South Carolina State Conference of the NAACP, The et al v. McMaster et al
Filing
398
ORDER and OPINION denying 379 Plaintiffs' Motion to Seal. Plaintiffs are ORDERED promptly to file publicly an unredacted response in opposition to House and Senate Defendants' motion for summary judgment along with unsealed accompanying exhibits. Signed by the Honorable Toby J. Heytens, the Honorable Richard Mark Gergel, and the Honorable Mary Geiger Lewis on 9/15/2022.(cper, )
3:21-cv-03302-MGL-TJH-RMG
Date Filed 09/15/22
Entry Number 398
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICIT OF SOUTH CAROLINA
COLUMBIA DIVISION
The South Carolina State Conference of the
NAACP, and Taiwan Scott, on behalf of
himself and all other similarly situated
persons,
)
)
)
)
)
Plaintiffs,
)
)
v.
)
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Thomas C. Alexander, in his official
)
capacity as President of the Senate; Luke A. )
Rankin, in his official capacity as Chairman )
of the Senate Judiciary Committee;
)
James H. Lucas, in his official capacity as )
Speaker of the House of Representatives;
)
Chris Murphy, in his official capacity as
)
Chairman of the House of Representatives )
Judiciary Committee; Wallace H. Jordan, in )
his official capacity as Chairman of the
)
House of Representatives Elections Law
)
Subcommittee; Howard Knabb, in his
)
official capacity as interim Executive
)
Director of the South Carolina State
)
Election Commission; John Wells, Chair, )
Joanne Day, Clifford J. Elder, Linda
)
McCall, and Scott Moseley, in their
)
official capacities as members of the South )
Carolina State Election Commission,
)
)
Defendants.
)
____________________________________)
C/A No.: 3:21-cv-03302-TJH-RMG-MGL
ORDER AND OPINION
Before the Panel is The South Carolina State Conference of the NAACP and Mr. Taiwan
Scott’s (“Plaintiffs”) unopposed motion to seal. (Dkt. No. 379). For the reasons stated below,
Plaintiffs’ motion is denied.
I.
Background
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On September 2-3, 2022, Plaintiffs submitted a response in opposition to Senate and House
Defendants’ motion for summary judgment along with 66 accompanying exhibits for the Panel’s
in camera review. Plaintiffs claimed the Panel’s Confidentiality Order authorized them to do such.
On September 6, 2022, the Panel entered a Text Order directing Plaintiffs to move to seal or redact
the items in conformity with the Confidentiality Order and applicable sealing requirements under
the District of South Carolina Local Civil Rules. (Dkt. No. 360). On September 9, 2022, Plaintiffs
moved to seal their response in opposition to Senate and House Defendants’ motion for summary
judgment along with thirteen exhibits attached thereto. (Dkt. No. 379). The Panel categorizes the
exhibits generally as follows: (1) excerpts of deposition transcript of Thomas Hauger (Ex. 14),
Emma Dean (Ex.17), Weston J. Newton (Ex. 18), James H. Lucas (Ex. 20), Wallace H. Jordan
(Ex. 22), Chris Murphy (Ex. 46); (2) exhibits from the depositions of Lucas (Ex. 40, 48); Jordan
(Ex. 41); Hauger (Ex. 42); and Murphy (Ex. 46-47); (3) Population Summary Staff Subcommittee
Plan (Ex. 35); and (4) transcript from the South Carolina House of Representatives Hearing on
H.R. 4781 dated Jan. 12, 2022. (Ex. 43). (Dkt. No. 379-1).
The method in which Plaintiffs seek to seal their brief is by redacting portions throughout.
(Dkt. No. 379; 380). The method in which Plaintiffs seek to seal the exhibits accompanying their
brief is to seal those items in their entirety. (Dkt. No. 379-1). Plaintiffs contend “good cause”
exists to seal and redact the materials because House Defendants have designated items as
Confidential pursuant to the Panel’s Confidentiality Order. (Dkt. Nos. 379; 123).
II.
Legal Standard
District of South Carolina Local Civil Rule 5.03 provides that a party seeking to file
documents under seal shall “file and serve a ‘Motion to Seal’ accompanied by a memorandum”
that must:
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“(A) . . .(1) identify, with specificity, the documents or portions thereof for which
sealing is requested; (2) state the reasons why sealing is necessary; (3) explain (for
each document or group of documents) why less drastic alternatives to sealing will
not afford adequate protection; and (4) address the factors governing sealing of
documents reflected in controlling case law.”
Local Civ. R. 5.03.
The governing sealing standard mandates that for a court to seal a document it must: (1)
give the public adequate notice of a request to seal and a reasonable opportunity to challenge it,
(2) consider less drastic alternatives to sealing, and (3) if it decides to seal, state the reasons,
supported by specific findings, behind its decision and the reasons for rejecting alternatives to
sealing. In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir. 1984).
