Duffy et al v. Facebook, Inc. et al

Filing 84

ORDER: Plaintiff's Consent Motion to File under Seal Exhibits, Deposition Excerpts and Portions of his Brief [Doc. 77 ] is DENIED. Plaintiff has 7 days to renew his motion to seal or to withdraw the provisionally sealed materials (Doc. Nos. 78 , 79 , 80 , and 81 ) from the record. If the motion to seal is not renewed or the provisionally sealed materials are not withdrawn within 7 days, the Plaintiff's entire filing shall be unsealed. Signed by District Judge Martin Reidinger on 5/30/2018. (maf)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00123-MR-DLH

ROBERT LOUIS GARY,

)
)
Plaintiff,
)
)
vs.
)
)
FACEBOOK, INC. and WAYNE
)
HAWKINS,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s Consent Motion to
File under Seal Exhibits, Deposition Excerpts and Portions of His Brief [Doc.
77].
The Plaintiff moves for leave to file under seal certain exhibits,
deposition excerpts, and portions of his memoranda in opposition to the
Defendants’ motions for summary judgment.1 [Doc. 77]. Previously, the
Defendants were granted leave to file under seal certain exhibits in support
of their motions for summary judgment on the grounds that such documents
contained sensitive payroll information and personnel reviews. [Doc. 76].

1

The Plaintiff provisionally filed his memorandum and supporting exhibits under seal,
along with redacted versions of each document. [Docs. 78-83].

The Plaintiff states that he “seeks to file under seal documents similar to
those for which Defendants sought protection.” [Doc. 77 at 2]. Additionally,
the Plaintiff seeks leave to file other documents containing “investigative
materials relating to the race discrimination complaints of Plaintiff, and other
documents deemed ‘Confidential’ in Defendant’s [sic] production of
documents.” [Id.]. The Defendants do not oppose the Plaintiff’s request.
When presented with a motion to seal, the law of this Circuit requires
this Court to: “(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) if the sealing motion is
granted, 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 288, 302 (4th Cir. 2000).
The press and the public have, under both the First Amendment and
the common law, a qualified right of access to judicial documents and
records filed in civil and criminal proceedings. Doe v. Public Citizen, 749
F.3d 246, 265 (4th Cir. 2014). “The common-law presumptive right of access
extends to all judicial documents and records, and the presumption can be
rebutted only by showing that ‘countervailing interests heavily outweigh the
public interests in access.’” Id. at 265-66 (quoting in part Rushford v. New
2

Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)).

The First

Amendment right of access “may be restricted only if closure is ‘necessitated
by a compelling government interest’ and the denial of access is ‘narrowly
tailored to serve that interest.’” Id. at 266 (quoting in part In re Wash. Post
Co., 807 F.2d 383, 390 (4th Cir. 1986)).
For the reasons stated in the Order allowing the Defendants to file
certain material under seal [Doc. 76], the Court finds that any reference to
sensitive payroll information and personnel reviews may be filed under seal.
As for the remainder of Plaintiff’s request, however, the Court finds that the
Plaintiff has failed to demonstrate any interest compelling enough to
overcome the presumptive right of public access to his brief and its
supporting exhibits, under either the First Amendment or the common law.
The Plaintiff has not explained why any “investigative materials relating to
the race discrimination complaints of Plaintiff” should be filed under seal.
Further, the Plaintiff contends that his brief and supporting exhibits reference
materials that was designated “Confidential” pursuant to the Protective Order
entered in this action. The Plaintiff, however, offers no explanation as to why
such materials is properly designated as such. The fact that counsel may
have designated certain material confidential during discovery does not
necessarily

require

sealing

when
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such

material

is

filed

in

the

record. See Legal Newsline v. Garlock Sealing Techs. LLC, 518 B.R. 358,
363 (W.D.N.C. 2014) (“Protective orders serve legitimate purposes in both
expediting discovery and protecting trade secrets, proprietary information,
privileged communications, and personally sensitive data from inadvertent
disclosure during the process of discovery; however, the confidentiality
afforded under a Protective Order to discovery materials does not
automatically extend to documents submitted to the court.”).
It is ultimately up to the Court, not the parties, to decide whether
materials that are filed in the record of this case should be shielded from
public scrutiny.

The Plaintiff’s motion to seal, however, fails to provide

sufficient grounds upon which the Court can make such a decision for each
of the documents submitted in support of his response to the Defendants’
motions for summary judgment.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Consent Motion to
File under Seal Exhibits, Deposition Excerpts and Portions of His Brief [Doc.
77] is DENIED. The Plaintiff shall have seven (7) days from the entry of this
Order to renew his motion to seal or to withdraw the provisionally sealed
materials from the record. If the motion to seal is not renewed or the
provisionally sealed materials are not withdrawn within seven (7) days, the
Plaintiff’s entire filing shall be unsealed.
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IT IS SO ORDERED.
Signed: May 30, 2018

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