VANG v. ASHBY et al
Filing
60
MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 9/28/2020. The Motion (Docket Entry 44 ) is GRANTED IN PART and DENIED IN PART, as follows: 1) Defendant McClattie shall re-file Docket Ent ry 43 in a redacted form consistent with this Order's conclusions concerning pages 10 and 11; 2) Defendant McClattie shall refile Docket Entry 43 -5 in a redacted form that includes only material relied upon in her summary judgment brief and that redacts information consistent with this Order's conclusions (to include redaction of the names of Plaintiff's minor children); and 3) The Clerk shall maintain under seal Docket Entries 43 -1, 43 -2, 43 -3, and 43 -4 in their current form. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
KENG VANG,
Plaintiff,
v.
LAUREN ASHBY, et al.,
Defendants.
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1:18cv565
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on “Defendant Shannon
McClattie’s Motion to File her Memorandum of Law in Support of her
Motion for Summary Judgment and Supporting Exhibits Under Seal”
(Docket Entry 44 (the “Motion”)). For the reasons that follow, the
Court will grant the Motion in part.
INTRODUCTION
Plaintiff commenced this action in forma pauperis pursuant to
42 U.S.C. § 1983 in connection with a child abuse investigation.
(See generally Docket Entry 2.)
On January 24, 2020, Defendant
McClattie filed her summary judgment motion (Docket Entry 42),
along with a summary judgment brief and related attachments in
redacted form (Docket Entries 43, 43-1, 43-2, 43-3, 43-4, 43-5).
That same day, Defendant McClattie filed the instant Motion seeking
“to file under seal [i] the portions of the affidavits [submitted
with her summary judgment motion] . . . that relate [to] factual
events regarding allegations of abuse, neglect, or dependency of
children, . . . [ii] the response by the Rowan County Department of
Social Services to these allegations . . . [, iii] the deposition
testimony of [] Plaintiff that pertains to these matters . . . [,
and iv] the portions of her [summary judgment brief] that discuss
th[ose] facts and events.”
(Docket Entry 44 at 1-2; see also
Docket Entry 47 (memorandum).)
In addition, Defendant McClattie
filed sealed unredacted versions of the summary judgment brief and
related attachments. (See Docket Entries 48, 48-1, 48-2, 48-3, 484, 48-5.)
Plaintiff did not respond to the Motion.
(See Docket
Entries dated Jan. 24, 2020, to present.)
DISCUSSION
“[T]he courts of this country recognize a general right to
inspect and copy . . . judicial records and documents.”
Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).
“This right of
access to court records is not absolute, however.
The trial 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.”
F.2d 231, 235 (4th Cir. 1984).
In re Knight Publ’g Co., 743
Further, the United States Court of
Appeals for the Fourth Circuit has recognized that “there may be
instances in which discovery materials should be kept under seal
even after they are made part of a dispositive motion.”
Rushford
v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988).
However, “[w]hen presented with a request to seal judicial
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records or documents, a district court must comply with certain
substantive and procedural requirements.”
Virginia Dep’t of State
Police v. The Washington Post, 386 F.3d 567, 576 (4th Cir. 2004).
Procedurally:
[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).
“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. (internal
citations and quotation marks omitted).
Moreover, the Fourth Circuit has recognized that the legal
framework
for
sealing
documents,
described
above,
applies
to
requests by a party to file a redacted document, i.e., a document
sealed in part.
See United States v. Moussaoui, 65 F. App’x 881,
889 (4th Cir. 2003) (“As to those documents subject to a right of
access, we must then conduct the appropriate balancing to determine
whether the remainder of the document should remain sealed, in
whole or in part.”); see also Wolfe v. Green, Civil Action No.
2:08–01023, 2010 WL 5175165, at *2–3 (S.D.W. Va. Dec. 15, 2010)
(unpublished) (granting parties’ joint motion to redact filings and
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holding that parties made necessary showing to address both common
law and First Amendment rights of access); Bethesda Softworks, LLC
v. Interplay Entm’t Corp., Civil Action No. 09–2357, 2010 WL
3781660, at *9–10 (D. Md. Sept. 23, 2010) (unpublished) (treating
motion to redact transcript as motion to seal).
“The interest of
the public in the flow of information is protected by [the Court’s]
exercis[e
of]
independent
judgment
concerning
redactions.”
