Good et al v. American Water Works Company, Inc. et al
Filing
1168
MEMORANDUM ORDER AND OPINION granting plaintiffs' 872 MOTION for leave to file under seal limited redactions to plaintiffs' memorandum of law, and certain supporting exhibits, in opposition to defendants' motion to exclude expert testimony of Kate Novick, P.E., and as directed and set forth more fully herein. Signed by Judge John T. Copenhaver, Jr. on 9/26/2017. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CRYSTAL GOOD, et al.,
Plaintiffs,
v.
Civil Action No.: 2:14-01374
WEST VIRGINIA-AMERICAN WATER COMPANY,
d/b/a WEST VIRGINIA AMERICAN WATER,
and EASTMAN CHEMICAL COMPANY,
Defendants.
MEMORANDUM ORDER AND OPINION
Pending before the court is plaintiffs’ motion for leave
to file under seal limited redactions to plaintiffs’ memorandum of
law, and certain supporting exhibits, in opposition to defendants’
motion to exclude expert testimony of Kate Novick, P.E. (ECF No.
872), filed June 10, 2016.
Defendants have filed no objection.
Background
Plaintiffs offered Novick as an expert on matters of
emergency preparedness and risk management.
On May 10, 2016,
defendants West Virginia-American Water Company, American Water
Works Service Company, and American Water Works Company (“water
company” defendants) filed their motion to exclude the expert
testimony of Kate Novick.
The water company defendants argue that
Novick should be precluded from testifying because 1) the
ANSI/AWWA G440-11 1 emergency preparedness practices on which she
opines are, according to defendants, aspirational and not an
industry standard; 2) Novick’s experience is too limited to permit
her to testify as to the industry standard; and 3) Novick’s
testimony inappropriately opines as to the intent of West
Virginia-American Water (“WVAW”).
Plaintiffs filed their memorandum in opposition to
defendants’ motion to exclude expert testimony of Kate Novick on
June 10, 2016.
The memorandum argues that West Virginia-American
Water has adopted the G440 practices, and that Novick’s testimony
is necessary for a jury to understand West Virginia-American
Water’s vulnerability assessment.
A portion of pages 6-7 of the
memorandum discussing vulnerabilities within the Kanawha Valley
treatment plant system is redacted.
In support of their
memorandum, plaintiffs filed three of Novick’s reports, Exhibit A,
“Expert Report of Kate Novick, January 22, 2016;” Exhibit B,
“Expert Report of Kate Novick, February 22, 2016;” and Exhibit C,
“Rebuttal Expert Report of Kate Novick, March, 8, 2016.”
Exhibit
A discusses standard practices of water utilities concerning risk
management, and whether West Virginia-American Water complied with
those practices in its response to the spill.
1
The report contains
“ANSI/AWWA G440-11” is shorthand reference to American Water
Works Association Management Standard on Emergency Preparedness
Practices developed in 2011.
2
several brief redactions throughout.
The redacted portions
discuss points within the water system vulnerable to attack, as
well as the content of the West Virginia-American Water’s 2003
vulnerability assessment.
Exhibits B and C similarly contain
brief redacted portions discussing system vulnerabilities and the
ability of West Virginia-American Water to respond to a terrorist
attack.
Plaintiffs’ motion to seal seeks to seal the redacted
portions of their memorandum, Exhibit A, Exhibit B, and Exhibit C.
Standard
The court 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–Am. Discovery
Grp. 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. Univ. of Md. Med. Sys. Corp., 855 F.2d
178, 180 (4th Cir. 1988).
Submitted documents within the common
law right may be sealed, however, if competing interests outweigh
the public's right of access.
Nixon, 435 U.S. at 598–99; In re
Knight Publishing Co., 743 F.2d 231, 235 (4th Cir.1984). Quoting
Knight, the Fourth Circuit Court of Appeals has observed:
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Some of the factors to be weighed in the common law
balancing test “include 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.”
Va. Dept. of State Police v. Wash. Post, 386 F.3d 567, 575 (4th
Cir. 2004) (quoting Knight, 743 F.2d at 235).
The First Amendment right of access has a more limited
scope than the common law right, having only “been extended ... to
particular judicial records and documents.”
180.
Stone, 855 F.2d at
The First Amendment Right of access attaches if: (1) “the
place and process have historically been open to the press and
general public;” and (2) “public access plays a significant
positive role in the functioning of the particular process in
question.”
Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8–
9 (1986).
The First Amendment right of access, however, provides
much greater protection to the public's right to know than the
common law right.
To avoid disclosure under the First Amendment
right of access, the movant must show “the denial [of access] is
necessitated by a compelling governmental interest, and is
narrowly tailored to serve that interest.”
Superior Court, 457 U.S. 596, 606–07 (1982).
Globe Newspaper Co. v.
4
Analysis
The defendant water companies have previously explained
the necessity of strictly securing WVAW’s emergency response
planning and certain of the statements in the 2003 vulnerability
assessment regarding the vulnerability to attack of the Kanawha
Valley water system.
