Benedict v. Hankook Tire Company Limited et al
Filing
476
MEMORANDUM OPINION. See Opinion for details. It is so ORDERED. Signed by District Judge Robert E. Payne on 6/14/2018. (sbea, )
IL
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
1
JUN 1 5 20!8
CLERK, U.S. DISTRICT COURT
RICHMO'.\10 VA
ROBERT BENEDICT,
Plaintiff,
v.
Civil Action No. 3:17-cv-109
HANKOOK TIRE COMPANY
LIMITED, et al.,
Defendants.
MEMORANDUM OPINION
This matter is
LIMITED'S
AND
before
HANKOOK
the Court on HANKOOK TIRE COMPANY
TIRE AMERICA
COMPANY'S
MOTION
TO
SEAL
CONFIDENTIAL EXHIBITS, TRIAL TRANSCRIPTS, AND JURY INSTRUCTION (ECF
No. 433). For the following reasons, the motion will be denied.
BACKGROUND
In this products liability action, Robert Benedict sued Hankook
Tire Company Limited ("HTCL") and Hankook Tire America Corporation
( "HTAC")
for
the
production and distribution
of an allegedly
defective tire. A jury trial was held from March 5, 2018 to March
9, 2018. Defendants' motion seeks to seal trial exhibits, portions
of the trial transcript, and part of one jury instruction.
I.
Pre-Trial Confidentiality Orders
Because this action is based on allegations that Defendants
produced a defective tire, it implicated Defendants' confidential
product-related information. Accordingly, the Court took several
actions before trial to protect that information.
On April 10, 2017,
ORDER
PROTECTIVE
OF
the Court signed the parties' STIPULATED
CONFIDENTIALITY
GOVERNING
CONFIDENTIAL
INFORMATION (ECF No. 26} [hereinafter Protective Order]. That ORDER
was based upon the following findings of fact:
1)
This action will require the production
and
use
of documents
that
contain
confidential information of the Parties;
2}
A protective order is necessary in this
action
to
protect
the
Parties'
confidential
information
because
disclosure of such information to the
public would put the Parties at a
commercial disadvantage;
3)
The Parties [ sic] interest in sealing
confidential information outweighs the
public's common law interest in access to
such documents based on the following:
(a)
(b}
4}
If confidential documents are not
sealed, they could be utilized by
competitors of the Parties to gain an
unfair business advantage; and
The public does not already have
access to the Parties' confidential
information;
This Protective Order is narrowly tailored
to
serve
the
Parties'
interest
in
protecting their confidential information
in that:
(a}
The Protective Order only provides
for the sealing of material that
contain
[sic]
confidential
information; and
2
{b)
5)
The Protective Order provides that
where
only parts
of materials
contains
[sic]
confidential
information, only those parts of the
materials
are
subject
to
the
Protective Order;
There are no less drastic alternatives to
the sealing of confidential documents as
provided in the Protective Order.
Protective Order 1-2. The Protective Order permitted the parties to
designate as "confidential information" "any information believed
in good faith to be sensitive personal information, proprietary or
confidential research,
development,
or commercial information."
Protective Order 2. Confidential information was defined to include
"information that constitutes confidential research, development or
proprietary business information that a) is not generally available
to others, b) is not readily determinable from other sources, c) has
been treated as confidential by the Parties; and d) is reasonably
likely to lead to competitive injury if disclosed." Protective Order
3.
Information designated as
confidential
was
to be
held
in
confidenence and disseminated to a limited set of persons. Protective
Order
5-7.
challenging
The
Protective
the
parties'
Order
also
designations
created
by
procedures
those
who
for
receive
purportedly confidential information. Protective Order 8.
The
Protective
information
and
Order
materials
broadly
produced
3
covered,
inter
formally;
alia,
informally;
"all
in
any . . . document . . . brief, motion, transcript, testimony, or
other writing;
or through any manner or means of discovery or
disclosure in the lawsuit." See Protective Order 2-3. The Protective
Order also addressed trial testimony:
If such CONFIDENTIAL INFORMATION is
contained or given in any deposition testimony,
trial testimony or any other testimony, the
transcript may be designated as containing
CONFIDENTIAL INFORMATION in accordance with
this Protective Order of Confidentiality by
notifying the parties on the record at the time
the testimony is given, or in writing within
thirty
(30)
days
of
receipt
of
the
transcript . . . .
Protective Order 4.
Finally, it contemplated encompassing other
trial materials, stating that confidential information only may be
shown, inter alia, to "[t]he Court, its staff, witnesses a n d ~
in this Lawsuit." See Protective Order 5 (emphasis added).
The Protective Order, however, was self-limiting. It stated
that it "is without prejudice to a later determination regarding
confidentiality at
trial
of documents
declared
'confidential'
pursuant to this Order." Protective Order 5.
The Court also granted several motions, by both parties, to seal
exhibits filed with the briefing on various pre-trial motions,
including summary judgment motions. These Orders were all granted
\\for good cause shown, and the requirements of Local Civil Rule 5
and the decisions in Ashcraft, et al. v. Conoco, Inc., 218 F.3d 288
(4th Cir. 2000), In re Knight Publishing Co., 743 F.2d 231 {4th Cir.
4
1984) and Stone v. Univ. of Maryland, 855 F.2d 178 (4th Cir. 1988)
having been met." (ECF Nos. 70, 71, 120, 121, 210, 211, 212, 213,
214, 215, 216, 217, 218, 219, 319, 320, 323, 324, 325, 326) . 1
II.
Trial Confidentiality Protections & Defendants' Motion
Neither party,
however,
moved to seal any trial exhibits,
testimony, or other materials before or at the jury trial. Rather,
as explained by Defendants:
Because
[Defendants'
confidential
information] was already the [sic] subject to
the Court's sealing orders pursuant to Local
Rule 5 and would not [sic] placed in the record
prior to trial, the Parties agreed that the
mechanism to ensure that Han kook's confidential
information remain protected was to "file a
motion to seal after the trial to have certain
trial exhibits and portions of the trial
transcript placed under seal."
Defs.' Br. 2 (citations omitted) . 2
1
Certain of these Orders included the additional finding that: "and
[the plaintiff or the defendants] asserting that the documents
requested to be sealed are designated confidential under the
STIPULATED
PROTECTIVE
ORDER
OF
CONFIDENTIALITY
GOVERNING
CONFIDENTIAL INFORMATION (ECF No. 26) entered herein." (ECF Nos. 120,
121, 210, 211, 212, 213, 214, 215, 216, 217, 218, 319, 320, 323, 324,
325, 326).
2
HANKOOK TIRE COMPANY LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S
MEMORANDUM IN SUPPORT OF MOTION TO SEAL CONFIDENTIAL EXHIBITS, TRIAL
TRANSCRIPTS, AND JURY INSTRUCTION (ECF No. 434) shall be labeled
"Defs., Br.,,; Plaintiff's MEMORANDUM IN OPPOSITION TO MOTION TO SEAL
CONFIDENTIAL EXHIBITS, TRIAL TRANSCRIPTS, AND JURY INSTRUCTIONS (ECF
No. 436) shall be labeled "Pl.' s Opp' n"; Defendants' REPLY IN SUPPORT
OF HANKOOK TIRE COMPANY LIMITED AND HANKOOK TIRE AMERICA
MOTION
TO
SEAL
CONFIDENTIAL
EXHIBITS,
TRIAL
CORPORATION'S
5
That agreement was initiated by Plaintiff on March 1, 2018, four
days before the jury trial was set to commence. See Defs.' Br. Ex.
