I/P Engine, Inc. v. AOL, Inc. et al

Filing 244

ORDER TO SHOW CAUSE re 234 MOTION to Seal Portions of the Memorandum in Support of Defendants' Motion for Summary Judgment; Exhibits 4-9, 21-22, and 25-31 to the Declaration of Howard Chen in Support of Defendants' Motion for Summary Judgment; and the Declaration of Bartholomew Furrow in Support of Defendants' Motion for Summary Judgment, filed on 9/12/12, by Google Inc., AOL Inc., IAC Search & Media, Inc., Target Corporation, Gannett Company, Inc. As outlined in this Order, the Court finds the stated basis for sealing these materilas to be manifestly insufficient to justify filing of these materials under seal. Accordingly, the Court will ORDER the parties to SHOW CAUSE why the specified materials should not be unsealed and filed in the public record. The parties are DIRECTED to appear before the Court on 9/18/12, at 12:00 noon to identify, on the record, any and all reasons why these materials should be filed under seal rather than in the public record of this case, as outlined in this order. The Court notes that a hearing on certain discovery motions in this case is already scheduled for that date and time. IN the interim, the Clerk shall continue to maintain the materials under seal (See Order for Specifics) Entered and filed 9/13/12. (Signed by Magistrate Judge F. Bradford Stillman on 9/13/12). (ecav)

UNITED STATES DISTRICT COURT

FILED

FOR THE EASTERN DISTRICT OF VIRGIN
Norfolk Division
I/P

ENGINE,

SEP 1 3 ?012

INC.,
CLERK, US DISTRICT COUR I"
NORFOLK. VA

Plaintiff,
v

Case

v •

AOL,

INC.,

et

No.:

2:llcv512

i

al.,

Defendants.
ORDER TO

Before

the

Court

Memorandum in Support
Exhibits

4-9,

Support

of

21-22,

is
of

the

SHOW

CAUSE

Motion

Defendants'

to

Seal

Portions

of

Motion for Summary Judgment,

and 25-31 to the Declaration of Howard Chen in

Defendants'

Motion

for

Summary

Judgment,

and

Declaration of Bartholomew Furrow in Support of Defendants'
for Summary Judgment
defendants
Inc.,

Google

Gannet

Co.,

the

{ECF No.

Inc.,

234),

Target

Inc.,

and AOL

filed on September 12,

Corporation,

IAC

Search

the

Motion

2012,
&

by

Media,

Inc.

For the reasons stated below,
for

the Court finds the stated basis

sealing

be

justify

Court

these

filing

will

of

ORDER

materials
these

the

to

materials

parties

to

manifestly

under

SHOW

seal.

CAUSE

insufficient
Accordingly,

why

the

to
the

specified

materials should not be unsealed and filed in the public record.
The defendants have asked to file under seal portions of their

Memorandum in Support

of

Defendants'

Motion

for Summary Judgment,

portions of the Declaration of Bartholomew Furrow,

and Exhibits

4,

5,

6,

7,

8,

9,

21,

22,

25,

Declaration of Howard Chen.1
information

contained

confidential,

but

26,

27,

28,

29,

30,

and 31 to the

The parties have agreed that certain

in

"[w]hen

these

materials

discovery

should

material

is

remain

classified

confidential by the parties, their classification is not binding on
the court."
91,

94

Chemical Bank v. Affiliated FM Ins. Co.,

(S.D.N.Y.

154 F.R.D.

1994).

"When presented with

a motion to

seal

judicial

records

or

documents, a district court must comply with certain substantive

and procedural requirements."
Post,

386 F.3d 567,

InCt, 218 F.3d 282

procedural

576

Va. Pep't of State Police v. Wash.

(4th Cir.

2004).

In Ashcraft v.

(4th Cir. 2000), the Fourth Circuit set out the

requirements for sealing court filings.

(citing Stone v. Univ. of Md. Med. Svs. Corp.,

(4th Cir.

