No Sealing of Dupont Documents in Toxic Tort Case

From Wednesday's decision by Judge Robert Numbers (E.D.N.C.) in Dew v. E.I. Dupont de Nemours & Co.:

Plaintiffs, current and former residents of southeastern North Carolina, claim that Defendants contaminated the Cape Fear River with toxic chemicals. After conducting discovery, Defendants asked the court to grant summary judgment in their favor. A part of summary judgment briefing, the parties filed a wealth of documents and information, some of which Defendants claim contained sensitive business information.

Defendants … sought to keep 36 documents under seal. Defendants said, in conclusory fashion, that each document should be kept under seal because they contained some combination of confidential, sensitive, and non-public business information. They also noted that each of the documents had been designated as Confidential or Highly Confidential under the protective order entered by the court. But beyond that, Defendants provided neither substantive argument, nor evidence in support of their motion….

As with all aspects of the federal government, the federal courts belong to the People of the United States. As a result, the public has "a general right to inspect and copy … judicial records and documents." Allowing public access to judicial records advances the public's "interest in ensuring basic fairness and deterring official misconduct not only in the outcome of certain proceedings, but also in the very proceedings themselves."

But the public's "right to inspect and copy judicial records is not absolute." "Every court has supervisory power over its own records and files," and can deny the public access to those records and files when they may be used "for improper purposes." …

The documents Defendants wish to keep under seal were filed in connection with a summary judgment motion. Thus, the public's right of access arises out of the First Amendment. To overcome the public's First Amendment right of access, the moving party must show that the denial of access is "necessitated by a compelling government interest and 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."

Defendants claim that the court should grant their motion because the documents they wish to keep under seal contain "confidential and sensitive business information … that is not generally available to the public[.]" They assert that "[i]f the information were to become public, it would irreparably harm Defendants' competitive standing."

Courts have found that a party's interest in protecting confidential business information or trade secrets can overcome the public's First Amendment right to access those documents. See Doe v. Pub. Citizen (4th Cir. 2014) ("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."); Clemmons Farming, Inc. v. Silveus Se., LLC (E.D.N.C. 2024) (granting motion to seal business information for internal consumption only and internal evaluations of defendant's personnel); Dynatemp Int'l, Inc. v. R421A, LLC (E.D.N.C. 2021) (granting motion to seal sales results, revenues, customer preferences and behaviors).

But to be entitled to have documents kept under seal, a party must do more than just assert that those documents contain sensitive business information—they must prove it…. [T]he moving party must "make a particular and specific demonstration of fact showing that disclosure would result in an injury sufficiently serious to warrant protection; broad allegations of harm unsubstantiated by specific examples or articulated reasoning fail to satisfy the test.

Defendants have not met this standard. They repeatedly state, in conclusory fashion, that the documents they want to place under seal include non-public, confidential, and sensitive business information. But they never provide any evidence supporting that claim. Nor do they show how they would be harmed by public disclosure of this information. Courts require more than conclusory assertions before granting a motion to seal.

Defendants point out that they designated the documents as Confidential or Highly Confidential under a protective order entered by the court. But this designation has little to no bearing on whether it is appropriate to limit the public's access to that document once it has been submitted to the court in connection with a motion. The protective order says as much[:] … "The filing of the materials under seal shall not be binding on the Court, however." …

The standard a party must satisfy before being granted a protective order differs by an order of magnitude from the standard a party must satisfy to keep judicial documents out of the public eye…. "[D]iscovery, 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." … The former standard is satisfied by a showing of good cause. While the latter category requires a showing of either that "countervailing interests heavily outweigh the public interests in access" or a compelling governmental interest and narrow tailoring, depending on the source of the public's right to access. And the "reasons for granting a protective order to facilitate pre-trial discovery may or may not be sufficient to justify proscribing" public access to judicial documents. So whatever weight a unilateral decision to designate a document as confidential carries, it is not enough, by itself, to justify permanently sealing that document….

Were the court to grant a contested motion to seal on a record this sparse, it would be reducing the First Amendment's protection of the public's right of access to little more than a parchment barrier. The court declines to do so and thus denies Defendants' motion to seal….

The materials at issue, however, will remain under seal for 14 days from entry of this order to allow either party to seek review of this order by a United States District Judge. If either party seeks review, the materials will remain under seal until it is resolved. If neither party seeks review within the time allowed, the Clerk of Court shall unseal those documents without further order from the court.

Brett Land, Cary McDougal, Stephen Johnston & Cristina Sanchez (Baron & Budd, P.C.) and J. Harold Seagle represent plaintiffs.

Comments

[Dr. Ed 2]

This is why universities immediately settle any case that makes it past the initial motion to dismiss -- they don't want the public to know just how badly they screwed the student who is suing them.

[David Nieporent]

They don't and it isn't.

[Satchmo_Lives]

Can DuPont settle now and have the records kept secret, or is it too late?

[John F. Carr]

The link goes to the summary judgment order (269). It was supposed to go to the sealing order (270).

https://storage.courtlistener.com/recap/gov.uscourts.nced.162457/gov.uscourts.nced.162457.270.0.pdf

[Eugene Volokh]

Whoops, fixed, thanks!

[SRG2]

Presumably Dupont appeal the order to the 4th Circuit appellate court, lose there, appeal to the SC, and win 6-3

[Daddyhill]

"...the federal courts belong to the People of the United States. As a result, the public has "a general right to inspect and copy … judicial records and documents."

Sounds about right. Of course this means that we all can expect the disclosure of at least some Supreme Court documents (unless all of them are classified as fodder for improper use). The Court does work for us after all, and we pay their salaries and perks and whatever else.

At the same time the Court is inordinately sensitive and jealous of its prerogatives, so I'm not holding my breath on this one. As a result of the Alito opinion leak the Court was able to deploy its own security force and other federal officials to find the leaker. They failed, but never mind. Leaking and pirating became much easier and more common once everybody accepted digital formats as gifts from on high that can improve our daily lives all the way up the stairway to heaven.

Depending on your point of view or your portfolio, you might wonder what happened to all the promises made to us that digital will create worldwide communities and promote honest and open dialogues. You might, and I do. What seems to have happened, rather, is that the global fortunate few made enormous amounts of money, as they always do. Meanwhile the rest of us spent a lot of money on hardware, software, and networks that we believed we had to upgrade every 2 or 3 years even though the stuff we already had worked well enough.

Looking at it that way, it's not difficult to understand why the courts resist moves towards transparency in the name of open government. Our courts sometimes seem to behave as their 17th century predecessors might have done. They might not be using grotesque or ludicrous wigs anymore, but they do insist on use of the honor-ific when one is addressing a judge. How is one to know that any given judge is, in fact, honorable? I have an honorific title too, it's Doctor, but I wouldn't be so foolish as to press that point in any courtroom I might find myself in. The courts will resist attempts to open their internal documents, and maybe that's for the best. I don't know. I do know that these people are all lawyers, and all lawyers have to manage their work products. In the case of these lawyers, however, we all are their clients, and clients have a right to look at their hired attorneys' work product.