A 1. In an e-mail to Defendants, Plaintiff stated:
Given these are not being filed via ECF,
we are not planning on taking on measures to seal
them prior to trial. I'm guessing the proper
mechanism would be to file a motion to seal after
the trial to have certain trial exhibits and
portions of the trial transcript placed under
seal. Are you in agreement? I just do not want
[sic] run into any alleged violation of the
protective order by submitting our exhibit
binders.
Defs.'
Br.
Ex. A 1.
Defendants represent that they "agreed to
Plaintiff's proposal by telephone on the same day the email was
received" and that they "received confirmation from Plaintiff during
trial that a motion to seal the trial exhibits would with [sic] filed
without objection." Defs.' Br. 2 n.1. 3
TRANSCRIPTS, AND JURY INSTRUCTION (ECF No. 454) shall be labeled
"Defs.' Reply Br."; Ronnie L. Crosby's MOTION TO INTERVENE AND
OBJECTION UNDER LOCAL RULE S(C) TO HANKOOK TIRE COMPANY LIMITED AND
HANKOOK TIRE AMERICA CORPORATION'S MOTION TO SEAL (ECF No. 440) shall
be labeled "Intervenor's Br."; Defendants' MEMORANDUM IN RESPONSE
TO MOTION TO INTERVENE AND OBJECTION UNDER RULE S(C) (ECF No. 455)
shall be labeled "Defs.' Intervenor Opp' n"; and RONNIE CROSBY'S REPLY
TO HANKOOK TIRE COMPANY LIMITED'S AND HANKOOK TIRE AMERICA
CORPORATION'S OPPOSITION TO HIS MOTION TO INTERVENE AND OBJECTION
UNDER LOCAL RULE S(C) shall be labeled "Intervenor's Reply Br."
3
Plaintiff largely agrees with this description of the facts. In
Plaintiff's words: "Defendants correctly note that the Parties
conferred and agreed that a motion to seal would be treated as timely
if made upon conclusion of the trial . . . . Counsel for the Parties
also spoke briefly at trial and counsel for Mr. Benedict indicated
that Mr. Benedict may not oppose a post-trial motion to seal-although
the particulars of this conversation cannot be completely recalled."
6
Hence,
the
jury
trial
proceeded without
restrictions
on
attendance or limitations on the presentation of information. And,
on March 9, 2018, all jury instructions were filed publicly in the
Court's
electronic
docket
system.
According
to
Defendants,
"[a]lthough the final trial exhibits and Jury Instruction No. 27B
were available on Friday, March 9, 2018, Hankook did not receive a
complete copy of the expedited trial transcript until late afternoon
on Friday, March 16, 2018." Defs.' Br. 6. Defendants filed the present
motion on Thursday, March 22, 2018.
III. Defendants' Materials
As
noted above,
materials:
Defendants
seek
( 1} certain trial exhibits;
to
seal
three
types
of
(2} portions of the trial
transcript; and (3} part of jury instruction 27B. Defs.' Br. 6-10.
These materials are alleged to contain proprietary and confidential
tire production information. See Defs.' Br. 6-10, 12-14.
As to the trial exhibits, although all the exhibits at issue
in Defendants' motion were admitted into evidence and considered by
the jury, only some were actually discussed or displayed openly at
trial. That is not standard practice; in a typical case, exhibits
Pl.'s Opp'n 2 n.1. Plaintiff decided to oppose the motion to seal
after trial but before Defendants filed their motion, explaining that
"after reviewing the controlling authorities, counsel for Mr.
Benedict subsequently apprised counsel for Defendants, on March 13,
2018, that Mr. Benedict believed the entirety of the trial transcript
should be left unsealed and would oppose any effort to seal the trial
transcript." See Pl.' s Opp' n 2 n. 1.
7
are only deemed "admitted" if they are used at trial, and unused
exhibits
are
considered
withdrawn.
4
No
party
addressed
the
distinction between used and unused exhibits, so the Court does so
here. The exhibits that were specifically presented at trial include
Defendants' exhibits 8, 9, 11, 12, 13, and 15, and Plaintiff's exhibit
6. See Trial Tr. 169, 177, 471, 479, 525, 528, 530, 538, 558, 560,
571, 718; see also Mar. 5, 2018 Minute Sheet; Mar. 6, 2018 Minute
Sheet; Mar. 7, 2018 Minute Sheet; Mar. 8, 2018 Minute Sheet; Mar.
9, 2018 Minute Sheet. The rest were not so presented. 5
IV.
The Intervention of Ronnie L. Crosby
On March 29, 2018, Ronnie L. Crosby, an attorney for a plaintiff
in a wrongful death action pending against Defendants in South
Carolina, moved to intervene and object to Defendants' motion to
seal. 6 See Intervenor's Br. *l-4; see also Defs.' Intervenor Opp'n
1. By ORDER (ECF No. 473) dated May 9, 2018, the Court granted Crosby's
~ The Court permitted the parties to treat unused exhibits as admitted
here because the parties reasonably interpreted language in the JURY
INITIAL PRETRIAL ORDER (ECF No. 20) as allowing them to do so.
5
Plaintiff's exhibit 10 was briefly mentioned at trial out of the
presence of the jury. See Trial Tr. 501. It does not appear to have
been discussed in any detail or displayed publicly, however, so it
will be treated as unused. See Trial Tr. 501.
6
That wrongful death action involves the failure of a tire similar
to that at issue in this case. See Intervenor's Br. *2. Both tires
were of the same model type and were manufactured at a similar time.
See Intervenor's Br. *2.
8
motion to intervene and ruled that it would consider his papers in
assessing Defendants' motion.
THE RELEVANT STANDARDS GOVERNING THE RESTRICTION OF ACCESS TO COURT
MATERIALS
I.
The Public's Right of Access to Judicial Records
It is well-established that there exists a "right of public
access" to "judicial records." See In re Application of the United
States for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d
283, 290 (4th Cir. 2013) [hereinafter In re Application]. That right
"derives from two independent sources: the First Amendment and the
common law." Id.
"The distinction between the rights of access
afforded by the common law and the First Amendment is 'significant,'
because
the
common
law
'does
not
afford
as much
substantive
protection to the interests of the press and the public as does the
First Amendment."' Id. (citations omitted). However, "(r]egardless
of whether the right of access arises from the First Amendment or
the common law, it 'may be abrogated only in unusual circumstances.'"
Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir.
2004)
( citations omitted) . Indeed, "even where . . . all of the
litigants support the motion to seal, and even where a public hearing
on the question does not bring forth anyone to assert the right of
access, a court must still engage in a careful deliberation on the
issue." Miles v. Ruby Tuesday, Inc., 799 F. Supp. 2d 618, 622 (E.D.
9
Va. 2011); see also E.D. Va. Loe. Civ. R. 5(C)
[hereinafter LCR]
("Agreement of the parties that a document or other material should
be filed under seal or the designation of a document or other material
as confidential during discovery is not,
by itself,
sufficient
justification for allowing a document or other material to be filed
under seal.").
II.
The Common Law Right
"The common law presumes a right of the public to inspect and
copy 'all 'judicial records and documents.''" Va. Dep't of State
Police, 386 F.3d at 575 (citations omitted). That right operates as
a presumption of access to "all judicial records and documents,"
which "can be rebutted if 'the public's right of access is outweighed
by competing interests.'" See In re Application, 707 F.3d at 290
(citations omitted). The burden is on the proponent of sealing. See
Level 3 Commc'ns, LLC v. Limelight Networks, Inc., 611 F. Supp. 2d
572, 577 (E.D. Va. 2009).
