Hurley v. Averitt Express, Inc. et al
Filing
152
MEMORANDUM OPINION AND ORDER denying 138 MOTION to Seal; denying 143 MOTION to Seal; denying 144 MOTION to Seal; all three (3) motions to seal are DENIED without prejudice. The court ORDERS that the filings at issue remain provisionally u nder seal. The court directs that either party may submit a revised sealing request no later than 10/11/2012 as more fully set forth in said Memoramdum Opinion and Order. Signed by Judge John T. Copenhaver, Jr. on 10/2/2012. (cc: counsel of record) (mjp)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
NATASHA HURLEY,
Plaintiff,
v.
Civil Action No. 2:11-cv-0624
AVERITT EXPRESS, INC.,
a Tennessee Corporation and
JEBB S. WESTERFIELD
Defendants.
MEMORANDUM OPINION AND ORDER
Pending are Hurley‟s three motions to seal, the first
filed September 27, 2012 and the remaining two filed September 28,
2012.
As grounds for her motions to seal, Hurley asserts that
documents within the filings at issue have been designated as
confidential pursuant to a protective order, entered November 15,
2012.
Hurley explains that the defendants have designated the
protected documents, which pertain to Averitt‟s hiring policies
and Westerfield‟s criminal record, as confidential.
Hurley
incorrectly equates the standard for protective orders, which are
intended to facilitate pretrial discovery, with that of judicial
orders to seal, which contravene the public‟s right to access
court documents and accordingly demand a greater showing of need.
See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 254 (4th
Cir. 1988) (“The 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.”).
For the reasons that follow, the court
finds that Hurley has not met her burden for obtaining an order to
seal.
The court first notes that “[p]ublicity of [court] . . .
records . . . is necessary in the long run so that the public can
judge the product of the courts in a given case.”
Columbus-
America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291,
303 (4th Cir. 2000).
The right of public access to court
documents derives from two separate sources: the common law and
the First Amendment.
The common law right affords presumptive access to all
judicial records and documents.
Nixon v. Warner Comms., Inc., 435
U.S. 589, 597 (1978); Stone v. University of Md. Medical Sys.
Corp., 855 F.2d 178, 180 (4th Cir. 1988).
The presumption can be
rebutted, however, if competing interests outweigh the public's
right of access.
Nixon, 435 U.S. at 598-99, 602-03; In re Knight
Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984).
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In weighing
the interests, the court should consider “whether the records are
sought for improper purposes, such as promoting public scandals or
unfairly gaining a business advantage; whether release would
enhance the public's understanding of an important historical
event; and whether the public has already had access to the
information contained in the records.”
Virginia Dept. of State
Police v. Washington Post, 386 F.3d 567, 575 (4th Cir. 2004)
(quoting Knight, 743 F.2d at 235).
The party seeking to overcome
the presumption of access bears the burden of showing such
competing interests.
Rushford, 846 F.2d at 253.
“In contrast to the common law, „the First Amendment
guarantee of access has been extended only to particular judicial
records and documents.‟”
Virginia Dept. of State Police, 386 F.3d
at 575 (quoting Stone, 855 F.2d at 180).
For such records and
documents, the First Amendment demands that “the denial of access
must be necessitated by a compelling government interest and
narrowly tailored to serve that interest.”
Virginia Dept. of
State Police, 386 F.3d at 575 (quoting Rushford, 846 F.2d at 253).
“Regardless of whether the right of access arises from the First
Amendment or the common law, it „may be abrogated only in unusual
circumstances.‟”
Id. at 576 (quoting Stone, 855 F.2d at 182).
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Hurley has not made the necessary showing for any of the
three motions to seal.
The court observes, however, that the
privacy interests at stake are not Hurley‟s, but those of the
defendants.
Therefore, in the interests of justice, the court
directs that either party may seek to make the required showing in
a further sealing request, to be filed no later than October 11,
2012.
The court, accordingly, ORDERS that the filings at issue
remain provisionally under seal.
The filings will be unsealed if
the parties fail to make the necessary showing to support a
sealing order.
1.
The court further ORDERS as follows:
That the motions to seal be, and they hereby are, denied
without prejudice;
2.
That either party may submit a revised sealing request,
taking into consideration the alternatives to sealing
(such as redaction) for those portions of the agreement
for which confidentiality is unnecessary, and bearing in
mind that sealing is the infrequent exception and not
the rule;
3.
That the aforementioned sealing request be, and it
hereby is, directed to be submitted by October 11, 2012.
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The Clerk is directed to forward copies of this written
opinion and order to all counsel of record.
ENTER: October 2, 2012
John T. Copenhaver, Jr.
United States District Judge
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