Cochran v. Volvo Grp. N. Am., LLC

• Decision Date: 01 March 2013
• Docket Number: No. 1:11–CV–927.,1:11–CV–927.
• Citation: 931 F.Supp.2d 725
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Richard COCHRAN, et al., Plaintiffs, v. VOLVO GROUP NORTH AMERICA, LLC, Defendant.

931 F.Supp.2d 725

Richard COCHRAN, et al., Plaintiffs,

v.VOLVO GROUP NORTH AMERICA, LLC, Defendant.

No. 1:11–CV–927.

United States District Court, M.D. North Carolina.

March 1, 2013.

G. Christopher Olson, John Alan Jones, Martin & Jones, PLLC, Raleigh, NC, Michael Allen Caddell, Cynthia Bodendieck Chapman, Caddell & Chapman, Houston, TX, Mitchell A. Toups, Weller, Green, Toups & Terrell, L.L.P., Beaumont, TX, for Plaintiffs.

Richard J. Keshian, Chad Dwight Hansen, Kilpatrick Townsend & Stockton LLP, Winston–Salem, NC, for Defendant.

Cory Steven Fein, Caddell & Chapman, Houston, TX.

MEMORANDUM OPINION AND ORDER

CATHERINE C. EAGLES, District Judge.

This matter is before the Court on the Joint Motion to Seal Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, (Doc. 70), and Defendant's unopposed motion to seal its brief in opposition to the same motion for class certification and certain exhibits. (Doc. 74.) A hearing on the motions was held on February20, 2013. The Court concludes that there is a common law right of access to most of the materials the parties seek to seal and that a showing of a countervailing interest heavily outweighing the public interest in access is required to justify sealing. The parties have not made a showing sufficient to seal these materials in full. To the extent the parties seek to seal the briefs and certain exhibits in their entirety, the motions will be denied. Because it appears that the briefs and exhibits do contain some confidential information appropriate to redact, the Court will allow the parties additional time to file redacted versions with appropriate motions supported by evidence.

1. Standard

“[T]he courts of this country recognize a general right to inspect and copy ... judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). “The operations of the courts and the judicial conduct of judges are matters of utmost public concern,” Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 839, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), and the public's business is best done in public.

This right of public access derives from the First Amendment as well as the common law. Va. Dep't of State Police v. Washington Post, 386 F.3d 567, 575 (4th Cir.2004). “While the common law presumption in favor of access attaches to all ‘judicial records and documents,’ the First Amendment guarantee of access has been extended only to particular judicial records and documents.” Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.1988) (internal citation omitted). In any given case, then, some court-filed “documents fall within the common law presumption of access, while others are subject to the greater right of access provided by the First Amendment. Still others may not qualify as ‘judicial records' at all.” United States v. Moussaoui, 65 Fed.Appx. 881, 889 (4th Cir.2003) (citing United States v. Amodeo, 44 F.3d 141, 145–46 (2d Cir.1995)).

“Judicial records” are “documents filed with the court [that] play a role in the adjudicative process, or adjudicate substantive rights.” In re Application of United States for an Order Pursuant to 18 U.S.C. Section 2703(d), 707 F.3d 283, 290 (4th Cir.2013). Applying that definition, the Fourth Circuit recently held that motions for a court order to obtain records of stored electronic communications brought pursuant to 18 U.S.C. § 2703(d) are judicial records “because they were filed with the objective of obtaining judicial action or relief pertaining to § 2703(d) orders.” Id. Conversely, the Fourth Circuit has held in an unpublished opinion that “raw fruits of discovery” filed in connection with a motion to dismiss were not judicial records because they were not considered by the court in adjudication of the motion; therefore, the court held, they are not protected by a common law right of access. In re Policy Mgmt. Sys. Corp., Nos. 94–2254, 94–2341, 67 F.3d 296 (table), 1995 WL 541623, at *3–4 (4th Cir. Sept. 13, 1995).

When a party makes a request to seal judicial records, a district court “must comply with certain substantive and procedural requirements.” Washington Post, 386 F.3d at 576. Procedurally, the district court must (1) give the public notice and a reasonable opportunity to challenge the request to seal; (2) “consider less drastic alternatives to sealing”; and (3) if it decides to seal, make specific findings and state the reasons for its decision to seal over the alternatives. Id. “As to the substance, the district court first must determine the source of the right of access with respect to each document, because only then can it accurately weigh the competing interests at stake.” Id. (internal quotation marks and alteration omitted).

