D. Pre-trial motions and records
Complaints in civil actions qualify as judicial records to which a presumption of access attaches. Cross Creek Seed, Inc. v. Gold Leaf Seed Co., No. 1:16-cv-1432, 2018 WL 1116565, *3 (M.D.N.C. Feb. 26, 2018) (citing Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 140 (2d Cir. 2016)).
The United States has a compelling interest in protecting an ongoing fraud investigation in qui tam actions pursuant to the False Claims Act sufficient to overcome the public’s right of access. However, after the United States has decided to intervene, a litigant’s bare privacy interest is insufficient to justify continued sealing of a qui tam proceeding and its records. See Am. Civil Liberties Union v. Holder, 673 F.3d 245 (4th Cir. 2011); Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003); United States v. King Pharm., Inc., 806 F. Supp. 2d 833 (D. Md. 2011); Paradyme Mgmt., Inc. v. Curto, No. 8:17-cv-03687, 2018 WL 5013831, *3-4 (D. Md. Oct. 16, 2018).
Documents submitted in connection with a Rule 12(b)(6) motion to dismiss were held to not constitute judicial records for purposes of public access because the documents were excluded by the district court and thus did not play any role in the adjudicative process. See In re Policy Mgmt. Sys., 67 F.3d 296 (4th Cir. 1995) (per curiam); see also Washington v. Bruraker, No. 3:02-CV-00106, 2015 WL 6673177, *6-7 (W.D. Va. Mar. 29, 2015) (distinguishing In re Policy Mgmt. Sys.; “The situation changes dramatically, however, when such documents are offered in direct support of a request for action, even if the court ultimately disregards them . . . This Court holds that when documents are filed in support of any filing which the court actually considers, they constitute ‘judicial documents’ that would be subject to the common law right of access. It further holds that such documents are judicial no matter how trivial the requested action is.”).
Assuming without deciding that the First Amendment right of access applies to documents submitted in connection with a Rule 12(b)(1) motion to dismiss for lack of standing, the movant had a compelling interest in protecting the identities of its individual members and confidential donor information, and the proposed redactions were narrowly tailored to that information. See Students for Fair Admissions, Inc. v. Univ. of N.C., No. 1:14-cv-954, 2018 WL 4688388, *7 (M.D.N.C. Sept. 29, 2018).
In denying a motion to seal, a district court in the Fourth Circuit assumed without deciding that the public has a common law right of access in documents submitted in connection with a motion to amend the answer to the complaint. See Benjamin v. Sparks, No. 4:14-cv-186-D, 2018 WL 4113338, *5 (E.D.N.C. Aug. 28, 2018).
The public has a First Amendment right of access to summary judgment motions and accompanying exhibits, see Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir. 1988); Va. Dep't of State Police v. Wash. Post, 386 F.3d 567 (4th Cir. 2004), as well as memorandum opinions deciding summary judgment motions, see Company Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014); see also Hyatt v. U.S. Patent & Trademark Office, No. 1:14-cv-1300, 2015 WL 13036875 (E.D. Va. Nov. 30, 2015) (denying motion to seal memorandum opinion deciding summary judgment motion). The public’s interest in accessing summary judgment exhibits is particularly significant where the exhibits are important to the court’s decision and are the subject of dispute by the parties. Qayumi v. Duke Univ., No. 1:16-cv-1038, 2018 WL 2025664, *3 (M.D.N.C. May 1, 2018). One district court in the Fourth Circuit has held that “[a]rguably, however, to the extent the Court does not rely on the [exhibit] in reaching its decision [on summary judgment], no right of access applies.” Hunter v. Town of Mocksville, 961 F. Supp. 2d 803, 806 (M.D.N.C. 2013) (citations omitted).
“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.” Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 121 (D. Md. 2009) (denying motion to seal pleadings and exhibits filed in support of a motion for protective order prohibiting deposition). But see Covington v. Semones, No. 7:06-cv-00614, 2007 WL 1170644, *2 (W.D. Va. Apr. 17, 2007) (“[A]s the exhibits at issue were filed in connection with a non-dispositive motion, it is clear there is no First Amendment right of access.”).
In an unpublished decision, a district court in the Fourth Circuit held that exhibits to a motion to seal were not judicial records to which a right of access applied. See United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *4 (M.D.N.C. Sept. 4, 2018).
In an unpublished decision, a district court in the Fourth Circuit held that the public has a First Amendment right of access to documents submitted in connection with a motion to disqualify counsel. See 360 Mortg. Grp., LLC v. Stonegate Mortg. Corp., No. 5:14-cv-00310-F, 2016 WL 3030166 (E.D. N.C. May 25, 2016).
In an unpublished decision, a district court in the Fourth Circuit refused to seal documents submitted in connection with a motion to withdraw as counsel on the grounds that the moving party had failed to articulate reasons why alternatives to sealing would not adequately protect against the risks of disclosure. See In re Am. Med. Sys., Inc. Pelvic Repair Sys. Prod. Liab. Litig., No. 2:13-cv-07551, 2018 WL 1146292, *2 (S.D.W. Va. Mar. 1, 2018).
District courts in the Fourth Circuit have held that the public has a right of access to motions for sanctions, although they have reached different conclusions as to whether the right of access arises from the common law or the First Amendment. Compare Silicon Knights, Inc. v. Epic Games, Inc., No. 5:07-CV-275-D, 2010 WL 11566361, *1 (E.D.N.C. June 15, 2010) (common law right of access) with United States ex rel. Thomas v. Duke Univ., No. 1:17-cv-276, 2018 WL 4211375, *5 (M.D.N.C. Sept. 4, 2018) (First Amendment right of access).
