East West, LLC v. Rahman et al
Filing
168
MEMORANDUM OPINION re Defendant's Motion to Seal Exhibits. Signed by District Judge James C. Cacheris on 9/4/2012. (klau, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
EAST WEST, LLC d/b/a
CARIBBEAN CRESCENT,
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Plaintiff,
v.
SHAH RAHMAN, et al.,
Defendants.
1:11cv1380 (JCC/TCB)
M E M O R A N D U M
O P I N I O N
This matter comes before the Court on Defendants Shah
Rahman’s and Caribbean Crescent, Inc.’s (“Defendants”) Motion to
Seal Exhibits to the Declaration of Katie Bukrinsky In Support
of Defendants’ Motion to Exclude Testimony of Plaintiff’s
Damages Expert Michael A. Einhorn, Ph.D. [Dkt. 109] (the
“Motion”).
Defendants seek to seal Exhibits A, C, and E to
Declaration of Katie Bukrinsky In Support of Defendants’ Motion
to Exclude Testimony of Plaintiff’s Damages Expert Michael A.
Einhorn, Ph.D.
For the following reasons the Court will grant
Defendants’ Motion.
I.
Background
The basic facts of this case are recited in detail in
the Court’s June 5, 2012, Memorandum Opinion granting in part
and denying in part Defendants’ motion to dismiss.
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(Memorandum
Opinion [Dkt. 68].)
Familiarity with that Memorandum Opinion is
presumed.
Magistrate Judge Theresa Carroll Buchanan entered a
Discovery Confidentiality Order regarding the handling and
labeling of confidential materials on April 4, 2012.
[Dkt. 37.]
On August 1, 2012, Defendants filed a Motion to
Exclude Testimony of Plaintiff’s Damages Expert Michael A.
Einhorn, Ph.D., [Dkt. 119], and attached to the declaration in
support exhibits including Dr. Einhorn’s expert report (“Exhibit
A”) and supplemental report (“Exhibit C”), as well as the report
of Defendants’ expert Jonathan Cunitz (“Exhibit E”).
That same
day, Defendants filed a Motion to Seal Exhibits to the
Declaration of Katie Bukrinsky In Support of Defendants’ Motion
to Exclude Testimony of Plaintiff’s Damages Expert Michael A.
Einhorn, Ph.D, requesting that Exhibits A, C, and E be sealed.
[Dkt. 109.]
Defendants also filed their Memorandum in Support
of the Motion to Seal.
[Dkt. 111.]
Finally, also on that same
day, Defendants filed a Notice of Waiver of Oral Argument on the
Motion to Seal.
[Dkt. 112.]
Defendants’ Motion to Seal is before this Court.
II.
Standard of Review
Under well-established Fourth Circuit precedent, there
is a presumption in favor of public access to judicial records
and a district court has the authority to seal court documents
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only “if the public's right of access is outweighed by competing
interests.”
Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th
Cir. 2000) (quoting In re Knight Pub. Co., 743 F.2d 231, 235
(4th Cir. 1984)).
“The right of public access to documents or
materials filed in a district court derives from two independent
sources: the common law and the First Amendment.”
Va. Dep't of
State Police v. Wash. Post, 386 F.3d 567, 575 (4th Cir. 2004).
“The common law presumes a right to inspect and copy
judicial records and documents.”
Stone v. University of
Maryland Medical System Corp., 855 F.2d 178, 180 (4th Cir. 1988)
(citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597
(1978)).
“‘This presumption of access, however, can be rebutted
if countervailing interests heavily outweigh the public
interests in access,’ and ‘the party seeking to overcome the
presumption bears the burden of showing some significant
interest that outweighs the presumption.’”
Va. Dep't of State
Police, 386 F.3d at 575 (quoting Rushford v. New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)).
The First Amendment guarantee of access, however, has
been “extended only to particular judicial records and
documents.”
Stone, 855 F.2d at 180.
Where the First Amendment
does guarantee access, the 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.”
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Id.
(citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
510 (1984)).
Regardless of whether the right of access arises from
the First Amendment or the common law, it “may be abrogated only
in unusual circumstances.”
Stone, 855 F.2d at 182.
When
presented with a request to seal judicial records or documents,
a district court must comply with certain substantive and
procedural requirements.
Rushford, 846 F.2d at 253.
As to the
substance, the district court first “must determine the source
of the right of access with respect to each document,” because
“only then can it accurately weigh the competing interests at
stake.”
Stone, 855 F.2d at 181.
A district court must then weigh the appropriate
competing interests under the following procedure: “it must (1)
give 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.”
Ashcraft, 218 F.3d at 288 (citing Stone, 855 F.2d at 181; In re
the Knight Publ'g Co., 743 F.2d at 235).
Additionally, Local Rule 5(C) requires a party moving
to seal to provide: (1) a non-confidential description of what
is to be sealed; (2) a statement as to why sealing is necessary,
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and why another procedure will not suffice; (3) references to
governing case law; and (4) a statement as to the period of time
the party seeks to have the matter maintained under seal and as
to how the matter is to be handled upon unsealing.
5(C).
Local Rule
Local Rule 5(C) also provides that the party moving to
seal shall provide a proposed order, and “[t]he proposed order
shall recite the findings required by governing case law to
support the proposed sealing.”
III.
Analysis
In the Motion, Defendants ask the Court to seal
permanently three exhibits, Dr. Einhorn’s expert report
(“Exhibit A”) and supplemental report (“Exhibit C”), and
Jonathan Cunitz’s expert report (“Exhibit E”), which were
designated “Attorney’s Eyes Only” pursuant to the Discovery
Confidentiality Order entered by Magistrate Judge Theresa
Carroll Buchanan on April 4, 2012.
[Dkt. 37.]
The Discovery
Confidentiality Order states that the parties have the right to
designate as “Attorney’s Eyes Only” any information, document or
thing that “contains highly sensitive business or personal
information, the disclosure of which is highly likely to cause
significant harm to an individual or to the business competitive
position of the designating party.”
(Id. at 2.)
Because the
Court finds that Exhibits A, C, and E contain such information,
the Court concludes that it is appropriate to enter an order
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permanently sealing the aforementioned documents pursuant to the
Discover Confidentiality Order.
Defendants docketed the instant motion on August 1,
2012, and the docket has been made available to the public.
This has provided the public with ample opportunity to object to
the motions, and the Court has received no objections.
As a
result, Defendants have met the first Ashcraft requirement.
Applying the second and third Ashcraft factors, this
Court has reviewed Exhibit A, C, and E and finds that, in light
of the content to which the exhibits pertains, sealing the
documents is the most appropriate course of action instead of
alternative courses of action such as redaction.
The requested
sealing is narrowly tailored to protect information related to
confidential business information and other trade secret
protected information.
Defendants have prepared public versions
of their motion to exclude Dr. Einhorn’s testimony and the
accompanying memorandum, as these documents do not themselves
contain specific confidential data.
Defendants only have
requested to seal certain expert reports attached in support.
All three expert reports at issue specifically pertain to the
parties’ respective sensitive financial data, including gross
profit data, the disclosure of which would be highly likely to
cause significant harm to the business competitive position of
both parties.
This category of information was expressly
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designated “Attorney’s Eyes Only” in the Discovery
Confidentiality Order.
Moreover, given that the expert reports
are focused almost entirely on this highly sensitive business
information and other trade secret protected information, an
alternative procedure like redaction would gut the documents
substantially and render them useless to the public.
IV.
Conclusion
For the reasons stated above, and for good cause
shown, the Court will grant Defendants’ Motion in accordance
with this opinion.
An appropriate Order will issue.
September 4, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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