"To substantively overcome the common law presumption of
access . . . a
court
must
find
that
there
is
a
'significant
countervailing interest' in support of sealing that outweighs the
public's interest in openness." In re Application, 707 F.3d at 293
(citations omitted); see also id. at 293 n.12; Va. Dep't of State
Police, 386 F.3d at 575. As the Fourth Circuit has explained, in
performing the common law balancing analysis:
10
[A] court may consider the following factors:
" [ 1] whether the records are sought for improper
purposes, such as promoting public scandals or
unfairly gaining a business advantage; [2]
whether release would enhance the public's
understanding of an important historical event;
and [ 3) whether the public has already had
access to the information contained in the
records."
See In re Application, 707 F.3d at 293 (citations omitted); see also
Va. Dep't of State Police, 386 F.3d at 575.
III. The First Amendment Right
The Fourth Circuit has described the First Amendment right of
access in the following way:
In
contrast to the common law, "the
First Amendment guarantee of access has been
extended only to particular judicial records
and documents." When the First Amendment
provides a right of access, 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." 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.
Va. Dep't of State Police, 386 F.3d at 575 (citations omitted). This
Court has held, moreover, that, in the First Amendment context, "the
court must weigh and balance the competing interests, much as it does
in connection with the common law right"; but, "a more stringent
standard governs." Level 3, 611 F. Supp. 2d at 580-81.
It appears that private interests may be "compelling" for
11
purposes of the First Amendment analysis. See Doe v. Public Citizen,
749 F.3d 246, 269 (4th Cir. 2014); see also Level 3, 611 F. Supp.
2d at 58 0-82. For example, the Fourth Circuit has suggested that "[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 [under
the First Amendment]." Doe, 749 F.3d at 269; see also Woven Elecs.
Corp. v. Advance Grp., Inc., 930 F.2d 913, 1991 WL 54118, at *6 {4th
Cir. 1991)
{per curiam)
{table) . This Court has reached similar
conclusions. See Lifenet Health v. Lifecell Corp., 2: 13-cv-486, 2015
WL 12517430, at *1, 4 {E.D. Va. Feb. 12, 2015) [hereinafter Lifenet
.!..!_]; Lifenet Health v. Lifecell Corp., 2: 13-cv-486, 2015 WL 12516758,
at *1 {E.D. Va. Jan. 9, 2015) [hereinafter Lifenet I); Adams v. Object
Innovation, Inc., 3:ll-cv-272, 2011 WL 7042224, at *4 {E.D. Va. Dec.
5, 2011), adopted, 2012 WL 135428, at *1 (E.D. Va. Jan. 17, 2012);
RegScan, Inc. v. Bureau of Nat'l Affairs, Inc., 1:11-cv-1129, 2011
WL 5239221, at *2-3 (E.D. Va. Nov. 1, 2011); Level 3, 611 F. Supp.
2d at 580-82.
IV.
Judicial Records & The Applicable Rights
For either the common law or First Amendment right of access
to attach at all,
the materials at issue must,
at minimum,
be
"judicial records." In re Application, 707 F. 3d at 290-91. The Fourth
Circuit has held that "it is commonsensical that judicially authored
12
or created documents are judicial records" and that "documents filed
with the court are 'judicial records' if they play a role in the
adjudicative process, or adjudicate substantive rights." Id. at 290. 7
Judicial records include, at minimum, documents in evidence at
a public jury trial and trial transcripts. See Syngenta Crop Prot.,
LLC v. Willowood, LLC, l:15-cv-274, 2017 WL 6001818, at *2 (M.D.N.C.
Dec. 4, 2017); Lifenet II, 2015 WL 12517430, at *2; Level 3, 611 F.
Supp. 2d at 577-79; see also Va. Dep't of State Police, 386 F.3d at
577; Woven, 1991 WL 54118, at *6; Rambus, Inc. v. Infineon Techs.
AG, 3:00-cv-524, 2005 WL 1081337, at *2-3 (E.D. Va. May 6, 2005).
It is also clear that both the First Amendment and the common law
right apply to these materials. See Syngenta, 2017 WL 6001818, at
*2; Lifenet II, 2015 WL 12517430, at *2; Level 3, 611 F. Supp. 2d
at 577-79, 588-89; see also Va. Dep't of State Police, 386 F.3d at
576.
V.
The Loss of Protected Status
It is often the case that materials initially may be protected
from dissemination by an order of the court but then subsequently
7
By way of example, "discovery documents filed in connection with
a dispositive motion, such as a motion for summary judgment, [are]
subject to the right of access because 'summary judgment adjudicates
substantive rights.'" See In re Application, 707 F. 3d at 2 90.
(citations omitted) . However, "documents not considered by the court
but filed with a motion to dismiss" are not subject to the right
because those documents "do not play any role in the adjudicative
process." See id. ( citations omitted) .
13
lose that protection. That may happen, for instance, where discovery
documents are covered by a protective order but are then filed with
dispositive motions. As explained by the Fourth Circuit:
[I]n Rushford we considered the propriety of a
district court's order sealing documents that
were attached to a successful summary judgment
motion. Al though the documents had been the
subject of a pretrial discovery protective
order, we observed that once the documents were
made part of a dispositive motion, they lost
their status as being "raw fruits of discovery,"
and that discovery, "which is ordinarily
conducted in private, stands on a wholly
different footing than does a motion filed by
a party seeking action by the court." After
noting that summary judgment "serves as a
substitute for a trial" and that we had held in
a prior case that the First Amendment standard
should apply to documents filed in connection
with plea and sentencing hearings in criminal
cases, we held that "the more rigorous First
Amendment standard should also apply to
documents filed in connection with a summary
judgment motion in a civil case."
Although we recognized that "there may be
instances in which discovery materials should
be kept under seal even after they are made part
of a dispositive motion," we stated that the
district court must make that determination "at
the time it grants a summary judgment motion and
not merely allow continued ef feet to a pretrial
discovery protective order." We noted that
"[t]he reasons for granting a protective order
to facilitate pre-trial discovery may or may not
be sufficient to justify proscribing the First
Amendment
right
of
access
to
judicial
documents," and we remanded the case to the
district court in order for it to determine
under
the
appropriate
substantive
and
procedural standards whether the documents
should remain sealed.
14
Va. Dep't of State Police, 386 F.3d at 576-77 (citations omitted).
As suggested by the above passage, the same analysis would apply
to materials presented at trial. See Va. Dep't of State Police, 386
F.3d at 576
trial' .
("[S)ummary judgment
u
'serves as a substitute for a
(citations omitted)). This Court has so held. See
Level 3, 611 F. Supp. 2d at 589; Rambus, 2005 WL 1081337, at *2.
Furthermore, it is clear that, in this district, trial materials
are not generally protected by previous sealing or protective orders.
Under Local
Rule
5 (H),
"[t) rial exhibits,
including documents
previously filed under seal, and trial transcripts will not be filed
under seal except upon a showing of necessity demonstrated to the
trial judge.u LCR 5(H)
VI.
(emphasis added).
Waiver of Confidentiality Protections
This Court and others have taken the view that parties may waive
their right to assert the confidentiality of trial materials. See
Level 3, 611 F. Supp. 2d at 583-84, 587-88; see also In re Time, Inc.,
182 F.3d 270, 272 (4th Cir. 1999); Littlejohn v. Bic Corp., 851 F.2d
673, 680 (3d Cir. 1988); Dees v. Cnty. of San Diego, 3:14-cv-0189,
2017 WL 4511003,
at *l n.1
{S.D. Cal. Oct.
