United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge
matter is before the Court on HANKOOK TIRE COMPANY
LIMITED'S AND HANKOOK TIRE AMERICA COMPANY'S MOTION
TO SEAL CONFIDENTIAL EXHIBITS, TRIAL TRANSCRIPTS, AND JURY
INSTRUCTION (ECF No. 433). For the following reasons, the
motion will be denied.
products liability action, Robert Benedict sued Hankook Tire
Company Limited ("HTCL") and Hankook Tire America
Corporation ("HTAC") for the production and
distribution of an allegedly defective tire. A jury trial was
held from March 5, 2018 to March 9, 2018. Defendants'
motion seeks to seal trial exhibits, portions of the trial
transcript, and part of one jury instruction.
Pre-Trial Confidentiality Orders
this action is based on allegations that Defendants produced
a defective tire, it implicated Defendants' confidential
product-related information. Accordingly, the Court took
several actions before trial to protect that information.
April 10, 2017, the Court signed the parties' STIPULATED
PROTECTIVE ORDER OF CONFIDENTIALITY GOVERNING CONFIDENTIAL
INFORMATION (ECF No. 26) [hereinafter Protective Order]. That
ORDER was based upon the following findings of fact:
1) This action will require the production and use of
documents that contain confidential information of the
2) A protective order is necessary in this action to protect
the Parties' confidential information because disclosure
of such information to the public would put the Parties at a
3) The Parties [sic] interest in sealing confidential
information outweighs the public's common law interest in
access to such documents based on the following:
(a) If confidential documents are not sealed, they could be
utilized by competitors of the Parties to gain an unfair
business advantage; and
(b) The public does not already have access to the
Parties' confidential information;
4) This Protective Order is narrowly tailored to serve the
Parties' interest in protecting their confidential
information in that:
(a) The Protective Order only provides for the sealing of
material that contain [sic] confidential information; and
(b) The Protective Order provides that where only parts of
materials contains [sic] confidential information, only those
parts of the materials are subject to the Protective Order;
5) There are no less drastic alternatives to the sealing of
confidential documents as provided in the Protective Order.
Order 1-2. The Protective Order permitted the parties to
designate as "confidential information" "any
information believed in good faith to be sensitive personal
information, proprietary or confidential research,
development, or commercial information." Protective
Order 2. Confidential information was defined to include
"information that constitutes confidential research,
development or proprietary business information that a) is
not generally available to others, b) is not readily
determinable from other sources, c) has been treated as
confidential by the Parties; and d) is reasonably likely to
lead to competitive injury if disclosed." Protective
Order 3. Information designated as confidential was to be
held in confidenence and disseminated to a limited set of
persons. Protective Order 5-7. The Protective Order also
created procedures for challenging the parties'
designations by those who receive purportedly confidential
information. Protective Order 8.
Protective Order broadly covered, inter alia,
"all information and materials produced formally;
informally; in any . . . document . . . brief, motion,
transcript, testimony, or other writing; or through any
manner or means of discovery or disclosure in the
lawsuit." See Protective Order 2-3. The
Protective Order also addressed trial testimony:
If such CONFIDENTIAL INFORMATION is contained or given in any
deposition testimony, trial testimony or any other testimony,
the transcript may be designated as containing CONFIDENTIAL
INFORMATION in accordance with this Protective Order of
Confidentiality by notifying the parties on the record at the
time the testimony is given, or in writing within thirty (30)
days of receipt of the transcript ....
Order 4. Finally, it contemplated encompassing other trial
materials, stating that confidential information only may be
shown, inter alia, to "[t]he Court, its staff,
witnesses and jury in this Lawsuit."
See Protective Order 5 (emphasis added).
Protective Order, however, was self-limiting. It stated that
it "is without prejudice to a later determination
regarding confidentiality at trial of documents declared
'confidential' pursuant to this Order."
Protective Order 5.
Court also granted several motions, by both parties, to seal
exhibits filed with the briefing on various pre-trial
motions, including summary judgment motions. These Orders
were all granted "for good cause shown, and the
requirements of Local Civil Rule 5 and the decisions in
Ashcraft, et al. v. Conoco, Inc., 218 F.3d 288 (4th
Cir. 2000), In re Knight Publishing Co., 743 F.2d
231 (4th Cir. 1984) and Stone v. Univ. of Maryland,
855 F.2d 178 (4th Cir. 1988) having been met." (ECF Nos.
70, 71, 120, 121, 210, 211, 212, 213, 214, 215, 216, 217,
218, 219, 319, 320, 323, 324, 325, 326).
Trial Confidentiality Protections &
party, however, moved to seal any trial exhibits,
testimony, or other materials before or at the jury trial.
