CORL
Filing
22
MEMORANDUM OPINION AND ORDER granting in part and denying in part 20 Motion to Seal Document. Defendant shall file a redacted copy of the declaration at issue (Docket Entry 19 ) that obscures the dates of birth cited therein and aredacted copy of the attachment to said declaration (Docket Entry [19-1]) that obscures all of the information in all of the columns except for the Termination Reason and Age at Terminationcolumns. Signed by MAG/JUDGE L. PATRICK AULD on 6/30/11. (Wilson, JoAnne)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CAROL CORL,
Plaintiff,
v.
BURLINGTON COAT FACTORY OF NORTH
CAROLINA, LLC,
Defendant.
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1:10CV406
MEMORANDUM OPINION AND ORDER
This matter comes before the Court pursuant to Defendant’s
Motion to Seal (Docket Entry 20), to which Plaintiff has consented
(see Docket Entry dated June 28, 2011).
For the reasons that
follow, the Court will grant the instant Motion in part and deny it
in part.
BACKGROUND
This case commenced when Plaintiff filed a Complaint against
Defendant for employment discrimination based on age in violation
of federal and state law.
(See Docket Entry 1.)
Defendant now has
moved for summary judgment (Docket Entry 17) and, in connection
therewith, has filed the instant Motion seeking to file under seal:
1) a declaration of an individual affiliated with Defendant
which sets out the dates of birth of individuals involved in the
termination of Plaintiff’s employment (Docket Entry 19); and
2) an attachment to that declaration that sets out the name,
job title, basis for termination of employment, date of termination
of employment, date of birth, and age of individuals formerly
employed at the same store as Plaintiff who also were involuntarily
separated from employment with Defendant during a certain time
period (Docket Entry 19-1).
DISCUSSION
“The operations of the courts and the judicial conduct of
judges
are
matters
of
utmost
public
concern.”
Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978).
As a
result, “the courts of this country recognize a general right to
inspect and copy . . . judicial records and documents.”
Nixon v.
Warner Communications, Inc., 435 U.S. 589, 597 (1978).
See also
Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 203
F.3d 291, 303 (4th Cir. 2000) (“Publicity of such records, of
course, is necessary in the long run so that the public can judge
the product of the courts in a given case.
It is hardly possible
to come to a reasonable conclusion on that score without knowing
the facts of the case.”); In re Krynicki, 983 F.2d 74, 75 (7th Cir.
1992) (“Judges deliberate in private but issue public decisions
after public arguments based on public records.
The political
branches of government claim legitimacy by election, judges by
reason. Any step that withdraws an element of the judicial process
from public view makes the ensuing decision look more like fiat;
this requires rigorous justification.”).1
“The right of public access to documents or materials filed in
a district court derives from two independent sources:
law and the First Amendment.”
the common
Virginia Dept. of State Police v.
1
The right of access to court records flows from the right of access to
in-court proceedings; it applies in both civil and criminal cases. See Rushford
v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 & n.4 (4th Cir. 1988).
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The Washington Post, 386 F.3d 567, 575 (4th Cir. 2004). “While the
common law presumption in favor of access attaches to all ‘judicial
records and documents,’ the First Amendment guarantee of access has
been extended only to particular judicial records and documents.”
Stone v. University of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th
Cir. 1988) (internal citation omitted).
Where – as here – the
documents a party seeks to seal relate to a summary judgment
motion, the First Amendment access right attaches. See Rushford v.
The New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988).
“The common law presumption of access may be overcome if
competing interests outweigh the interest in access . . . .
Where
the First Amendment guarantees access, on the other hand, 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, 855 F.2d at 180 (emphasis added).
The United
States Supreme Court has identified the following examples of
“competing interests” that courts have found sufficient to overcome
the common law right of access:
1) the interest in “insur[ing]
that [court] records are not used to gratify private spite or
promote public scandal [such as] through the publication of the
painful and sometimes disgusting details of a divorce case”; 2) the
interest
in
precluding
the
use
of
court
“files
to
serve
as
reservoirs of libelous statements for press consumption”; and 3)
the interest in preventing court files from becoming “sources of
business information that might harm a litigant’s competitive
standing.” Nixon, 435 U.S. at 598. Although the common-law access
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balance thus clearly accounts for interests associated with nongovernmental litigants and/or third-parties, it is not clear how
such interests fit into the First Amendment access analysis, given
that test’s use of the term “governmental interest.”