2. Analysis

In the motions to seal, the parties request that this Court allow them to file under seal (1) Plaintiffs' Memorandum of Law in Support of Motion for Class Certification with Respect to Particular Issues, (Doc. 69); (2) exhibits A, B, C, D, E, L, and M to Plaintiff's Memorandum, (Docs. 69–1 to 69–5, 69–12, 69–13); (3) Defendant's Opposition to Plaintiffs' Motion for Class Certification with Respect to Particular Issues, (Doc. 78); and (4) two affidavits filed in support of Defendant's Opposition, (Docs. 80, 81). ( See Docs. 70, 74.)

As an initial matter, the Court notes that the instant motions to seal have been publicly docketed since their dates of filing on January 18, 2013, and February 4, 2013. (Docs. 70, 74.) Any interested party therefore has had sufficient time to seek intervention to contest any sealing order, but the docket reflects no such action. Notice was given of the February 20, 2013 hearing, (Doc. 76), and no interested party came forward. Accordingly, the Court concludes that, as to each of the motions at issue, the “public notice” prerequisite to entry of a sealing order has been satisfied. See Stone, 855 F.2d at 181 (discussing use of docketing to comply with procedural requirements for sealing).

Next, the Court must determine whether the materials at issue are judicial records. The Fourth Circuit has not determined explicitly whether documents filed in support of motions for class certification are judicial records. However, such motions certainly “play a role in the adjudicative process.” See In re Application, 707 F.3d at 290. A motion for class certification is filed with the objective of seeking judicial action, and the question of class certification affects the parties' substantive rights. See id. “The certification of a suit as a class action has important consequences for the unnamed members of the class,” Sosna v. Iowa, 419 U.S. 393, 399 n. 8, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and the denial of such certification “stands as an adjudication of one of the issues litigated,” as it has a direct effect on the resolution of the merits. Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 336, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980).

Moreover, even before the Fourth Circuit's recent decision clarifying the definition of “judicial records,” at least one district in this circuit concluded that such class certification documents are judicial records subject to the common law right of access. Harris v. Smithfield Packing Co., No. 4:09–CV–41–H, 2010 WL 4877144, at *1 (E.D.N.C. Nov. 24, 2010); Mitchell v. Smithfield Packing Co., No. 4:08–CV–182–H, 2010 WL 4877054, at *1 (E.D.N.C. Nov. 24, 2010). The Court concludes that the briefs and exhibits relied upon or considered by the Court in deciding Plaintiffs' motion for class certification are judicial records. Because the documents are judicial records, the common law presumption of access, at a minimum, attaches to these documents.

There does not appear to be a First Amendment right of access to these materials. Class actions are a creature of the Federal Rules of Civil Procedure, and were not explicitly authorized until 1938. 1 William B. Rubenstein, Newberg on Class Actions § 1:13 (5th ed. 2012); see In re Application, 707 F.3d at 291–92 (requiring both the “experience” and “logic” prongs be met to establish a First Amendment right of access and holding that the experience prong is not met when the proceedings at issue arise under a statute enacted in 1986). The Court has located no case finding a First Amendment right of access to class certification briefing and exhibits, and the Court will not find such a right today. See Washington Post, 386 F.3d at 580 (noting that the Fourth Circuit has never recognized a First Amendment right of access to the non-dispositive civil motion process).

Since the common law right of access attaches to the documents, the Court next must determine whether the parties have overcome the presumption of access. “To substantively overcome the common law presumption of access ..., a court must find that there is a ‘significant countervailing interest’ in support of sealing that outweighs the public's interest in openness.” In re Application, 707 F.3d at 293 (quoting Under Seal v. Under Seal, 326 F.3d 479, 486 (4th Cir.2003)). The burden of establishing such a countervailing interest is on the party seeking to keep the material secret. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.1988).

In evaluating whether a party has met its burden to overcome the public's right of access, the court should consider “the interests advanced by the parties in light of the public interest and the duty of the courts.” Nixon, 435 U.S. at 602, 98 S.Ct. 1306. As the Nixon Court noted, “access has been denied where court files might have become a vehicle for improper purposes,” such as using court records to gratify private spite, to promote public scandal, or as “sources of business information that might harm a litigant's competitive standing.” Id. at 598, 98 S.Ct. 1306.

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