Companion Property and Casualty Insurance Company v. Wood et al
OPINION AND ORDER denying 200 MOTION to Seal Document, 218 MOTION to Seal Document, 240 MOTION to Seal Document, 244 MOTION to Seal Document, 248 MOTION to Seal Document, 250 MOTION to Seal Document (Plaintiff's exhibits and unredacted memoranda due by 3/7/2017, Defendants' exhibits and unredacted memoranda due by 3/28/2017) Signed by Honorable Cameron McGowan Currie on 1/23/2017. (cbru, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COMPANION PROPERTY AND CASUALTY
C/A No. 3:14-cv-03719-CMC
CHARLES DAVID WOOD, JR.; AMS STAFF
LEASING, INC., d/b/a/ AMS Staff Leasing
Corporation; BRECKENRIDGE ENTERPRISES,
INC., d/b/a/ AMS Staff Leasing II; AMS Staff
Leasing II, Inc.; HIGHPOINT RISK SERVICES,
LLC; and ASPEN ADMINISTRATORS, INC.,
OPINION AND ORDER
ON MOTIONS TO SEAL
(ECF Nos. 200, 218, 240, 244, 248, 250)
This matter is before the court on six motions to seal documents filed in support of or
opposition to the parties’ cross-motions for partial summary judgment and one related evidentiary
motion. ECF Nos. 200, 218, 240, 244, 248, 250. 1 The underlying motions were resolved by order
entered January 10, 2017. ECF No. 258 (“January 10, 2017 Order”). For reasons set forth below,
the motions to seal are denied and the parties are directed to file the subject documents in the public
record by the deadlines set forth in Section II of this order. The court has allowed an extended
filing deadline to afford the parties time to redact sensitive information such as account numbers
and personal identifiers.
All but ECF No. 240 seek to seal only documents filed in support of or opposition to motions
for partial summary judgment. ECF No. 240 seeks to seal both documents filed in opposition to
Defendants’ motion for partial summary judgment and one document (an actuarial report) filed in
opposition to a motion to exclude the opinion testimony of Charles L. McGimsey.
As explained in Ashcraft v. Conoco, Inc., “before a district court may seal any court
documents, . . . it must (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) provide specific reasons and factual findings supporting its decision to seal the documents
and for rejecting the alternatives.” 218 F.3d 288, 302 (4th Cir. 2000); see also Stone v. Univ. of
Maryland Med. Sys. Corp., 855 F.2d 178, 182 (4th Cir.1988) (“The public’s right of access to
judicial records and documents may be abrogated only in unusual circumstances.”).
The last step in this process requires the court to first determine the source of the public
right of access. Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (relying on Stone in
holding district courts must first determine source of right-of-access as to each document for which
sealing is sought); Stone, 855 F.2d at 180. As explained in Stone:
The common law presumes a right to inspect and copy judicial records and
documents. . . . The common law presumption of access may be overcome if
competing interests outweigh the interest in access, and a court’s denial of access
is reviewable only for abuse of discretion.
Where the First Amendment guarantees [apply], . . . [public] access may be
denied only on the basis of a compelling governmental interest, and only if the
denial is narrowly tailored to serve that interest.
Stone, 855 F.2d at 180. Because summary judgment substitutes for trial, judicial records filed in
connection with a summary judgment motion may be sealed only if the First Amendment standard
is satisfied. Id. (citing Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.
1988)); see also Doe, 749 F.3d at 267 (“We have squarely held that the First Amendment right of
access attaches to materials filed in connection with a summary judgment motion.”).