10,
2017),
appeals
docketed, No. 17-56621 {9th Cir. Oct. 25, 2017), No. 17-56710 {Nov.
9, 2017); Certusview Techs., LLC v. S&N Locating Servs., LLC, 198
F. Supp. 3d 568, 588 n.12 {E.D. Va. 2016); Phillips v. C.R. Bard,
Inc., 3:12-cv-344, 2015 WL 3485039, at *2 {D. Nev. June 1, 2015);
15
Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., 9-290, 2013 WL
1336204, at *5 (W.D. Pa. Mar. 29, 2013); United States v. Cousins,
858 F. Supp. 2d 614, 618-19, 619 n.8 (E.D. Va. 2012); Pesky v. United
States, l:10-cv-186, 2010 WL 4174670, at *2 (D. Idaho Oct. 19, 2010);
Weiss v. Allstate Ins. Co., 6-3774, 2007 WL 2377119, at *3 (E.D. La.
Aug. 16, 2007) ; Rambus, 2005 WL 1081337, at *2-3. As the Level 3 court
explained:
Notwithstanding the need to weigh the
competing interests when an effort is made to
seal
a
document
in
advance
of
or
contemporaneously with its use or filing with
a court, an entity seeking to seal such document
after its use or admission can be held to have
waived its right to assert a continuing interest
in the document in opposition to the presumptive
right of access. "It is a 'well-established
principle of American jurisprudence that the
release of information in open trial is a
publication of that information and, if no
effort is made to limit its disclosure, operates
as a waiver of any rights a party had to restrict
its further use.'"
Level 3, 611 F. Supp. 2d at 583 (citations omitted}.
In order to understand the full scope of the "waiver" doctrine,
a few examples are instructive. First, the Level 3 court found that
waiver had occurred under the following circumstances and based on,
inter alia, the following reasoning:
[The intervenor] was fully aware that certain
of its documents, explicitly including one of
the exhibits currently at issue, were going to
be
offered
into
evidence
at
trial.
Moreover . . . the
email
correspondence
between (the intervenor] and Level 3 shows that
16
[the intervenor) did not "belatedly realize[]
the impact" of this fact. Instead,
[the
intervenor's) request to Level 3 demonstrates
its awareness of-and concerns about-the issue
of confidentiality prior to the commencement of
trial, and Level 3's response explicitly
notified
[the intervenor]
of Level 3' s
unwillingness to comply with that request.
Despite the foregoing, [the intervenor] chose
not to take any action on its own behalf to raise
this issue prior to or contemporaneously with
the exhibits at issue being offered and entered
into evidence at trial.
Here, of course, the proper time for the
Court to have addressed any such requests for
further judicial protection of the exhibits at
issue in the instant motion would have been
prior to trial, or at trial-at the time when they
were offered into evidence. This Court,
consistent with the reasoning of other courts
faced with similar circumstances, believes that
[the intervenor's] failure to raise this issue
prior to or at that time-or, indeed, at any point
before filing the instant motion nearly three
weeks after the jury's verdict and entry of
judgment-constitutes a waiver of any objections
to any First Amendment (or, for that matter,
common law) right of access to the exhibits. The
First Amendment public right of access to these
exhibits sprang into existence upon their being
offered
into
evidence
for
the
jury's
consideration at trial, and since no request was
made to seal them prior to or at that time, [the
intervenor] waived any future right to assert
any competing interest to be weighed by the
Court and, thus, any objection to the public
availability of the exhibits in the Court's
files.
Level 3, 611 F. Supp. 2d at 587-88 {citations omitted).
Likewise, in Certusview, this Court observed the following:
17
The Court has entered numerous Orders in
this matter, ordering certain documents to be
sealed. The parties, however, have referred to
the contents of a number of these sealed
documents throughout their unredacted filings,
post-trial briefing, and in open court during
the bench trial of this matter. Further, several
such sealed documents were entered into
evidence and the public record during the bench
trial. Therefore, to the extent that the parties
have discussed the contents of these sealed
documents in their filings, briefings, and in
open court, or have entered such documents into
evidence, the Court considers the parties'
arguments
regarding
the
need
for
such
information to be sealed to have been waived.
Certusview, 198 F. Supp. 3d at 588 n.12 {citations omitted) . 8
Finally, in Cousins, this Court determined:
Similarly,
to
whatever
extent
the
government argues that the content of the
witnesses' testimony must be protected from
disclosure to non-parties, the government's
request for redaction comes far too late to be
meaningful. If the government had significant
concerns for the safety of the witnesses in this
case based on the content of their testimony,
a request to protect or seal their testimony
should have come before, or at least during,
trial in this case. Instead, the request came
at the utwelfth hour." At this late stage, more
than ten months after testimony was given
without restriction at public trial, the court
cannot undo any potential impact of public
disclosure of this information.
8
Some of the documents previously sealed in Certusview were exhibits
to summary judgment briefs. See Certusview Techs., LLC v. S&N
Locating Servs., LLC, 2:13-cv-346 {ECF Nos. 357, 359).
18
Cousins, 858 F. Supp. 2d at 618-19. 9
These examples teach several key points. First, each shows that
the waiver doctrine applies to prospective attempts to seal documents
{i.e., to any argument that the proponent of sealing has an interest
in confidentiality that outweighs the public's right of access} . 10
Second, as indicated by Certusview, the doctrine applies to materials
that were previously sealed (even as exhibits to summary judgment
motions} . 11 Third, all three examples demonstrate that, as to trial
materials, the waiver doctrine is triggered if the proponent of
sealing fails to seek protections at or before trial. 12 And, fourth,
9
This "waiver" analysis was contained within the court's broader
discussion of the common law right of access. See Cousins, 858 F.
Supp. 2d at 618-20. The court was clearly raising the waiver doctrine,
however, as it quoted {in a footnote to the passage cited above} the
maxim: "It is a 'well-established principle of American
jurisprudence that the release of information in open trial is a
publication of that information and, if no effort is made to limit
its disclosure, operates as a waiver of any rights a party had to
restrict its further use.'" See id. at 619 n.8 {citations omitted}.
10
Other decisions confirm that conclusion. See Dees, 2017 WL 4 511003,
at *l n.l; Phillips, 2015 WL 3485039, at *2; Carnegie Mellon, 2013
WL 1336204, at *5; Pesky, 2010 WL 4174670, at *2.
11
Level 3 and other cases also suggest that the doctrine applies to
previous protections, although these cases typically involved
protective orders rather than orders sealing exhibits to dispositive
motions. See Level 3, 611 F. Supp. 2d at 583-84, 588; In re Time,
182 F.3d at 271-72; Littlejohn, 851 F.2d at 680; Weiss, 2007 WL
2377119, at *3; Rambus, 2005 WL 1081337, at *2-3.
12
Again, other cases show that this is the case. See In re Time, 182
F.3d at 271-72; Littlejohn, 851 F.2d at 680; Phillips, 2015 WL
3485039, at *2; Carnegie Mellon, 2013 WL 1336204, at *5; Weiss, 2007
19
Cousins reveals that the waiver doctrine applies to testimony that
was not sought to be protected at trial. 13
VII. Substantive & Procedural Requirements
When assessing whether materials should be sealed under either
the First Amendment or the common law, "a district court must comply
with certain substantive and procedural requirements." Va. Dep't of
State Police, 386 F.3d at 576. In the Fourth Circuit's articulation:
As to the substance, the district court first
"must determine the source of the right of
access with respect to each document," because
"[o]nly then can it accurately weigh the
competing interests at stake."
