C. Discovery materials
A right of access does not attach to discovery materials exchanged between parties. However, a First Amendment right of access attaches to discovery materials that are submitted in connection with a dispositive motion. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988). In Virginia Department of State Police v. Washington Post, 386 F.3d 567 (4th Cir. 2004), the district court assumed that the public had a First Amendment right of access to discovery records that were filed in connection with pretrial discovery motions, including a motion to quash, a motion to compel and a motion to lift protective orders. On appeal, the Fourth Circuit noted that it was “not at all convinced that this is a correct assumption” and remanded for further consideration of the source of the right of access, as well as the sufficiency of the claimed reason for sealing. On remand, the district court held that the discovery materials were subject to a common law, but not a First Amendment, right of access that was partially overcome to protect the integrity of an ongoing investigation. See Washington v. Bruraker, No. 3:02-cv-00106, 2015 WL 6673177 (W.D. Va. Mar. 29, 2015).
In the absence of a definitive decision from the Fourth Circuit, district courts have reached different conclusions about the source of the right of access to discovery materials. Compare id. (common law) and Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847, *1 n.1 (S.D.W. Va. July 8, 2015) (applying good cause standard) with Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (“Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to non-dispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.”). Some district courts in the Fourth Circuit have even suggested that no right of access attaches to discovery materials filed in connection with discovery motions, on the theory that discovery motions are merely procedural and do not affect substantive rights. See Sky Angel U.S., LLC v. Discovery Commc'ns, LLC, 28 F. Supp. 3d 465, 489 n.8 (D. Md. 2014); United States v. Johnson, No. 12-cv-1349, 2014 WL 12787211, *3 (M.D.N.C. Feb. 10, 2014). But see Washington, 2015 WL 6673177 at *4-8. Such a conclusion is at odds with In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283 (4th Cir. 2013), in which the Fourth Circuit held that a document is a judicial record if it adjudicates substantive rights or “plays a role in the adjudicative process.”
Private documents collected during discovery are not judicial records, and, therefore, the common law right of access does not attach to them. R.W. v. Hampe, 626 A.2d 1218, 1224 n.8 (Pa. Super. 1993); see also Kurtzman v. Hankin, 714 A.2d 450, 452-53 (Pa. Super. 1998) (“[T]here is no presumptive right to discovery material.”); Stenger, 554 A.2d at 958 (“access rights to litigation are at their nadir” during the discovery phase). However, once those discovery materials are filed with the court or used at trial, they are subject to the presumptive right of access. Commonwealth v. Long, 922 A.2d 892, 898 (Pa. 2007).