The “compelling governmental interest” necessary to support sealing when the First
Amendment right of access applies may, nonetheless, consider private interests. As explained in
Doe, which addressed First Amendment protections, “[a] corporation may possess a strong interest
in preserving the confidentiality of its proprietary and trade-secret information, which in turn may
justify partial sealing of court records.” Doe, 749 F.3d at 269 (noting courts had previously found
“interests . . . sufficiently compelling to justify” sealing included “a defendant’s right to a fair trial
before an impartial jury, . . . protecting the privacy rights of trial participants such as victims or
witnesses, . . . and risks to national security.”). In contrast, a company’s bare interest in
reputational harm does not warrant sealing under either the First Amendment or common-law
standards. Id. at 269-70. As the court explained in Doe:
Adjudicating claims that carry the potential for embarrassing or injurious
revelations about a corporation’s image . . . are part of the day-to-day operations of
federal courts. But whether in the context of products liability claims, securities
litigation, employment matters, or consumer fraud cases, the public and press enjoy
a presumptive right of access to civil proceedings and documents filed therein,
notwithstanding the negative publicity those documents may shower upon a
Id. at 269.
To support sealing, the party seeking such protection must not only identify a protectable
interest, but must also proffer evidence that substantiates the risk of harm. Id. at 270 (finding, after
“scouring the record on appeal, . . . no credible evidence to support Company Doe’s fear that
disclosure of the challenged report of harm and the facts of this case would subject it to reputational
or economic injury”). 2 As the majority explained, it had “never permitted wholesale sealing of
documents based upon unsubstantiated or speculative claims of harm[.]” Id.
In his concurring opinion in Doe, Senior Judge Hamilton acknowledged the “common
sense” assumption that the documents at issue could result in harm if not sealed, but nonetheless
agreed that Company Doe had failed to establish an adequate basis for sealing:
The district court’s reasoning founders for the simple reason that it
misunderstood the quantum of evidence necessary to trump the First Amendment
rights of, for example, the Consumer Groups [that challenged sealing.] Had
Company Doe supported its motion to seal with expert testimony establishing a
high likelihood that denying its motion to seal would cause it to suffer substantial
and irreparable economic harm, the disposition of the present appeal, in my view,
would be completely different.
* * *
First Amendment jurisprudence requires more than a common sense feeling about
what harm may befall Company Doe. It requires concrete proof of a high likelihood
of substantial and irreparable economic harm. Because Company Doe failed to
present such concrete proof . . . , we are left only with a common sense feeling of
what may occur, which simply is not enough to support the sealing of a record.
Id. at 275-76 (Senior Judge Hamilton concurring).
In sum, because the motions under consideration address documents filed in connection
with motions for partial summary judgment, the First Amendment standard applies. To support
sealing under that standard, the parties must present concrete proof that the public right of access
is outweighed by a compelling governmental interest and sealing is narrowly tailored to serve that
In support of this point, Doe cited Joy v. North, 692 F.2d 880, 884 (2d Cir. 1982), noting that
decision held: “a naked conclusory statement that publication [of the document sought to be
sealed] will injure the bank in the industry and local community falls woefully short of the kind of
showing which raises even an arguable issue as to whether it may be kept under seal.”
interest. For a private interest to satisfy this standard, the parties must establish a high likelihood
of substantial and irreparable harm if the motions to seal are denied.
First Procedural Requirement—Public Notice and Opportunity to Comment. The six
motions under consideration were filed in the public record and are reflected on the public docket.
Each of the motions includes a general description of the documents to be sealed and at least some
explanation of the reasons sealing is sought. 3 To the extent the parties seek to seal unredacted
versions of their memoranda, they have filed a redacted version in the public record. The docketing
and public availability of the memoranda in support of sealing satisfies the requirement of public
The motions state they are filed with the consent of the opposing party. Despite an
opportunity to do so and passage of a substantial period of time, no person has filed any responsive
memoranda, either supporting or opposing sealing. Thus, there is no indication any person opposes
sealing. Neither is the court aware of any present public interest in this action in general or the
subject documents in particular.
Second Procedural Requirement—Consideration of Less Drastic Alternatives. The
parties have, to some degree, addressed and the court has considered less drastic alternatives to
sealing, including, most critically, redaction. Redaction is sought for memoranda to the extent
they discuss exhibits for which sealing is sought. Because the court denies sealing of exhibits, it
also denies the corresponding requests to redact memoranda. The court will, nonetheless, allow
The explanations are, however, quite cursory as explained below. See infra § I.
the parties to redact certain categories of confidential information in documents that have not yet
been filed in the public record including account numbers and identifying information about
individuals (e.g., names and any personal identifiers) that may be included in such documents.