A district court must then weigh the appropriate
competing
interests
under the
following
procedure: it must give the public notice of the
request to seal and a reasonable opportunity to
challenge the request; it must consider less
drastic alternatives to sealing; and if it
decides to seal it must state the reasons (and
specific supporting findings) for its decision
and the reasons for rejecting alternatives to
sealing.
Id.
(emphasis added)
(citations omitted).
To satisfy the notice requirement, courts must either:
( 1)
"notify persons present in the courtroom of the request" or (2)
WL 2377119, at *3. The Local Rules of this Court do as well. See LCR
5(C) ("A document or a portion of a document not covered by section
(B) may be filed under seal only if a motion to file under seal
pursuant to this section is filed contemporaneously with the material
for which sealing is requested.").
13
Other decisions establish this point as well. See Dees, 2017 WL
4511003, at *1 n.l; Phillips, 2015 WL 3485039, a 0 1 ~
20
"docket it 'reasonably in advance of deciding the issue.'" Stone v.
Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988)
(citations omitted). The latter can include docketing the motion in
a "publicly-accessible electronic docketing system." See Level 3,
611 F. Supp. 2d at 591.
VIII.
E.D. Va. Local Rule S(C)
Local Rule 5 also governs motions to seal. There are several
requirements established by that Rule, but, as relevant here, the
Rule states that "[t] he motion to file under seal shall be accompanied
by . . . a
separate
non-confidential
notice
that
specifically
identifies the motion as a sealing motion." LCR 5 (C). The notice must
satisfy several substantive requirements:
The notice shall be identified as a notice
of filing.a motion to seal and it shall inform
the parties and nonparties that they may submit
memoranda in support of or in opposition to the
motion within seven (7) days after the filing
of the motion to seal, and that they may
designate all or part of such memoranda as
confidential. Any information designated as
confidential in a supporting or opposing
memorandum will be treated as sealed pending a
determination by the Court on the motion to
seal. The notice shall also state that any
person objecting to the motion must file an
objection with the Clerk within seven (7) days
after the filing of the motion to seal and that
if no objection is filed in a timely manner, the
Court may treat the motion as uncontested.
See LCR 5 (C) .
This Rule was meant to be followed, especially given that it
21
provides a mechanism for informing the public about its rights and
obligations with respect to motions to seal. Accordingly, Local Rule
5(C) concludes by cautioning that, "[i)f the Court determines that
the appropriate standards for filing material under seal have not
been satisfied, it may order that the material be filed in the public
record." LCR 5(C). That warning, moreover, is in addition to Rule
5 (A), which states: "[u) nless otherwise provided by law, Court rule,
or prior order of the Court, no document or portion of a document
may be filed under seal unless the filer has complied with the
procedures set forth herein." LCR 5(A).
DISCUSSION
Given the foregoing principles, Defendants cannot prevail.
As to the trial testimony, the exhibits presented openly at
trial, and jury instruction 27B, Defendants' motion will be denied
because Defendants have waived any right to assert confidentiality.
Even if waiver had not occurred, Defendants cannot rely on the
previously protected status of any of these materials, and the
relevant balancing tests counsel in favor of public access.
Wholly apart from that reasoning, moreover, Defendants' motion
would have to be rejected, as to all materials Defendants wish to
seal, because they failed to comply with Local Rule 5(C).
22
I.
Substantive & Procedural Requirements
As an initial matter, the Court has complied with its
obligations. All it needed to do before deciding this motion was to
provide public notice. As in Level 3, the Court did so by docketing
Defendants' motion "by means of the Court's publicly-accessible
electronic docketing system over two months prior to the issuance of
this Opinion and Order." See Level 3, 611 F. Supp. 2d at 591.
II.
Trial Transcripts, Trial Exhibits Presented Openly at Trial &
Jury Instruction 27B
The Court declines to seal the trial transcripts, the trial
exhibits presented openly at trial, and jury instruction 278. 14
A.
The Materials Are Judicial Records that Trigger a First
Amendment Analysis
A preliminary matter involves whether these materials are
"judicial records." As set forth above, it is clear that trial
transcripts and trial exhibits admitted into evidence constitute
judicial records. Given that jury instructions are "judicially
authored or created documents," moreover, they too are judicial
records. See In re Application, 707 F.3d at 290.
14
The Court analyzes these materials separate from the exhibits in
evidence that were not discussed or displayed at trial because it
is so abundantly clear that the former should not be sealed and the
latter present a somewhat closer question. Certain of the principles
set out above, particularly those relating to waiver, do counsel
against sealing the unused exhibits. But, the Court need not resolve
that issue conclusively, given that it independently denies
Defendants' motion on the ground of Local Rule 5.
23
Furthermore, it is apparent that the proper way to analyze these
materials is under the First Amendment test. As explained previously,
trial transcripts and trial exhibits in evidence implicate the First
Amendment. And, although the Court has not found a case expressly
holding that jury instructions, on their own, do so, the analysis
of the jury instructions in this case merges with that of the trial
transcript. All the jury instructions were read aloud in open court
at trial and are part of the transcript. See Trial Tr. 863-84 . 15 The
public availability of a trial transcript would therefore result in
a finding that Defendants have no interest in maintaining the
confidentiality of the jury instructions that outweighs the public's
right of access under even the common law test. Cf. Va. Dep' t of State
Police, 386 F.3d at 575 (noting that "factors to be weighed in the
common law balancing test" include "whether the public has already
had access to the information." (citations omitted)).
B.
Defendants Waived any Right to Claim that the Materials
at Issue Are Confidential
As set forth above, if no effort is made to prevent dissemination
of confidential information at trial, the right to claim that trial
materials containing that information should be sealed is waived.
That is true, moreover, even if previous sealing or protective orders
15
No one was permitted to enter or leave the courtroom during the
instructions, but there were no restrictions on who could be present.
See Trial Tr. 863.
24
covered the materials or information at issue.
Defendants do not argue that they sought to protect their
confidential information at or before trial. See Defs.' Br. 1-2, 6,
12-14. Rather, Defendants note: (1) the information to be sealed was
designated as confidential under the terms of the Protective Order
and/or is the same as or similar to that which was previously sealed
on motions of both parties; ( 2) Defendants agreed with Plaintiff that
the proper method of protecting information at trial was to file a
motion to seal after trial concluded; (3) Defendants monitored the
courtroom during trial "for anyone that was not related to the
Parties, the Court, or law clerks and students simply observing parts
of the proceeding," and they are "not aware of any member of the public
or press, let alone any competitor, that was present at trial when
Han kook's confidential and trade secret information was discussed";
and (4) Defendants filed their motion as soon as they had reviewed
the transcript and before the transcript became public. See Defs.'
Br. 1-10; Defs.' Reply Br. 6-9, 9 n.3.
The waiver doctrine is clearly implicated here. As demonstrated
by Defendants' arguments, Defendants knew of the confidential nature
of the information to be presented at trial. Nevertheless, they did
not attempt to protect that information during trial. They did not
ask that the courtroom be closed; they did not request that observers
be ordered not to
reveal what
they heard;
25
they did not avoid
discussing confidential topics or seek to prevent Plaintiff from
doing so in open court; and they did not apprise the Court of any
confidentiality concerns. Further, jury instruction 27B was filed
publicly on March 9, 2018 (in addition to having been read aloud in
court) , and no effort to seal it was made until Defendants filed their
motion on March
22,
2018.
