David v. Alphin et al

Filing 188

ORDER granting 187 Motion to Seal. Signed by Magistrate Judge Dennis Howell on 9/3/10. (gpb)

D a v i d v. Alphin et al

D o c . 188

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 IS MATTER is before the court on defendants'' 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 f o r determination by this court the issues of whether these documents should be sealed
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u n d er parts (2) through (4), each of which will be addressed seriatim. (2 ) 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, defendants 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 ) . (3 ) U n less permanent sealing is sought, a statement as to the period of tim e the party seeks to have the material maintained under seal and a s to how the matter is to be handled upon unsealing.

I n the motion, defendant 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. (4) S u p p o r t in g statutes, case law or other authority.

F in ally, the court has considered Local Civil Rule 6.1(C)(4), which requires the p arties 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 ( 4 th Cir. 1988) and Pittston Co. v. United States, 368 F.3d 385, 406 (4 th Cir. 2004). In
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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, defendants have shown that such documents, which include d o c u m e n ts that could reveal defendants' internal decision making process and other b u sin ess practices in a highly competitive industry, would not only open it up to scru tin y unrelated to the allegations in this case, but expose business practices to its c o m p e tito r s .
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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 and the court will reconsider this Order upon properly filed objection without req u irin g any higher standard for review.

ORDER IT IS, THEREFORE, ORDERED that the defendants' Motion for Leave to

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F ile Under Seal (#187) is GRANTED and defendants are granted leave to file such u n red acted opposing 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: September 3, 2010

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