United States District Court, W.D. Virginia, Harrisonburg Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
RLI Insurance Company ("RLI") filed a motion to
seal its motion for second preliminary injunction. ECF No.
92. Per communications with the court and all parties,
defendant Nexus Services, Inc. ("Nexus") does not
object to RLI's motion to seal. The court will
TAKE UNDER ADVISEMENT the motion to seal.
Rule 9 requires a party seeking to seal documents to provide
the court with "the non-confidential reasons why sealing
is necessary, including the reasons why alternatives to
sealing are inadequate." W.D. Va. Local R. 9. RLI
explained that this court's preliminary injunction order
prohibits disclosure of information obtained from the
injunction, and that Federal Rule of Civil Procedure 65
requires motions for preliminary injunction to be supported
by evidence. ECF No. 92, at 1-2. RLI notes that Local Rule 9
states: "[p]ortions of a document cannot be filed or
placed under seal-only the entire document may be
sealed." Id. at 2.
common law presumes a right to inspect and copy judicial
records and documents. See In Re U.S. for an Order
Pursuant to 18 U.S.C. Section 2703(D). 707 F.3d 283, 290
(4th Cir. 2013). This presumption of access may be overcome
if competing interests outweigh the public's interest in
access. See id.: Rushford v. New Yorker
Magazine, Inc.. 846 F.2d 249, 253 (4th Cir. 1988);
In re Wash. Post Co.. 807 F.2d 383, 390 (4th Cir.
1986). The common law right of access is buttressed by the
"more rigorous" right of access provided by the
First Amendment, which applies to a more narrow class of
documents, including documents "made part of a
dispositive motion" in a civil case. See Va.
Dep't of State Police v. Wash. Post 386 F.2d 567,
576 (4th Cir. 2004) (citing Rushford. 846 F.2d at
252). If a court record is subject to the First Amendment
right of public access, the record may be sealed "only
on the basis of a compelling governmental interest, and only
if the denial is narrowly tailored to serve that
interest." Stone v. Univ. of Md. Med. Sys.
Corp.. 855 F.2d 178, 180 (4th Cir. 1988) (citing
Rushford. 846 F.2d at 253).
the First Amendment and the common law provide different
levels of protection, it is necessary to determine the source
of the right of access before a court can accurately weigh
the competing interests at stake. See Va. Dep't of
State Police, 386 F.3d at 576. Here, RLI pursues sealing
a motion for preliminary injunction and its supporting
memorandum, declarations, and exhibits. Accordingly, the more
stringent First Amendment right of public access applies. See
Ctr. for Auto Safety v. Chrysler Grp.. LLC. 809 F.3d
1092, 1103 (9th Cir. 2016) ("Due to the strong
presumption for public access and the nature of the instant
motion for a preliminary injunction, Chrysler must
demonstrate compelling reasons to keep the documents under
seal."); Publicker Indus.. Inc. v. Cohen, 733
F.2d 1059 (3rd Cir.1984) (finding a First Amendment right of
access to preliminary injunction proceedings); Bayer
Cropscience Inc. v. Syngenta Crop Prot. LLC, 979
F.Supp.2d 653, 656 (M.D. N.C. 2013) ("The Court
concludes that the briefing and exhibits filed in connection
with motions seeking injunctive relief are subject to the
public's First Amendment right of access.").
overcome the First Amendment right of access, the party
seeking to keep the information sealed must present specific
reasons to justify restricting access to the information. See
In re Knight Pub. Co.. 743 F.2d 231, 234 (4th Cir.
1984); see also Press-Enter. Co. v. Super. Court of
Cal, 478 U.S. 1, 15 (1986) ("The First Amendment
right of access cannot be overcome by [a] conclusory
assertion."). The court also must comply with certain
procedural requirements when presented with a request to seal
judicial records or documents. See 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. Id.
