Baker & Taylor, Inc. v. College Book Rental Company, LLC et al

Filing 317

ORDER denying without prejudice 308 Motion to file under Seal. Signed by District Judge Max O. Cogburn, Jr on 12/04/2014. (jlk)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:12-cv-00553-MOC
BAKER & TAYLOR, INC.,
Plaintiff,
Vs.
DAVID GRIFFIN; CHARLES JONES;
ANDCOLLEGE BOOK RENTAL COMPANY,
LLC,
Defendants.

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ORDER

THIS MATTER is before the court on defendant David Griffin’s Motion to File Under
Seal. There are a couple of problems with such motion, the first being that neither the motion
nor the supporting brief reflect consultation with opposing counsel. The second problem is that
for cause, Defendant Griffin relies heavily on the Protective Order entered earlier in this case and
the Confidentiality Agreement entered into by the parties.
As this court has recently made clear in the Garlock litigation, see Legal Newsline v.
Garlock Sealing Technologies LLC, 3:13cv464 (W.D.N.C. 2014), while a confidentiality
agreement and protective order may be a starting point for the inquiry under Local Civil Rule
6.1(c), it is not the end point.

The court is familiar with the practice of entering lengthy

protective orders in advance of parties engaging in Rule 26 discovery. Such orders typically give
the producing party carte blanche in designating documents “confidential,” “highly
confidential,” and “highly confidential – attorney’s eyes only.” While this court routinely allows
such protective orders, Local Civil Rule 6.1 makes it clear that an attorney’s designation of

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confidentiality does not result in automatic sealing.
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. At best, a Protective Order can require a party who desires to
file a document marked confidential to seek an Order sealing or redacting that document before
such filing.
While a court may seal any number of documents, proceedings, or applications for
appropriate reasons, it simply cannot delegate that responsibility to the litigants by giving
deference to protective orders. As a gatekeeper, a judge must consider sealing as the exception
not the rule, Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004), give the
public notice of its intent to seal, require counsel to provide valid reasons for such extraordinary
relief, and then explain that decision as well as the reason why less drastic alternatives were not
employed. The reason is simple: the public and the press have a co-extensive right to view and
consider documents tendered a judge and/or jury when a dispute in brought in the ultimate public
forum, a courtroom. Doe v. Public Citizen, 749 F.3d 246, 263 (4th Cir. 2014). While the court
does not have in front of it a transcript of the trial, the court recalls dealing extensively with the
issue of privilege as to Mr. Murchison’s testimony. At a minimum, defendant needs to discuss
any decisions this court issued at trial in seeking to seal the same witness’s deposition testimony
in support of a motion for a new trial.

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As mentioned above, the judges of this court, in conjunction with the public, attorneys,
and members of Bar representing the press, developed Local Civil Rule 6.1, “Sealed Filings and
Public Access,” to dispose of requests for sealing in an orderly manner. The rule contemplates
that attorneys will designate materials as confidential, but makes it clear that such designation
does not necessarily extend to materials “filed with the court.” L.Civ.R. 6.1(I).
Defendant’s request will be denied without prejudice. If defendant seeks to seal such
deposition for purposes of requesting a new trial, he will need to reflect consultation, address the
criteria provided by the local rule and prevailing case law, and discuss how any law of the case -especially trial decisions involving this witness – impact the request to seal.
ORDER
IT IS, THEREFORE, ORDERED that defendant David Griffin’s Motion to File Under
Seal (#308) is DENIED WITHOUT PREJUDICE.

Signed: December 4, 2014

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