THE UNITED STATES OF AMERICA, et al. v. DUKE UNIVERSITY, et al.
Filing
240
MEMORANDUM OPINION AND ORDER signed by JUDGE CATHERINE C. EAGLES on 09/04/2018, that the pending motions to seal are granted in part, denied in part, and deferred in part, as follows: 1. The Motion to Seal at Doc. [16 1] is DENIED. On or after September 11, 2018, the Clerk shall unseal the documents filed at Doc. 166 , Doc. 165 , Doc. 164 , Doc. 168 , Doc. 167 , and Doc. 163 . 2. The Motion to Seal at Doc. 178 is DENIED. On or after September 11, 2018, the Clerk shall unseal Doc. 179 . 3. The Motion to Seal at Doc. 174 is GRANTED. The Clerk shall maintain the documents filed at Doc. 176 -10 (also at Doc. 201 -1), Doc. 176 -18 (also at Doc. 201 -2), Doc. 176 -19 (also at Doc. 201 -3), Doc . 176 -21 (also at Doc. 201 -4), and Doc. 176 -27 (also at Doc. 201 -5) under seal. 4. The Motion to Seal at Doc. 188 is DENIED. On or after September 11, 2018, the Clerk shall unseal Doc. 189 (also at Doc. 196 -5), Doc. 190 (also at D oc. 196 -1), Doc. 189 -6 (also at Doc. 196 -2), Doc. 191 -8 (also at Doc. 196 -3), and Doc. 189 -11 (also at Doc. 196 -4). 5. On or after September 11, 2018, the Clerk shall unseal the briefs filed at Doc. 162 , Doc. 195 , Doc. 196 , and Doc. 221 . 6. On or after September 11, 2018, the Clerk shall unseal the briefs filed at Doc. 201 and Doc. 224 unless, within five (5) days of this Order, Duke has filed redacted copies as directed herein. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
THE UNITED STATES OF
AMERICA, ex rel. JOSEPH M.
THOMAS,
Plaintiff,
v.
DUKE UNIVERSITY, DUKE
UNIVERSITY HEALTH SYSTEM,
INC., WILLIAM M. FOSTER, PH.D,
AND ERIN N. POTTS-KANT,
Defendants.
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1:17-CV-276
MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Duke University and Duke University Health System, two of the defendants in this
qui tam lawsuit, seek to seal various exhibits and briefs filed in connection with a motion
for sanctions and a related motion to seal. Primarily at issue is whether certain email
notes, interrogatory answers, and the briefs that discuss them contain information
protected by the attorney-client privilege. Duke also seeks to redact or seal certain
exhibits that Duke contends contain personnel information or are subject to
confidentiality requirements under federal regulations.
Duke’s motions to seal will be granted for five documents that do not qualify as
judicial records and therefore have no right to public access attached. Otherwise, Duke
has not submitted sufficient evidence in support of its claims of confidentiality and has
not shown why its interest in keeping the information secret is more important than the
public interest in access to court records. For these remaining documents, Duke’s
motions are denied.
I.
Procedural Background
In this qui tam lawsuit, plaintiff-relator Joseph M. Thomas contends that the
defendants violated the False Claims Act in numerous ways in connection with allegedly
falsified and non-existent research data created, maintained, and submitted in connection
with government grants. Duke filed a motion for sanctions, Doc. 159, contending that
counsel for the relator engaged in impermissible ex parte contacts with Duke employees.
That motion has since been denied. See Text Order 08/03/2018 and Memorandum
Opinion entered contemporaneously with this order.
In connection with the sanctions motion, Duke sought to file certain exhibits under
seal, asserting they contained information covered by the attorney-client privilege. Doc.
161; Doc. 225-2. The relator objected to the motion to seal, Doc. 193, and responded to
the motion for sanctions, Doc. 189 (redacted at Doc. 185).1 Duke seeks to seal some of
the exhibits submitted by the relator, as well as references to these exhibits in the relator’s
brief. See Doc. 201; Doc 196;2 Doc. 225. As to these additional materials, Duke
1
In the first citation for each exhibit or brief at issue, the Court will provide a description of
the document and identify the electronic CM-ECF docket number where the sealed unredacted
exhibit or brief can be located. For those documents where Duke does not seek to seal the entire
document, the Court will also provide the ECF docket number for the publicly available,
redacted version in a parenthetical. When and if the document or brief is referenced again, the
Court will provide the ECF docket number for the sealed, unredacted exhibit alone, without the
description or the docket number to the redacted version.
2
The relator originally filed the motions to seal these documents, Doc. 174, Doc. 178, and
Doc. 188, as required by LR 5.4(c) after conferring with Duke to confirm the degree of
2
continues to rely on the attorney-client privilege and also contends that some of the
exhibits are subject to confidentiality requirements in federal regulations or contain
confidential personnel information. See Doc. 225-3, 225-4.
Accordingly, at issue are three sets of documents: (i) exhibits to Duke’s Motion
for Sanctions, Doc. 159, (the “Sanctions Exhibits”),3 (ii) parts of the relator’s brief in
opposition to Duke’s motion for sanctions, Doc. 189, and some exhibits to the opposition
brief (the “Sanctions Opposition Materials”),4 and (iii) exhibits to the Relator’s
Superseding Opposition to Duke’s Motion to Seal, Doc. 193, (the “Sealing Opposition
Exhibits”).5 See Doc. 225-1 (Flowchart of motions to seal).
confidentiality. Duke has filed briefs in support of these motions, Doc. 201 and Doc. 196, as
required under LR 5.4(d).
3
The Sanctions Exhibits are listed in the chart at Doc. 225-2, and include:
- The relator’s interrogatory responses, Doc. 166 (redacted at Doc. 159-2);
- The relator’s redacted interrogatory responses, Doc. 165 (redacted at Doc. 159-5);
- The relator’s email notes, Doc. 164 (sought to be sealed in their entirety);
- A meet and confer letter, Doc. 168 (redacted at Doc. 159-10);
- The relator’s second supplemental interrogatory responses, Doc. 167 (redacted at
Doc. 159-11); and
- The Schneider affidavit, Doc. 163 (redacted at Doc. 159-12).
4
The Sanctions Opposition Materials are listed in the chart at Doc. 225-4, and include:
- Relator’s Opposition to the Duke Motion for Sanctions, Doc. 189 (redacted at
Doc. 185);
- The relator’s declaration, Doc. 190 (redacted at Doc. 186);
- The deposition of Barbara Theriot, Doc. 189-6 (redacted at Doc. 185-6);
- The relator’s interrogatory responses, Doc. 191-8 (redacted at Doc. 187-8);
- Deposition Exhibit 718, Doc. 189-11 (sought to be sealed in its entirety).