See Memorandum of Law in Support of Motion
to Exclude Lorenz, ECF No. 763.
The explanation includes the
following:
The terrorist attacks on September 11, 2001
spurred substantial focus on the security of critical
infrastructure, including water treatment plants and
distribution systems. Congress passed the Public Health
Security and Bioterrorism Preparedness and Response Act
of 2002, which required water providers with facilities
above a certain size to undertake a process for
assessing the vulnerability of their systems to a
terrorist attack. Water providers were directed to
complete these vulnerability assessments and submit a
report to [the] EPA by March 2003. WV American
completed a vulnerability assessment for the KVTP and
submitted it to [the] EPA on March 31, 2003.
Id. at 11-12.
The water companies add the following in a
footnote:
Vulnerability assessments (VAs) conducted pursuant
to the 2002 Bioterrorism Amendments are extremely
sensitive documents, dissemination of which presents
significant security concerns. EPA’s protocol for
handling VA-related documents “ensures that
vulnerability assessments are stored behind closed
doors, filed under lock at all times, and accessed only
by designated persons under strict security procedures,”
“protective measures equivalent to those conferred to
5
Secret national security information.” Protocol to
Secure Vulnerability Assessments Submitted by Community
Water Systems to EPA (Nov. 30, 2002), [link omitted], at
Executive Summary. Though the results of vulnerability
assessments were to be incorporated by water utilities
into new or revised Emergency Preparedness Manuals (see
42 U.S.C. § 300I-2(b)), EPA guidance documents cautioned
that “[s]pecific details identifying vulnerabilities
should not be included.” Large Water System Emergency
Response Plan Outline: Guidance to Assist Community
Water Systems in Complying with the Public Health
Security and Bioterrorism Preparedness and Response Act
of 2002 (July 2003) [link omitted], at II.C.
Id. at n. 28.
The plaintiffs have not disputed this
characterization of the vulnerability assessment.
Even so, the
mere assertion that certain information implicates security
concerns is not sufficient to deny access to documents.
United
State v. Moussaoui, 65 Fed. Appx. 881, 887 (4th Cir. 2003), citing
In re Washington Post, 807 F.2d 383, 391-92 (4th Cir. 1986).
Rather, it is for the court to independently determine whether and
to what extent documents should remain under seal.
Id., citing
United States v. Pelton, 696 F.Supp. 156, 159 (D.Md. 1986).
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion
to Exclude Expert Testimony of Kate Novick, P.E.
Plaintiffs’ memorandum of law in opposition to the
defendants’ motion to exclude expert reports of Novick is eight
pages long, and contains approximately fourteen lines of redaction
on pages 6-7.
The redacted portions discuss the content of the
2004 vulnerability assessment, and in particular, a vulnerability
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of the system to infiltration and the means of preparing for and
responding to an attack on the system.
Having reviewed the
redacted material, the court finds that the disclosure of such
information substantially risks exposing vulnerabilities in the
water system and the means by which the water companies would
respond to an attack on the system.
The protection of the
municipal water supply is a compelling governmental interest, and
relatedly, the interest in protecting the sanctity of the water
supply outweighs the public’s interest in access to information
concerning the system’s vulnerability to terrorist attack.
The
court is satisfied that the redactions are narrowly tailored, and
will grant the seal as to redacted content.
Exhibit A, January 22, 2016 Expert Report of Kate Novick
Exhibit A discusses Novick’s review of potential
vulnerabilities in the water treatment system.
It is
approximately 40 pages long, and contains redactions on 10 pages.
These redactions identify vulnerabilities within the water system
susceptible to terrorist attack, as well as WVAW’s plans to
prepare for and respond to a terrorist attack.
For reasons
discussed above, the court finds that disclosure of such
information substantially risks exposing vulnerabilities in the
water system.
The court finds that the redactions are narrowly
tailored and will grant the seal as to the redacted content.
7
Exhibit B, February 22, 2016 Expert Report of Kate Novick
Exhibit B is approximately 25 pages in length and
contains redactions on 4 pages.
Each of the redactions refers to
means by which WVAW would prepare for and respond to a potential
terrorist attack or infiltration.
Having reviewed the redacted
material, the court finds it narrowly tailored and will grant the
motion to seal for reasons discussed above.
Exhibit C, March 8, 2016 Rebuttal Expert Report of Kate Novick
Exhibit C is 20 pages in length and contains redactions
on 9 pages.
Each redaction discusses vulnerabilities within the
water system and the means by which WVAW would prepare for and
respond to a potential terrorist attack or infiltration.
Having
reviewed the redacted material, the court finds it narrowly
tailored and will grant the motion to seal for reasons discussed
above.
The Clerk is directed to forward copies of this order
to counsel of record and any unrepresented parties.
ENTER:
September 26, 2017
John T. Copenhaver, Jr.
United States District Judge
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