Moussaoui, 65 F. App’x at 888 (citing United States v. Pelton, 696
F. Supp. 156, 159 n. 2 (D. Md. 1986) (noting that court would
“carefully compare the redacted version [of a transcript] to the
unredacted version for accuracy and to determine whether all the
proposed deletions are necessary”)).
In this case, both Plaintiff and the public have received
notice of the Motion on or about January 24, 2020, but neither
Plaintiff
nor
any
redactions/sealing.
present.)
non-party
has
contested
the
proposed
(See Docket Entries dated Jan. 24, 2020, to
Accordingly,
the
Court
finds
all
procedural
prerequisites satisfied, as any interested persons have received
“notice of the request to seal and a reasonable opportunity to
challenge the request,” Virginia Dep’t of State Police, 386 F.3d at
576.
Next, the Court must determine what, if any, public access
right attaches to the items covered by the instant sealing request.
See id. The demanding First Amendment standard applies to exhibits
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submitted with dispositive motions.
See Rushford, 846 F.2d at
252–53 (“Once the documents are made part of a dispositive motion,
such as a summary judgment motion, they lose their status of being
raw fruits of discovery. . . .
We believe that the more rigorous
First Amendment standard should also apply to documents filed in
connection
with
a
summary
judgment
motion
in
a
civil
case.”
(internal quotation marks and citations omitted)). The documents in
question thus fall subject to the right of access granted by the
First Amendment, because (as shown in the Introduction) Defendant
McClattie filed them in connection with her summary judgment
motion.
To justify the sealing proposed in the Motion, Defendant
McClattie has asserted that her brief “filed in support of her
[summary judgment motion], the [supporting] affidavits . . ., and
[Plaintiff’s testimony] set forth in his deposition transcript . .
. rely upon information that is confidential under North Carolina
law.”
(Docket Entry 47 at 2.)
More specifically, she contended
that
[i]nformation obtained by a department of social services
regarding the abuse, neglect, or dependency of a child,
and the child protective services’ case record for a
juvenile, are confidential under North Carolina law and
can be disclosed only in limited circumstances.
In
addition, records of juvenile court proceedings alleging
abuse, neglect, or dependency are confidential. Absent
a court order, the statute makes no provision for the
public disclosure of this information.
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(Id. at 3 (citing N.C. Gen. Stat. §§ 7B-302, 7B-2901; 10 N.C.
Admin. Code 70A.0113) (emphasis omitted).)
Defendant McClattie correctly has described North Carolina
law.
See N.C. Gen. Stat. §§ 7B-302(a)(1) (requiring that “[a]ll
information
[involving
received
the
by
report,
the
department
assessment,
and
of
social
evaluation
services
of
abuse,
neglect, or dependency] . . . be held in strictest confidence by
the department”), 7B-2901(a) (defining “the complete record” to
include “the summons, petition, custody order, court order, written
motions, the electronic or mechanical recording of the hearing, and
other papers
filed
in
the
proceeding”);
10
N.C.
Admin.
Code
70A.0113(a) (prohibiting county director of department of social
services from “allow[ing] anyone outside of the county department
of social services other than state and federal agency personnel
carrying out their lawful responsibilities for program audit and
review to examine a protective services case record”).
Further,
federal courts in North Carolina have recognized the need to
preserve confidentiality pursuant to these statutes.
See, e.g.,
Brunson v. North Carolina Dep’t of Soc. Servs., No. 5:09-CT-03063,
2013 WL 1768681, at *4 (E.D.N.C. Apr. 24, 2013) (unpublished)
(recognizing that North Carolina law protects records of child
protective
services
investigation
from
public
disclosure),
reconsideration denied, 2013 WL 3923996 (E.D.N.C. July 29, 2013)
(unpublished).
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Consequently,
Defendant
McClattie
has
argued
that
“countervailing interests outweigh the public’s interest in access
to this material [because c]ourts recognize that confidentiality
laws governing child protective proceedings demonstrate legislative
intent to protect child victims from undue trauma and humiliation,
facilitate rehabilitation of families, and encourage people to
report child abuse and neglect by protecting their identities.”
(Docket Entry 47 at 4 (citing Tower v. Leslie-Brown, 167 F. Supp.
2d 399, 405 (D. Me. 2001)).)
In the decision cited by Defendant
McClattie, the court granted a motion to seal based, in part, upon
its finding that,
[a]lthough the statutes closing [] state proceedings do
not govern [] civil rights action[s] in federal court,
they do demonstrate a legislative judgment that [states
have] an interest in maintaining the confidentiality of
child protective proceedings . . . . If [ c]ourts were to
allow [] parties to import confidential documents into
federal court and thereby make them public, it would
seriously undermine the state’s policy.
