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Good v. West Virginia-American Water Co.

United States District Court, S.D. West Virginia, Charleston

September 26, 2017

CRYSTAL GOOD, et al., Plaintiffs,


          John T. Copenhaver, Jr., United States District Judge

         Pending before the court is plaintiffs' motion for leave to file under seal limited redactions to plaintiffs' memorandum of law, and certain supporting exhibits, in opposition to defendants' motion to exclude expert testimony of Kate Novick, P.E. (ECF No. 872), filed June 10, 2016. Defendants have filed no objection.


         Plaintiffs offered Novick as an expert on matters of emergency preparedness and risk management. On May 10, 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 expert testimony of Kate Novick. The water company defendants argue that Novick should be precluded from testifying because 1) the ANSI/AWWA G440-11[1] emergency preparedness practices on which she opines are, according to defendants, aspirational and not an industry standard; 2) Novick's experience is too limited to permit her to testify as to the industry standard; and 3) Novick's testimony inappropriately opines as to the intent of West Virginia-American Water (“WVAW”).

         Plaintiffs filed their memorandum in opposition to defendants' motion to exclude expert testimony of Kate Novick on June 10, 2016. The memorandum argues that West Virginia-American Water has adopted the G440 practices, and that Novick's testimony is necessary for a jury to understand West Virginia-American Water's vulnerability assessment. A portion of pages 6-7 of the memorandum discussing vulnerabilities within the Kanawha Valley treatment plant system is redacted. In support of their memorandum, plaintiffs filed three of Novick's reports, Exhibit A, “Expert Report of Kate Novick, January 22, 2016;” Exhibit B, “Expert Report of Kate Novick, February 22, 2016;” and Exhibit C, “Rebuttal Expert Report of Kate Novick, March, 8, 2016.” Exhibit A discusses standard practices of water utilities concerning risk management, and whether West Virginia-American Water complied with those practices in its response to the spill. The report contains several brief redactions throughout. The redacted portions discuss points within the water system vulnerable to attack, as well as the content of the West Virginia-American Water's 2003 vulnerability assessment. Exhibits B and C similarly contain brief redacted portions discussing system vulnerabilities and the ability of West Virginia-American Water to respond to a terrorist attack. Plaintiffs' motion to seal seeks to seal the redacted portions of their memorandum, Exhibit A, Exhibit B, and Exhibit C.


         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 has observed:

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 at 235).

         The 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).

         The 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).


         The defendant water companies have previously explained the necessity of strictly securing WVAW's emergency response planning and certain of the statements in the 2003 vulnerability assessment regarding the vulnerability to attack of the Kanawha Valley water system. See Memorandum of Law in Support of Motion to Exclude Lorenz, ECF No. 763. The explanation includes the following:

The terrorist attacks on September 11, 2001 spurred substantial focus on the security of critical infrastructure, including water treatment plants and distribution systems. Congress passed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, which required water providers with facilities above a certain size to undertake a process for assessing the vulnerability of their systems to a terrorist attack. Water providers were directed to complete these vulnerability assessments and submit a report to [the] ...

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