RLI Insurance Company v. Nexus Services, Inc.
Filing
483
MEMORANDUM OPINION and ORDER granting in part and denying in part 470 Motion to Unseal Record and denying 479 Motion to Strike Response in Opposition. Signed by Magistrate Judge Joel C. Hoppe on 5/22/20. (Order emailed to Pro Se Movant Mr. Briggman)(kld)
Case 5:18-cv-00066-MFU-JCH Document 483 Filed 05/22/20 Page 1 of 7 Pageid#: 10511
5/22/20
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
Harrisonburg Division
RLI Insurance Company,
Plaintiff,
v.
Nexus Services, Inc. et al,
Defendants.
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Civil Action No. 5:18-cv-00066
MEMORANDUM OPINION & ORDER
By:
Joel C. Hoppe
United States Magistrate Judge
This matter is before the Court on non-party David B. Briggman’s (“Briggman”) Motion
to Unseal Record. ECF No. 470. Briggman seeks to unseal the exhibits attached to Plaintiff RLI
Insurance Company’s (“RLI”) Additional Evidence to Plaintiff’s Undisputed Statement of Facts
in Support of Motion for Summary Judgment (“Additional Evidence”). ECF No. 428. Also
before the Court is Briggman’s Motion to Strike Response in Opposition. ECF No. 479. For the
reasons stated below, the Court will GRANT in part and DENY in part Briggman’s Motion to
Unseal Record, ECF No. 470, and the Court will DENY Briggman’s Motion to Strike Response
in Opposition, ECF No. 479.
I. Procedural History
The Honorable Michael F. Urbanski, Chief United States District Judge, and I have
entered multiple protective orders in this case. See Order of May 10, 2018, ECF No. 29; Order of
July 2, 2018, ECF No. 60; Order of Oct. 4, 2019, ECF No. 281; Order of Nov. 25, 2019, ECF
No. 328. The Order of November 25, 2019, allows the parties to designate documents produced
during discovery as “Confidential Information” not to be shared outside of the parties, their
counsel and consultants, and the Court. Order of Nov. 25, 2019, at 2, 4–6. The Order further
provides that the parties must comply with Rule 9 of the Western District of Virginia Local
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Rules (“Local Rule 9”) when asking the Court to seal documents filed with the Court. Id. at 8;
W.D. Va. Gen. R. 9.
On March 12, 2020, RLI filed its Motion for Summary Judgment, Undisputed Statement
of Facts, and Additional Evidence, ECF Nos. 423, 424, 428. RLI attached nearly one hundred
exhibits to its Additional Evidence and filed a motion to seal twenty-three of those exhibits. Mot.
to Seal Certain Exhibits, ECF No. 426; see Additional Evidence, Exs. 1, 3–5, 7, 9, 11, 34, 42, 73,
85–88, 90–96, 98–99. The exhibits RLI requested to seal spanned more than 1,300 pages. As
grounds for filing these documents under seal, RLI stated that they contain material Defendants
Nexus Services, Inc., Libre by Nexus, or Homes by Nexus (collectively the “Defendants”)
designated “Confidential” pursuant to the protective orders entered in this case. On March 16,
2020, I granted RLI’s Motion to Seal Certain Exhibits, but I noted that I had doubts about
whether each exhibit satisfied the requirements for sealing and the Court might revisit the
decision upon further consideration of the exhibits. Order of Mar. 16, 2020, ECF No. 432.
Briggman filed the instant motion on April 21, 2020. ECF No. 470. On May 4, 2020, I
issued an order taking Briggman’s motion under advisement and directing the Defendants to
respond within seven days if they wanted the twenty-three exhibits to remain sealed. Order of
May 4, 2020, ECF No. 472. I reminded the Defendants to adhere to Local Rule 9 and provide
reasons for sealing each of the twenty-three exhibits. Id. The Defendants filed their Response in
Opposition, ECF No. 475, and also filed a Motion to Seal Exhibit N attached to their opposition,
ECF No. 477. I granted the Defendants’ Motion to Seal Exhibit N on May 18, 2020, ECF No.
481. Briggman moved to strike the Defendants’ opposition brief, ECF Nos. 479, 480. The
motion to unseal has been fully briefed, see ECF Nos. 470, 475, 470, 480, 482, and can be
resolved without oral argument, see Fed. R. Civ. P. 78(b).