Third Procedural Step—Determination of Right and Balancing of Interests. As to the
third step, the court finds all documents for which sealing is sought are subject to a First
Amendment right of access because all are filed in connection with summary judgment motions
or a closely related evidentiary motion. For reasons explained below, the court finds the parties
have failed to establish a basis for sealing under that standard. See infra § I.
Motions to Seal Denied as to All Exhibits and Redactions of Memoranda
Grounds for Sealing Advanced in Pending Motions. In their pending motions, the filing
parties provide only cursory support for sealing, relying, generally, on the opposing party’s or a
non-party’s designation of the document as confidential or boilerplate assertions that the
documents contain confidential information or relate to a confidential business transaction. For
example, in one of Plaintiff’s motions to seal, Plaintiff asserts (1) an actuarial report should be
sealed because it “is replete with confidential business data for Plaintiff, and it was labeled
‘Confidential’ during the discovery process,” (2) bank statements should be sealed because they
“contain account data for Plaintiff, and they also disclose information about Plaintiff’s transaction
with a non-party that the Court has previously agreed should be sealed[,]” and (3) portions of a
memorandum should be sealed because they “discuss a transaction between Plaintiff and a nonparty, private business entity, information about which the court previously agreed should be
sealed, or they disclose information about the above-listed documents that have been designated
‘Confidential[.]’” Collectively as to these documents, Plaintiff argues as follows:
Here, there is no unique public interest in this matter or the materials that
are subject to this motion. However, private interests would clearly be served by
maintaining the confidentiality of these materials. The information redacted from
Companion’s memorandum discusses a private transaction negotiated between
private entities—including a non-party to this litigation—and it would be unfairly
prejudicial to publicly reveal the terms of their private, confidential transaction, as
the Court has previously held.
Moreover, the remaining materials that are subjects of this motion contain
business-sensitive information (for both Plaintiff and Defendants), they are limited
in scope, and they represent only a small fraction of the documents exchanged in
discovery and attached as exhibits to various public filings in this case. Finally, as
noted above, they are subject to the Court’s Confidentiality Order.
ECF No. 240 at 2-3. These arguments address the standard applicable when the common law right
of access applies, not the higher standard applicable when the First Amendment right of access
applies. See id. at 2 (quoting Ashcraft in support of premise the court has “discretion to seal records
if ‘the public’s right of access is outweighed by competing interests.’”). The other five pending
motions to seal make similar arguments, none providing any greater support for sealing. 4
Earlier Motions to Seal and Order Granting. The earlier motions to seal, which were
granted in part and denied in part by docket text order, made similar arguments. See, e.g., ECF
No. 166 at 2 (arguing “[t]he materials that are the subject of this motion deal with a confidential
business transaction between Blue Cross Blue Shield of South Carolina and Sussex Holdings, Inc.,
which is subject to a confidentiality provision requiring the terms of the transaction to be kept
See ECF Nos. 200-1, 244, 250 (Defendants’ motions seeking sealing based on the same standard
because the documents were marked “Confidential” by Plaintiff, non-party Blue Cross and Blue
Shield of South Carolina, or Defendants and are subject to the Confidentiality Order); ECF No.
218 (Plaintiff’s motion asserting documents “deal with a transaction between Plaintiff and a nonparty, private business entity, . . .which the Court previously agreed should be sealed,” have been
designated “Confidential,” and advancing arguments similar to those in ECF No. 240); ECF No.
248 (Plaintiff’s motion making same arguments as to redactions in Plaintiff’s memorandum and
documents designated “Confidential” by Defendants).
confidential” and noting the documents had been designated “Confidential” in discovery). The
court found these arguments sufficient to support sealing of exhibits in the context of the motion
at issue, a motion to exclude aspects of a claim. ECF No. 178 (finding exhibits were “confidential
business record[s] properly subject to protection for the reasons addressed in the supporting
memoranda” but denying motion without prejudice as to redactions). The court later reached a
similar conclusion as to narrowed redactions in the publicly filed memoranda. ECF No. 221
(finding narrowed redactions “involve a confidential business transaction and related negotiations
and the interest in confidentiality overrides the public interest in access in the context of the
underlying motion.” (emphasis added)) The court, nonetheless, warned the parties against reliance
on this ruling as a basis for sealing in any future motion: “The underlying motion addresses
whether particular allegations were properly raised, thus relates to the merits, but does not seek a
ruling on the merits. This order does not, therefore, resolve whether the same information may be
protected in the context of a motion for judgment on the merits or at trial.” Id. (emphasis added).