Rather, as explained by Defendants:
Because [Defendants' confidential information] was
already the [sic] subject to the Court's sealing orders
pursuant to Local Rule 5 and would not [sic] placed in the
record prior to trial, the Parties agreed that the mechanism
to ensure that Hankook's confidential information remain
protected was to "file a motion to seal after the trial
to have certain trial exhibits and portions of the trial
transcript placed under seal."
Defs.' Br. 2 (citations omitted).
agreement was initiated by Plaintiff on March 1, 2018, four
days before the jury trial was set to commence. See
Defs.' Br. Ex. A 1. In an e-mail to Defendants, Plaintiff
Given these are not being filed via ECF, we are not planning
on taking on measures to seal them prior to trial. I'm
guessing the proper mechanism would be to file a motion to
seal after the trial to have certain trial exhibits and
portions of the trial transcript placed under seal. Are you
in agreement? I just do not want [sic] run into any alleged
violation of the protective order by submitting our exhibit
Defs.' Br. Ex. A 1. Defendants represent that they
"agreed to Plaintiff's proposal by telephone on the
same day the email was received" and that they
"received confirmation from Plaintiff during trial that
a motion to seal the trial exhibits would with [sic] filed
without objection." Defs.' Br. 2 n.l.
the jury trial proceeded without restrictions on attendance
or limitations on the presentation of information. And, on
March 9, 2018, all jury instructions were filed publicly in
the Court's electronic docket system. According to
Defendants, "[a]lthough the final trial exhibits and
Jury Instruction No. 27B were available on Friday, March 9,
2018, Hankook did not receive a complete copy of the
expedited trial transcript until late afternoon on Friday,
March 16, 2018." Defs.' Br. 6. Defendants filed the
present motion on Thursday, March 22, 2018.
noted above, Defendants seek to seal three types of
materials: (1) certain trial exhibits; (2) portions of the
trial transcript; and (3) part of jury instruction 27B.
Defs.' Br. 6-10. These materials are alleged to contain
proprietary and confidential tire production information.
See Defs.' Br. 6-10, 12-14.
the trial exhibits, although all the exhibits at issue in
Defendants' motion were admitted into evidence and
considered by the jury, only some were actually discussed or
displayed openly at trial. That is not standard practice; in
a typical case, exhibits Pl's Opp'n 2 n.l. Plaintiff
decided to oppose the motion to seal after trial but before
Defendants filed their motion, explaining that "after
reviewing the controlling authorities, counsel for Mr.
Benedict subsequently apprised counsel for Defendants, on
March 13, 2018, that Mr. Benedict believed the entirety of
the trial transcript should be left unsealed and would oppose
any effort to seal the trial transcript." See
Pl's Opp'n 2 n.l. are only deemed
"admitted" if they are used at trial, and unused
exhibits are considered withdrawn. No. party addressed the
distinction between used and unused exhibits, so the Court
does so here. The exhibits that were specifically presented
at trial include Defendants' exhibits 8, 9, 11, 12, 13,
and 15, and Plaintiff's exhibit 6. See Trial Tr. 169,
177, 471, 479, 525, 528, 530, 538, 558, 560, 571, 718;
see also Mar. 5, 2018 Minute Sheet; Mar. 6, 2018
Minute Sheet; Mar. 7, 2018 Minute Sheet; Mar. 8, 2018 Minute
Sheet; Mar. 9, 2018 Minute Sheet. The rest were not so
The Intervention of Ronnie L. Crosby
March 29, 2018, Ronnie L. Crosby, an attorney for a plaintiff
in a wrongful death action pending against Defendants in
South Carolina, moved to intervene and object to
Defendants' motion to seal. See Intervener's Br.
*l-4; see also Defs.' Intervenor Opp'n 1. By
ORDER (ECFNo. 473) dated May 9, 2018, the Court granted
Crosby's motion to intervene and ruled that it would
consider his papers in assessing Defendants' motion.
RELEVANT STANDARDS GOVERNING THE RESTRICTION OF ACCESS TO
The Public's Right of Access to Judicial Records
well-established that there exists a "right of public
access" to "judicial records." See In re
Application of the United States for an Order Pursuant to 18
U.S.C. Section 2703(D), 707 F.3d 283, 290 (4th Cir.
2013) [hereinafter In re Application] . That right
"derives from two independent sources: the First
Amendment and the common law." Id. "The
distinction between the rights of access afforded by the
common law and the First Amendment is 'significant, '
because the common law Moes not afford as much substantive
protection to the interests of the press and the public as
does the First Amendment.'" Id. (citations
omitted). However, "[r]egardless of whether the right of
access arises from the First Amendment or the common law,
itxmay be abrogated only in unusual
circumstances.' " Va. Dep't of State Police
v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004)
(citations omitted). Indeed, "even where . . . all of
the litigants support the motion to seal, and even where a
public hearing on the question does not bring forth anyone to
assert the right of access, a court must still engage in a
careful deliberation on the issue." Miles v. Ruby
Tuesday, Inc., 799 F.Supp.2d 618, 622 (E.D. Va. 2011);
see also E.D. Va. Loc. Civ. R. 5(C) [hereinafter
LCR] ("Agreement of the parties that a document or other
material should be filed under seal or the designation of a
document or other material as confidential during discovery
is not, by itself, sufficient justification for allowing a
document or other material to be filed under seal.").
