United States District Court, W.D. Virginia, Roanoke Division
CARLA A. CLEHM formerly Blankenship, Plaintiff,
BAE SYSTEMS, INC., et al., Defendants.
S. Ballou United States Magistrate Judge
BAE Systems, Inc., moved the court to place exhibit 6 to
plaintiff, Carla A. Clehm's, second motion to compel
discovery, enlarge time to complete discovery, and continue
trial, under permanent seal. Dkt. No. 120. BAE states that
exhibit 6 contains “information and documents from
confidential personnel materials regarding BAE and OSI
employees who are not parties to the case.” BAE further
states that Clehm does not object to placing exhibit 6 under
seal because the Agreed Protective Order between the parties
provides that documents, such as exhibit 6, labeled HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY would not be publicly
accessible beyond the court and counsel. Having reviewed the
motion, it is hereby ORDERED that BAE's motion is GRANTED
IN PART AND DENIED IN PART as set forth below.
Rule 9 requires that a party seeking to seal documents
provide the court with “the non-confidential reasons
why sealing is necessary, including the reasons why
alternatives to sealing are inadequate.” W.D. Va. Gen.
R. 9. In its motion to seal, BAE seeks to permanently seal
exhibit 6 in its entirety, asserting that it is an internal
personnel document regarding BAE's investigation of a
workplace issue “completely unrelated to the events of
this case.” D's Mot. at 3, Dkt. No. 120. BAE
maintains that none of the employees interviewed or
investigated due to the events referred to in exhibit 6 are
parties to this case, and that allowing the public to access
the documents would subject those employees to embarrassment.
Finally, BAE maintains that no alternative to sealing would
adequately protect the privacy of BAE or the BAE non-party
common law presumes a right to inspect and copy judicial
records and documents. In Re U.S. for an Order Pursuant
to 18 U.S.C. 2703(D), 707 F.3d 283, 290 (4th Cir. 2013).
This common law presumption of access may be overcome if
competing interests outweigh the interest in access. See
id.; Rushford v. New Yorker Magazine, Inc., 846
F.2d 249, 253 (4th Cir. 1988) (“The party seeking to
overcome the presumption bears the burden of showing some
significant interest that outweighs the presumption.”);
In re Washington Post Co., 807 F.2d 383, 390 (4th
Cir. 1986); see also Doe v. Pub. Citizen, 749 F.3d
246, 266 (4th Cir. 2014) (quoting Stone v. Univ. of Md.
Med. Sys. Corp., 855 F.2d 178 (4th Cir. 1988)) (holding
that the court should abrogate the right of public access to
judicial documents only in “unusual
6 is filed with a non-dispositive motion to compel, enlarge
time for discovery, and continue trial, thus the common law
presumption in favor of access likely applies to these
documents. See Covington v. Semones, 7:06 CV
00614, 2007 WL 1170644, at *2 (W.D. Va. Apr. 17, 2007)
(“In this instance, as the exhibits at issue were filed
in connection with a non-dispositive motion, it is clear
there is no First Amendment right of access.”).
a court must comply with certain procedural requirements when
presented with a request to seal judicial records or
documents. Va. Dep't of State Police, 386 F.3d
at 576. The court must first give public notice of the
request to seal and a reasonable opportunity to challenge it.
Id. The court must also consider less drastic
alternatives to sealing. If the court decides to seal, it
must state the reasons for its decision to seal supported by
specific findings, and the reasons for rejecting alternatives
to sealing. Id.
docketing of BAE's motion to seal satisfies the
“public notice” element of the procedural portion
of the Fourth Circuit's sealing standard. See
Stone, 855 F.2d at 181. The “public opportunity to
challenge” requirement is met when the court allows
sufficient time for objections to be made. See Erichsen
v. RBC Capital Mkts. LLC, 883 F.Supp.2d 562, 575 (E.D.
N.C. 2012); Honeycutt v. City of Rockingham, North
Carolina, No. 1:09cv912, 2012 WL 360027 at *1 (M.D. N.C.
Feb. 2, 2012).
motion to seal is insufficient to overcome the common law
right of access so as to justify permanent sealing of exhibit
6 in its entirety. BAE has not shown the “unusual
circumstances” required to abrogate the right of public
access, nor has it shown that its interest in sealing heavily
outweighs the public's interest in access. See Pub.
Citizen, 749 F.3d 246 at 265- 66 (noting that public
access promotes public monitoring of the courts and the
integrity of the judiciary)(citations omitted). I recognize
that the documents at issue contain sensitive personnel
materials of non-parties; however, I find that redacting
employee names and other identifiers adequately protects
cites to Reyazuddin v. Montgomery Cty., Md. 7
F.Supp.3d 526, 560 (D. Md. 2014), aff'd in part,
rev'd in part and remanded sub nom. Reyazuddin v.
Montgomery Cty., Maryland, 789 F.3d 407 (4th Cir. 2015)
and Brown v. Siemens Healthcare Diagnostics, Inc.
No. CIV.A. DKC 11-0769, 2012 WL 3136457, at *12 (D. Md. July
31, 2012) as support for its claim that courts have
“repeatedly recognized that personnel records of
non-parties” are appropriately placed under seal. In
Reyazuddin, 7 F.Supp.3d at 560, the court noted that
the documents included applicants' ratings, resumes, and
offers of employment, while in Brown the court
referenced “sensitive information-such as birthdates,
salaries, and background information- about
non-parties.” In contrast, the documents here do not
contain this type of common employee information; rather,
Clehm argues in her motion to compel discovery that the
information contained in exhibit 6 offers evidence of a
sexually hostile workplace, which is relevant to the claims
alleged in the lawsuit. Further, the information contained in
exhibit 6 is discussed at length and in detail in Clehm's
motion - which BAE does not seek to seal. See Brown,
2012 WL 3136457, at *12 (noting that because information
contained is discussed in the parties memoranda as well as
other exhibits, “sealing these underlying documents
would, therefore, serve no purpose”); see also
Butler v. DirectSAT USA, LLC, 876 F.Supp.2d 560, 577 (D.
Md. 2012). However, redacting employee names and other
identifiers, including their particular work locations within
the facility, from exhibit 6 achieves the relief sought by
BAE in its motion; namely, to avoid embarrassment and protect
the privacy of the referenced employees.
the mere fact that documents have been designated as
confidential in discovery pursuant to a protective order is
not sufficient to justify the sealing of those documents when
submitted to the court in conjunction with a motion. See
Rushford, 846 F.2d at 252 (finding that the protective
order was entered to facilitate pre-trial discovery, and
noting that “such discovery, which is ordinarily
conducted in private, stands on a wholly different footing
than does a motion filed by a party seeking action by the
court”); Butler v. DirectSAT USA, LLC, 876
F.Supp.2d 560, 576 n. 18 (D. Md. 2012); Waterkeeper
Alliance, Inc. v. Alan & Kristin Hudson Farm, 278
F.R.D. 136, 140-42 (D. Md. 2011).
the protective order attached to BAE's motion to seal
does not mandate that information or documents designated
“Confidential” or even “Highly confidential
- attorneys' eyes only” must be sealed by the
court. The protective order states:
Nothing in this Order shall be construed as permitting the
prospective filing of documents under seal. Any party seeking
to file any papers designated as “Confidential”