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II. The Legal Framework
Both the First Amendment to the United States Constitution and “[t]he common law
presume[] a right to inspect and copy judicial records and documents.” RLI Ins. Co. v. Nexus
Servs., Inc., No. 5:18cv66, 2018 WL 10602398, at * 1 (W.D. Va. Oct. 30, 2018) (Urbanski, J.).
A party seeking to seal documents may overcome the presumption at common law “if competing
interests outweigh the public’s interest in access.” Id. The right of access provided by the First
Amendment is “more rigorous” and applies to a narrower class of documents, including those
“made part of a dispositive motion” in a civil case. Va. Dep’t of State Police v. Wash. Post, 386
F.3d 567, 576 (4th Cir. 2004) (internal quotation marks omitted); see also In re U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013); Rushford v. New
Yorker Magazine, 846 F.2d 249, 253 (4th Cir. 1988); Stephens v. Cty. of Albemarle, 422 F. Supp.
2d 640, 643 (W.D. Va. 2006) (“Generally speaking, the First Amendment right of access applies
to a narrower range of materials, yet weighs more heavily in favor of the public’s right to obtain
those sealed documents.”). “To overcome the First Amendment right of access, the party seeking
to keep the information sealed must present specific [and compelling] reasons to justify
restricting access to the information.” RLI, 2018 WL 10602398, at *2.
The party seeking to restrict access bears the burden of overcoming the presumption of
public access and “must present specific reasons in support of its position.” Va. Dep’t of State
Police, 386 F.3d at 575. The parties’ designation of documents as “confidential” during
discovery pursuant to a protective order “is not sufficient to justify the sealing of those
documents when submitted to the court in conjunction with a motion.” Clehm v. BAE Systems,
Inc., No. 7:16cv12, 2017 WL 11367644, at *3 (W.D. Va. Mar. 21, 2017). The Court must
consider less drastic alternatives to sealing. In re U.S. for an Order Pursuant to 18 U.S.C.
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Section 2703(D), 707 F.3d at 294. If the Court grants the motion, it must “state the reasons (and
specific supporting findings) for its decision and the reasons for rejecting alternatives to
sealing.” Va. Dep’t of State Police, 386 F.3d at 576. “Adherence to this procedure serves to
ensure that the decision to seal materials will not be made lightly and that it will be subject to
meaningful appellate review.” Id.
Any person, including a non-party, may file a motion to unseal a document previously
sealed. W.D. Va. Gen. R. 9(b)(4); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 609
(1978) (noting that a journalist and a member of the general public have an equal right of access
to information about a trial). “[T]he right to inspect and copy judicial records is not absolute.”
Warner Commc’ns, Inc., 435 U.S. at 598. Courts have discretion to deny access to documents to
prevent their use for an improper purpose or to protect a litigant’s competitive standing. Id.
(noting that the common-law right of access may be overcome by such factors). Courts will
consider several factors when ruling on a motion to unseal, including: (1) whether the subject
matter is traditionally considered private; (2) the injury the resisting party would suffer if the
privacy interest were not protected; (3) whether the person seeking the unsealing has an improper
purpose; (4) whether the public already has access to the information in the sealed documents;
and (5) whether release would enhance the public’s understanding of an important event. See
Mirlis v. Greer, 952 F.3d 51, 61 (2d Cir. 2020); In re U.S. for an Order Pursuant to 18 U.S.C.
Section 2703(D), 707 F.3d at 293.
III. Discussion
The exhibits at issue are attached to RLI’s Motion for Summary Judgment, which is a
dispositive motion. As such, the more rigorous First Amendment standard applies, and the
Defendants must provide specific, compelling reasons to justify maintaining the exhibits under
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seal. See Va. Dep’t of State Police, 386 F.3d at 575; RLI, 2018 WL 10602398, at *2. The
Defendants’ Response in Opposition focuses entirely on Briggman’s allegedly improper motive
in seeking to unseal the exhibits. Defs.’ Resp. in Opp’n 1–6, 9, 11, 15, ECF No. 475. The
Defendants did not substantively address whether any of the exhibits warrant sealing pursuant to
Local Rule 9. See generally id. Instead, the Defendants argue that they should be allowed to
partially redact the exhibits before they are unsealed. Id. at 16–18.