Thus,
this
case
is
precisely
like
Certusview, in which previously sealed materials were admitted into
evidence, included in public filings, and discussed openly at trial,
and waiver was found. See Certusview, 198 F. Supp. 3d at 588 n.12.
It is also similar to Level 3, in which an intervenor knowingly failed
to
take
any measures
to prevent
the
release
of
confidential
information at trial, and the same result obtained. See Level 3, 611
F. Supp. 2d at 587-88. And, it is like Cousins, in which waiver was
found because "a request to protect or seal . . . testimony should
have come before, or at least during, trial" but did not. See Cousins,
858 F. Supp. 2d at 618-19. Indeed, it is also like Cousins in that
"the court cannot undo any potential impact of public disclosure"
that has already occurred. See id. at 619.
The points that the Defendants raise do not save them from
waiver. First, as explained above, the fact that information was
previously covered by sealing Orders and/or the Protective Order does
not prevent waiver. See, e.g., Certusview, 198 F. Supp. 3d at 588
26
n.12. 16
Second, although there appears to have been agreement between
the parties as to the proper method of sealing, that fact actually
confirms that a finding of waiver is warranted. The confidentiality
issue was initially raised by Plaintiff to avoid potential violations
of the Court's Protective Order because Plaintiff was "not planning
on taking on measures to seal [trial materials) prior to trial." See
Def s.'
Br. Ex. A 1. Thus,
Plaintiff suggested that "the proper
mechanism would be to file a motion to seal after the trial." Defs.'
Br. Ex. A 1. Defendants could have rejected that proposal, but they
did not. Instead, they agreed that their "confidential" materials
would be offered at a public trial without any protections and that
the parties would only seek to seal them ex post. Defs.' Br. 2 n.1.
Given
that
Defendants
agreed
to
public
revelation
of
their
proprietary information, this case is even more egregious than Level
l, in which the (eventual) intervenor asked that a party advise the
court of its request to maintain confidential documents admitted into
evidence under seal, the party refused, and then the intervenor
simply took no further action before or at trial. See Level 3, 611
F. Supp. 2d at 574-75, 587-88.
16
Even if a protective or sealing order could hypothetically preclude
a finding of waiver, it would not here. As explained below (albeit
in the section of this Opinion assuming that waiver did not occur),
the Protective Order and sealing Orders in this case do not govern
the trial materials at issue.
27
Even if the parties'
agreement could be deemed helpful to
Defendants' position, moreover,
that agreement would be largely
irrelevant to the waiver analysis. See Miles, 7 99 F. Supp. 2d at 622
(" [E] ven where . . . all of the litigants support the motion to seal,
and even where a public hearing on the question does not bring forth
anyone to assert the right of access, a court must still engage in
a careful deliberation on the issue."); see also LCR 5 (C) ( "Agreement
of the parties that a document or other material should be filed under
seal
or
the
confidential
designation
during
of
a
discovery
document
is
not,
or
by
other material
itself,
as
sufficient
justification for allowing a document or other material to be filed
under seal."). That is especially true where, as here, a member of
the public has objected to the motion to seal.
Third, even if Defendants monitored the courtroom "for anyone
that was not related to the Parties, the Court, or law clerks and
students simply observing parts of the proceeding," that also does
not prevent waiver. See Defs.' Reply Br. 7. As noted above, "the
release of information in open trial is a publication of that
information and,
if no effort is made to limit its disclosure,
operates as a waiver of any rights a party had to restrict its further
use."
Level
Furthermore,
3,
611
F.
Supp.
2d
at
if "innocuous" observers
583
(citations
(such as
omitted).
students)
were
present, there is no reason that they could not reveal Defendants'
28
information.
Also,
it is impossible for the Court to evaluate
Defendants' representations that they monitored the courtroom and
are
"not
aware"
of
attendance
by
anyone
who
might
raise
confidentiality concerns. The Court has no way of ascertaining, ex
post, how carefully Defendants watched the courtroom and scrutinized
observers. And, although the Court itself could have tracked the
attendance of non-parties, it did not because it was not advised of
any need to do so. Thus, the Court cannot determine whether Defendants
are "not aware" of any potentially concerning observers because there
were in fact none or because they were simply overlooked.
Fourth, the fact that Defendants filed their motion soon after
receiving the transcript and before it became public does not change
that Defendants took no measures to limit the dissemination of the
information contained in the transcripts during the public trial.
Again, "the release of information in open trial is a publication
of that information and, if no effort is made to limit its disclosure,
operates as a waiver of any rights a party had to restrict its further
use." Level 3, 611 F. Supp. 2d at 583 (citations omitted). As Cousins
indicates, moreover, if there were truly confidentiality concerns
respecting trial testimony, "a request to protect or seal [that]
testimony should have come before, or at least during, trial." See
Cousins, 858 F. Supp. 2d at 618-19. The fact that no such request
was made waives any claim that the transcripts contain confidential
29
information. And, that conclusion is underscored by the facts that:
(1) Defendants did not seek to protect the exhibits in evidence that
were discussed in portions of the testimony sought to be sealed; and
(2) Defendants did not attempt to seal jury instruction 27B, which
was read at trial and contains information discussed in the testimony
at issue, for almost two weeks after it was publicly filed. 17
In sum, by knowingly failing to take any measures to protect
their confidential information during trial, Defendants waived any
right to assert that trial materials containing that information
should be filed under seal. The proper time to seek to protect
confidential information is before or at trial, not after the fact.
18
17
Moreover, it is often (and properly) the case that, where trial
transcripts have been redacted after trial,
the issue of
confidentiality was raised before trial. See, e.g., Syngenta, 2017
WL 6001818, at *l-2, 2 n.2, 9-10; Airfacts, Inc. v. de Amezaga,
15-1489, 2017 WL 3592440, at *13-15 (D. Md. Aug. 21, 2017); Lifenet
.!.!, 2015 WL 12517430, at *1-4; Lifenet I, 2015 WL 12516758, at *1-2.
Indeed, that was the case in Woven, in which the Fourth Circuit
required partial sealing of the trial record where the district court
had improperly denied a party's motion to close the courtroom. Woven,
1991 WL 54118, at *2, 6.
18
One of the reasons that this is so is because courts have a wide
variety of tools at their disposal to help parties avoid the
dissemination of confidential information. For example, the Lifenet
I court "placed [trial] observers under the protective order in th [ e]
case [and] sealed exhibits admitted into evidence." Lifenet I, 2015
WL 12516758, at *l-2. And, it employed those precautions to avoid
having to close the courtroom, which is also an option. See id. A
party that fails to take advantage of these tools cannot raise any
credible argument that information revealed at trial is nonpublic.
30
C.
Sealing Is Inappropriate even Absent Waiver
Even assuming that wholesale waiver did not occur, granting
Defendants' motion as to the trial transcripts, the exhibits
presented at trial, and jury instruction 27B would be improper.
i.
The Effect of Previous Confidentiality Orders
Defendants observe that the confidentiality of many of the
materials they wish to seal was protected by previous Orders of this
Court. That raises two sub-issues: {1} the effect of the Protective
Order; and (2} the effect of the Court's pre-trial sealing Orders.
1.
The Protective Order
Defendants note that they are not arguing that the Protective
Order bars the Court from analyzing whether the trial materials at
issue should be filed under seal. See Defs.' Reply Br. 8. However,
they do maintain that the Protective Order covered the information
sought to be sealed and that "Plaintiff did not raise any objection
to the prior confidential declaration of Hankook's information and
documents at trial." Defs.' Br. 1-3, 3 n.2, 7, 9, 12. Thus, it is
worth explaining the present effect of the Protective Order.
