In re: NC Swine Farm Nuisance Litigation

Filing 273

ORDER denying 134 Motion to Seal. Signed by Magistrate Judge Robert B. Jones, Jr on 2/14/2017. Counsel should read order in its entirety for critical deadlines and information. (Marsh, K)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLlNA
WESTERN DIVISION
Master Case No. 5:15-CV-13-BR

IN RE: NC SWINE FARM
NUISANCE LITIGATION

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ORDER

THIS DOCUMENT RELATES TO:
ALL CASES
This matter comes before the Court on Defendant Murphy-Brown LLC's Motion to Seal
[DE-134]. Plaintiffs have responded [DE-15 6] in opposition to the motion and all further responsive
briefmg is complete [DE-164]. For the reasons set forth below the motion is denied without
prejudice.
I. BACKGROUND

On May 21, 2015, this court entered the parties' consent protective order governing the
exchange of confidential information during discovery. [DE-27]. The court also entered an order
to further detail the parties' obligations in filing confidential materials under seal. [DE-28]. In its
production of documents during discovery Defendants designated as confidential documents stamped
MB 100103000032, MB 100103000033, MB 100103000034, MB 100103000014, MB
100103000022 and MB 100103000061, MB 100103000062, MB 100103000063 and MB
100103000064 ("Subject Documents"). See [DE-135-1] at 1, 3, 6.
On June 9, 2016, Plaintiffs filed a motion to compel. [DE-117]. Specifically, Plaintiffs
moved the court to compel Defendant to produce documents that belong to non-party Smithfield
Foods, Inc. ("Smithfield") that were in Defendant's possession, custody or control. Id Plaintiffs

included the Subject Documents as a sealed exhibit to their brief in support of their motion. Ex. 13
[DE-118-13]. In their brief, Plaintiffs referred to the documents in support of their argument that
the exchange ofthe documents contained in Exhibit 13 between Defendant and non-party Smithfield
demonstrates sufficient control to support an order directing Defendant produce the requested
documents, and Plaintiffs redacted the portion of their brief which discusses Exhibit 13. [DE-118]
at 9. The court denied the motion to compel. [DE-149].
Defendant now moves to seal the Subject Documents and to maintain under redaction that
portion of Plaintiffs' brief discussing the exhibit.
II. DISCUSSION
"[T]he courts of this 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 if the source of the public's right to access
the documents is derived from the common law or from the First Amendment. Stone v. Univ. of
Md., 855F.2d178, 180 (4th Cir. 1988). "[T]hecommonlawpresumptioninfavorofaccess 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. Id. (quoting Nixon, 435 U.S. at 597 & citing Rushford v. New
Yorker Magazine, Inc., 846 F.2d249, 253 (4th Cir. 1988); In re Washington Post Co., 807 F.2d 383,
390 (4th Cir. 1986)).
The Subject Documents are judicial records because Plaintiffs submitted these materials in
support of their motion to compel and the comi considered them in ruling on the motion, thus they

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played a role in the adjudicative process. See In re Application of the United States for an Order
Pursuant to 18 US.C. Section2703(D), 707 F.3d283, 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, because the
Subject Documents are related to a discovery motion and the discovery process is not typically open
to the public, they are not subject to the First Amendment right to access. See 3 60 Mortg. Grp., LLC
v. Stonegate Mortg. Corp., No. 5:14-CV-00310-F, 2016 WL 3030166, at *7 n.6 (E.D.N.C. May 25,
2016) (applying the "experience and logic" test, which considers whether the proceeding before the
court is of the type traditionally open to the public and whether the proceeding benefits from public
access, in determining when the First Amendment right to access applies).
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 ofState Police v. Washington Post, 386 F.3d
567, 575 (4th Cir. 2004). 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 enhance 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)).
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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).
The court has reviewed the Subject Documents and is unable to determine Defendant has
sufficiently shown any significant interest that outweighs the presumption of access. Defendant
argues that all of the documents contain commercially sensitive information and data about funding
and budgets for the activities of a third-party, as well as Defendant's strategic plan for promotion of
its business. It is difficult for the court to make this conclusion. The documents purportedly belong
to a third- party, appear unauthored by Defendant, and Defendant does not appear to be included in
the correspondence included in the Subject Documents or to be mentioned in the documents at all.
This absence raises questions as to the basis on which Defendant has made its claims as to the nature
of the documents. To that end, Defendant has provided the court only with briefing statements,
which fail to provide a clear explanation as to the nature of the documents and reasons they should
remain sealed. See Erichson v. REC Capital Mlcts., LLC, 883 F. Supp. 2d 562, 574 (E.D.N.C. 2012)
(nothing more than a generalized description of documents as containing "confidential commercial
information" fails to provide sufficient basis to overcome common law presumption of access)
(citing Nixon, 435 U.S. at 597); see also Cochran v. Volvo Grp. North America, LLC, 931 F. Supp.
2d 725, 730 (M.D.N.C. 2013) (holdingthatcounsel's briefing statements are not evidence, and while
the parties' stipulation or representation that the documents contain confidential business
information may be considered as some evidence, such representations must be weighed against
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competing interests) (citations omitted); Bayer CropScience, Inc. v. Syngenta Crop Protection, LLC,
No. 1:13-CV-316, 2013 WL 12137000, at *1 (M.D.N.C. Dec. 12, 2013) (unpublished) (statements
in a brief insufficient to justify motion to seal in the absence of a stipulation or joint representation
detailing confidential nature of information).
Finally, the moving party must offer a factual basis on which the court could make specific
findings to justify sealing and show that alternatives would not be sufficient. Erichson, 853 F. Supp.
2d at 574 (citing In re Knight, 743 F.2d at 235). Here, to support its argument that there are no such
alternatives, Defendant simply offers that courts have found no alternatives where the material to be
sealed contains sensitive business information. [DE-135] at 5 (citing SAS Institute, Inc. v. World
Programming Limited, No. 5:10-CV-25-FL, 2016 U.S. Dist. LEXIS 61066 (E.D.N.C. May 9, 2016)

(unpublished)). The court finds the instant case distinguishable from those where the confidential,
proprietary or commercially sensitive nature of the documents is readily apparent :from the materials
provided to the court. See SAS Institute, Inc., 2016 U.S. Dist. LEXIS 61066, at *2-3 (allowing
consent motion to seal exhibits in support of a motion for attorney's fees containing privileged
attorney invoices, time entries). Defendant's assertion offers no factual basis on which the court may
make the requisite findings, and is especially tenuous given the uncertain nature of the documents
and the basis on which Defendant may attest to that nature. Accordingly, the motion is denied
without prejudice. However, the documents shall remain sealed for 14 days from the date of this
order to allow Defendant to refile its motion with additional evidentiary support to address the
deficiencies outlined in this order. In the event Defendant timely refiles the motion to seal, the
Subject Documents shall remain sealed until the court rules on the motion. If a motion to seal is not
timely refiled, the clerk shall unseal the Subject Documents and unredacted brief without further
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order.
SO ORDERED, the 14th day of February 2017.

Ro~

United States Magistrate Judge

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