In other words, in the context of a civil case involving nongovernmental litigants and/or third-parties, how does one define or
discern a “governmental interest”?
Does the government have an
interest in the vindication of an individual’s right to personal
privacy or a business’s right to freedom from unfair competitive
disadvantage?
substituting
Some
the
courts
notion
of
interest” in such contexts.
have
addressed
“higher
value”
this
for
conundrum
by
“governmental
See Level 3 Communications, LLC v.
Limelight Networks, Inc., 611 F. Supp. 2d 572, 580-83 (E.D. Va.
2009) (discussing cases that cited right to privacy, property right
in trade secrets, privilege against disclosure of attorney-client
communications,
and
duties
created
by
contract
as
“private”
interests that might overcome First Amendment right of access).
Moreover, in at least two decisions (one published, one not), the
Fourth Circuit has endorsed the view that a private business’s
interests can overcome both the common law and the First Amendment
rights of access. See Columbus-America, 203 F.3d at 303 (reversing
order “unsealing the list of the inventory of the recovered
treasure” awarded to litigant because “value of the inventory may
be damaged by premature release of the inventory”); Woven Elec.
Corp. v. Advance Group, Inc., Nos. 89-1580, 89-1588, 930 F.2d 913
(table), 1991 WL 54118, at *6 (4th Cir. May 6, 1991) (unpublished)
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(ruling that district court could have closed courtroom and could
seal record to protect trade secrets).
In addition to identifying the proper source of the right of
access, “[w]hen presented with a request to seal judicial records
or documents, a district court [also] must comply with certain
. . . procedural requirements.”
386 F.3d at 576.
Virginia Dept. of State Police,
Specifically:
[The district court] must give the public notice of the
request to seal and a reasonable opportunity to challenge
the request; it must consider less drastic alternatives
to sealing; and if it decides to seal it must state the
reasons (and specific supporting findings) for its
decision and the reasons for rejecting alternatives to
sealing. Adherence to this procedure serves to ensure
that the decision to seal materials will not be made
lightly and that it will be subject to meaningful
appellate review.
Id. (internal citation omitted) (emphasis added).2
The Court concludes that the interest in protecting the
personal privacy of Defendant’s employees and former employees
represents a compelling interest sufficient to overcome both the
common-law and the First Amendment right of access to some of the
information
within
the
materials
Defendant’s summary judgment motion.
filed
in
connection
with
Indeed, the Federal Rules of
Civil Procedure recognize the compelling nature of the interest in
keeping individual’s personal information, such as dates of birth,
out of public court records.
the
Court
need
not
seal
See Fed. R. Civ. P. 5.2.
the
declaration
2
in
its
However,
entirety
to
The public docketing of a motion to seal – as occurred in this case – can
satisfy the “public notice” element of this “procedural” requirement. See Stone,
855 F.2d at 181.
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vindicate the compelling interest at stake.
Instead, the Court
will order Defendant to file a redacted copy of the declaration
which obscures the dates of birth cited therein.
The Court also will order the filing of the attachment to the
declaration in redacted form.
Defendant’s former employees have a
compelling privacy interest in keeping their personal identifying
information, as well as the fact and circumstances of their
involuntary separation from employment with Defendant, out of the
public record.
Accordingly, the Court will order that Defendant
file a redacted copy of said attachment that obscures all of the
information under all of the columns except for the “Termination
Reason” and “Age at Termination” columns.
The redaction of the
information in the other columns sufficiently will protect the
former employees’ personal information and identities.
CONCLUSION
Common-law and First Amendment rights of public access attach
to the materials Defendant seeks to seal. To the extent the public
disclosure of some of the information in said materials would
infringe on the personal privacy of Defendant’s employees and
former employees, however, a compelling interest sufficient to
overcome the public right of access exists.
The Court nonetheless
has an obligation to vindicate those privacy interests in the least
drastic manner practicable.
Accordingly, the Court will order
redaction rather than total sealing.
IT IS THEREFORE ORDERED that Defendant’s Motion to Seal
(Docket Entry 20) is GRANTED IN PART and DENIED IN PART. Defendant
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shall file a redacted copy of the declaration at issue (Docket
Entry 19) that obscures the dates of birth cited therein and a
redacted copy of the attachment to said declaration (Docket Entry
19-1) that obscures all of the information in all of the columns
except for the “Termination Reason” and “Age at Termination”
columns.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 30, 2011
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