Neither the Consumer Product Safety Improvement Act of 2008, 15 U.S.C. § 2051, et seq. nor the Administrative Procedure Act, 5 U.S.C. § 551, et seq. confers upon district courts carte blanche to conduct secret proceedings, and, more importantly, the Constitution forbids it. Doe v. Pub. Citizen, 749 F.3d 246, 270 (4th Cir. 2014).
The public’s right of access extends to exhibits submitted in connection with a motion to compel arbitration. See Erichsen v. RBC Capital Markets, LLC, 883 F. Supp. 2d 562, 574 (E.D. N.C. 2012).
Investigative reports stemming from discrimination complaints made to the Idaho Human Rights Commission generally are exempt from public disclosure under the Idaho Public Records Act. Idaho Code § 74-105(8). But, such confidentiality “will no longer apply to any record used in any judicial proceeding brought by a named party to the complaint or investigation, or by the Idaho human rights commission, relating to the complaint of discrimination.” Id.
In general, access is allowed to “[p]leadings, motions, affidavits, responses, memoranda, briefs and other documents filed or lodged in a case file.” I.C.A.R. 32(d)(7).
Pleadings: Both the constitutional and common law rights of access extend to pleadings. SeeHutchison v. Luddy, 581 A.2d 578, 582 (Pa. Super. 1990) (“The presumption that the public may inspect and copy judicial records extends to pleadings.”), aff’d in relevant part, rev’d in part, 594 A.2d 307 (Pa. 1991); Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960 (Pa. Super. 1989) (same); PA Child Care LLC v. Flood, 887 A.2d 309, 312 (Pa. Super. 2005) (rejecting effort to seal record in civil case and explaining that “Pennsylvania has a mandate for open and public judicial proceedings both in the criminal and civil settings.”).
A Virginia trial court improperly entered an order sealing all pleadings in new civil cases for twenty-one days after they are commenced. The court had no statutory authority to enter such an order, nor was there anything in the record justifying such action pursuant to the court’s inherent power. See Charlottesville Newspapers, Inc. v. Berry, 215 Va. 116, 118, 206 S.E.2d 267, 268 (1974).
The Fourth Circuit has specifically held that under the First Amendment, the public has a qualified right of access to dispositive motions and exhibits to those motions, as well as to judicial opinions resolving those motions. See Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 252 (4th Cir. 1988); Doe v. Pub. Citizen, 749 F.3d 246, 267 (4th Cir. 2014). Although the Virginia Supreme Court has not been as direct, it has held that the public’s right of access to judicial records attaches to “the pleadings and any exhibits or motions filed by the parties and all orders entered by the trial court in the judicial proceedings leading to the judgment under review,” Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 257, 368 S.E.2d 253, 255 (1988), as well as “[e]xhibits entered into evidence in a judicial proceeding that lead to the judgment,” see Lotz v. Commonwealth, 277 Va. 345, 351, 672 S.E.2d 833, 836 (2009) (public had rebuttable right of access to exhibits to sexually violent predator report admitted into evidence during a civil commitment hearing).
Discovery materials exchanged between parties are not judicial records to which a right of access attaches unless and until they are filed with the court. See Shenandoah Pub. House, Inc. v. Fanning, 235 Va. 253, 262 n.3, 368 S.E.2d 253, 257 n.3 (1988) (no common law right of access to documents not filed with the court); In re Times-World Corp., 25 Va. App. 405, 419, 488 S.E.2d 677, 684 (Va. Ct. App. 1997) (“We have held that the media does not have a constitutional right of access to documents produced by parties through discovery in a criminal matter. The documents here, however, are not unfiled discovery documents but were admitted into evidence in a proceeding that should have been open to the public.”); Commonwealth v. Schwartz, 59 Va. Cir. 195, 2002 WL 31989074, *1 (Loudoun Cir. Ct. July 1, 2002) (“Materials returned in response to the subpoena, unless introduced into evidence, are not subject to public disclosure.”); Commonwealth v. Robinson, 3 Va. Cir. 196, 1984 WL 569929, *2 (Alexandria Cir. Ct. May 3, 1984) (“[T]here is no requirement that discovery materials be filed and if not filed are not subject to access by either the public or the media.”); Commonwealth v. Starkey, 26 Va. Cir. 199, 1992 WL 884421, *1 (Loudoun Cir. Ct. Jan. 8, 1992) (“There is simply no requirement for the filing of most pretrial discovery responses, and thus no right of access.”).
Discovery depositions filed pursuant to an order requiring that they be filed for safekeeping by the clerk were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *2 (Loudoun Cir. Ct. Jan. 2, 1990).
Discovery depositions reviewed by the court in connection with a pretrial, non-dispositive motion were deemed to not be judicial records to which the right of access applied. See Abujaber v. Kawar, 20 Va. Cir. 58, 1990 WL 751032, *3 (Loudoun Cir. Ct. Jan. 2, 1990).
The extent of the public’s right of access to materials filed with the court does not include the right to re-test such materials. See Globe Newspaper Co. v. Commonwealth, 264 Va. 622, 630, 570 S.E.2d 809, 813 (2002) (public’s constitutional right of access to discovery materials filed with the court did not include right to re-test DNA).