As Defendants correctly observe, the Protective Order stated
that it "is without prejudice to a later determination regarding
confidentiality at
trial
of
documents
declared
'confidential'
pursuant to this Order." Protective Order 5; Defs.' Br. 3. That aligns
with Local Rule 5 {H), which states that "[t] rial exhibits, including
31
documents previously filed under seal, and trial transcripts will
not
be
filed
under
seal
except
upon
a
showing
of
necessity
demonstrated to the trial judge." See LCR 5 {H). It also aligns with
the relevant case law. See, e.g., Va. Dep' t of State Police, 38 6 F. 3d
at 576-77.
Further {and relatedly), there is no requirement that a party
object to a designation of materials as confidential for the Court
to make its "later determination." The Protective Order provides a
mechanism through which objections can be raised. Protective Order
8. But, that does not limit the Court. See Protective Order 5; see
also LCR 5{C)
{"Agreement of the parties that a document or other
material should be filed under seal or the designation of a document
or other material as confidential during discovery is not, by its.elf,
sufficient justification for allowing a document or other material
to be filed under seal.").
The
Court,
previously
therefore,
designated
as
may
determine
containing
whether
confidential
materials
information
remained covered by the Protective Order at trial. The materials at
issue here did not.
As set forth above, confidential information was defined in
the
Protective Order to
confidential
research,
include "information that constitutes
development
or
proprietary
business
information that a) is not generally available to others, b) is not
32
readily determinable from other sources, c) has been treated as
confidential by the Parties; and d) is reasonably likely to lead to
competitive injury if disclosed." Protective Order 3. 19 Moreover, the
Protective Order was based on the factual finding that "[t) he public
does
not
already
have
access
to
the
Parties'
confidential
information[.)" Protective Order 2.
Here,
trial materials that were previously covered by the
Protective Order were admitted into evidence and presented publicly
at trial, without objection. That rendered them "generally available
to others" and accessible to the public, and it demonstrated that
the materials have not "been treated as confidential." Consequently,
they do not contain "confidential information" and the factual basis
for the Protective Order is no longer satisfied. Therefore, these
materials no longer retain their protected status.
As indicated above, the Protective Order also appears to cover
certain materials created at trial. For example, it allows testimony,
including trial testimony, to be designated as confidential "by
notifying the parties on the record at the time the testimony is
given, or in writing within thirty (30) days of receipt of the
transcript." Protective Order 4.
However,
the Protective Order
presumes that such trial materials otherwise satisfy the definition
19
That explicit definition implies that other "confidential
research, development or proprietary business information" would not
be considered confidential information.
33
of confidential information and that the factual basis for the
Protective Order is met. That is not the case as to any of the
materials created at trial, given that no protections were requested.
Thus,
the
Protective Order applies
to
neither
the previously
protected materials presented at trial nor the materials created at
trial. 20
2.
The Sealing Orders
Defendants also point to the fact that the information they wish
to seal was covered by the Court's previous sealing Orders, including
those sealing exhibits to dispositive motions (which necessarily
implicated the First Amendment). See Defs.' Br. 3-7, 9-10, 13-14;
Defs.' Reply Br. 8.
The trial materials are not protected by these Orders, however.
That is a simple matter of the Court's Local Rules. Local Rule S(H)
states that "[t] rial exhibits, including documents previously filed
under seal, and trial transcripts will not be filed under seal except
upon a showing of necessity demonstrated to the trial judge. 11 LCR
5 (H)
(emphasis
added).
Nothing
in the Court's
sealing Orders
indicated that this Rule had been abrogated. (ECF Nos. 70, 71, 120,
20
This conclusion is underscored by the fact that the Protective
Order was also based on the factual finding that "[t] he Parties [sic]
interest in sealing confidential information outweighs the public's
common law interest in access to such documents." Protective Order
1 (emphasis added). The First Amendment was not anywhere mentioned.
Hence, the Protective Order has no bearing on whether the Court can
analyze materials under the First Amendment standard.
34
121, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 319, 320, 323,
324, 325, 326). Hence, the Court is permitted to assess whether
materials used at trial should be filed under seal, even if those
materials were previously sealed for other purposes.
ii.
The Right of Access Balancing Tests
As set out above, there are two rights of access: ( 1) the common
law right; and (2) the First Amendment right. As the Fourth Circuit
has held, "[t)he distinction between the rights of access afforded
by the common law and the First Amendment is 'significant,' because
the common law 'does not afford as much substantive protection to
the interests of the press and the public as does the First
Amendment.'" In re Application, 707 F. 3d at 2 90 (citations omitted) .
Accordingly, if the common law right cannot be overcome, the First
Amendment right, as a definitional matter, also cannot. See Level
l, 611 F. Supp. 2d at 579-80.
Here, the materials that Defendants wish to seal fail even the
common law test. To overcome the common law presumption of access,
"a court must find that there is a 'significant countervailing
interest' in support of sealing that outweighs the public's interest
in openness." In re Application, 707 F. 3d at 293 (citations omitted).
Courts consider, inter alia, "whether the records are sought for
improper purposes, such as . . . unfairly gaining a business
advantage" and "whether the public has already had access to the
35
information contained in the records." Id. {citations omitted).
Defendants argue that their materials should be sealed because
they are "proprietary to Hankook and not known to Hankook's
competitors and, therefore, [their] release 'would cause Hankook
competitive harm.'" Defs.' Br. 13. They offered the declaration of
Jong Guk Kim, a Senior Research Engineer for HTCL, to substantiate
that claim. See Defs.' Br. 13; Defs.' Br. Ex. D.
There seems to be no dispute that Defendants' materials are
proprietary and could cause Defendants harm if disclosed. That
assertion supports a conclusion that Defendants' information could
be used for an improper purpose, such as "unfairly gaining a business
advantage." Viewed in a vacuum, that could overcome the common law
presumption. Here, however, another factor must also be weighed:
"whether the public has already had access to the information." In
this case, Defendants' confidential information was revealed
publicly at a trial without restriction or objection. Jury
instruction 27B, moreover, was filed publicly on March 9, 2018 and
it was read aloud in open court. See Trial Tr. 883. And, the trial
exhibits were not only admitted into evidence, but also discussed
in detail on the record and/or shown on large television screens in
the court during the presentation of evidence and in closing
arguments. See, e.g., Trial Tr. 169-72, 177-78, 471-72, 477-79,
525-28, 530-32, 538-39, 558-60, 571-73, 718, 834, 855-56; see also
36
Mar. 6, 2018 Minute Sheet; Mar. 7, 2018 Minute Sheet; Mar. 8, 2018
Minute Sheet.
The relevant factors are, at best, in equipoise. Given that the
presumption is in favor of open access and that a "significant
countervailing interest" must "outweigh[] the public's interest in
openness" to overcome that presumption, equipoise is insufficient.
See In re Application, 707 F.3d at 293 {citations omitted).
Furthermore, the thumb is even more firmly on the scale in favor
of open access under the First Amendment. See In re Application, 707
F.3d at 290. And, although protecting proprietary commercial
information can be a compelling interest under the First Amendment
test, the interest is not compelling where the information has
already been released publicly by the party that wishes to restrict
access. See Doe, 7 4 9 F. 3d at 2 69 {"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. " {emphasis added) ) ; Kingery v. Quicken Loans, Inc. ,
2:12-cv-1353, 2014 WL 1794863, at *5 {S.O. W. Va. May 6, 2014) {"There
is no compelling governmental interest in protecting information
that is already public." {citations omitted) ) ; VCA Cenvent, Inc. v.
