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Benedict v. Hankook Tire Company Ltd.

United States District Court, E.D. Virginia, Richmond Division

June 14, 2018



          Robert E. Payne, Senior United States District Judge

         This 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.


         In this 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.

         I. Pre-Trial Confidentiality Orders

         Because 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.

         On 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 Parties;
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 commercial disadvantage;
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.

         Protective 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.

         The 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 ....

         Protective 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).

         The 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.

         The 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).[1]

         II. Trial Confidentiality Protections & Defendants' Motion

         Neither 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).[2]

         That 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 stated:

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 binders.

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.[3]

         Hence, 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.

         III. Defendants' Materials

         As 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.

         As to 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.[4] 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 presented.[5]

         IV. The Intervention of Ronnie L. Crosby

         On 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.[6] 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.


         I. The Public's Right of Access to Judicial Records

         It is 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.").

         II. The Common Law Right

         "The 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).

         "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 (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: " [1] whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; [2] whether release would enhance the public's understanding of an important historical event; and [3] 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.

         Ill. The First Amendment Right

         The 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.

         It 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 580-82.

         IV. Judicial Records & The Applicable Rights

         For 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 .[7]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 First ...

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