King Coal Chevrolet Co. v. General Motors Co. et al
Filing
21
MEMORANDUM OPINION AND ORDER: It is ORDERED that any party may offer the omitted information referenced within said Memorandum Opinion and Order, along with any other argument in favor of sealing, no later than 10/31/2012. The documents tendered for sealing will remain provisionally under seal pending further order of the Court. Absent their earlier withdrawal, the tendered filings will be unsealed if the necessary showing in support of a sealing order is not made. It is further ORDERED that Def endants' 10 MOTION to Seal is denied without prejudice and that any revised sealing request shall give thorough and studied consideration to the alternatives to sealing, such as redaction, as to those portions of the tendered documents for which confidentiality is unnecessary, and bearing in mind that sealing is the infrequent exception and not the rule. Signed by Judge John T. Copenhaver, Jr. on 10/23/2012. (cc: counsel of record) (arb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KING COAL CHEVROLET CO.,
Plaintiff,
v.
Civil Action No. 2:12-5992
GENERAL MOTORS CO. and
GENERAL MOTORS LLC,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is defendants' motion for leave to file
documents under seal ("motion to seal") supportive of their
response to plaintiff's motion for a preliminary injunction,
filed October 16, 2012.
Defendants assert that the documents tendered for
confidential treatment qualify for sealing despite the commonlaw right of public access.
They contend as follows:
In this case, the public’s right of access is
outweighed by the interests of third parties not
involved in this matter. Exhibit A is a Settlement
Agreement that GM entered into with Lewis, which is
not a party to this case. The Settlement Agreement
contains a confidentiality provision and reflects
commercially sensitive information about Lewis’
business operations. Exhibit D contains information
related to a dealer’s sales and operations, including
detailed financial data. The dealer may contend that
the document contains confidential or proprietary
information. Both Lewis and Beckley Buick/GMC &
Hometown Automotive Group could be commercially harmed
if Exhibits A and D are made publicly available. To
protect the interests of those third parties, GM
respectfully requests leave to file Exhibits A and D
under seal. Redaction would not be sufficient because
Exhibit A is in and of itself confidential and Exhibit
D is rife with information the third party dealer
would likely consider to be confidential and
proprietary.
(Memo. in Supp. at 2 (emphasis added)).
The emphasized portions
above are phrased in conditional terms.
Apart from that
deficiency, defendants have discussed only a portion of the
potentially applicable body of law governing the sealing of
court documents.
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 not one, but 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
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access.
Nixon, 435 U.S. at 598-99, 602-03; In re Knight
Publishing Co., 743 F.2d 231, 235 (4th Cir. 1984).
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 v. New Yorker Magazine Inc.,
846 F.2d 249, 253 (4th Cir. 1988).
“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).
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“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).
As noted in Virginia Department of State Police, the
earlier decision in Rushford observed:
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, . . . [leading to the further
holding in Rushford] that “the more rigorous First
Amendment standard should also apply to documents
filed in connection with a summary judgment motion in
a civil case.”
Virginia Dept. of State Police, 386 F.3d at 576.
Based upon the foregoing discussion, defendants'
sealing request is infirm on at least two grounds.
First, the
factual showing in support of the sealing request is based in
part on conditional assertions that might easily be
substantiated, or eviscerated, by contacting the affected third
parties and requesting that they provide affidavits respecting
their considered views on the necessity and extent of
confidentiality.
Second, no discussion is offered by defendants
concerning whether the First Amendment right of public access
extends to documents submitted in connection with a preliminary
injunction motion.
Rushford, 846 F.2d at 253.
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It is, accordingly, ORDERED that any party may offer
the omitted information above, along with any other argument in
favor of sealing, no later than October 31, 2012.
The documents
tendered for sealing will remain provisionally under seal
pending the further order of the court.
Absent their earlier
withdrawal, the tendered filings will be unsealed if the
necessary showing in support a sealing order is not made.
It is
further ORDERED as follows:
1.
That the motion to seal be, and it hereby is, denied
without prejudice; and
2.
That any revised sealing request be, and it hereby
shall, give thorough and studied consideration to the
alternatives to sealing, such as redaction, as to
those portions of the tendered documents for which
confidentiality is unnecessary, and bearing in mind that
sealing is the infrequent exception and not the rule.
The Clerk is directed to forward copies of this
written opinion and order to all counsel of record.
ENTER:
October 23, 2012
John T. Copenhaver, Jr.
United States District Judge
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