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Nielson v. Portfolio Recovery Associates LLC

United States District Court, D. South Carolina, Charleston Division

June 18, 2019

David Nielson, Plaintiff,
Portfolio Recovery Associates, LLC and Equifax Information Services, LLC, Defendants,



         Before the Court is Defendant Portfolio Recovery Associates, LLC's motion to seal. (Dkt. No. 40.) For the reasons set forth below, the motion is granted in part and denied in part.

         I. Background

         Plaintiff David Nielson alleges that Portfolio Recovery Associates, LLC ("PRA"), alleged owner of the credit, and Equifax Information Services, LLC ("Equifax"), the credit reporting agency, unlawfully attempted to collect on and report his debt on a line of credit opened at Rooms To Go.

         PRA now seeks to seal in full its memorandum in support of its motion for summary judgment and Exhibits 3, 5, 6 and 7 to the memorandum. PRA supplied these documents for in camera review.[1] Plaintiff responds that he is "unconcerned with his personal identifiers being published generally [and] wants as much of his case to be available to the public so that other attorneys and consumers can view the pleadings and documents in this case." (Dkt. No. 49 at 2.)[2]

         Plaintiff, therefore, "opposes sealing documents to the extent they contain personal identifiers in accordance with the Local Rules except concerning financial account numbers in which case the last 4 digits only should be redacted" and he "does not oppose PRA's motion to the extent it seeks to seal information subject to the Confidentiality Order." (Id. at 3.)[3]

         II. Legal Standard

         Local Civil Rule 5.03 provides that a party seeking to file documents under seal shall "file and serve a 'Motion to Seal' accompanied by a memorandum" that must:

(1) identify, with specificity, the documents or portions thereof for which sealing is requested; (2) state the reasons why sealing is necessary; (3) explain (for each document or group of documents) why less drastic alternatives to sealing will not afford adequate protection; and (4) address the factors governing sealing of documents reflected in controlling case law.

Local Civil Rule 5.03, D.S.C.

         The public's common law right to inspect judicial records and documents is not absolute and the district court "may, in its discretion, seal documents if the public's right of access is outweighed by competing interests." Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). In deciding whether to exercise such discretion, the court may consider "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 whether the public has already had access to the information contained in the records." In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984).

         By contrast, once documents that are produced in discovery, including under a pre-trial confidentiality order, are "made part of a dispositive motion, they [have] lost their status as being 'raw fruits of discovery.'" Va. Dep't of State Police v. Washington Post, 386 F.3d 567, 576 (4th Cir. 2004) (quoting Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988). The, "more rigorous First Amendment standard [ ] appl[ies] to documents filed in connection with a summary judgment motion in a civil case." Id.; see also Hill Holiday Connors Cosmopulos, Inc. v. Greenfield, No. 6:08-cv-03980-GRA, 2010 WL 890067, at *4 (D.S.C. Mar. 8, 2010) (denying motion to seal summary judgment memorandum and exhibits). The district court must determine whether to seal discovery materials after they are made part of a dispositive motion "at the time it grants a summary judgment motion" and, regarding any pre-trial confidentiality order, must "not merely allow continued effect to a pretrial discovery protective order." Va. Dep 't of State Police, 386 F.2d at 576.

         Under this First Amendment standard, the movant must demonstrate that the denial of access is necessitated by a compelling government interest or non-governmental interest that implicates similar "higher values." Press-Enter. Co. v. Super Ct. of Cal. For the Cnty. of Riverside, 464 U.S. 501, 510 (1984). Such private interests outweigh the First Amendment presumption of access "only in certain circumstances" that include a criminal defendant's Sixth Amendment right to a fair trial, privacy interests of non-parties, trade secrets, attorney-client relationships, and contractual non-disclosure provisions. Companion Prop. & Cas. Ins. Co. v. Wood, No. 3:14-cv-03719-CMC, 2017 WL 279767, at *2 (D.S.C. Jan. 23, 2017) (collecting cases). "The burden to overcome a First Amendment right of access rests on the party seeking to restrict access, and that party must present specific reasons in support of its position." Level 3 Comm'ns., LLC v. Limelight Networks, Inc., 611 F.Supp.2d 572, 583 (E.D. Va. 2009) (testing public's First Amendment right of access against non-governmental interests). The court must determine that sealing would constitute a "narrowly tailored" solution designed "to serve that interest." Press-Enter. Co., 464 U.S. at 510.

         III. ...

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