855 F.2d 178 (4th Cir. 1988), 87-3651, Stone v. University of Maryland Medical System Corp.

• Docket Nº: 87-3651(A).
• Citation: 855 F.2d 178
• Party Name: H. Harlan STONE, M.D., Plaintiff-Appellant, Frederick K. Toy, M.D.; Walter Pegoli, M.D., Intervenors, v. UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION; Mary Humphries; John Dennis; Edward Brandt, Jr.; Susan Gillette; Morton I. Rapoport, Defendants-Appellees, The Baltimore Sun Company, Intervenor.
• Case Date: August 19, 1988
• Court: United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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855 F.2d 178 (4th Cir. 1988)

H. Harlan STONE, M.D., Plaintiff-Appellant,

Frederick K. Toy, M.D.; Walter Pegoli, M.D., Intervenors,

v.

UNIVERSITY OF MARYLAND MEDICAL SYSTEM CORPORATION; Mary

Humphries; John Dennis; Edward Brandt, Jr.;

Susan Gillette; Morton I. Rapoport,

Defendants-Appellees,

The Baltimore Sun Company, Intervenor.

No. 87-3651(A).

United States Court of Appeals, Fourth Circuit

August 19, 1988

Argued April 4, 1988.

Page 179

Norman Roy Grutman (Jewel H. Bjork, Grutman, Miller, Greenspoon & Hendler, Henry P. Monaghan, New York City, John Philip Miller, Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A., Baltimore, Md., on brief), for plaintiff-appellant.

Diana G. Motz (Shale D. Stiller, Frank, Bernstein, Conaway & Goldman, on brief), Ralph S. Tyler, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Michael A. Anselmi, William F. Howard, Lawrence White, Asst. Attys. Gen., Baltimore, Md., on brief), for defendants-appellees.

Mary R. Craig (Doyle & Langhoff, Baltimore, Md., on brief), for intervenor.

M. King Hill, Jr. (John R. Penhallegon, Connie E. Williams, Smith, Somerville & Case, Baltimore, Md., on brief), for intervenors.

Before PHILLIPS, ERVIN, and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

In this appeal, we consider the district court's order sealing the entire record in this case. In In re Knight Publishing Co., 743 F.2d 231 (4th Cir.1984), this court established a set of procedures which must

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be followed when a district court seals judicial records or documents. The district court failed to follow these mandatory procedures in this case. Because this was prejudicial error, we remand with instructions to the district court to reconsider its decision in accordance with Knight.

I.

Dr. Harlan Stone was Chief of the Division of General Surgery and a member of the medical staff of the University of Maryland Medical System Corporation (the Hospital), as well as Professor of Surgery at the University of Maryland School of Medicine. In 1986, malpractice actions were filed against Stone, the Hospital, and several other doctors. An internal peer review committee and an external review committee investigated the situation. On June 13, 1986, Stone met with the individual defendants and resigned his positions. In November, 1986, Stone sued the Hospital, several of its officials, and several officials of the University of Maryland, claiming that he had been forced to resign his positions in violation of his right to due process.

On July 22, 1987, the parties moved jointly to seal the record in this case. In a one-sentence order issued the next day, the district court sealed the entire record, with the exception of the complaint, amended complaint and answers. No hearing was held on the motion to seal, and no reasons for the order were stated. In October, 1987, the district court granted the defendants' motion for summary judgment, and Stone appealed. The Baltimore Sun moved in this court to intervene for the limited purpose of challenging the seal order. Drs. Toy and Pegoli, members of the Hospital staff, moved to intervene to challenge the Sun's motion to unseal. Those motions were granted in January, 1988. In an opinion filed contemporaneously with this one, we have affirmed the district court's entry of summary judgment in favor of all defendants. ^[*]

II.

The Sun contends that the order below violates its rights of access to judicial records as protected both by common law and by the First Amendment. The common law presumes a right to inspect and copy judicial records and documents. Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). The common law presumption of access may be overcome if competing interests outweigh the interest in access, and a court's denial of access is reviewable only for abuse of discretion. See Rushford v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988); In re Washington Post Co., 807 F.2d 383, 390 (4th Cir.1986).

Where the First Amendment guarantees access, on the other hand, access may be denied only on the basis of a compelling governmental interest, and only if the denial is narrowly tailored to serve that interest. Rushford, 846 F.2d at 253 (citing Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984)). Because the First Amendment and the common law provide different levels of protection, it is necessary to determine the source of the Sun's right of access before its claim may be evaluated. The district court's order fails to state whether it is based on the common law or the First Amendment.

We note that different levels of protection may attach to the various records and documents involved in this case. While the common law presumption in favor of access attaches to all "judicial records and documents," Nixon, 435 U.S. at 597, 98 S.Ct. at 1311, the First Amendment guarantee of access has been extended only to particular judicial records and documents. See, e.g., Rushford, 846 F.2d at 253 (documents filed in connection with summary judgment motion in civil case); In re Washington Post, 807 F.2d at 390 (documents

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filed in connection with plea hearings and sentencing hearings in criminal case). The district court in this case ordered sealed the entire record without indicating exactly what that record contained. On remand, it must determine the source of the right of access with respect to...