David v. Alphin et al

Filing 157

ORDER granting 154 Renewed Motion to Seal Document. Signed by Magistrate Judge Dennis Howell on 3/16/10. (gpb)

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H A R L O T T E DIVISION 3 :0 7 cv 1 1 E L E N A M. DAVID; ARLEEN J. STACH; and V I C T O R M. HERNANDEZ, P la in t if fs V s. J . STEELE ALPHIN; AMY WOODS B R I N K L E Y ; EDWARD J. BROWN, III; CHARLES J. COOLEY; RICHARD M. D e M A R T I N I ; BARBARA J. DESOER; J A M E S H. HANCE; LIAM E. McGEE; E U G E N E M. McQUADE; ALVARO G. d e MOLINA; MICHAEL E. O'NEILL; O W E N G. SHELL, JR.; R. EUGENE T A Y L O R ; F. WILLIAM VANDIVER, JR.; B R A D F O R D H. WARNER; CHARLES W. C O K E R ; STEVEN JONES; KENNETH D. L E W I S ; BANK OF AMERICA C O R P O R A T I O N ; BANK OF AMERICA C O R P O R A T I O N CORPORATE B E N E F I T S COMMITTEE, D efen d a n ts. ________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H I S MATTER is before the court on the plaintiffs' "Renewed Motion for Leave to File Under Seal Two Exhibits to "The D e c la ra tio n of James A. Moore in Support of Plaintiffs' Motion to C o m p e l production of Documents Pursuant to Their First and Second R e q u e s ts for Production of Documents Directed to All Defendants."
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D o c k e t Entry #154.Local Civil Rule 6.1 (W.D.N.C. 2009). The Local Civil Rule p r o v id e s in relevant part as follows: L C v R 6.1 S E A L E D FILINGS AND PUBLIC ACCESS. (A ) S c o p e of Rule. This rule shall govern any request by a party to s e a l, or otherwise restrict public access to, any materials filed with the C o u rt or utilized in connection with judicial decision-making. As used in this rule, "materials" shall include pleadings as well as documents of a n y nature and in any medium. (B ) F ilin g Under Seal. No materials may be filed under seal except b y Order of the Court, pursuant to a statute, or in accordance with a p re v io u s ly entered Rule 26(e) Protective Order. (C) M o tio n to Seal or Otherwise Restrict Public Access. A request by a party to file materials under seal shall be made by formal motion p u rs u a n t to LCvR 7.1. Such motion shall be filed electronically under th e designation "Motion to Seal." The motion or supporting brief shall s e t forth: (1 ) a non-confidential description of the material sought to be s e a le d ; (2) a statement as to why sealing is necessary and why there a re no alternatives to filing under seal; (3) u n le s s permanent sealing is sought, a statement as to the p e rio d of time the party seeks to have the material m a in tain e d under seal and as to how the matter is to be h a n d le d upon unsealing; and (4) s u p p o rtin g statutes, case law or other authority. *** (E ) P u b lic Notice. No motion to seal or otherwise restrict public a cc es s shall be determined without reasonable public notice. Notice s h a ll be deemed reasonable where a motion is filed in accordance with th e provisions of LCvR 6.1(C). Other parties, interveners, and nonp a rtie s may file objections and briefs in opposition or support of the m o tio n within the time provided by LCvR 7.1 and may move to in te rv e n e under Fed. R. Civ. P. 24. (F) O r d e r s Sealing Documents. Orders sealing or otherwise re s tric tin g access shall reflect consideration of the factors set forth in
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L C v R 6.1(C). In the discretion of the Court, such orders may be filed e le c tr o n ic a lly or conventionally and may be redacted. *** L .C v .R . 6.1(W.D.N.C. 2008). Here, Rule 6.1(C)(1) was earlier complied with, le a v in g a determination of whether these documents should be sealed under parts (2) th ro u g h (4), each of which will be addressed seriatim. A statement as to why sealing is necessary and why there are no a lte r n a tiv e s to filing under seal. In compliance with such requirement, plaintiffs have stated that sealing such d o c u m e n t is necessary because the documents reflect defendants' internal decisionm a k in g process. Such statement complies with L.Cv.R. 6.1(C)(2).

U n le s s permanent sealing is sought, a statement as to the period of time the p a rty seeks to have the material maintained under seal and as to how the m a tte r is to be handled upon unsealing. In the motion, plaintiff seeks permanent sealing. The court has been informed b y the Clerk of this court that permanent sealing of the record is not possible in that a ll documents will eventually be sent to the National Archives, where nothing may be p e r m a n e n tly sealed. To that end, the court will seal these pleadings throughout the p e n d e n c y of this action and grant the parties leave to move that the Clerk of court s tr ik e all sealed pleadings after the case is terminated. Supporting statutes, case law or other authority. F in a lly , the court has considered Local Civil Rule 6.1(C)(4), which requires the

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p a rtie s to provide citations of law supporting the relief they seek. The motion c o n ta in s citations to Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252-53 ( 4 th Cir. 1988) and Pittston Co. v. United States, 368 F.3d 385, 406 (4 th Cir. 2004). In d e te rm in in g whether documents should be sealed, review review starts with the g e n e ra l proposition that the courts of this country recognize a general right to inspect and copy p u b lic records and documents, including judicial records and documents. N ix o n v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). In the interests o f justice, however, "[e]very court has supervisory power over its own records and file s , and access has been denied where court files might have become a vehicle for im p ro p e r purposes." Id. The Court held that "courts have refused to permit their [p u b lic ] files to serve as .... sources of business information that might harm a litig a n t's competitive standing." Id. The Supreme Court further observed that "the d e c is io n as to access is one best left to the sound discretion of the trial court." Id. The p re s u m p tio n of access to judicial records "can be rebutted if countervailing interests h e a v ily outweigh the public interests in access." Rushford, supra, at 253. "The party s e e k in g to overcome the presumption bears the burden of showing some significant in te re s t that outweighs the presumption." Id., at 253. In this case, plaintiff has shown that such documents, which include internal em a ils , may reflect the decision making process of defendants, which would not only
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o p e n it up to scrutiny unrelated to the allegations in this case, but expose business p ra c tic e s to its competitors. The court takes notice that defendants are engaged in a h ig h ly competitive marketplace. The court can see almost no legitimate public interest in making such d o c u m e n ts available and that no realistic alternative exists to sealing such pleadings. H a v in g weighed the competing interests, including whether the documents are sought f o r an improper purpose (i.e. to gain an unfair business advantage), and whether less d ra s tic alternatives to sealing would suffice, and it appearing that the Local Civil R u le s have been fully complied with, the court will allow the motion. Virginia Dept. o f State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004). See also Media G e n e r a l Operations, Inc. v. Buchanan, 417 F.3d 424 (4 th Cir. 2005).

ORDER I T IS, THEREFORE, ORDERED that the plaintiffs' "Renewed Motion for Leave to File Under Seal Two Exhibits to "The D e c la ra tio n of James A. Moore in Support of Plaintiffs' Motion to C o m p e l production of Documents Pursuant to Their First and Second R e q u e s ts for Production of Documents Directed to All Defendants" (# 1 5 4 ) is GRANTED and plaintiffs are granted leave to file such exhibits under Seal. Such s ea l shall remain in effect throughout the pendency of this litigation, and any appeal
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th e re o f, and the parties are GRANTED further leave to move the Clerk of this court to strike all sealed documents after the termination of this action.

Signed: March 16, 2010

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