Chadwell Animal Hosp., LLC, 11-1763, 2013 WL 1818681, at *2 {D. Md.
37
Apr. 29, 2013) (same) . 21 Indeed, any assertion that Defendants here
have a "compelling interest" in confidentiality would strain
credulity. As noted above, Defendants agreed to public dissemination
of their information and raised no confidentiality issues with the
Court until well after the fact. And, moreover, as set forth below,
they failed to comply with even basic requirements of the Court's
Local Rules governing motions to seal (despite clearly having
knowledge of those requirements).
In sum, Defendants do not have an interest sufficiently strong
to outweigh the public's right of access as to the trial transcripts,
the trial exhibits presented at trial, and jury instruction 27B.
III. Failure to Comply with Local Rule S(C)
Defendants' motion will also be denied, as to all materials they
wish to file under seal,
for a separate
(and simpler)
reason:
Defendants failed to comply with Local Rule 5(C).
Intervenor Crosby argues that, in seeking to seal the trial
testimony, the trial exhibits, and jury instruction 27B, Defendants
failed to follow Local Rule 5 (C), which provides that "[t] he motion
to
file
under
seal
shall
be
accompanied
by . ยท . . a
separate
non-confidential notice that specifically identifies the motion as
21
In Woven, confidential information had already been released but
only because of the district court's improper denial of a motion to
close the courtroom. See Woven, 1991 WL 54118, at *2, 6.
38
a sealing motion." Intervenor's Br. *3-4; Intervenor's Reply Br. 1-3;
LCR 5 (C). 22 Defendants respond with two sets of arguments. First, they
claim that Crosby has been long aware of this action and, in fact,
has retained one of the experts in this case for his lawsuit; thus,
lack of notice did not harm Crosby. See Def s.' Intervenor Opp' n 4-5.
Second, they assert that they provided notice as required by Rule
5(C}. See Defs.' Intervenor Opp'n 5-6. They note that they filed a
motion to seal, a non-confidential supporting memorandum, and a
non-confidential
proposed
order.
Defs.'
Intervenor
Opp'n
5.
Defendants also argue that the docket entries in this case served
as notice and identified the precise information that they seek to
seal. Defs.'
Intervenor Opp'n 5. Finally, Defendants claim that
notice was provided because the information at issue was the subject
of past motions to seal, which the Court granted. Defs.' Intervenor
Opp'n 6.
Defendants' first set of arguments can be rejected outright.
Rule 5(C}'s notice requirement is imposed on anyone moving to file
under seal. See LCR 5(C); see also LCR 5(A}. Consequently, it is
irrelevant that an objecting member of the public did not, in fact,
need the notice.
Indeed,
under Defendants'
logic,
no one could
successfully object to the failure comply with Rule 5(C} because,
22
Crosby references Local Rules 5 (B} and 5 (C}, but 5 (C} is operative
here. See Intervenor's Br. *3.
39
by timely objecting,
the objector would show that notice was
unnecessary.
Defendants' second set of arguments is also unavailing. Local
Rule S(C) requires that a motion to seal be accompanied by:
non-confidential supporting memorandum;
(1) a
(2) a non-confidential
proposed order; and (3) "a separate non-confidential notice that
specifically identifies the motion as a sealing motion." LCR S(C).
Meeting two out of three of these requirements, as Defendants have
done, is not enough. See LCR S(C); see also LCR S(A).
Furthermore, the docket entries for Defendants' motion to seal
and supporting memorandum cannot provide the notice demanded by Rule
5(C). The Rule expressly instructs that these materials must be
accompanied by "a separate non-confidential
(emphasis
substantive
added).
That
requirements,
notice,
which,
moreover,
as
set
notice."
must
forth
LCR 5 (C)
meet
several
above,
include
apprising members of the public of their rights, deadlines, and
obligations with respect to a motion to seal. Defendants' docket
sheet entries do not meet those substantive requirements. 23
Additionally,
the fact that the information at issue was
previously the subject of motions to seal (which were granted) does
not provide sufficient notice. Past motions to seal in no way advise
the public about its rights, deadlines, and obligations with respect
23
Defendants' motion and supporting memorandum do not do so either.
40
to this motion to seal. Indeed, the Local Rules clearly anticipate
that a separate motion to seal will be filed for trial materials,
even if they were previously protected, and the public is wholly
entitled to object to that motion. See LCR S(C) ("Agreement of the
parties that a document or other material should be filed under seal
or the designation of a document or other material as confidential
during discovery is not, by itself, sufficient justification for
allowing a document or other material to be filed under seal."); LCR
5(H)
("Trial exhibits, including documents previously filed under
seal, and trial transcripts will not be filed under seal except upon
a showing of necessity demonstrated to the trial judge."); see also
LCR 5 (C) ("The notice . . . shall inform the parties and nonparties
that they may submit memoranda in support of or in opposition to the
motion within seven
(7) days after the filing of the motion to
seal [ . ] ") .
It is also worth noting that the parties have filed separate
public notices for every motion to seal so far.
(ECF Nos. 56, 64,
77, 82, 106, 112, 141, 151, 157, 163, 169, 185, 193, 200, 244, 257,
264, 287, 302, 309). Thus, Defendants were aware of their obligation
under Rule S(C) to file a notice when they filed the present motion.
They simply did not do so. 24
24
Upon further review, it is clear that the parties' past notices
have not perfectly complied with the substantive requirements of Rule
41
Local Rule S(C) concludes by stating that, "[i)f the Court
determines that the appropriate standards for filing material under
seal have not been satisfied, it may order that the material be filed
in the public record." LCR 5 (C) . And, Local Rule 5 (A) instructs that
"[u)nless otherwise provided by law, Court rule, or prior order of
the Court, no document or portion of a document may be filed under
seal unless the filer has complied with the procedures set forth
herein." LCR S{A).
These provisions of the Local Rule provide an independent ground
for denying Defendants' motion. Defendants entirely disregarded a
basic notice requirement that is clearly specified in the Local Rule
governing motions to seal {and did so despite having knowledge of
that
requirement).
That
notice
requirement
is
of
distinct
importance, moreover, because it implicates not just the rights and
obligations of the parties, but also those of the public at large.
Indeed, by failing to provide the requisite notice, Defendants may
well have limited the pool of objectors and
thereby excluded
arguments and viewpoints that the Court should have considered. Rule
S{C) was created to protect those who might wish to opine on the
S(C). The Court will not permit notices that do not fully satisfy
these requirements in the future. Nevertheless, the notices
previously filed in this case did, at least, publicly alert
interested observers that motions
to seal were pending,
differentiate those motions from others filed without a separate
notice, and reference Local Rule 5 {which itself sets forth the
public's rights, deadlines, and obligations). Filing a deficient
Rule S{C) notice is quite different than filing no notice at all.
42
propriety of sealing court materials, and it cannot be ignored.
CONCLUSION
For the reasons set forth above, the Court shall deny HANKOOK
TIRE COMPANY LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION TO
SEAL CONFIDENTIAL EXHIBITS, TRIAL TRANSCRIPTS, AND JURY INSTRUCTION
(ECF No. 433}.
It is so ORDERED.
Isl
Robert E. Payne
Senior United States District Judge
Richmond, Vif~inia
Date: June
, 2018
43
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