Tower, 167
F.
Supp.
2d
at
405
(internal
citations
omitted).
However, the Tower Court addressed only the common law right of
access, not the First Amendment right of access.
See id. at
404–05.
Under the First Amendment sealing standard, the Court may seal
material “‘only on the basis of a compelling governmental interest
and only if the denial [of access] is narrowly tailored to serve
that interest.’”
Bell v. Shinseki, No. 1:12CV57, 2013 WL 3157569,
at *9 (M.D.N.C. June 20, 2013) (unpublished) (quoting Stone v.
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University of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.
1988)).
of
a
“[S]afeguarding the physical and psychological well-being
minor
[qualifies
as]
a
compelling
outweigh the public’s right of access.
[interest]”
that
can
Globe Newspaper Co. v.
Superior Court for the Cty. of Norfolk, 457 U.S. 596, 607-08
(1982).
Hence,
interest
in
“[c]ourts
sealing
have
found
sensitive
a
compelling
medical
or
information, especially when relating to minors.”
government
other
personal
Interstate Fire
& Cas. Co. v. Dimensions Assurance Ltd., Civ. Action No. 13-3908,
2014 WL 6388334, at *2 (D. Md. Nov. 13, 2014) (collecting cases).
A minor’s non-party status heightens the justification for such
sealing.
See id.
Defendant
McClattie
has
proposed
the
redaction
of
the
following documents: approximately 12 pages of her summary judgment
brief (see Docket Entry 43 at 4–12, 18–21); 14 paragraphs of her
supporting
affidavit
(see
Docket
Entry
43-1,
¶¶
4–18);
28
paragraphs of the supporting affidavit filed by a previously
dismissed
co-defendant,
Laura
Ashby
(see
Docket
Entry
43-2,
¶¶ 3–30); six paragraphs of the supporting affidavit filed by
Cynthia Dry (see Docket Entry 43-3, ¶¶ 3–8); eight paragraphs of
the supporting affidavit filed by Detective Cody Trexler (see
Docket Entry 43-4, ¶¶ 3–10); and approximately 82 entire pages of
Plaintiff’s deposition (see Docket Entry 43-5 at 22–89, 95–108), as
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well as numerous lines of text on pages not wholly redacted (see
id. at 15–16, 19–21, 90, 94, 109, 113).
A large portion of the proposed redacted material concerns the
“report,
assessment
and
evaluation
of
abuse,
neglect,
or
dependency,” N.C. Gen. Stat. § 7B-302, of Plaintiff’s children
and/or includes references to related confidential state court
records, see N.C. Gen. Stat. § 7B-2901.
The Court finds that a
compelling interest in protecting the minors’ privacy outweighs the
public’s right of access to those materials.
See Globe Newspaper
Co., 457 U.S. at 607-08 (noting that protection of minor’s welfare
constitutes compelling interest).
Also, some redacted portions
concern sensitive information regarding a non-party and appear to
constitute the sort that courts recognize as raising privacy
concerns.
See United States v. Sattar, 471 F. Supp. 2d 380, 387–90
(S.D.N.Y. 2006) (recognizing that interest in preventing disclosure
of items of highly personal nature can outweigh First Amendment
right of access).
In particular, the foregoing justifications
generally apply to the four supporting affidavits and the summary
judgment
brief’s
affidavits.
quotation
from
or
direct
reference
to
the
(See Docket Entries 43, 43-1, 43-2, 43-3, 43-4.)
However, some of this information played an essential part in
the determination of the dispositive motions in this matter, as
noted in the undersigned’s recent recommendation.
(See Docket
Entry 55 at 3 n.2 (stating that “resolution of the parties’
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competing summary judgment motions necessitated public disclosure
of some of the redacted material”).) The recommendation’s reliance
upon — and necessary disclosure of — portions of the redacted
material moots the sealing request as to those limited excerpts
from the affidavits and Plaintiff’s deposition.
The undersigned
disclosed the minimum information sufficient to explain the basis
for the recommended disposition.
In this regard, the undersigned
recommended that the Court grant Defendant McClattie’s summary
judgment motion and, in making that determination, found that the
“record
conclusively
establishe[d]
that
Plaintiff
not
only
voluntarily consented to Defendant McClattie’s entry, but actually
invited her into his home” (id. at 13), thereby rendering it
“unnecessary” to discuss Defendant McClattie’s “authori[ty] to
enter Plaintiff’s home without a court order to take temporary
custody of [his] children” (id. at 10 n.4).
