Trana Discovery, Inc. v. Southern Research Institute

Filing 90

ORDER granting 70 Motion to Seal. Signed by US Magistrate Judge Robert B. Jones, Jr. on 5/4/2017. (Grady, B.)

. IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-848-F
TRANA DISCOVERY, INC.,
Plaintiff,
v.
SOUTHERN RESEARCH INSTITUTE,

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Defendant.

ORDER

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This matter comes before the court on Plaintiffs Motion to File Documents Under Seal.
[DE-70]. Plaintiff seeks to maintain under seal certain documents related to a pending motion to
strike on the grounds the documents contain confidential information. Defendant has not responded
to the motion and the time for doing so has expired.
"[T]he courts ofthis country recognize a general right to inspect and copy public records and
documents, including judicial records and documents." Nixon v. Warner Commc 'ns, Inc., 435 U.S.
'589, 597 (1978) (internal footnote omitted). The Fourth Circuit has directed that before sealing
publicly filed documents the court must first determine ifthe source of the public's right to access
the documents is derived from the common law or the First Amendment. Stone v. Univ. ofMd., 855
F.2d 178, 180 (4th Cir. 1988). The fact that the documents sought to be sealed are subject to a
protective order by the court does not relieve the parties or the court from the obligation to comply
with the Fourth Circuit's sealing regimen. See Hall v. United Air Lines, Inc., 296 F. Supp. 2d 652,
679-80 (E.D.N.C. 2003); see also Volunietrics Med Imaging, LLC v. Toshiba Am. Med Sys.,
No.1:05-CV-955, 2011 WL 2413404, at *5 (M.D.N.C. Jun. 10, 2011) (unpublished) (citations
j.

omitted). "[T]he common law presumption in favor of access attaches to all 'judicial records and

documents,' [while] the First Amendment guarantee of access has been extended only to particular
judicial records and documents[,]" such as those filed in connection with a motion for summary
judgment. Stone, 855 F.2dat 180 (quoting Nixon, 435 U.S. at 597 & citing Rushfordv. New Yorker

Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). Here, the documents sought to be sealed have
been filed by Plaintiff in connection with its opposition to Defendant's motion to strike Plaintiffs
supplementation to its expert report, and thus the documents play a role in the adjudication process.

See In re Application ofthe United States for an Order Pursuant to 18 US.C. Section 2703(D), 707
F.3d 283, 290 (4th Cir. 2013) ("[D]ocuments filed with the court are 'judicial records' if they play
a role in the adjudicative process, or adjudicate substantive rights.") (citations omitted); United

States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("[T]he item filed must be relevant to the
performance of the judicial function and useful in the judicial process in order for it to be designated
a judicial document."). Furthermore, the documents at issue are not subject to the First Amendment
right of access, because they are related to a dispute over the scope of an expert report produced in
discovery. See 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-CV-310-F, 2016 WL
3030166, at *7 n.6 (E.D.N.C. May25, 2016) (unpublished) (applying the "experience and logic" test,
which considers whether the proceeding benefits from public access, in determining when the First
Amendment right to access applies); Covington v. Semones, No. 7 :06-CV-00614, 2007 WL 1170644,
at *2 (W.D. Va. Apr. 17, 2007) (unpublished) ("In this instance, as the exhibits at issue were filed
in connection with a non-dispositive motion, it is clear there is no First Amendment right of
access.").
The presumption of access under the common law is not absolute and its scope is a matter
left to the discretion of the district court. Va. Dep't a/State Police v. Washington Post, 386 F.3d

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567, 575 (4th Cir. 2004), cert. denied, 544 U.S. 949 (2005). The presumption "'can be rebutted if
countervailing interests heavily outweigh the public interests in access,' and ' [t ]he party seeking to
overcome the presumption bears the burden of showing some significant interest that outweighs the
presumption."' Id. (quoting Rushford, 846 F.2d at 253). "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 t:nhance
the public's understanding of an important historical event; and whether the public has already had
access to the information contained in the records."' Id. (quoting In re Knight Pub!. Co., 743 F.2d
231, 235 (4th Cir. 1984)). Finally, prior to sealing a judicial record the court must (1) give the public
notice of the request to seal and a reasonable opportunity to challenge it; (2) consider less.drastic
alternatives to sealing; and (3) "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." In re Knight Pub. Co., 743 F.2d at 235 (citation omitted).
Here, the documents consist of materials considered confidential by the filing party, subject
to a confidentiality order of the court. Although not dispositive, this factor does speak to the
purported nature ofthe documents, which contain sensitive business information not available to the
general public, specifically proprietary drug research and related budgetary and strategic business
considerations. One of the documents submitted by Plaintiff to be sealed, its brief in opposition to
the motion to strike, contains quotations to the proprietary information. Based on this showing, the
court finds that the presumption of access has been overcome.

In addition, the public must be given notice of a request to seal and a reasonable opportunity
to challenge it. In re Knight Publishing Co., 743 F.2d at 235. Here, Plaintiffs motion was filed

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February 2, 2017. No opposition to the motion has been filed by any party or non-party despite a
reasonable opportunity to do so.
Finally, the court is obligated to consider less drastic alternatives to sealing, and where a
court 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 fill adequate
record for review." Id. Because, as described, the documents in question contain confidential
information and are not generally available to the public, the court finds that alternatives to sealing
do not exist at the present time. The court notes however, that an unsealed version of Plaintiffs brief
has been filed in redacted form and is publicly available. [DE-66].
Accordingly, Plaintiffs motion [DE-70] is ALLOWED and the following documents shall
remain under seal in accordance with Local Civil Rule 79.2:
1.

Memorandum of Law in Opposition to Motion to Strike [DE-65];

2.

Ex. A [DE-67];

3.

Ex. C [DE-68]; and

4.

Ex. F [DE-69].

So ordered, the 4th day of May 2017.

United States Magistrate Judge

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