Reliance on prior rulings does not support sealing. Because the prior orders allowing
sealing of some documents and redaction of publicly filed memoranda did not address sealing
documents filed in connection with a summary judgment motion, the court did not apply the
stringent First Amendment standard to those motions. 5 Neither could the court have considered
the documents sought to be sealed in the context of the arguments for which they were advanced.
See Doe, 749 F.3d at 266 (noting determination of source of right must be made as to each
document for which sealing is sought). Thus, as warned in the second of the two orders granting
Though not expressly stated in the docket text orders granting sealing, the court applied the
discretionary standard applicable when a common law right of access applies.
sealing (and related redactions), the prior rulings do not support sealing the same documents under
the circumstances addressed in the present motions.
Designation of documents as confidential does not support sealing. While designation
of a document as confidential may be a practical prerequisite to sealing, it carries little if any
weight in supporting a motion to seal documents filed in connection with a dispositive motion.
The same is true for opposing parties’ consent. Reliance solely on such designations and consent
to sealing ignores standards applicable to sealing (particularly the First Amendment standard)
discussed above. 6 Thus, the designation of documents as confidential does not support sealing.
Neither does the Confidentiality Order itself support sealing. The relevant provisions of
that order simply protect a party from a document being filed in the public record without the
opportunity to address whether sealing is appropriate.
Remaining Arguments. The parties’ remaining arguments, at most, suggest grounds that
might support sealing upon a proper evidentiary showing. The parties do not, however, offer
anything more than bald claims of confidentiality and related claims (or, more accurately, implied
inferences) of potential harm if the documents and related discussion are made public. This
amounts to no more than “unsubstantiated or speculative claims of harm[,]” which is insufficient
to support sealing. Doe, 749 F.3d at 270; see also id. at 275-76 (stating, in concurrence, “First
Amendment jurisprudence requires more than a common sense feeling about what harm may befall
Both sides relied, as to at least some documents, on the opposing party’s designation of the
document as confidential. See ECF Nos. 200 at 2; 240 at 2, 244 at 2-3, 248 at 1, 250 at 2. This
was a proper approach for the moving party, who may have no interest in preserving the
confidentiality of the document, but it shifted the burden to the opposing party to file a response
justifying sealing. No such responses were filed.
Company Doe. It requires concrete proof of a high likelihood of substantial and irreparable
economic harm.”). 7
Conclusion. For the reasons stated above, the court denies the motions to seal.
Procedures for Filing
The parties are directed to file the exhibits and unredacted memoranda addressed by the
motions to seal in the public record based on the deadlines set out below. Account numbers and
personal identifiers of individuals mentioned in the documents shall be redacted. Companion shall
file its documents on or before March 7, 2017. Defendants shall file their documents after
Companion’s filing is complete and before March 28, 2017. These filings shall be made as
additional attachments to the original filing to which they relate.
Accordingly, the motions to seal, ECF Nos. 200, 218, 240, 244, 248 and 250, are denied
and the parties are directed to file the subject documents as explained in Section II above.
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
January 23, 2017
At least two documents subject to the motions to seal are already in the public record. These
include an actuarial report, which is filed the public record as an attachment to the McGinnis
Expert Report, ECF No. 199-7, and the 2013 Program Agreement. Defendants move to file the
latter under seal as Exhibit 15 to the Rigas Declaration (incorrectly spelled “Regis” in January 10,
2017 Order) but filed the same document in the public record as Exhibit 11 to the same Declaration.
Sealing is denied as to these documents for the additional reason that it would serve no purpose
given the public filing of the same documents.
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