The public’s common law right to inspect judicial records and documents is not absolute
and the district court “may, in its discretion, seal documents if the public’s right of access is
outweighed by competing interests.” Nixon v. Warner Communications, Inc., 435 U.S. 589, 597
(1978). In deciding whether to exercise such discretion, the court may consider “whether the
records are sought for improper purposes, such as promoting public scandals or unfairly gaining a
business advantage; whether release would enhance the public’s understanding of an important
historical event; and whether the public has already had access to the information contained in the
records.” In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984).
By contrast, once documents that are produced in discovery, including under a pre-trial
confidentiality order, are “made part of a dispositive motion, they [have] lost their status as being
‘raw fruits of discovery.’” Va. Dep’t of State Police v. Washington Post, 386 F.3d 567, 576 (4th
Cir. 2004) (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988).
The, “more rigorous First Amendment standard [ ] appl[ies] to documents filed in connection with
a summary judgment motion in a civil case.” Id.; see also Hill Holiday Connors Cosmopulos, Inc.
v. Greenfield, No. 6:08-cv-03980-GRA, 2010 WL 890067, at *4 (D.S.C. Mar. 8, 2010) (denying
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motion to seal summary judgment memorandum and exhibits). The district court must determine
whether to seal discovery materials after they are made part of a dispositive motion “at the time it
grants a summary judgment motion” and, regarding any pre-trial confidentiality order, must “not
merely allow continued effect to a pretrial discovery protective order.” Va. Dep’t of State Police,
386 F.2d at 576.
Under this First Amendment standard, the movant must demonstrate that the denial of
access is necessitated by a compelling government interest or non-governmental interest that
implicates similar “higher values.” Press-Enter. Co. v. Super Ct. of Cal. For the Cnty. of Riverside,
464 U.S. 501, 510 (1984). Such private interests outweigh the First Amendment presumption of
access “only in certain circumstances” that include a criminal defendant’s Sixth Amendment right
to a fair trial, privacy interests of non-parties, trade secrets, attorney-client relationships, and
contractual non-disclosure provisions. Companion Prop. & Cas. Ins. Co. v. Wood, No. 3:14-cv03719-CMC, 2017 WL 279767, at *2 (D.S.C. Jan. 23, 2017) (collecting cases). “The burden to
overcome a First Amendment right of access rests on the party seeking to restrict access, and that
party must present specific reasons in support of its position.” Level 3 Comm’ns., LLC v. Limelight
Networks, Inc., 611 F. Supp. 2d 572, 583 (E.D. Va. 2009) (testing public’s First Amendment right
of access against non-governmental interests). The court must determine that sealing would
constitute a “narrowly tailored” solution designed “to serve that interest.” Press-Enter. Co., 464
U.S. at 510.
III.
Discussion
Plaintiffs first seek to redact dozens of items throughout their memorandum in opposition
to Senate and House Defendants’ motion for summary judgment. (Dkt. No. 380). Without further
elaboration, Plaintiffs state the documents should be redacted because House Defendants claim
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confidentiality over the items pursuant to the Panel’s Confidentiality Order. (Dkt. No. 379 at 2).
Testing Plaintiffs’ memorandum in opposition to Senate and House Defendants’ motion for
summary judgment according to the standard set forth in Knight Publication Co., the Panel finds
Plaintiffs’ conclusory asserted justification for redaction does not overcome the public’s common
law interest in accessing the record. See e.g., Maxtena, Inc. v. Marks, 289 F.R.D. 427, 447-48 (D.
Md. 2012) (rejecting “conclusory argue[ments]” to deny without prejudice motion to seal legal
memorandum).
Second, Plaintiffs seek to seal thirteen documents attached to their memorandum in
opposition to Senate and House Defendants’ motion for summary judgment. (Dkt. No. 379-1).
As the attachments are part of the record on summary judgment, they are tested against the public’s
First Amendment right of access in Rushford. Plaintiffs’ motion to seal fails to address the
controlling law to seal documents underlying a motion for summary judgment, but Plaintiffs argue
House Defendants claim confidentiality over the items pursuant to the Panel’s Confidentiality
Order. (Dkt. No. 123). The Panel finds that Plaintiffs provide insufficient cursory support for
sealing and generally rely on the opposing party’s designation of the document as confidential.
Plaintiffs do not articulate a compelling governmental or non-governmental interest that implicates
similar “higher values” such that the public’s First Amendment right of access may be overcome.
Press-Enter. Co., 464 U.S. at 510.
IV.
Conclusion
For the foregoing reasons, Plaintiffs’ motion to seal is DENIED. (Dkt. No. 379). Plaintiffs
are ORDERED promptly to file publicly an unredacted response in opposition to House and
Senate Defendants’ motion for summary judgment along with unsealed accompanying exhibits.
AND IT IS SO ORDERED.
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3:21-cv-03302-MGL-TJH-RMG
Date Filed 09/15/22
Entry Number 398
United States Circuit Judge
United States District Judge
United States District Judge
September 15, 2022
Charleston, South Carolina
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