David v. Alphin et al

Filing 180

ORDER granting 177 Motion for Leave to File Under Seal. Parties are granted further leave of court to move the Clerk of Court to strike all sealed documents after termination of this action. Signed by Magistrate Judge Dennis Howell on 8/19/10. (gpb)

D a v i d v. Alphin et al

D o c . 180

IN 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 IC T O R M. HERNANDEZ, P l a i n t if f s V s. J . STEELE ALPHIN; AMY WOODS B R IN 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 IS ; BANK OF AMERICA C O R P O R A T IO N ; BANK OF AMERICA C O R P O R A T IO N CORPORATE B E N E F IT S COMMITTEE, D efen d a n ts. ________________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H I S MATTER is before the court on plaintiffs' Motion for Leave to File U n d e r Seal. Local Civil Rule 6.1 (W.D.N.C. 2009) provides in relevant part as f o llo w s : L C v R 6.1 S E A L E D FILINGS AND PUBLIC ACCESS.
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Dockets.Justia.com

(A ) S co p e of Rule. This rule shall govern any request by a party to seal, or otherwise restrict public access to, any materials filed with the C o u r t or utilized in connection with judicial decision-making. As used in this rule, "materials" shall include pleadings as well as documents of an 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 rev io u sly 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 rsu an t to LCvR 7.1. Such motion shall be filed electronically under th e designation "Motion to Seal." The motion or supporting brief shall set 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 are no alternatives to filing under seal; (3) u n less permanent sealing is sought, a statement as to the p e r io d of time the party seeks to have the material m ain tain ed under seal and as to how the matter is to be h an d led upon unsealing; and (4) su 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 c c e s s shall be determined without reasonable public notice. Notice sh all be deemed reasonable where a motion is filed in accordance with th e provisions of LCvR 6.1(C). Other parties, interveners, and nonp arties 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 terv en e under Fed. R. Civ. P. 24. (F) O rd ers Sealing Documents. Orders sealing or otherwise restrictin g access shall reflect consideration of the factors set forth in L C v R 6.1(C). In the discretion of the Court, such orders may be filed electro n ically or conventionally and may be redacted. *** L .C v .R . 6.1(W.D.N.C. 2008). Rule 6.1(C)(1) has been fully complied with leaving determination of whether
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th ese documents should be sealed under parts (2) through (4), each of which will be ad d ressed seriatim. A statement as to why sealing is necessary and why there are no a ltern a tiv es to filing under seal. I n compliance with such requirement, plaintiffs have stated that sealing such d o cu m en ts is necessary because the documents reflect, among other things, d efen d an ts' internal decision-making process. Such statement complies with L.Cv.R. 6 .1 ( C ) (2 ) . U n less 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 tter is to be handled upon unsealing. I n 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 all documents will eventually be sent to the National Archives, where nothing may be p erm an en 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 strik e all sealed pleadings after the case is terminated. Supporting statutes, case law or other authority. F in ally, the court has considered Local Civil Rule 6.1(C)(4), which requires the p a r tie s to provide citations of law supporting the relief they seek. The motion co n tain s citations to Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252-53
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( 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 starts with the general p ro p o sitio n 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 files, and access has been denied where court files might have become a vehicle for im p ro p er 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 an t's competitive standing." Id. The Supreme Court further observed that "the d ecisio n as to access is one best left to the sound discretion of the trial court." Id. The p resu m p tio n of access to judicial records "can be rebutted if countervailing interests h eav ily outweigh the public interests in access." Rushford, supra, at 253. "The party seek in g to overcome the presumption bears the burden of showing some significant in terest that outweighs the presumption." Id., at 253. In this case, plaintiff has shown that such documents, which include documents th at could reveal defendant's internal decision making process and other business p ractices in a highly competitive industry, which would not only open it up to scrutiny u n related to the allegations in this case, but expose business practices to its
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c o m p e tito r s . T h e court can see almost no legitimate public interest in making such d o cu m en ts available and that no realistic alternative exists to sealing such pleadings. H av in g weighed the competing interests, including whether the documents are sought fo r an improper purpose (i.e. to gain an unfair business advantage), and whether less d rastic alternatives to sealing would suffice, and it appearing that the Local Civil R u les 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 ra l Operations, Inc. v. Buchanan, 417 F.3d 424 (4 th Cir. 2005). F in ally, the court notes that entry of this Order may be premature in that the tim e for the public to object has not run. The court will allow early relief inasmuch a s the documents sought to be filed are pertinent to another pending motion on which th e time clock has already begun to run. The public objection period shall remain o p en through August 28, 2010, and the court will reconsider this Order upon properly filed objection without requiring any higher standard for review.

ORDER IT IS, THEREFORE, ORDERED that the plaintiffs' Motion for Leave to File U n d er Seal (#177) is GRANTED and plaintiffs are granted leave to file such

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u n red acted supporting brief and specified exhibits under Seal. Such seal shall remain in effect throughout the pendency of this litigation, and any appeal thereof, and the p a r tie s are GRANTED further leave to move the Clerk of this court to strike all sealed d o cu m en ts after the termination of this action.

Signed: August 19, 2010

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