5
The Sealing Opposition Exhibits are listed in the chart at Doc. 225-3, and include:
- Deposition Exhibit 837, Doc. 176-10 (sought to be sealed in its entirety);
- Deposition Exhibit 801, Doc. 176-18 (redacted at Doc. 172-7);
- Deposition Exhibit 804, Doc. 176-19 (redacted at Doc. 172-8);
- Deposition Exhibit 429, Doc. 176-21 (redacted at Doc. 172-10);
3
II.
Standard
The public has an interest in transparent court proceedings, and courts have long
held that the public has a right of access to judicial records. See Nixon v. Warner
Commc’ns., Inc., 435 U.S. 589, 597 (1978) (“It is clear that the courts of this country
recognize a general right to inspect and copy public records and documents, including
judicial records and documents.”). The public’s right to access judicial records derives
from the common law and the First Amendment. Rushford v. New Yorker Magazine, 846
F.2d 249, 253 (4th Cir. 1988). “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. Univ. of
Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir. 1988).6 The presumption of access
may be overcome, under the common law, “if competing interests outweigh the interest
in access.” Id. Under the First Amendment, 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.” Id. (citing Rushford, 846 F.2d at 253).
When a party makes a request to seal judicial records, a district court “must
comply with certain substantive and procedural requirements.” Va. Dep’t of State Police
-
Scheduling Email, Doc. 176-27 (sought to be sealed in its entirety); and
Exhibit 16 to the Declaration of Scott Sexton, Doc. 179 (redacted at Doc. 177) (this
document is not included in Doc. 225-3).
6
The Court omits internal citations, alterations, and quotation marks throughout this opinion,
unless otherwise noted. See United States v. Marshall, 872 F.3d 213, 217 n.6 (4th Cir. 2017).
4
v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004). Procedurally, the district court must (1)
give the public notice and a reasonable opportunity to challenge the request to seal; (2)
“consider less drastic alternatives to sealing”; and (3) if it decides to seal, make specific
findings and state the reasons for its decision to seal over the alternatives. Id. “As to the
substance, the district court first must determine the source of the right of access with
respect to each document, because only then can it accurately weigh the competing
interests at stake.” Id.
As an initial matter, the Court notes that the motions to seal have been docketed
since May 17, 2018 (Doc. 161), May 31, 2018 (Doc. 174), June 1, 2018 (Doc. 178), and
June 11, 2018 (Doc. 188). Any interested party therefore has had sufficient time to
intervene to contest any sealing order. The docket reflects that only the relator has
opposed these motions to seal. Doc. 193; Doc. 216; Doc. 212. Accordingly, the Court
concludes that the “public notice” prerequisite to entry of a sealing order has been
satisfied. See Stone, 855 F.2d at 181 (discussing use of docketing to comply with
procedural requirements for sealing).
a. Classification as Judicial Records
Before considering whether a common law or First Amendment right of access has
attached to documents, a court must first assess whether the materials at issue actually
constitute “judicial documents and records.” In re Application of U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013).
Judicial records are documents “filed with the objective of obtaining judicial
action or relief,” and which “play a role in the adjudicative process, or adjudicate
5
substantive rights.” In re Application, 707 F.3d at 290–91. To the extent the court does
not rely on a document to reach its decision, the document is not a judicial record and no
right of access applies. Hunter v. Town of Mocksville, 961 F. Supp. 2d 803, 806
(M.D.N.C. 2013) (citing In re Application, 707 F.3d at 290–91); see also United States v.
Moussaoui, 65 F. App’x 881, 889 (4th Cir. 2003) (observing some court-filed documents
“may not qualify as ‘judicial records’ at all”); In re Policy Mgmt. Sys. Corp., 67 F.3d 296
(table), 1995 WL 541623, at *3–4 (4th Cir. Sept. 13, 1995) (holding that documents filed
in connection with a motion to dismiss were not judicial records because they were not
considered by the court in adjudication of the motion).
Duke seeks to seal several Sealing Opposition Exhibits on which the Court has not
relied in deciding whether to seal the Sanctions Exhibits.7 As explained in detail infra, an
examination of the communications in the Sanctions Exhibits shows that Duke’s
proposed grounds for sealing them—attorney-client privilege—is tenuous at best, and
Duke has not otherwise offered sufficient evidence to establish the privilege or shown
that its interests outweigh the public’s interest in open courts. It was thus unnecessary to
review the exhibits submitted by the relator in support of his secondary position that any
privilege had been waived.8
7
These include Deposition Exhibit 801, Doc. 176-18; Deposition Exhibit 804, Doc. 176-19;
and Deposition Exhibit 429, Doc. 176-21. Since these documents are not judicial records, the
Court has not included a description of their content.
8
See, e.g., Doc. 193 at 11 n.40 (citing to Deposition Exhibit 801, Doc 176-18); id. at 11 n.41
(citing to Deposition Exhibit 804, Doc. 176-19); id. at 12 n.47 (citing to Deposition Exhibit 429,
Doc. 176-21). While the Court need not definitely decide the issue of waiver, it is difficult to
understand Duke’s argument, given Duke’s disclosure of these materials to outsiders with no
6
Because the Court did not rely on these three Sealing Opposition Exhibits, they are
not judicial records and the public does not have a right to access them. Hunter, 961 F.
Supp. 2d at 806 (citing In re Application, 707 F.3d at 190–91); see also Moussaoui, 65 F.
App’x at 889. The Court will therefore grant the motion to seal, Doc. 174, as to these
documents identified by CM-ECF docket number in footnote 7. If these documents are
used to support or oppose a future motion, the Court may unseal them in the future.
The Court has considered two Sealing Opposition Exhibits, a memorandum from
Duke’s Research Integrity Officer, Doc. 176-10, and a Scheduling Email, Doc. 176-27,
that were directly relevant to the privilege question before the Court on the motion to seal
and that provided helpful context. The Court has not identified any Fourth Circuit
decision classifying exhibits to a motion to seal as “judicial records.” However, courts in
this circuit have found that documents filed to facilitate protective orders and other
discovery motions do not qualify as judicial records. See, e.g., Ohio Valley Envtl. Coal.
v. Elk Run Coal Co., 291 F.R.D. 114 (S.D.W. Va. 2013) (finding a document filed to
facilitate ruling on a protective order is not a “judicial record” triggering a First
Amendment or common law right of public access, but denying the motion to seal
because the document was not confidential and good cause did not exist to warrant a
protective order); Kinetic Concepts, Inc. v. Convatec Inc., No. 1:08-CV-918, 2010 WL
1418312 (M.D.N.C. Apr. 2, 2010) (finding exhibits to motions to compel and for a
mention of privilege by Duke for months. See United States v. Jones, 696 F.2d 1069, 1072 (4th
Cir. 1982) (per curium) (noting that “[a]ny disclosure inconsistent with maintaining the
confidential nature of the attorney-client relationship waives the attorney-client privilege”).
