIED; and John Doe's
motion to intervene [DE 784] is DENIED. The December 7, 2016, order lifting the seal and
denying the then-pending motions to seal is MODIFIED to reflect that pseudonyms shall be used
in place of the real identities of "Target A," John Doe, and related entities. Where information
which would directly reveal the identity of the "Target A" or John Doe entities currently appears
or becomes necessary to appear in documents filed with the Court, that information shall be
redacted from the public filing and filed under seal under separate cover pursuant to the Court's
policies and procedures.
In light of the volume of materials currently filed under seal in this case, the lifting of the
seal presents no simple administrative task. To that end, the parties shall, either jointly or
independently, not later than June 2, 2017, file with the Court a list of any documents, including
orders of the Court, containing information or identities which require pseudonym-substitution or
redaction or would not otherwise be appropriately unsealed. 1 Any document not listed in the
parties' submission shall be unsealed without further review by the Court upon entry of an order
effecting the lifting of the seal. The Court will address the documents requiring redaction or
substitution of pseudonyms following its review of the submission(s) of the parties.

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This list shall include documents which are the subject of pending motions to seal and which
were filed after entry of the December 7, 2016, order. The parties may withdraw any pending
motions to seal if doing so would aid the Court in effectuating its order.

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Defendants Carpenter and Small shall be permitted to, not later than June 2, 2017, seek in
this Court a further stay of the lifting of the seal pending review of orders addressing the
necessity of documents in this case being kept under seal by the court of appeals. No documents
shall be unsealed while the Court awaits the submission(s) of the parties and any further motion
to stay by defendants Carpenter and Small.

SO ORDERED, this /'(day of May, 2017.

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~NCEW:BOYLE
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UNITED STATES DISTRICT JUDGE

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