The Common Law Right
common law presumes a right of the public to inspect and copy
'all *judicial records and documents.'"'
Va. Dep't of State Police, 386 F.3d at 575
(citations omitted). That right operates as a presumption of
access to "all judicial records and documents,
" which "can be rebutted if *the public's right
of access is outweighed by competing interests.'"
See In re Application, 707 F.3d at 290 (citations
omitted) . The burden is on the proponent of sealing. See
Level 3 Commc'ns, LLC v. Limelight Networks, Inc.,
611 F.Supp.2d 572, 577 (E.D. Va. 2009).
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 (citations omitted);
see also id. at 293 n.12; Va. Dep't of State
Police, 386 F.3d at 575. As the Fourth Circuit has
explained, in performing the common law balancing analysis:
[A] court may consider the following factors: " 
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." See In re
Application, 707 F.3d at 293 (citations omitted);
see also Va. Dep't of State Police, 386
F.3d at 575.
The First Amendment Right
Fourth Circuit has described the First Amendment right of
access in the following way:
In contrast to the common law, "the First Amendment
guarantee of access has been extended only to particular
judicial records and documents." When the First
Amendment provides a right of access, a district court may
restrict access "only on the basis of a compelling
governmental interest, and only if the denial is narrowly
tailored to serve that interest." The burden to overcome
a First Amendment right of access rests on the party seeking
to restrict access, and that party must present specific
reasons in support of its position.
Va. Dep't of State Police, 386 F.3d at 575
(citations omitted) . This Court has held, moreover, that, in
the First Amendment context, "the court must weigh and
balance the competing interests, much as it does in
connection with the common law right"; but, "a more
stringent standard governs." Level 3, 611
F.Supp.2d at 580-81.
appears that private interests may be
"compelling" for purposes of the First Amendment
analysis. See Doe v. Public Citizen, 749 F.3d 246,
269 (4th Cir. 2014); see also Level 3, 611 F.Supp.2d
at 580-82. For example, the Fourth Circuit has suggested that
"[a] corporation may possess a strong interest in
preserving the confidentiality of its proprietary and
trade-secret information, which in turn may justify partial
sealing of court records [under the First Amendment]."
Doe, 749 F.3d at 269; see also Woven Elecs.
Corp. v. Advance Grp., Inc., 930 F.2d 913, 1991 WL
54118, at *6 (4th Cir. 1991) (per curiam) (table). This Court
has reached similar conclusions. See Lifenet Health v.
Lifecell Corp., 2:13-cv-486, 2015 WL 12517430, at *1, 4
(E.D. Va. Feb. 12, 2015) [hereinafter Lifenet II];
Lifenet Health v. Lifecell Corp., 2:13-cv-486, 2015
WL 12516758, at *1 (E.D. Va. Jan. 9, 2015) [hereinafter
Lifenet I]; Adams v. Object Innovation,
Inc., 3:11-cv-272, 2011 WL 7042224, at *4 (E.D. Va. Dec.
5, 2011), adopted, 2012 WL 135428, at *1 (E.D. Va.
Jan. 17, 2012); ReqScan, Inc. v. Bureau of Nat'l
Affairs, Inc., 1:11-cv-1129, 2011 WL 5239221, at *2-3
(E.D. Va. Nov. 1, 2011); Level 3, 611 F.Supp.2d at
Judicial Records & The Applicable Rights
either the common law or First Amendment right of access to
attach at all, the materials at issue must, at minimum, be
"judicial records." In re Application, 707
F.3d at 290-91. The Fourth Circuit has held that "it is
commonsensical that judicially authored or created documents
are judicial records" and that "documents filed
with the court are 'judicial records' if they play a
role in the adjudicative process, or adjudicate substantive
rights . " Id. at 290 .Judicial records include, at
minimum, documents in evidence at a public jury trial and
trial transcripts. See Synqenta Crop Prot., LLC v.
Willowood, LLC, l:15-cv-274, 2017 WL 6001818, at *2
(M.D. N.C. Dec. 4, 2017); Lifenet II, 2015 WL
12517430, at *2; Level 3, 611 F.Supp.2d at 577-79;
see also Va. Dep't of State Police, 386 F.3d at
577; Woven, 1991 WL 54118, at *6; Rambus, Inc.
v. Infineon Techs. AG, 3:00-cv-524, 2005 WL 1081337, at
*2-3 (E.D. Va. May 6, 2005). It is also clear that both the