If the court decides to seal, it must state the reasons for
its decision supported by specific findings, and the reasons
for rejecting alternatives to sealing. Id
requests that its motion for second preliminary injunction,
memorandum in support, and supporting declarations and
exhibits be placed under seal. RLI Vice President of Surety
Claims Ira E. Sussman, RLI Claims Examiner Laura Piispanen,
and forensic accountant Peter Fascia submitted declarations
in support of die motion. Ms. Piispanen's declaration
includes three attached exhibits: (1) a September 28, 2018
letter addressed to her from die U.S. Department of Homeland
Security, with the attachment of a complaint filed by Nexus
and others against the government in federal court; (2) an
October 5, 2018 letter sent by RLI's counsel to
Nexus' counsel regarding a demand for exoneration; and
(3) an October 10, 2018 letter in response from Nexus'
counsel to RLI's counsel, with the attachments of a
partially redacted decision by an immigration judge and a
highlighted copy of U.S. Immigrations and Customs
Enforcement's Bond Management Handbook.
docketing of RLI's motion to seal constitutes
"public notice." 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 Millennium Inorganic Chems.
Ltd. v. Nat'l Union Fire Ins. Co.. 893 F.Supp.2d
715, 743 (D. Md. 2012); Erichsen v. RBC Capital Mkts.
LLC. 883 F.Supp.2d 562, 575 (E.D. N.C. 2012);
Honeycutt v. City of Rockingham. N.C. . No.
I:09cv912, 2012 WL 360027, at *1 (M.D. N.C. Feb. 2, 2012)
(finding that ten days on the public docket was a sufficient
time for objections to be made to a motion to seal). Here,
RLI's motion to seal was filed on October 22, 2018, which
was done "reasonably in advance of [this Court] deciding
the issue" one week later. See In re Knight Pub.
Co.. 743 F.2d 231, 235 (4th Cir. 1984).
RLI has not demonstrated that less drastic alternatives are
unavailable. The court understands why RLI moved to seal this
motion and documents given that the information in the motion
resulted from the first preliminary injunction's
disclosures. However, the court's purpose of the
protective order was to protect against the disclosure of
Nexus' clients highly personal and sensitive information.
The papers filed by RLI appear to almost exclusively rely on
Nexus' financial information from the preliminary
injunction disclosures. In these papers, there appears to
only be a stray reference to the name of one client in an
attachment to Ms. Piispanen's declaration. This reference
could be redacted and could comply with the First
Amendment's public disclosure requirements for a
dispositive motion such as this one. Neither party has
explained why less drastic alternatives would not suffice to
protect their or their clients' interests in
confidentiality, such as the submission of redacted
declarations and exhibits. Reliance on the preliminary
injunction order alone is insufficient.
the documents and information referenced in RLI's motion
generally do not impose upon the privacy of Nexus'
clients, or otherwise obviously implicate the First Amendment
right of access, the court cannot state reasons in support of
why the motion and supporting memorandum, declarations, and
exhibits should be sealed in their entirety. Neither RLI nor
Nexus have provided sufficient justification for sealing this
information in its entirety either, or addressed whether the
First Amendment is the appropriate standard to apply here.
Cfi King Coal Chevrolet Co. v. Gen. Motors Co.. No.
CIV.A. 2:12-5992, 2012 WL 5265913, at *2 (S.D. W.Va. Oct. 23,
2012) ("[N]o discussion is offered by defendants
concerning whether the First Amendment right of public access
extends to documents submitted in connection with a
preliminary injunction motion.").Overall, RLI has not
offered a factual basis upon which the court can make
specific factual findings justifying sealing and showing that
alternatives to sealing would be insufficient, as required by
the court will TAKE UNDER ADVISEMENT RLFs
motion to seal. ECF No. 92. The Clerk will be
DIRECTED to temporarily seal RLFs motion and
supporting documents. RLI and Nexus will have
fourteen (14) days from the date of this
opinion to submit a supplemental submission setting forth:
(1) specific factual representations to justify sealing the
motion, memorandum, declarations, and exhibits, and an
explanation of why alternatives to sealing would not provide
sufficient protection, keeping in mind the First Amendment
right of access set forth above; (2) redacted copies of the
motion, memorandum, declarations, and exhibits along with
specific representations as to why the particular redactions
are necessary; or (3) notice that RLI is withdrawing the
exhibits from ...