7
protective order are not judicial records, but applying the “good cause” standard under
Rule 26(c) as well as the common law right to public access standard to grant in part and
deny in part the motions to seal); see also Guessford v. Pa. Nat’l Mut. Casualty INS. Co.,
No. 1:12-CV-260, 2014 WL 12594127, at *2 (M.D.N.C. Sept. 30, 2014) (finding
documents related to motions for summary judgment, sanctions, and in limine to be
“judicial records” because “[e]ach set of documents was filed in connection with either a
dispositive or non-dispositive motion, and each motion was filed with the objective of
obtaining judicial action (namely, the granting of a motion other than a motion to seal)”
(emphasis added)).
While not a discovery motion per se, motions to seal concern procedural issues
similar to those requesting protective orders: the manner and extent to which documents
are disclosed to non-parties. Exhibits to motions to seal do not ordinarily help
“adjudicate substantive rights,” nor is it apparent that they usually “play a role in the
adjudicative process.” See In re Application, 707 F.3d at 290. The exhibits here are not
proffered towards substantive issues in the case and the Court has not considered them in
connection with the motion for sanctions. Accordingly, the Court finds that Doc. 176-10
and Doc. 176-27 do not qualify as “judicial documents,” and no public right to access
attaches. These documents may remain under seal. If these documents are used to
support or oppose future motions, and thereby become judicial records, the Court may
unseal them.
The Sanctions Exhibits and the Sanctions Opposition Materials, on the other hand,
have been filed in connection with a motion asking the Court to impose significant
8
sanctions, including disqualification of counsel and exclusion of evidence. As this
motion has the potential to affect the relator’s substantive rights, the accompanying
exhibits are judicial records. See 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No.
5:14-CV-310-F, 2016 WL 3030166, at *6 (E.D.N.C. May 25, 2016) (finding exhibits
filed in connection with a motion to disqualify counsel to be judicial records).9 It is
therefore necessary to consider whether the common law or First Amendment right to
public access applies to the Sanctions Exhibits and the Sanctions Opposition Materials.
b. Right of Public Access Standard
The public right of access to judicial records is derived from “two independent
sources: the common law and the First Amendment.” Va. Dep’t of State Police, 386 F.3d
at 575. To determine whether the First Amendment provides a right to access, courts
employ the “experience and logic” test, asking “(1) ‘whether the place and process have
historically been open to the press and general public,’ and (2) ‘whether public access
plays a significant positive role in the functioning of the particular process in question.’”
In re Application, 707 F.3d at 291 (quoting Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64
(4th Cir. 1989)). When a motion is dispositive, such as for summary judgment, it is well
established that materials submitted are subject to the First Amendment right of access.
Va. Dep’t of State Police, 386 F.3d at 578–79. The Fourth Circuit has further held that
9
One of the exhibits submitted as part of the Sealing Opposition Exhibits, Doc. 179, was a
duplicate of one of the Sanctions Exhibits, Doc. 167. Whether or not it was considered in
connection with the motion to seal hardly matters, as it was considered in connection with the
motion for sanctions. It too is a judicial record. The Court reminds the parties to avoid filing
duplicates of exhibits already on the docket, especially if such filing will give rise to another
motion to seal.
9
documents “filed with the objective of obtaining judicial action or relief,” but not in
connection with a dispositive motion, are judicial records generally subject to the
common law right of access. In re Application, 707 F.3d at 290–91.
The Fourth Circuit has not addressed whether the common law or First
Amendment right of access attaches to documents filed in connection with a sanctions
motion. One court has held that a sanctions motion is non-dispositive and the common
law right of access applies, see Silicon Knights, Inc. v. Epic Games, Inc., 5:07-CV-275-D,
2010 WL 11566361, at *1 (E.D.N.C. June 15, 2010). However, that same court has held
that in a motion to disqualify counsel, there is a First Amendment right of access. 360
Mortg. Grp., LLC, No. 5:14-CV-00310-F, 2016 WL 3030166, at *6.
As the 360 court noted, “pretrial civil proceedings are generally open to the
public,” and “the specific proceedings currently before the court—motions to allow
withdrawal of counsel and to disqualify counsel—have no history of secrecy.” Id. In
addition, a motion to disqualify counsel is
in essence, a dispute over legal ethics. Transparency in this arena is
undoubtedly beneficial. Despite the important role lawyers play in
society’s essential functions, the legal profession is largely selfregulating. On the relatively rare occasion the court is called to pass on
questions of legal ethics, the public’s ability to review the
decisionmaking process serves to increase confidence in the judicial
system, and to improve the accountability of individual members of the
bar.
360 Mortg. Grp., LLC, No. 5:14-CV-00310-F, 2016 WL 3030166, at *6.
The Court agrees with the logic of the 360 opinion. Because the motion for
sanctions is essentially a motion to disqualify counsel, the Court concludes that the public
10
has a First Amendment right of access to the materials filed in connection with the
sanctions motion.10
c. First Amendment Right of Access
Under the First Amendment, “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. “The party seeking to limit public access bears the
burden to show that sealing is appropriate.” Syngenta Crop Prot., LLC v. Willowood,
LLC, No. 1:15-CV-274, 2017 WL 1745531, at *2 (M.D.N.C. May 4, 2017). This must
be a “significant countervailing interest” that “outweighs the public’s interest in
openness.” Id. To meet its burden, “[t]he party seeking to seal must provide specific
reasons to support its position.” Id. Accordingly, “[t]he First Amendment right of access
cannot be overcome by [a] conclusory assertion.” Press-Enter. Co. v. Superior Court,
478 U.S. 1, 15 (1986).
Claims of confidentiality for court filings cannot be made indiscriminately and
without evidentiary support. Bayer CropSci. Inc. v. Syngenta Crop Prot., LLC,
No. 13-CV-316, 2013 WL 12137000, at *1 (M.D.N.C. Dec. 12, 2013). Statements in a
brief are not evidence and are insufficient to justify a motion to seal. See Cochran v.
Volvo Grp. N. Am., LLC, 931 F. Supp. 2d 725, 730 (M.D.N.C. 2013); INS v. Phinpathya,
464 U.S. 183, 188 n.6 (1984) (declining to consider “[c]ounsel’s unsupported assertions
10
The result in this case would be the same, however, even if the Court applied the lower
common law right of access.