Given that the
recommendation reproduces the pertinent portions of the affidavits
and compelling privacy concerns otherwise warrant protection of the
entirety of those filings, they may remain on the Docket in their
present form.
Additionally, after comparing the unredacted and redacted
versions of all relevant documents, the Court has determined that
some of the proposed redactions include information which does not
directly concern the “report, assessment and evaluation of abuse,
neglect, or dependency,” N.C. Gen. Stat. § 7B-302, of Plaintiff’s
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children and/or directly reference related confidential state court
records, see N.C. Gen. Stat. § 7B-2901.
In particular, the final
paragraph on the tenth page of the summary judgment brief describes
Defendant McClattie’s arrival at Plaintiff’s home on March 9, 2018
(the day of
the incident giving rise to his claim) and the
interaction that ensued.
This information directly relates to the
merits of Plaintiff’s claim and its disclosure does not undermine
important privacy interests. Consistent with those considerations,
the
undersigned
relied
on
that
particular
account
in
the
recommended disposition and necessarily revealed some details in
the recommendation.
Accordingly, Defendant McClattie must submit
another version of the proposed redactions of the summary judgment
brief, tailoring the redactions to serve the compelling interest in
protecting the welfare of non-party minors while disclosing, where
appropriate, information now part of the public record.
Moreover, upon close review of both versions of Plaintiff’s
deposition, the Court has determined that a substantial amount of
the proposed redacted material bears little, if any, significance
to Defendant McClattie’s argument in the summary judgment brief.
For
example,
the
summary
judgment
brief
cites
excerpts
from
approximately 48 pages of the 119-page deposition, the majority of
which Defendant McClattie seeks to redact.
43-5, with Docket Entry 48-5.)
(Compare Docket Entry
Each one of the summary judgment
brief’s citations to the deposition references redacted material.
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(See Docket Entries 43, 43-5.)
The undersigned’s recommendation
ultimately depended on material appearing on only eight (entirely
redacted) pages of the deposition.
(See Docket Entries 48-5, 55.)
As with the summary judgment brief, the proposed redactions in the
deposition
also
cover
information
central
to
adjudication
of
Plaintiff’s claim that falls outside the scope of N.C. Gen. Stat.
§§ 7B-302 and § 7B-2901.
The complete redaction of pages 61
through 68 raises particular concerns in that regard.
Furthermore,
the
filing
of
Plaintiff’s
entire
deposition
prompted the request for redaction of material that need not have
entered the public record in the first place, especially given
Defendant McClattie’s limited reliance on much of the deposition in
support of her summary judgment motion.
See generally Cochran v.
Volvo Group North Am., LLC, 931 F. Supp. 2d 725, 727 (M.D.N.C.
2013) (“‘Judicial records’ are ‘documents filed with the court
[that] play a role in the adjudicative process, or adjudicate
substantive
circumstances,
rights.’”)
leaving
(emphasis
in
the
added).
record
only
Under
the
these
determinative
excerpts from Plaintiff’s deposition constitutes the appropriate
course.
Finally, the current version of the redacted deposition fails
to comply with Federal Rule of Civil Procedure 5.2, which prohibits
the filing of documents containing the names of minors.
R. Civ. P. 5.2(a)(3).
See Fed.
Despite the otherwise heavy redactions, the
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filing impermissibly reveals, on several occasions, the full names
of Plaintiff’s minor children.
CONCLUSION
Application of the First Amendment test for sealing warrants
protection from public disclosure of some, but not all, of the
information Defendant McClattie seeks to redact.
IT IS THEREFORE ORDERED that the Motion (Docket Entry 44) is
GRANTED IN PART and DENIED IN PART, as follows:
1. Defendant McClattie shall re-file Docket Entry 43 in a
redacted form consistent with this Order’s conclusions concerning
pages 10 and 11;
2.
Defendant McClattie shall refile Docket Entry 43-5 in a
redacted form that includes only material relied upon in her
summary judgment brief and that redacts information consistent with
this Order’s conclusions (to include redaction of the names of
Plaintiff’s minor children); and
3.
The Clerk shall maintain under seal Docket Entries 43-1,
43-2, 43-3, and 43-4 in their current form.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
September 28, 2020
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