Johnson et al v. Ford Motor Company

Filing 606

MEMORANDUM OPINION AND ORDER granting in part and denying in part Plaintiffs' #375 MOTION to Seal Exhibits A and B to Plaintiffs' Second Motion to Challenge Confidential Designation and to Compel and denying Plaintiffs' #482 MOTION to Seal Exhibit 1 to Plaintiffs' Reply to Ford's Response in Opposition to Plaintiffs' Second Motion to Challenge Confidential Designation and to Compel; directing the Clerk to seal ECF No. 375-1 (Exhibit A) and to unseal ECF Nos. 375 (Motion) and 375-2 (Exhibit B), unseal ECF Nos. 482 (Motion) and 482-1 (Exhibit A) as neither qualifies as confidential or privileged. Signed by Magistrate Judge Cheryl A. Eifert on 9/3/2015. (cc: attys; any unrepresented parties) (mkw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
CHARLES JOHNSON, et al.,
TONY BURNETT, et al.,
and
CHARLES T. BURD, et al.,

Case No.: 3:13-cv-06529
Case No.: 3:13-cv-14207
Case No.: 3:13-cv-20976

Plaintiffs,
v.
FORD MOTOR COMPANY,
Defendant.

MEMORANDUM OPINION and ORDER
Pending before the Court are two Motions to Seal filed by Plaintiffs. (ECF Nos.
375, 482).1 Having reviewed the motions, the Court GRANTS, in part, and DENIES, in
part, ECF No. 375, and DENIES ECF No. 482.2 The undersigned is cognizant of the
well-established Fourth Circuit precedent recognizing a presumption in favor of public
access to judicial records. Ashcraft v. Conoco, Inc., 218 F.3d 288 (4th Cir. 2000). As
stated in Ashcraft, before sealing a document, the Court must follow a three step
process: (1) provide public notice of the request to seal; (2) consider less drastic

The docket numbers referenced in this Order are taken from the lead case, Johnson v. Ford Motor
Company, Case No.: 3:13-cv-06529. Corresponding motions to seal are found at ECF Nos. 299, 399 in
Burnett v. Ford Motor Company, Case No.: 3:13-cv-14207, and ECF Nos. 262, 360 in Burd v. Ford Motor
Company, Case No.: 3:13-cv-20976.
1

2These

rulings also apply to the corresponding motions in the Burnett and Burd litigations.

alternatives to sealing the document; and (3) provide specific reasons and factual
findings supporting its decision to seal the documents and for rejecting alternatives. Id.
at 302.
With respect to ECF No. 375, which seeks to seal documents designated as
privileged by Ford Motor Company, the Clerk is ORDERED to seal ECF No. 375-1 and
to unseal ECF Nos. 375 and 375-2. As to ECF No. 482, the Clerk is ORDERED to
unseal ECF Nos. 482 and 482-1 as neither qualifies as confidential or privileged. The
sealed documents shall be designated as sealed on the docket, which the Court deems to
be sufficient notice to interested members of the public. The Court has considered less
drastic alternatives to sealing ECF No. 375-1 in its entirety; however, the exhibit
includes e-mail exchanges that are privileged attorney-client communications. Although
some portions of ECF No. 375-1 are not privileged or confidential, the electronic docket
does not easily permit partial disclosure of a document. In any event, ECF No. 375-1
consists of discovery materials, which 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 Court quoted an unpublished Fourth Circuit 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). Thus, “[b]ecause 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 Co., Inc., 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).
Moreover, the non-privileged portions of ECF No. 375-1 are available in the discovery
materials maintained by the parties. Accordingly, the Court finds that sealing ECF No.
375-1 does not improperly or significantly prejudice the public’s right to access court
documents.
The Clerk is instructed to provide a copy of this Order to all counsel of record and
any unrepresented parties.
ENTERED: September 3, 2015