11
in respondent’s brief” as evidence); Kulhawik v. Holder, 571 F.3d 296, 298 (2d Cir.
2009) (“An attorney’s unsworn statements in a brief are not evidence.”).
III.
Discussion
In the various motions to seal, Duke maintains that certain exhibits should be
sealed from disclosure on the grounds of the attorney-client privilege, confidentiality
requirements arising out of federal regulations governing investigative information, and
the protection of confidential personnel information.
Duke has identified only one document it contends should remain sealed because
it contains personnel information: Doc. 176-21.11 This document was offered in
opposition to Duke’s motion to seal and was not, as indicated supra, considered by the
Court in deciding that motion. As it is not a judicial record and will remain sealed for
that reason, the Court has no need to examine the claim that it contains confidential
personnel information.
The remaining grounds, the attorney-client privilege and the protection of
confidential investigative information, are considered below.
a. The Attorney-Client Privilege
In support of its motion for sanctions, Duke filed the relator’s answers to a Duke
interrogatory in which the relator details, by date, conversations he had with co-workers,
Although the chart in Doc. 225-4 also includes “Private Personnel Record” as the “Basis
for Sealing” portions of the relator’s interrogatory responses, Doc. 191-8, this ground is not
asserted in Duke’s brief in support of sealing this document. Doc. 196. As this contention is
unsupported by the brief, the Court will disregard it.
11
12
Doc. 165, Doc. 166, Doc. 167, and Doc. 179, along with some emails about these
conversations that the relator sent to himself shortly after they took place. Doc. 164.
Duke contends that over twenty statements made by co-workers to the relator as reflected
in these interrogatory answers and emails contain information protected by the attorneyclient privilege and should be sealed.12 All but one of these statements mention counsel
for Duke, and the one exception references a meeting that a later statement indicates was
scheduled by counsel for Duke. See Doc. 166 at 18 (May 30, 2013). None of the
statements are by a Duke lawyer directly to the relator or by the relator directly to a Duke
lawyer. All of them are filtered through at least one of the relator’s co-workers.
Courts generally accept a claim of privilege as capable of overriding the
presumption of public access and thereby justifying redaction of documents. See, e.g.,
Siedle v. Putnam Invs., Inc., 147 F.3d 7, 11 (1st Cir. 1998); Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1073 (3d Cir. 1984); Hanson v. Wells Fargo Home Mortg., Inc.,
No. C13-0939, 2013 WL 5674997, at *3 (W.D. Wash. Oct. 17, 2013); Travelers Prop.
Cas. Co. of Am. v. Centex Homes, No. 11-3638, 2013 WL 707918, at *1 (N.D. Cal. Feb.
26, 2013); Armstrong v. Kennedy Krieger Inst., Inc., No. WDQ-11-3380, 2012 WL
1554643, at *6 (D. Md. Apr. 30, 2012). The Court assumes without deciding that the
attorney-client privilege would justify sealing covered communications in most
12
Duke also asks to seal portions of a meet and confer letter sent from Duke to the relator’s
counsel, Doc. 168, and the relator’s declaration, Doc. 190, both of which describe the relator’s
interrogatory answers, as well as the affidavit of Alan Schneider, Doc. 163, which summarizes
information contained in the relator’s emails to himself. As these documents are overlapping in
content with Docs. 164 to 167, this analysis is applicable to all.
13
situations. Thus, the question before the Court is whether the information Duke seeks to
seal falls within this privilege.
1. Applicable Legal Standard
Protection of client confidences is the reason behind the attorney-client privilege,
Trammel v. United States., 445 U.S. 40, 51 (1980), and the privilege “protects only those
disclosures necessary to obtain informed legal advice which might not have been made
absent the privilege.” Fisher v. United States, 425 U.S. 391, 403 (1976). The Fourth
Circuit has emphasized that “the privilege is not absolute,” but instead must be “strictly
confined within the narrowest possible limits consistent with the logic of its principle.”
Solis v. Food Emp’rs Labor Relations Ass’n, 644 F.3d 221, 226 (4th Cir. 2011).
Indeed, the published cases in this circuit generally arise in the context of
testimony or other evidence from the attorney about statements by the client. See, e.g.,
United States v. Jones, 696 F.2d 1069 (4th Cir. 1982) (per curium); Hawkins v. Stables, 148
F.3d 379, 383 (4th Cir. 1998).13 Nonetheless, it is clear that the privilege “may also be
extended to protect communications by the lawyer to his client, agents, or superiors or to
other lawyers in the case of joint representation, if those communications reveal
13
As a result, the test for determining whether the privilege applies has generally been stated
in this circuit in terms of communications made by a client to an attorney. In Hawkins, for
example, the Fourth Circuit stated the following test for determining whether the attorney-client
privilege applies: “The privilege applies only if (1) the asserted holder of the privilege is or
sought to become a client; (2) the person to whom the communication was made (a) is a member
of the bar of a court, or his subordinate and (b) in connection with this communication is acting
as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his
client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for
the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not
waived by the client.” 148 F.3d at 383; see also Jones, 696 F.2d at 1072.
14
confidential client communications.” United States v. Under Seal, 748 F.2d 871, 874
(4th Cir. 1984). Many courts apply the privilege more broadly to statements by counsel
to the client that relate to legal services. See, e.g., United States v. Christensen, 828 F.3d
763, 802–03 (9th Cir. 2015) (discussing communications from the attorney to the client);
Fed. Trade Comm’n v. Boehringer Ingelheim Pharm., Inc., 892 F.3d 1264, 1267 (D.C.
Cir. 2018) (applying privilege to “communications in which an attorney gives legal
advice”). The Court assumes without deciding that the privilege would also cover
statements by counsel that consist of confidential legal advice, even if the statement does
not directly or indirectly disclose a client confidence.
Even so, the attorney-client privilege does not cover everything between a lawyer
and a client and has significant limitations otherwise. “An attorney’s involvement in, or
recommendation of, a transaction does not place a cloak of secrecy around all the
incidents of such a transaction.” In re Fischel, 557 F.2d 209, 212 (9th Cir. 1977); accord
United States v. Freeman, 619 F.2d 1112, 1119–20 (5th Cir. 1980). For example, “[t]he
privilege only protects disclosure of communications; it does not protect disclosure of the
underlying facts by those who communicated with the attorney.” Upjohn Co. v. United
States, 449 U.S. 383, 395 (1981). It does not cover the fact that an attorney-client
relationship exists or the fact that the attorney undertook certain services on behalf of the
client. See, e.g., Behrems v. Hironimus, 170 F.2d 627, 628 (4th Cir. 1948). Similarly, an
attorney’s request for information or acts or statements of merely clerical significance are
normally not privileged. Paul F. Rothstein & Susan W. Crump, Federal Testimonial
Privileges § 2:11, n.3–4 (2d ed. 2017).
