Citynet, LLC v. Frontier West Virginia, Inc., et al.
Filing
287
MEMORANDUM OPINION AND ORDER directing that the documents attached to the 231 Motion for Leave to File Under Seal remain provisionally sealed; either party may submit a revised sealing request by 4/25/2022. Signed by Senior Judge John T. Copenhaver, Jr. on 4/15/2022. (cc: counsel of record; any unrepresented parties) (kew)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CITYNET, LLC, on behalf of
the United States of America,
Plaintiff/Relator,
v.
Civil Action No. 2:14-cv-15947
FRONTIER WEST VIRGINIA, INC.,
a West Virginia corporation;
KENNETH ARNDT, individually;
DANA WALDO, individually;
MARK MCKENZIE, individually;
JIMMY GIANATO, individually;
and GALE GIVEN, individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff/relator Citynet, LLC’s
(“Citynet”) motion, filed March 8, 2022, for leave to file under
seal.
ECF No. 231.
On February 22, 2022, defendants Frontier West
Virginia, Inc.; Kenneth Arndt; Dana Waldo; and Mark McKenzie
(together, “Frontier”) moved for partial summary judgment.
ECF No. 222.
See
Citynet recounts that upon deciding that it
intended to attach to its response nine documents marked
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to a protective
order, it “contacted counsel for [Frontier] to notify them of
[its] intent.”
ECF No. 232.
Frontier consented to the filing
of three of the documents unsealed and presumably did not give
permission to Citynet to file the remaining six upon the public
record.
See id. at 2.
Thus, Citynet filed this motion for
leave to file under seal regarding the six documents.
“Citynet does not take a position on the propriety of
sealing [the six documents] . . . because [Frontier] bear[s] the
burden of persuasion for continued confidentiality of these
materials.”
Id. at 3.
Nonetheless, Citynet contends that
“[s]ealing is necessary because the parties entered into a
protective order contemplating the designation of sensitive
materials as ‘CONFIDENTIAL’ or ‘HIGHLY CONFIDENTIAL,’ the
documents at issue should be sealed indefinitely, and, because
these exhibits are attached to Citynet’s response to provide
background information, they are not ‘judicial records’ subject
to the First Amendment or common law right of access.”
1.
Id. at
Frontier has not filed a brief taking a position on the
matter but, again, has presumably not consented to filing the
six documents upon the public record.
The Fourth Circuit explains the contours of the right
of public access to judicial records as follows:
The right of public access derives from two
independent sources: the First Amendment and the
common law. 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
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First Amendment. Specifically, the common law
presumes a right to access all judicial records and
documents, but this presumption can be rebutted if the
public’s right of access is outweighed by competing
interests. On the other hand, the First Amendment
provides a right of access only to particular judicial
records and documents, and this right yields only in
the existence of a compelling governmental interest .
. . [that is] narrowly tailored to serve that
interest.
In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D),
707 F.3d 283, 290 (4th Cir. 2013) (quotation marks and citations
omitted) (alterations in original).
But first, for a right of
public access to exist at all, “the document must be a ‘judicial
record.’”
Id.
Whether a document is a judicial record subject
to the common law or the First Amendment is a question of law.
Id.
In this circuit, “[s]ummary-judgment materials are
subject to the public’s right of access to judicial records
under the First Amendment.”
Sprint Nextel Corp. v. Wireless
Buybacks Holdings, LLC, 938 F.3d 113, 120 n.2 (4th Cir. 2019);
see also In re U.S. for an Order, 707 F.3d at 290 (quoting
Rushford v. New Yorker Mag., Inc., 846 F.2d 249, 252 (4th Cir.
1988)); Kirby v. Res-Care, Inc., --- F. Supp. 3d ---, 2022 WL
993900, at *3 (S.D. W. Va. 2022); Sky Angel U.S., LLC v.
Discovery Commc’ns, LLC, 95 F. Supp. 3d 860, 881 (D. Md. 2015);
Bayer CropScience Inc. v. Syngenta Crop Protection, LLC, 979 F.
Supp. 2d 653, 655 (M.D.N.C. 2013); Courtland Co. v. Union
3
Carbide Corp., No. 2:19-cv-00894, 2020 WL 6928383, at *2 (S.D.
W. Va. Sept. 11, 2020).
The six documents subject to this motion are
consequently judicial records subject to the First Amendment
right of public access.
None of the reasons proffered by
Citynet is a “narrowly tailored” “compelling governmental
interest” that can show the “unusual circumstances” needed to
abrogate the public’s right of access to the six documents under
the First Amendment.
In re U.S. for an Order, 707 F.3d at 290;
Va. Dep’t of State Police v. Wash. Post, 386 F.3d 567, 576 (4th
Cir. 2004).
However, it is Frontier’s, not Citynet’s, privacy
interests that are at stake with respect to the six documents.
Thus, in the interests of justice, the court directs that either
party -- Frontier in particular, since it bears the burden of
persuasion -- may seek to make the required showing in a further
sealing request, to be filed no later than April 25, 2022
In doing so, the parties should be mindful that
“[a]lthough the documents [are] the subject of a pretrial
discovery protective order, . . . once the documents were made
part of a dispositive motion, they lost their status as being
‘raw fruits of discovery,’” and thus cannot be sealed merely
because they are labeled “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL.”
Va. Dep’t of State Police, 386 F.3d at 576.
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Further, a request for sealing must demonstrate why “less
drastic alternatives to sealing” are insufficient to serve a
narrowly tailored compelling governmental interest.
Id.
Accordingly, it is ORDERED that the documents at issue
remain provisionally sealed.
The filings will be unsealed by
order of the court if the parties fail to make the necessary
showing to support their continued sealing.
It is further
ORDERED as follows:
1. Either party may submit a revised sealing request, taking
into consideration the alternatives to sealing (such as
redaction) for those portions of the exhibits for which
confidentiality is unnecessary, and bearing in mind that
sealing is the infrequent exception and not the rule; and
2. Any revised sealing request be, and hereby is, DIRECTED to
be submitted by April 25, 2022.
The Clerk is requested to transmit copies of this
order to all counsel of record and any unrepresented parties.
ENTER: April 15, 2022
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