Conoco,

Id^ at 288

855 F.2d 178,

181

1988), and In re Knight Pub. Co., 743 F.2d 231, 235-36

(4th Cir. 1984)).

Local Civil Rule 5 provides further procedural

guidance to litigants with respect to motions to seal filed in this
district.

But it is the substantive requirements that are at issue in

this case.

"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."

Wash.

Post,

386 F.3d at 575.

1 Unredacted versions of these papers submitted for filing
under seal have not yet been docketed.
The public, redacted
versions of these papers have been docketed as ECF Nos. 238-41.
-

2

-

This distinction is significant because »[t]he common law does not
afford as much substantive protection to the interests of the press

and the public as

Yorker Magazine,

does

Inc.,

the

First Amendment."

846 F.2d 249,

253

Rushford v.

(4th Cir.

the First Amendment provides a right of access,

1988).

New

"When

a district court

may restrict access ^only on the basis of a compelling governmental
interest, and only if the denial is narrowly tailored to serve that
interest.'"

180).2

Wash.

Post,

386 F.3d 575

(quoting Stone, 855 F.2d at

Moreover, "[t]he 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."

Id.

(citing Press-Enter.

Co.

v.

Superior Court,

478 U.S.

1,

15

(1986)).

Noting that "summary judgment adjudicates substantive rights

and serves as a substitute

for a trial," the Fourth Circuit has

held that "the more rigorous First Amendment standard should also
apply to documents

filed

motion in a civil case."

in connection

Rushford,

846

with

a

summary

F.2d at 252,

judgment

253.

The

defendants have requested to file portions of the memorandum in
support

of

their

motion

for

summary

judgment,

together

with

2

As this Court has previously noted, "several courts have
also recognized that,
in limited circumstances,
certain . . .
private interests might also implicate higher values sufficient to

override . . . the First Amendment presumption of public access."
Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d
572, 580 (E.D. Va. 2009).
See generally id. at 580-83 (discussing
various private interests that have been recognized).
-

3

-

portions of a declaration and certain exhibits in support of that
motion,

under

seal.

In support of the motion, the defendants merely characterize

these materials, in conclusory fashion, as "data that is and should
be

kept

confidential."

"present[ed]

See Wash.

Neither

they

nor

the

plaintiff

specific reasons in support of [their] position[s]."

Post,

386 F.3d at 575.

"The First Amendment right of

access cannot be overcome by [a] conclusory assertion."
Enter.,

has

478 U.S.

See Press-

at 15.

Nonetheless,

the Court is sensitive to the potential damage

that might be done should any actual confidential information be

disclosed to the public prematurely.
the

parties

to

SHOW

CAUSE

why

Accordingly, the Court ORDERS

the

unredacted

Memorandum in Support of Defendants'

version

of

the

Motion for Summary Judgment,

the unredacted version of the Declaration of Bartholomew Furrow,

and Exhibits 4,

5,

6, 7,

8,

9,

21, 22, 25, 26, 27, 28, 29,

30, and

31 to the Declaration of Howard Chen should not be unsealed and
filed in the public record.

The

parties

September 18,

are

2012,

DIRECTED

to

appear

before

at 12:00 noon to identify,

and all reasons why these materials

should be

rather than in the public record of this case.3

the

Court

on the record,

on

any

filed under seal

The parties should

3 The Court notes that a hearing on certain discovery motions
in this case is already scheduled for that date and time.
—

4

—

provide

specific

reasons

compelling interest,
less

the

materials

IT

interim,

under

IS

SO

sealing

these

governmental or private,

restrictive way to

In

why

serve that

the

Clerk

compelling

shall

serves

a

and why there is no
interest.

continue

to

maintain

the

seal.

ORDERED.

CfW
UNITED

Norfolk,

materials

Virginia

September \^> , 2012

-

5

-

STATES

MAGISTRATE

JUDGE