Dmarcian, Inc. v. DMARC Advisor BV

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00067-MR
DMARCIAN, INC., )
)
Plaintiff, )
)
vs. ) O R D E R
)
DMARC ADVISOR BV, f/k/a )
dmarcian Europe BV, )
)
Defendant. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s Motion to Seal
Declaration of Pamela S. Duffy Offered in Support of Motion to Extend Time
to File Expert Report on Limited Issue [Doc. 238].
The Plaintiff moves for leave to file under seal a Declaration of its
counsel, Pamela S. Duffy [Doc. 239] (hereinafter, “the Duffy Declaration”),
which was submitted in support of the Plaintiff’s Motion to Extend Time to
Disclose Its Expert Report on C# Source Code. [Doc. 238]. The Plaintiff
further requests that the Duffy Declaration be designated as for “attorneys’
eyes only.” [Id. at 2]. The Defendant does not oppose the Plaintiff’s motion
to seal the Duffy Declaration but objects to any “attorneys’ eyes only”
designation. [Doc. 251].
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The press and the public have, under both the First Amendment and
the common law, a qualified right of access to judicial documents and
records filed in civil and criminal proceedings. Doe v. Public Citizen, 749
F.3d 246, 265 (4th Cir. 2014). “The common-law presumptive right of access
extends to all judicial documents and records, and the presumption can be
rebutted only by showing that ‘countervailing interests heavily outweigh the
public interests in access.’” Id. at 265-66 (quoting in part Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). The First
Amendment right of access “may be restricted only if closure is ‘necessitated
by a compelling government interest’ and the denial of access is ‘narrowly
tailored to serve that interest.’” Id. at 266 (quoting in part In re Wash. Post
Co., 807 F.2d 383, 390 (4th Cir. 1986)).
When presented with a motion to seal, the law of this Circuit requires
this Court to: “(1) provide public notice of the request to seal and allow
interested parties a reasonable opportunity to object, (2) consider less
drastic alternatives to sealing the documents, and (3) provide specific
reasons and factual findings supporting its decision to seal the documents
and for rejecting the alternatives.” Ashcraft v. Conoco, Inc., 218 F.3d 288,
302 (4th Cir. 2000).
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In the present case, the public has been provided with adequate notice
and an opportunity to object to the Plaintiff’s motion. The motion was filed
on August 8, 2023, and it has been accessible to the public through the
Court’s electronic case filing system since that time. Further, the Plaintiff has
demonstrated that the Duffy Declaration references sensitive and personal
health information pertaining to the Plaintiff’s (now former) expert, and that
the public’s right of access to such information is substantially outweighed
by the compelling interest in protecting the details of such information from
public disclosure. Finally, having considered less drastic alternatives to
sealing the documents, the Court concludes that the sealing of these
materials is narrowly tailored to serve the interest of protecting this sensitive
information.
As for the Plaintiff’s request to restrict access to the Duffy Declaration
to “attorneys’ eyes only,” the Court does not find that the information
contained in the Duffy Declaration constitutes “extremely sensitive”
information that if disclosed would “create a substantial risk of serious harm
that could not be avoided by less restrictive means.” [See Doc. 204 at 3:
Protective Order (defining “attorneys’ eyes only” designation)]. Accordingly,
the Plaintiff’s request for an “attorneys’ eyes only” designation is denied.
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IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Seal
[Doc. 238] is GRANTED IN PART and DENIED IN PART as follows. The
Motion is GRANTED to the extent that the Duffy Declaration [Doc. 239] shall
be filed under seal and shall remain under seal until further Order of the
Court. The Plaintiff’s request to restrict the Duffy Declaration to “attorneys’
eyes only” is DENIED.
IT IS SO ORDERED.
Signed: September 19, 2023
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