15
In addition, when an attorney does non-legal work for a client, communications in
connection with that non-legal work are not privileged. See, e.g., Jones, 696 F.2d at
1072–73 (doubtful that communications were confidential because the clients “retained
the attorneys primarily for the commercial purpose of obtaining written tax opinions to
include in their coal lease promotion brochures rather than for the purpose of obtaining
legal advice for their own guidance as clients”); In re Grand Jury Subpoenas dated
March 9, 2001, 179 F. Supp. 2d 270, 291 (S.D.N.Y. 2001) (communications about nonlegal issues such as public relations are not protected by the attorney-client privilege);
Burton v. R.J. Reynolds Tobacco Co., Inc., 170 F.R.D. 481, 488 (D. Kan. 1997), on
reconsideration in part, 175 F.R.D. 321, 488 (D. Kan. 1997) (“A party may not cloak a
document with a privilege by simply having business, scientific or public relations
matters handled by attorneys, whether in-house or outside counsel.”). The attorney-client
privilege does not protect communications about business or technical data. See, e.g.,
Simon v. G.D. Searle & Co., 816 F.2d 397, 403 (8th Cir. 1987) (collecting cases). When
a communication has multiple purposes, such as both a legal and a business purpose,
most courts apply the “primary purpose” test to determine whether the communication is
privileged. See, e.g., Boehringer Ingelheim Pharm., Inc., 892 F.3d at 1267.
Finally, the participation of counsel in an internal investigation does not
“automatically cloak the investigation with legal garb.” In re Grand Jury Subpoena, 599
F.2d 504, 511 (2d Cir. 1979). Indeed, when in-house or outside counsel undertakes an
investigation for a client, communications may or may not be privileged, depending on
the circumstances. See id.; compare In re Allen, 106 F.3d 582 (4th Cir. 1997) (finding
16
communications between an attorney general and the outside counsel he hired to conduct
an investigation of mismanagement in his office were protected by the attorney-client
privilege because the hired attorney spent most of her time on legal rather than
investigatory matters), with Allied Irish Banks v. Bank of Am., N.A., 240 F.R.D. 96
(S.D.N.Y. 2007) (finding outside counsel’s draft investigative report and interview notes
were not protected by the attorney-client privilege because it was not shown these
materials were primarily or predominantly of a legal character or to convey legal advice).
2. Analysis
Initially, Duke did not make any effort to go through the twenty-plus
communications on an individual basis to show that the individual communications
disclose privileged information. See Doc. 162. Instead, Duke seemed to rely on two
points applicable to all of the communications.
First, Duke contended that the relator conceded the privilege applied to these
communications by redacting them in his first interrogatory responses, thereby shielding
potentially privileged information from disclosure to Duke’s codefendants. Doc. 162 at
7. However, as the relator points out, the evidence shows that these redactions were
made “out of an abundance of caution” so that Duke would have the opportunity to claim
privilege. Doc. 175-8 at 2. The relator explicitly reserved the right to object to privilege
claims by Duke. Id. The relator’s due consideration for another party’s potential
privilege claims does not constitute a concession that the materials are privileged.
Second, Duke seemed to contend that the mere mention of counsel made these
communications privileged. That is not the law, and indeed it would be inconsistent with
17
the well-established rule that all testimonial or evidentiary privileges must be strictly
construed. See United States v. Bolander, 722 F.3d 199, 222 (4th Cir. 2013); see also
Armen Adzhemyan & Susan M. Marcella, “Better Call Saul” If You Want Discoverable
Communications: The Misrepresentation of the Attorney-Client Privilege on Breaking
Bad, 45 N.M. L. Rev. 477, 479 (2015) (noting and discussing “the myth that all
communications with a lawyer are protected” by the attorney-client privilege). It also
runs contrary to the well-established requirement that the proponent must show three
facts in order for the attorney-client privilege to apply: first, that an attorney-client
relationship existed; second, that the particular communications at issue are privileged;
and third, that the privilege was not waived. Jones, 696 F.2d at 1072. “The burden is on
the proponent of the attorney-client privilege to demonstrate its applicability.” Id. As
discussed at some length supra, there are many reasons a communication by or with a
lawyer would not be privileged.
Duke’s umbrella approach is particularly unhelpful in this case. A review of the
communications disclosed in the interrogatory answers and the emails shows that all were
repeated to the relator by various Duke co-workers and that they conveyed many
different kinds of information with varying degrees of apparent involvement by
counsel.14 As the discussion infra makes clear, the application of the law on attorneyclient privilege to the individual communications here requires a communication-by-
14
As noted supra, none of the attorney communications here came directly to the relator
from a Duke lawyer.
18
communication analysis. See Upjohn, 449 U.S. at 396–97 (application of privilege, such
as attorney-client privilege, is determined on a case-by-case basis).
In its reply brief, after the relator pointed out the inadequacy of Duke’s initial
assertion of the attorney-client privilege, Duke made another umbrella argument,
contending that all of these statements by counsel were made “in the context of an
ongoing investigation,” while “Duke was represented by counsel,” and that the
“communications concerned either facts communicated to counsel for the purpose of
overseeing and providing legal advice, or counsel’s impressions, or counsel’s
instructions.” Doc. 195 at 6. Some of the communications themselves belie these
contentions and, as to the remainder, Duke has provided insufficient evidence to support
its privilege claims.
Beyond the interrogatory answers and emails themselves, Duke has submitted
only one piece of evidence in support of these contentions: an affidavit from outside
counsel concerning his participation in a meeting on September 9, 2014. See Doc. 161-1
(Declaration of Frederick Robinson). In relevant part, Mr. Robinson avers that “[t]he
purpose of this meeting was for outside counsel and our retained experts to (1) advise
Duke researchers on the status of the government’s investigation into allegations
involving Potts-Kant and (2) inform the researchers about the process of gathering
information that would allow outside counsel to evaluate the positions Duke would take
in defense of the investigation.” Doc. 161-1 at ¶ 4.
