Ohio Valley Environmental Coalition, Inc. v. Hobet Mining, LLC

Filing 127

MEMORANDUM OPINION AND ORDER granting 121 MOTION to Seal; granting 124 MOTION for Protective Order. Signed by Judge Robert C. Chambers on 7/6/2011. (cc: attys; any unrepresented party) (dcm)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, INC., WEST VIRGINIA
HIGHLANDS CONSERVANCY, INC.,
and SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 3:09-1167

HOBET MINING, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Hobet’s Motion to File Document Under Seal (ECF
121) and Motion for Protective Order (ECF 124). As the time period for the submission of
responses in opposition by Plaintiffs has expired, these motions are ripe for adjudication. For the
following reasons, both motions are GRANTED.
I.

Defendant Has Satisfied the Requirements for a Motion to Seal
Defendant requests that portions of its preliminary engineering report docketed pursuant to

its obligations under the Order Specifying Relief and Order Confirming Special Master in this case
be filed under seal. Defendant asserts that this is necessary to protect the competitive advantage of
Patriot Coal, Defendant’s parent company, and CH2M Hill with regard to the development of a
selenium treatment process disclosed in the preliminary engineering report. They are currently
seeking to patent this process, and public disclosure would harm this effort.

“[B]efore a district court may seal any court documents, [the Fourth Circuit] held that it must
(1) provide public notice of the request to seal and allow interested parties a reasonable opportunity
to object, (2) consider less drastic alternatives to sealing the documents, and (3) provide specific
reasons and factual findings supporting its decision to seal the documents and for rejecting the
alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288, 302 (4th Cir. 2000) (citing In re Knight
Publ’g Co., 743 F.2d 231, 235–36 (4th Cir. 1984)). In ascertaining whether a motion to seal should
be granted, a court must determine what the source is of the public’s right to access—common law
or the First Amendment—as each source has different levels of protection. Stone v. Univ. of Md.
Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988). Here, however, the document at issue is
submitted pursuant to an order entered post-trial; accordingly, the applicable source for the right of
access is the common law standard. See, e.g., Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,
252–53 (4th Cir. 1988) (finding that the First Amendment standard applies to plea and sentencing
hearings in criminal cases, to documents filed with a summary judgment motion, to criminal and
civil trials, and, in general, to motions seeking action by a court). Under this standard, a district
court may, in its discretion, grant a motion to seal “if the public’s right of access is outweighed by
competing interests[;] [however] the ‘presumption’ in such cases favors public access.” Ashcraft,
218 F.3d at 302 (quoting Knight, 743 F.2d at 235). “The party seeking to overcome the presumption
bears the burden of showing some significant interest that outweighs the presumption.” Bank of Am.
Nat’l Trust & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986).
First, the Court finds Defendant has fulfilled the first procedural requirement by docketing
its motion to seal, thereby providing notice and opportunity to parties wishing to oppose the motion.
Second, the Court cannot identify a less drastic alternative than sealing portions of the report. As

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Defendant amply states, any public disclosure of the developed treatment process will destroy the
competitive advantage Defendant and its consultant are attempting to maintain by patenting the
process. Further, Defendant is merely seeking to seal the portions of the report that contain
information applicable to treatment process. Already, Defendant has minimized the affect of its
motion to seal by restricting its applicability only to the relevant pages of the report; the rest remains
available for public viewing. Until the patents are obtained, the Court sees no less drastic alternative
than granting the motion to seal.
In addition to the facts and reasoning already provided, the Court also finds relevant to its
decision the fact that once Defendant and its consultant obtain patents for the selenium treatment
process, the information may at that time be made publicly available. The granting of a motion to
seal at this stage does not permanently prohibit public review of these portions of the preliminary
engineering report. Further, Defendant argues that the public interest in this action is Defendant’s
compliance with the Orders in this action. Sealing portions of the preliminary engineering report
will not harm the public interest, as the Court will still be able to monitor Defendant’s progress
under the Court’s Orders. The Court finds this reasoning persuasive. Defendant submitted the
treatment process to this Court as part of its efforts to comply with the Court’s Orders, which
establish a structure to aid Defendant in achieving compliance with the selenium effluent limitations.
The public interest is in reaching that goal, and not in gaining access to confidential trade
information. Because of the nature of the information and because the treatment technology will
ultimately be subject to this Court’s scrutiny and, subsequent to obtaining patents for the treatment
process, open to public review, at this time the interest in maintaining confidentiality outweighs the
public’s right to access. For the foregoing reasons, the Court GRANTS Defendant’s motion to seal.

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II.

Defendant Has Provided Adequate Grounds for the Issuance of a Protective Order
Under Fed. R. Civ. P. 26(c)(1), a party may move for a protective order. Under this Rule,

a “court may, for good cause, issue an order to protect a party . . . from . . . requiring that a trade
secret or other confidential research, development, or commercial information not be revealed . . .
.” Fed. R. Civ. P. 26(c)(1)(G). This Court has recognized the novelty of the issue companies such
as the defendant are facing in attempting to comply with the selenium effluent limitations. See, e.g.,
Oct. 8, 2010 Mem. Op. & Order 4, ECF 74. The main difficulty in achieving compliance is
identifying and implementing methods to address selenium treatment. Defendant in its motion for
a protective order states that its parent company and its consultant, CH2M Hill, plan to patent
several of the processes developed as a result of Defendant’s obligations under the Order in this
case. Similar to the reasoning above regarding the motion to seal, not protecting the commercial
information developed as a result of Defendant’s efforts to comply with this Court’s Order could
harm the Defendant’s and its consultant’s competitive advantage. Further, the proposed protective
order provides Plaintiffs with the opportunity to challenge the marking of any document as
confidential. Proposed Order ¶ 3, ECF 124-1. The granting of a protective order will not preclude
the ability of Plaintiffs or this Court to verify whether a document should be marked as confidential
or not. Accordingly, the Court FINDS Defendant has shown good cause for the issuance of a
protective order, and Defendant’s motion is GRANTED.

The protective order is issued

concurrently with this Opinion, and will be in effect until further order of the Court.
III.

Conclusion
For the foregoing reasons, Defendant’s motion to seal is GRANTED, and the confidentiality

of Volumes 3 and 4 shall be maintained. The contents of each shall not be disseminated to anyone

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except upon motion and decision of the Court. It is hereby ORDERED that Defendant’s Exhibits
to Defendant’s Motion to File Document Under Seal shall be SEALED. In addition, Defendant’s
motion for a protective order is GRANTED, and a protective order will be entered concurrently
with this Opinion. The Court DIRECTS the Clerk to send a copy of this written Opinion and Order
to counsel of record and any unrepresented parties.

ENTER:

July 6, 2011

ROBERT C. CHAMBERS
UNITED STATES DISTRICT JUDGE

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