United States District Court, S.D. West Virginia, Charleston
MEMORANDUM OPINION AND ORDER
T. COPENHAVER, JR. SENIOR UNITED STATES DISTRICT JUDGE
is the plaintiff's motion, filed November 1, 2018, with
accompanying memorandum in support of plaintiff's motion,
filed November 29, 2018, requesting leave to file under
indefinite seal the complaint and exhibit attached thereto.
contends that sealing is necessary inasmuch as “many of
the counts contained in the complaint include reference to
items covered by a confidential settlement agreement attached
as Exhibit A to the Complaint.” Pl.'s Mot., ECF No.
1, at 4. The complaint asserts claims for violation of the
Federal Fair Credit Reporting Act, the common law tort of
defamation, and breach of the aforementioned settlement
agreement. Compl., ECF No. 1-1, at 1. The plaintiff further
contends that redaction is insufficient, as his claims deal
entirely with the settlement agreement and disclosure of the
complaint might place the parties at a disadvantage in this
matter. Id. at 1-2.
court first 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-America Discovery Group 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. University of Md. Medical
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, 602-03; In re
Knight Publishing Co., 743 F.2d 231, 235 (4th Cir.
1984). Quoting Knight, our court of appeals observed as
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.”
Virginia Dept. of State Police v. Washington Post,
386 F.3d 567, 575 (4th Cir. 2004) (quoting Knight, 743 F.2d
at 235) (emphasis supplied).
the First Amendment right applies to these particular
documents, the movant's burden is more substantial. To
obtain a sealing order under the First Amendment rubric, 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); Virginia, 386 F.3d at 573; Stone,
855 F.2d at 180.
plaintiff has not made the showing necessary to obtain a
sealing order. In the interests of justice, however, the
court will provide a further opportunity to make the required
showing. In preparing the amended motion, plaintiff should
consider at least two objectives. First, plaintiff should
submit, in detail, his best justifications for a sealing
order. Second, rather than seeking a sealing order as to all
the materials in their entirety, plaintiff must present with
its justification for sealing a set of redacted documents
that would, in his estimation, be suitable for viewing on the
public docket. This approach recognizes the need for
confidentiality as to some material while at the same time
assuring that the narrow exception for secrecy extends no
further than absolutely necessary in a given case. The right
of public access is paramount.
addition, plaintiff should state whether the sealing is
requisite because the settlement agreement, if it does,
requires confidentiality, as well as whether Branch Banking
and Trust Company is known to require continued
it is ORDERED that the plaintiff's motion to seal be, and
hereby is, provisionally granted pending the further order of
the court. The plaintiff is directed to file, on or before
January 7, 2019, an amended motion to seal that contains the
necessary detail in compliance with the aforementioned
standards. Additionally, assuming service of process upon
them, the defendants are directed to respond similarly under
seal to the amended motion to seal simultaneously with their
answer or other response to the complaint. The plaintiff may
then reply to the defendants' response within fourteen
Clerk is directed to forward this memorandum opinion and
order to all counsel of record and any unrepresented parties.
Counsel for the plaintiff is directed to then provide a
courtesy copy to counsel for the defendants by electronic
mail within two days after entry of this order, reflecting
such service in a notice to be spread on the record by
plaintiff no later than two days ...