Duke has submitted no other evidence to indicate when counsel was retained or
consulted to provide legal advice and assistance in connection with any investigation. It
19
is apparent from the conversations as a whole as reported by the relator that, by some
point in 2014 or possibly earlier, Duke counsel was involved in some sort of investigation
into the Foster Lab data problem, but it is not apparent that this investigation had a
primary purpose of obtaining or providing legal advice. See Fisher, 425 U.S. at 403 (the
privilege “protects only those disclosures necessary to obtain informed legal advice
which might not have been made absent the privilege.”); In re Kellogg Brown & Root,
Inc., 756 F.3d 754, 760 (D.C. Cir. 2014) (holding that when “a given communication
plainly has multiple purposes,” the appropriate test is whether “obtaining or providing
legal advice [was] a primary purpose of the communication, meaning one of the
significant purposes of the communication.” (emphasis in original)).
As other circuits have held, the participation of counsel in Duke’s internal
investigation did not “automatically cloak the investigation with legal garb.” In re Grand
Jury Subpoena, 599 F.2d at 511. The Court might guess or assume that counsel’s
primary purpose in the investigation was to provide legal advice, or that it became so at
some point before September 9, 2014, but assumptions and guesses are insufficient
grounds for a factual finding and for keeping court records secret.
Moreover, the relator submitted evidence that Duke’s Research Integrity Officer
(the “RIO”) conducted the investigation. See Doc. 176-10 at 2 (2017 memorandum from
the RIO indicating that an earlier “research misconduct investigation” resulted in a
determination by Duke, not by counsel, that Ms. Potts-Kant “alone was responsible for
the data falsification and fabrication”); see also Doc. 176-27 (referencing an “inquiry
committee” interview). Indeed, the RIO memorandum does not mention any
20
involvement of counsel in the initial investigation and reflects that Dr. Ledford, the coworker who had the most conversations with the relator, was not even interviewed in that
initial investigation. Doc. 176-10 at 2.
As to the communications before September 9, 2014, even if one assumes counsel
had been retained to provide legal advice and was speaking to the co-workers as part of
that legal work, much of the disclosed information is obviously not privileged. For
example, one communication did nothing more than mention that Duke counsel wrote a
letter to funding agencies, which cannot be confidential as the letter was mailed to third
parties. Doc. 166 at 18 (June 4, 2013); see also id. at 21 (June 25, 2013) (co-worker
statement that Duke counsel wrote a letter to the National Institutes of Health stating that
an investigation was underway). In another conversation, a Duke co-worker told the
relator about a meeting researchers had with the RIO. Id. at 18 (May 30, 2013). The coworker did not mention any statements or participation by counsel, id., though a few days
later she did mention that Duke counsel scheduled the meeting itself. Id. (June 3, 2013).
Duke has submitted no evidence to show that counsel’s involvement was anything other
than ministerial, and there is nothing in the interrogatory answer itself that discloses a
client confidence to counsel or any advice by counsel. Rothstein & Crump, supra § 2:11
(“[A]cts or statements of merely clerical significance, are normally not privileged.”).
Some of the purportedly privileged information is speculative opinion or
commentary by the relator’s co-workers, not arguably privileged advice from counsel.
See, e.g., Doc. 166 at 21 (June 25, 2013) (“Ledford also stated that she thinks that this
letter [to the National Institutes of Health] would be the subject of Que’s meeting with
21
Duke counsel on the following day. . . .”); id. (July 1, 2013) (“Ledford said she thought
Duke counsel was blaming Duke researchers for the Foster Lab data issue.”); id. at 47
(August 5, 2014) (“Ledford also said that Duke researchers are not going to be
‘protected’ if they leave Duke – the government investigators could ‘just show up at their
house.’”). Duke has not explained why the attorney-client privilege would cover such
opinions by co-workers.
Duke also appears to think that it can hide underlying factual information merely
because the word “counsel” was used in the conversation. For example, in June 2013, a
co-worker told the relator that she was compiling and reviewing data at the request of
Duke counsel. Doc. 166 at 20 (June 24, 2013). The fact that the co-worker compiled and
reviewed data is not covered by the attorney-client privilege, nor is the data itself. See
Upjohn, 449 U.S. at 395 (“The privilege only protects disclosure of communications; it
does not protect disclosure of the underlying facts by those who communicated with the
attorney.”). The fact that it was undertaken at counsel’s request might be privileged if, as
previously noted, there were any evidence that counsel at that time had been retained to
provide legal advice and that the data was needed to provide legal advice, but even so the
underlying facts that the co-worker compiled and reviewed the data is not. See id.
In another conversation that Duke alleges to be protected by privilege, the relator
asked a co-worker if the co-worker thought Duke counsel would be involved in a
particular process. Doc. 166 at 19 (June 5, 2013). The relator’s question itself is
certainly not privileged, as it was not made to counsel for the purpose of obtaining legal
advice on behalf of Duke. Moreover, the co-worker did not answer the question. Id.
22
Even if she had, it is doubtful the answer would be privileged. See Behrems, 170 F.2d at
628 (finding the attorney-client privilege does not cover the fact that the attorney
undertook certain services on behalf of the client).
Finally, there were only four conversations between the relator and a co-worker on
or after September 9, 2014, where Duke contends privileged information was disclosed.
See Doc. 166 at 51 (September 9, 2014); id. at 53 (September 22, 2014; September 24,
2014); Doc. 167 at 10–11 (September 17, 2014). Even as to some of these, the privileged
nature is not obvious. See, e.g., Doc. 166 at 53 (September 22, 2014) (co-worker’s
statement to the relator “that her impression was that external counsel is overwhelmed”
does not convey any confidential information to counsel and does not appear to have
been offered by the co-worker to counsel as part of Duke’s effort to obtain legal advice).
In other words, this is a case in which each purported communication has to be
examined individually to determine if the attorney-client privilege applies. Upjohn, 449
U.S. at 396–97 (application of privilege, such as attorney-client privilege, is determined
on case-by-case basis). Duke has made little to no effort to do so. Duke’s broadside
privilege assertion is inappropriate where Duke has the burden of proof and in light of the
need to apply the privilege narrowly so as to promote its purposes and no further.15 See
15
While there are some communications that appear on their face to give rise to stronger
privilege arguments, putting aside the waiver issue, it is not the Court’s job to make those
arguments for Duke. The Court will not undertake work that counsel has declined to present.
Cathey v. Wake Forest Univ. Baptist Med. Ctr., 90 F. Supp. 3d 493, 509 (M.D.N.C. 2015)
(noting “it is not the court’s job to undertake the analysis and legal research needed to support
such a perfunctory argument.”); Hughes v. B/E Aerospace, Inc., No. 1:12–CV–717, 2014 WL
906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014) (“A party should not expect a court to do the work
that it elected not to do.”).
23
Solis, 644 F.3d at 226 (noting the need to confine the privilege within “the narrowest
possible limits consistent with the logic of its principle.”); Penn Mut. Life Ins. Co. v.
