MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 421

BRIEF re #420 MOTION to Seal Document #270 Reply to Response to Motion, (To Seal Exhibit 1 of DE 270) (Unopposed Motion) . (SPARKS, STEFANIE)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.

BRIEF IN SUPPORT OF
PLAINTIFFS’ UNCONTESTED
MOTION TO SEAL

DUKE UNIVERSITY, et al.,
Defendants.
Plaintiffs, through counsel, submit this Brief in Support of their Motion to
Seal.
NATURE OF THE MATTER AND STATEMENT OF FACTS
On 18 January 2012, Duke University moved for a protective order to
prevent and/or limit inquiry into topics that Plaintiffs had listed on a Rule 30(b)(6)
notice of deposition. [DE 262]. In briefing this motion, Duke attached, as an
exhibit, a copy of a report summarizing Plaintiff Matthew Wilson’s Undergraduate
Judicial Board hearing produced by Mr. Wilson in discovery (“Hearing Report”).
[DE 270-1]. The purpose behind Duke’s filing of the Hearing Report was
ultimately mooted; the parties resolved their discovery dispute without a ruling on
Duke’s motion for a protective order. [DE 282; DE 288].

The Hearing Report contains private information from a closed-session
disciplinary action brought against a college student nearly eight years ago. (See
DE 270-1). Mr. Wilson wishes to have the Hearing Report sealed, and Duke does
not oppose that relief. Additionally, the City of Durham, the only other remaining
Defendant in this case, does not oppose having the Hearing Report sealed.
QUESTION PRESENTED
Whether good cause exists to seal an exhibit to a mooted, non-dispositive
motion, where the document contains private information about a closed-session
student disciplinary proceeding?

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ARGUMENT
I.

The Interests Promoted by Sealing Mr. Wilson’s Hearing Report
Outweigh any Possible Right of Public Access to this Document.
This Court “has supervisory power over its own records and may, in its

discretion, seal documents if the public’s right of access is outweighed by
competing interests.” In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984).
Since the Hearing Report was not filed in connection with a dispositive motion or
invoked in any Court order, no First Amendment right of access attaches to this
document. Bayer CropScience Inc. v. Syngenta Crop Prot., LLC, -- F. Supp. 2d --,
2013 WL 5703212, at *2 (M.D.N.C. 2013).
Under the less-demanding common law standard, the decision to seal a
document is “best left to the sound discretion of the [district] court, a discretion to
be exercised in light of the relevant facts and circumstances of the particular case.”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598-99 (1978).
The Fourth Circuit employs a defined procedure when faced with a request
to seal documents. Before sealing documents, the Court must “(1) provide public
notice of the request to seal and allow interested parties a reasonable opportunity to
object, (2) consider less drastic alternatives to sealing the documents, and (3)
provide specific reasons and factual findings supporting its decision to seal the
documents and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d
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288, 302 (4th Cir. 2000). Notice may be deemed adequate when a party files a
publicly viewable motion to seal, and no member of the public challenges the
motion. E.g., Bell v. Shinseki, No. 1:12CV57, 2013 WL 3157569, at *9 (M.D.N.C.
June 20, 2013).
The public has no valid interest in the content of a private university’s
judicial report from 2006. This is especially true where, as here, the Court did not
rely on the Hearing Report, since no order was issued on the discovery motion for
which this document was submitted. See id. (sealing records that “would have
little value in further the public oversight of the judicial process” because they
were not relied upon in resolution of dispositive motions). Nor does the Hearing
Report enhance public understanding of any important historical event.
Weighed against this nonexistent public interest, Mr. Wilson has a
compelling interest in keeping the Hearing Report under seal. The Hearing Report
contains private, generally non-public information about an incident in which Mr.
Wilson was involved many years ago. See Briggs v. Marriott Int’l, Inc., 368 F.
Supp. 2d 461, 463 n.1 (D. Md. 2005) (sealing “personal and medical information
related to Plaintiff”).
Finally, considering that the Court’s docket is public, there is no alternative
less drastic than sealing that would adequately protect the private information
contained in the Hearing Report. See Ashcraft, 218 F.3d at 302.
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CONCLUSION
For the reasons above, Plaintiffs respectfully request that the Court grant
their Motion to Seal and enter the attached order after a reasonable time has passed
for objections.
This the 19th day of June, 2014.

Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
Counsel for Plaintiffs
/s/ Robert C. Ekstrand
Robert C. Ekstrand
N.C. Bar No. 26673
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]
/s/ Stefanie Sparks Smith
Stefanie Sparks Smith
N.C. Bar No. 42345
110 Swift Avenue, Second Floor
Durham, North Carolina 27705
[e-mail]
Tel. [phone]
Fax [phone]

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NUMBER 1:07-CV-00953
RYAN McFADYEN, et al.,
Plaintiffs,
v.
DUKE UNIVERSITY, et al.,
Defendants.

CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2014, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF System, which will send notice of the filing to
counsel of record for Defendants and Defendant Linwood Wilson, all of who are
registered CM/ECF users.
Respectfully submitted by:
EKSTRAND & EKSTRAND LLP
/s/ Stefanie Sparks Smith
Stefanie Sparks Smith
Counsel for Plaintiffs

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