The motive of an individual seeking to unseal court documents is one of the relevant
factors for the court to weigh. See Mirlis, 952 F.3d at 56, 61–63; In re U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d at 293. The Defendants have provided
evidence that Briggman may have an improper motive in seeking to unseal the exhibits. See
generally Defs.’ Resp. in Opp’n Exs., ECF Nos. 475-1 to 475-23. Briggman’s motive, improper
or not, however, is not the sole factor to consider. See Mirlis, 952 F.3d at 62–63 (noting that the
individual’s motive must be considered when balancing the other factors). This case is also
unlike those cited by the Defendants that allowed continued sealing, and the other factors do not
weigh in favor of maintaining the exhibits under seal here.
In In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), the intervenors sought
to access government investigative documents prior to an indictment. 707 F.3d at 287–88. The
court noted that investigative documents have historically been secret and the release of the
documents would impede the investigation. Id. at 292, 294. By contrast, this is an ordinary civil
dispute between private parties, and such cases historically have not been conducted secret. The
Defendants also have not asserted that filing the exhibits publicly would impede their business or
harm their clients, as long as they are allowed to redact personal or other sensitive information.
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In Mirlis v. Greer, an online blogger sought to unseal the entire video deposition of a
non-party witness, who had been a minor victim of a sex crime, and post it to his blog. 952 F.3d
at 55. The district court ordered the video unsealed because portions of the deposition had been
played for the jury at trial and a transcript of the deposition was publicly available. Id. at 54–55.
The Second Circuit reversed that decision because of the blogger’s motive and the witness’s
privacy interests. Id. at 56. The Second Circuit also noted that the litigation was not a matter of
national attention and the essential information was already publicly available in the form of a
transcript. Id. at 61. While Briggman could have an improper motive, the Defendants have not
argued, and I cannot find, that the privacy interests of their clients and business will be
compromised if the exhibits are filed publicly with personal identifying and financial information
redacted. Additionally, unlike in Mirlis, the exhibits have been under seal and no other
alternative format with essentially the same information has been made available to the public.
Assuming that Briggman has an improper motive, the other factors do not weigh in favor
of maintaining the exhibits under seal. The exhibits contain some sensitive personal information
of non-parties and confidential financial information. Nevertheless, I find that redaction will
adequately protect the information, particularly because Defendants have not argued that
redaction would not maintain the privacy of their clients or business information. RLI, 2018 WL
10602398, at *2 (noting that RLI had “not demonstrated that less drastic alternatives [were]
unavailable”). In fact, the Defendants argue in the alternative to redact the exhibits before they
are unsealed. See Defs.’ Resp. in Opp’n 16–18. Thus, I find that the First Amendment right of
public access requires that the exhibits, which may be redacted to remove personal identifying
information and other sensitive financial information, be filed publicly. Fed. R. Civ. P. 5.2(d).
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Accordingly, Briggman’s Motion to Unseal Record, ECF No. 470, is GRANTED in part
and DENIED in part. The Defendants are hereby ORDERED to redact the following
information from the currently sealed exhibits1: (1) full bank account and credit card information
such as individuals’ names and account numbers; (2) GPS contracts; (3) clients’ names, social
security numbers, other government-issued identifying numbers, and health information; (4)
Nexus’s and Libre’s employees’ human resources information; and (5) non-public governmental
investigations into Nexus, including any settlement negotiations. The Defendants are further
ORDERED to file the redacted exhibits within seven (7) days of this Order.
Briggman filed a Motion to Strike the Defendants’ Response in Opposition pursuant to
Rule 12(f) of the Federal Rule of Civil Procedure. Rule 12(f) provides that a “court may strike
from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter.” Fed. R. Civ. P. 12(f). Striking matter from filings other than pleadings, such as briefs,
ordinarily is not permitted under Rule 12(f). See Anusie-Howard v. Todd, 920 F. Supp. 2d 623,
627 (D. Md. 2013). Nexus’s arguments in opposition to unsealing address Briggman’s
motivation, which is a relevant factor for the Court to consider. As explained above, I find these
arguments mostly unpersuasive, but they are not “immaterial, impertinent, or scandalous,” Fed.
R. Civ. P. 12(f). Accordingly, Briggman’s motion to strike, ECF No. 479, is DENIED.
It is so ORDERED.
y
ENTER: May 22, 2020
Joel C. Hoppe
United States Magistrate Judge
1
The exhibits at issue are Exhibit Nos. 1, 3, 4, 5, 7, 9, 11, 34, 42, 73, 85, 86, 87, 88, 90, 91, 92, 93, 94, 95,
96, 98, and 99 attached to ECF No. 428.
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