Berck, No. DKC 09-0578, 2010 WL 3294309, at *2 (D. Md. Aug. 20, 2010) (denying
motion to seal allegedly privileged documents where movant offered only “barebones
allegations” that the privilege applied).
Duke has not supported the motions to seal with evidence and legal argument
demonstrating that the attorney-client privilege covers each of the purportedly privileged
communications. A review of the communications shows that many are not, on their
face, privileged. The public interest in access to exhibits purporting to support serious
accusations of professional misconduct is high. Duke’s overbroad and unsupported
motion to seal the interrogatory answers, the emails, and any discussion of the answers
and emails in briefs, declarations, or other documents is denied.
b. The “Internal Investigation” Documents
Duke seeks to seal four Sanctions Opposition Materials on the basis that these
documents contain confidential information concerning Duke’s internal research
misconduct investigation. Doc. 196 at 8. These documents include the Relator’s
Opposition to Duke’s Motion for Sanctions, Doc. 189,16 the deposition of Barbara
Theriot, Doc. 189-6, portions of the relator’s interrogatory responses, Doc. 191-8, and an
email exchange from Ms. Theriot to the RIO. Doc. 189-11.
16
To the extent the redaction on page 13 of this document is also made on the basis of the
attorney-client privilege, this redaction is rejected for the reasons stated supra in Section III.a.
24
Duke contends that sealing these documents is warranted on two grounds: first,
that Duke is required by law to maintain the confidentiality of these documents or certain
statements within them under 42 C.F.R. §§ 93.108, 93.300, 93.304; and second, that these
documents should be sealed because the Court has entered a protective order in this case
protecting “proprietary business information” from disclosure to third parties. Doc. 196
at 8. Neither argument supports sealing.
1. Applicable Legal Standard
As discussed supra, the Sanctions Opposition Materials are subject to the First
Amendment right of access. The party seeking to seal on the grounds of confidentiality
must therefore provide specific reasons and evidentiary support to justify a motion to
seal. Va. Dep’t of State Police, 386 F.3d at 575; Bayer CropSci. Inc., No. 13-CV-316,
2013 WL 12137000, at *1. Statements in a brief and conclusory assertions are
insufficient to justify a motion to seal. See Cochran, 931 F. Supp. 2d at 730; PressEnter. Co., 478 U.S. at 15; INS, 464 U.S. at 188 n.6 (declining to consider “[c]ounsel’s
unsupported assertions in respondent’s brief” as evidence).
2. Protections under Federal Regulations
Duke’s assertion that federal regulations require the redacted portions to remain
sealed is unpersuasive for two reasons. See 42 C.F.R. §§ 93.108, 93.300, and 93.304.
First, these provisions only require Duke to maintain the confidentiality of the identities
of respondents, complainants, and research subjects in a misconduct inquiry or
investigation, i.e., the identity of individuals. See 42 C.F.R. § 93.108(a) (West 2018)
(“Disclosure of the identity of respondents and complainants in research misconduct
25
proceedings is limited, to the extent possible, to those who need to know, consistent with
a thorough, competent, objective and fair research misconduct proceeding, and as
allowed by law.”); 42 C.F.R. § 93.300 (West 2018) (“Institutions under this part must . . .
(e) Provide confidentiality to the extent required by § 93.108 to all respondents,
complainants, and research subjects identifiable from research records or evidence[.]”);
42 C.F.R. § 93.304 (West 2018) (“Institutions seeking an approved assurance must have
written policies and procedures . . . that include . . . protection of the confidentiality of
respondents, complainants, and research subjects identifiable from research records or
evidence.”).
In the motions to seal, however, Duke proposes to redact or completely seal much
more than just the identity of individuals; rather, Duke asks to shield from public view
facts underlying central issues in this lawsuit. For example, Duke seeks to seal the email
from a Duke employee to the RIO requesting guidance on resolving questionable data,
Doc. 189-11, in its entirety instead of proposing redactions that would only withhold
information identifying the employee. Doc. 188 at ¶ 6. Similarly, Duke proposes to
redact the entire summary of false data in the relator’s interrogatory response, Doc. 191-8
at 15–18, instead of just the names of those who identified the false data. Doc. 188 at ¶ 6.
These requests are not narrowly tailored and may be rejected on this basis. See Stone,
855 F.2d at 180 (stating that requests to seal documents subject to the First Amendment
right to public access must be “narrowly tailored”); see also Doc. 169 at 55 (statement of
the Court during status conference that it will not provide a second chance to narrow
overbroad motions to seal).
26
Even if the proposed redactions were sufficiently narrow, Duke has made only a
conclusory assertion in a brief that the individuals referenced in the documents are
“complainants” covered under the C.F.R provisions. Duke did not provide any evidence
to support a finding that these persons are “complainants” as that term is used in the
regulations; nor did Duke dispute in its reply the relator’s contention that Duke has not
identified most of these individuals as “complainants” at all, and that the identities of the
three individuals to whom Duke has given this label are already publicly available.
Doc. 212 at 6; Doc. 221 at 7.17 Instead, Duke shifts its argument to say that these
protections apply to employee Barbara Theriot and others as witnesses under Duke’s
obligation to “[t]ake all reasonable and practical steps to protect the positions and
reputations of good faith complainants, witnesses and committee members and protect
them from retaliation by respondents and other institutional members.” 42 C.F.R. §
93.300(d) (West 2018).
Duke does not specify what harm to Ms. Theriot may result other than mentioning
“potential retaliation.” Doc. 221 at 8. It is not clear upon examination of the statements
by Ms. Theriot (the only witness Duke addresses with specificity) in her email to the
RIO, Doc. 189-11, and her deposition, Doc. 189-6, that she would suffer any harm to her
reputation as a result of disclosure. Ms. Theriot is merely asking for guidance on how
best to proceed with concerns she has about data, and she does not make accusations of
17
Even if these provisions did apply to the individuals whose information is included in the
materials sought to be sealed, the regulations provide for disclosure “as allowed by law.”
42 C.F.R. § 93.108(a) (West 2018).
27
misconduct against any individual other than Erin Potts-Kant, Doc. 189-11, who Duke
had long since fired. The plaintiffs have already publicly identified Ms. Theriot in the
Amended Complaint as someone with a significant role in the uncovering of research
fraud at Duke. See, e.g., Doc. 25 at ¶¶ 41, 232, 235, 243, 258. Since “broad allegations
of harm, unsubstantiated by specific examples of articulated reasoning [are] not enough
to overcome the strong presumption in favor of public access,” GoDaddy.com LLC v.
