Johnson et al v. Ford Motor Company

Filing 427

MEMORANDUM OPINION AND ORDER granting Plaintiffs' #351 MOTION to Seal Exhibit B to Plaintiffs' Motion to Challenge Confidential Designation and to Compel; directing that the document be sealed and remain sealed until further order of the Court. Signed by Magistrate Judge Cheryl A. Eifert on 4/15/2015. (cc: attys; any unrepresented party) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES JOHNSON, et al.,
Plaintiffs,
v.

Case No.: 3:13-cv-06529

FORD MOTOR COMPANY,
Defendant.

MEMORANDUM OPINION and ORDER
Pending before the Court is Plaintiffs’ Motion to Seal. (ECF No. 351). This motion
asks the Court to seal a four-page document submitted by Plaintiffs as part of a
companion motion challenging Ford Motor Company’s (“Ford”) claim that the
document is protected from discovery as a privileged attorney-client communication.
The document at issue, (ECF No. 351-1), was produced by Ford as part of a rolling
document production. Ford now seeks to clawback the document on the basis that it was
inadvertently disclosed.
In view of the Court’s finding that the document is privileged and the privilege
was not waived by Ford’s inadvertent disclosure, the Court GRANTS the motion to seal
and ORDERS that the document identified as ECF No. 351-1 be sealed and remained
sealed until further order of the Court.

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Public access to judicial records1 “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 the
public to access materials filed with the court derives from two independent sources: the
First Amendment and the common law. Stone v. University of Md. Med. Sys. Corp., 855
F.2d 178, 180 (4th Cir. 1988).The First Amendment right of access provides greater
substantive protection to the public, but “has been extended only to particular judicial
records and documents.” Id. at 180-81 (citing Rushford v. New Yorker Magazine, Inc.,
846 F2d 249, 253 (4th Cir. 1988) (documents filed in connection with summary
judgment motion in civil case); In re Washington Post, 807 F.2d 383, 390 (4th Cir.
1986) (documents filed in connection with plea hearings and sentencing hearings in
criminal cases)). When a First Amendment right is present, the court may restrict access
“only on the basis of a compelling governmental interest, and only if the denial is
narrowly tailored to serve that interest.” Stone, 855 F.2d at 180.
In contrast, the common law presumes a right of access to all judicial records and
documents, id., but the presumption may be rebutted “if countervailing interests heavily
outweigh the public interests in access.” Rushford, 846 F.2d at 253. The party seeking
restriction of records bears the burden “of showing some significant interest that
outweighs the presumption.” Id. Factors that the court should consider in weighing the
competing interests “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
‘“Judicial records’ are generally defined as ‘documents filed with the court [that] play a role in the
adjudicative process, or adjudicate substantive rights.’” Cochran v. Volvo Group North America, LLC,
2013 WL 784502, at *1 (M.D.N.C. March 1, 2013) (quoting In re Application of the United States for an
Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th Cir. 2013)).

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whether the public has already had access to the information contained in the records.”
In re Knight Publ. Co., 743 F.2d 231, 235 (4th Cir 1984).
Materials attached to discovery motions arguably are not “judicial records” at all.
See Kinetic Concepts, Inc. v. Convatec, Inc., 2010 WL 1418312 at *7 (M.D.N.C. April 2,
2010). In Kinetic Concepts, the district court quoted an unpublished opinion in which
the Fourth Circuit “joined other courts in ‘[h]olding that the mere filing of a document
with a court does not render the document judicial.’” Id. (quoting In re Policy Mgt. Sys.
Corp., 67 F.3d 296, 1995 WL 541623, at *4 (4th Cir. Sept. 13, 1995)). Although the
Fourth Circuit has not explicitly resolved the question of whether discovery motions and
materials attached to discovery motions are judicial records, the Court has stated that
the right of public access to judicial records attaches only when the records “play a role
in the adjudicative process, or adjudicate substantive rights.” In re Application for an
Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013).
“Because discovery motions ... involve procedural rather than ‘substantive’ rights of the
litigants, the reasoning of In re Policy Management supports the view that no public
right of access applies [to discovery motions].” Kinetic Concepts, Inc., 2010 WL 1418312,
at *9; see also In re Providence Journal Com., 293 F.3d 1, 9 (1st Cir. 2002); Chicago
Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001); United
States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997); Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 165 (3rd Cir. 1993). Consequently, in the absence
of a public right to access materials, the court considering a motion to seal applies the
“good cause” standard set forth in Fed. R. Civ. P. 26(c). Pintos v. Pacific Creditors
Ass’n., 565 F.3d 1106, 1115 (9th Cir. 2009).

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When considering a motion to seal, the court “must comply with certain
substantive and procedural requirements.” Va. Dept. of State Police v. Washington
Post, 386 F.3d 567, 576 (4th Cir. 2004). First, the court must identify the substantive
source of the right to access. Next, the court must (1) give the public notice of the motion
and a reasonable opportunity to be heard; (2) “consider less drastic alternatives to
sealing;” and (3) state specific findings and reasons for a decision to seal documents.”
Id.
Here, ECF No. 351-1 was filed with the Court solely to facilitate a ruling on
Plaintiffs’ challenge to Ford’s clawback of the document during the discovery process. As
the document will be clawbacked, it clearly will not play a role in the adjudicative
process. Accordingly, ECF No. 351-1 is not a judicial record that triggers a First
Amendment or common law right to access, and to justify sealing it, the parties must
only show good cause. Procedurally, the undersigned takes note that ECF No. 351-1 has
been filed under seal, has been designated as sealed on the Court’s docket, and has
remained sealed for a period in excess of one month pending the Court’s order on the
companion motion; this constitutes sufficient notice and reasonable opportunity for the
public to be heard. The undersigned further notes that no one has opposed the motion
to seal.
In light of the undersigned’s finding that ECF No. 351-1 is a privileged
communication between attorney and client, and the privilege remains intact, good
cause exists to keep the document sealed from public access. The importance of
preserving the attorney-client privilege cannot be overvalued. “The attorney-client
privilege is one of the oldest recognized privileges for confidential communications.”
Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S.Ct. 2081, 141 L.Ed.2d 379
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(1998). “The privilege is intended to encourage ‘full and frank communication between
attorneys and their clients and thereby promote broader public interests in the
observance of law and the administration of justice.’” Swidler & Berlin, 524 U.S. at 403
(quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584
(1981)). The interest served by maintaining the confidentiality of the attorney-client
communication in this case plainly outweighs any countervailing interest the public
might have in reviewing the document.
The Clerk is directed to provide a copy of this Order to counsel of record and any
unrepresented party.
ENTERED: April 15, 2015

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