United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER ON MOTIONS TO SEAL (ECF NOS. 200,
218, 240, 244, 248, 250)
CAMERON MCGOWAN CURRIE, Senior United States District Judge
matter is before the court on six motions to seal documents
filed in support of or opposition to the parties'
cross-motions for partial summary judgment and one related
evidentiary motion. ECF Nos. 200, 218, 240, 244, 248,
The underlying motions were resolved by order entered January
10, 2017. ECF No. 258 (“January 10, 2017 Order”).
For reasons set forth below, the motions to seal are denied
and the parties are directed to file the subject documents in
the public record by the deadlines set forth in Section II of
this order. The court has allowed an extended filing deadline
to afford the parties time to redact sensitive information
such as account numbers and personal identifiers.
explained in Ashcraft v. Conoco, Inc., “before
a district court may seal any court documents, . . . 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.” 218 F.3d 288, 302 (4th
Cir. 2000); see also Stone v. Univ. of Maryland Med. Sys.
Corp., 855 F.2d 178, 182 (4th Cir.1988) (“The
public's right of access to judicial records and
documents may be abrogated only in unusual
last step in this process requires the court to first
determine the source of the public right of access. Doe
v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014)
(relying on Stone in holding district courts must
first determine source of right-of-access as to each document
for which sealing is sought); Stone, 855 F.2d at
180. As explained in Stone:
The common law presumes a right to inspect and copy judicial
records and documents. . . . The common law presumption of
access may be overcome if competing interests outweigh the
interest in access, and a court's denial of access is
reviewable only for abuse of discretion.
Where the First Amendment guarantees [apply], . . . [public]
access may be denied 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. Because summary judgment
substitutes for trial, judicial records filed in connection
with a summary judgment motion may be sealed only if the
First Amendment standard is satisfied. Id. (citing
Rushford v. The New Yorker Magazine, Inc., 846 F.2d
249, 253 (4th Cir. 1988)); see also Doe, 749 F.3d at
267 (“We have squarely held that the First Amendment
right of access attaches to materials filed in connection
with a summary judgment motion.”).
“compelling governmental interest” necessary to
support sealing when the First Amendment right of access
applies may, nonetheless, consider private interests. As
explained in Doe, which addressed First Amendment
protections, “[a] corporation may possess a strong
interest in preserving the confidentiality of its proprietary
and trade-secret information, which in turn may justify
partial sealing of court records.” Doe, 749
F.3d at 269 (noting courts had previously found
“interests . . . sufficiently compelling to
justify” sealing included “a defendant's
right to a fair trial before an impartial jury, . . .
protecting the privacy rights of trial participants such as
victims or witnesses, . . . and risks to national
security.”). In contrast, a company's bare interest
in reputational harm does not warrant sealing under either
the First Amendment or common-law standards. Id. at
269-70. As the court explained in Doe:
Adjudicating claims that carry the potential for embarrassing
or injurious revelations about a corporation's image . .
. are part of the day-to-day operations of federal courts.
But whether in the context of products liability claims,
securities litigation, employment matters, or consumer fraud
cases, the public and press enjoy a presumptive right of
access to civil proceedings and documents filed therein,
notwithstanding the negative publicity those documents may
shower upon a company.
Id. at 269.
support sealing, the party seeking such protection must not
only identify a protectable interest, but must also proffer
evidence that substantiates the risk of harm. Id. at
270 (finding, after “scouring the record on appeal, . .
. no credible evidence to support Company Doe's fear that
disclosure of the challenged report of harm and the facts of
this case would subject it to reputational or economic
injury”). As the majority explained, it had
“never permitted wholesale sealing of documents based
upon unsubstantiated or speculative claims of harm[.]”
concurring opinion in Doe, Senior Judge Hamilton
acknowledged the “common sense” assumption that
the documents at issue could result in harm if not sealed,
but nonetheless agreed that Company Doe had failed to
establish an adequate basis for sealing:
The district court's reasoning founders for the simple
reason that it misunderstood the quantum of evidence
necessary to trump the First Amendment rights of, for
example, the Consumer Groups [that challenged sealing.] Had
Company Doe supported its motion to seal with expert
testimony establishing a high likelihood that denying its
motion to seal would cause it to suffer substantial and
irreparable economic harm, the disposition of the present
appeal, in my view, would be completely different.
* * *
First Amendment jurisprudence requires more than a common
sense feeling about what harm may befall Company Doe. It
requires concrete proof of a high likelihood of substantial
and irreparable economic harm. Because Company Doe failed to
present such concrete proof . . ., we are left only with a
common sense feeling of ...