RPost Commc’ns Ltd., No. CV-14-126, 2016 WL 1158851, at *2 (D. Ariz. Mar. 24,
2016) (quotation omitted), this position is likewise unavailing. See also Press-Enter. Co.,
478 U.S. at 15 (“The First Amendment right of access cannot be overcome by [a]
conclusory assertion . . . .”).18
3. The Protective Order
Duke also contends that the designation of documents as “confidential” under the
Protective Order, Doc. 136, requires these documents to be sealed. Doc. 196 at 10. The
designation of documents as confidential under a protective order does not require
automatic sealing, as “courts in the Fourth Circuit have made it clear that the mere fact
that a document was subject to a blanket protective order does not relieve the parties or a
court of the obligation to comply with the Fourth Circuit’s otherwise applicable sealing
Duke’s recasting of this argument in its reply, asserting that the disclosure of information
that “may have been gathered throughout the research misconduct process” would serve to
“chill” future investigations, is without merit for the same reasons. Doc. 221 at 3. Duke
maintains this information should be protected to “encourage individuals to provide information
and cooperate in misconduct investigations without the fear of their identities being made public
or being subject to retaliation by others.” Doc. 221 at 3 (emphasis added). As noted supra,
Duke seeks to seal much more information than the identities of individuals, and this overbroad
approach is rejected.
18
28
regimen.” Colony Ins. Co. v. Peterson, No. 1:10-CV-581, 2012 WL 1047089, at *2
(M.D.N.C. Mar. 28, 2012) (collecting cases). The Protective Order itself provides that
covered documents are still subject to the Court’s sealing regimen, stating that “this
Order does not entitle [the parties] to file Confidential Information under seal,” and that
the Court’s local rules on sealing must be followed and “will control.” Doc. 136 at ¶ 1;
see also id. at ¶ 15.
While a party’s designation of materials as “confidential” under a protective order
may be relevant to whether the documents at issue have been treated as confidential, it
does not relieve a party seeking to hide court records from the public from proving that
such secrecy is appropriate. Litigants do not hold veto power over public access to the
courts, even when they agree to secrecy. See Cochran, 931 F. Supp. 2d at 729; In re
Violation of Rule 28(D), 635 F.3d 1352, 1358 (Fed. Cir. 2011); Sensormatic Sec. Corp. v.
Sensormatic Elecs. Corp., 455 F. Supp. 2d 399, 437–38 (D. Md. 2006).
The motion to seal the Relator’s Opposition to Duke’s Motion for Sanctions,
Doc. 189, the deposition of Barbara Theriot, Doc. 189-6, portions of the relator’s
interrogatory responses, Doc. 191-8, and Ms. Theriot’s email to the RIO, Doc. 189-11, is
denied.
IV.
Documents Filed Under Seal That Are Not Subject To Any Motion
Duke has filed a number of briefs under seal as provided for in the Local Rules.
See LR 5.4(b) (“[T]he Motion to Seal should also be supported by a Brief, which may be
filed under seal . . . .”). This provision allows parties to substantively discuss the
information they wish to redact or seal in detail without disclosing it on the public record.
29
Four of these briefs—Doc. 162, Doc. 195, Doc. 196, and Doc. 221—were filed
under seal in support of Duke’s motions to seal the Sanctions Exhibits, Doc. 161, and the
Sanctions Opposition Materials, Doc. 188. As both of these motions will be denied, and
the Sanctions Exhibits and Sanctions Opposition Materials will be unsealed, there is no
need to keep the briefs discussing these materials under seal as well. Accordingly, the
Court will also unseal the briefs at Doc. 162, Doc. 195, Doc. 196, and Doc. 221.
The remaining two briefs—Doc. 201 and Doc. 224—were filed under seal in
support of Duke’s motion to seal the Sealing Opposition Exhibits, Doc. 174, which will
be granted. Although these briefs provide a general description of the Sealing Opposition
Exhibits, they do not quote or otherwise disclose specific details from these exhibits.
See, e.g., Doc. 201 at 1, 8, 11, and 13; Doc. 224 at 4–5. Accordingly, the Court will
unseal the briefs filed at Doc. 201 and Doc. 224 unless, within 5 days of the entry of this
Order, Duke files public copies of these briefs redacted only of the specific discussion of
the Sealing Exhibits that remain under seal pursuant to this Order.
V.
Conclusion
Courts should not keep their own records secret without a well-supported and
substantial reason that outweighs the deeply-rooted public right of access. Without open
courts and transparency about the basis for court decisions, suspicions about arbitrary
exercise of government power can take seed and grow, arbitrary decision-making can
avoid public scrutiny, and parties can file unsupported motions with serious accusations
of misconduct under cover of secret exhibits. Duke has not shown that the information it
seeks to seal is protected by any privilege or that any other substantial reason supports the
30
veil of secrecy Duke seeks to throw over these proceedings, which concern matters of
serious public interest. Therefore, the motions to seal will be denied.
It is ORDERED that the pending motions to seal are granted in part, denied in
part, and deferred in part, as follows:
1. The Motion to Seal at Doc. 161 is DENIED. On or after September 11, 2018,
the Clerk shall unseal the documents filed at Doc. 166, Doc. 165, Doc. 164,
Doc. 168, Doc. 167, and Doc. 163.
2. The Motion to Seal at Doc. 178 is DENIED. On or after September 11, 2018,
the Clerk shall unseal Doc. 179.
3. The Motion to Seal at Doc. 174 is GRANTED. The Clerk shall maintain the
documents filed at Doc. 176-10 (also at Doc. 201-1), Doc. 176-18 (also at Doc.
201-2), Doc. 176-19 (also at Doc. 201-3), Doc. 176-21 (also at Doc. 201-4),
and Doc. 176-27 (also at Doc. 201-5) under seal.
4. The Motion to Seal at Doc. 188 is DENIED. On or after September 11, 2018,
the Clerk shall unseal Doc. 189 (also at Doc. 196-5), Doc. 190 (also at
Doc. 196-1), Doc. 189-6 (also at Doc. 196-2), Doc. 191-8 (also at Doc. 196-3),
and Doc. 189-11 (also at Doc. 196-4).
5. On or after September 11, 2018, the Clerk shall unseal the briefs filed at Doc.
162, Doc. 195, Doc. 196, and Doc. 221.
31
6. On or after September 11, 2018, the Clerk shall unseal the briefs filed at Doc.
201 and Doc. 224 unless, within five (5) days of this Order, Duke has filed
redacted copies as directed herein.
This the 4th day of September, 2018.
__________________________________
UNITED STATES DISTRICT JUDGE
32
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