United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
RICHARD MARK GERGER UNITED STATES DISTRICT COURT JUDGE.
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
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.
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. 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.)
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.)
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.
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.
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.
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.