United States District Court, S.D. West Virginia, Charleston
MEMORANDUM ORDER AND OPINION
T. COPENHAVER, JR., UNITED STATES DISTRICT JUDGE.
before the court is plaintiffs' motion for leave to file
under seal limited segments of plaintiffs' memorandum in
opposition to the motion to exclude the testimony of
plaintiffs' expert Wayne F. Lorenz, P.E. and Supporting
Exhibit 1 (ECF No. 880), filed June 10, 2016.
offered Lorenz as an expert regarding water treatment plant
operation and storage. On May 11, 2016, defendants West
Virginia-American Water Company, American Water Works Service
Company, and American Water Works Company (“water
company” defendants) filed their motion to exclude the
proposed testimony of Wayne F. Lorenz, P.E. The water
companies sought to exclude portions of Lorenz's
testimony which 1) relied on allegedly inadmissible evidence;
2) concerned the financial decisions of the water company and
regulatory oversight; 3) concerned West Virginia-American
Water's vulnerability assessment; and 4) commented on
health effects occurring after the contamination. Plaintiffs
filed their memorandum in opposition to the motion to exclude
(ECF No. 816) on June 3, 2016. The memorandum contains
several brief redacted references to a 2003 vulnerability
assessment conducted by West Virginia-American Water.
Plaintiffs also cite “Exhibit 1, ” a selection of
excerpts from the March 9, 2016 deposition of Kendall
Mitzner. Mitzner authored a portion of the vulnerability
assessment. The selected deposition testimony contains three
redacted lines. Plaintiffs cite to a portion of Exhibit 1
concerning Mitzner's background and qualifications to
argue that Lorenz is equally qualified to testify regarding
the vulnerability assessment. The pending motion seeks to
seal the redactions in the memorandum and Exhibit 1. The
parties indicate that disclosure of the content of the
vulnerability assessment may expose West Virginia-American
Water's internal procedures for responding to
contamination events, or expose some vulnerability to attack.
order entered October 19, 2016, the court granted the water
companies' motion to exclude the testimony of Lorenz to
the extent that Lorenz would not be allowed to testify
concerning the motives of West Virginia-American Water or the
health effects of the spill. The motion was otherwise denied.
The court concluded that Lorenz's testimony regarding the
2003 vulnerability assessment was offered for the purpose of
rebutting testimony from a water company expert, and not for
the purpose of establishing whether West Virginia-American
Water complied with anti-terrorism laws.
outset, the court notes that “[p]ublicity of [court]
... records ... is necessary in the long run so that the
public can judge the product of the courts in a given
case.” Columbus-Am. Discovery Grp. v. Atlantic Mut.
Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000). The right
of public access to court documents derives from two separate
sources: the common law and the First Amendment. The common
law right affords presumptive access to all judicial records
and documents. Nixon v. Warner Comms., Inc., 435
U.S. 589, 597 (1978); Stone v. Univ. of Md. Med. Sys.
Corp., 855 F.2d 178, 180 (4th Cir. 1988). Submitted
documents within the common law right may be sealed, however,
if competing interests outweigh the public's right of
access. Nixon, 435 U.S. at 598-99; In re Knight
Publishing Co., 743 F.2d 231, 235 (4th Cir.1984).
Quoting Knight, the Fourth Circuit Court of Appeals
Some of the factors to be weighed in the common law balancing
test “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 whether the public has already had
access to the information contained in the records.”
Va. Dept. of State Police v. Wash. Post, 386 F.3d
567, 575 (4th Cir. 2004) (quoting Knight, 743 F.2d
First Amendment right of access has a more limited scope than
the common law right, having only “been extended ... to
particular judicial records and documents.”
Stone, 855 F.2d at 180. The First Amendment Right of
access attaches if: (1) “the place and process have
historically been open to the press and general
public;” and (2) “public access plays a
significant positive role in the functioning of the
particular process in question.” Press-Enterprise
Co. v. Superior Court, 478 U.S. 1, 8- 9 (1986).
First Amendment right of access, however, provides much
greater protection to the public's right to know than the
common law right. To avoid disclosure under the First
Amendment right of access, the movant must show “the
denial [of access] is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest.” Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 606-07 (1982).
Exhibit 1, the court notes that plaintiffs' motion cites
the deposition testimony of Mitzner simply to contrast his
professional background with that of the plaintiffs'
expert Lorenz. The court's decision to permit, in part,
the testimony of Lorenz in no way relied on or utilized the
redacted provisions of Exhibit 1. The material is thus deemed
not to be a part of the judicial record. Plaintiffs'
motion to seal will be granted as to Exhibit 1.
redacted material discussing the 2003 vulnerability
assessment, several of the redactions serve no obvious
purpose or refer to information already publicly known. In
particular, the memorandum redacts appearances of the terms
“terrorism, ” “risk assessment, ” and
references to the year 2003. The memorandum also redacts the
title of the document, “2003 Vulnerability Assessment,
” despite the fact that the water companies'
memorandum in support of the motion to exclude Lorenz refers