Attorneys' Eyes Only Expert Reports Sealed From Public Scrutiny

Attorneys' Eyes Only Expert Reports Sealed From Public Scrutiny

The law presumes that the public should have access to judicial records. This presumption stems from both common law and First Amendment concerns and may be abrogated only in unusual circumstances. Fourth Circuit case law indicates that a district court can seal court documents if competing interests outweigh the public's right to access.

When faced with a request to seal documents, a court must first determine the source of the right to access in order to weigh the competing interests. The court must then (1) give 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. A local rule in the United States District Court for the Eastern District of Virginia requires the party moving to seal documents to provide (1) a non-confidential description of the documents to be sealed; (2) a statement as to why sealing is necessary; (3) references to governing case law; and (4) a statement as to the period of time the party seeks to have the matter sealed and as to how the matter is to be handled upon unsealing.

In a recent case in the Eastern District of Virginia, East West, LLC v. Rahman, the plaintiff sought to seal four exhibits relating to the parties' expert reports. The reports were designated "Attorney's Eyes Only" under a confidentiality order entered during discovery that allowed the parties to so designate documents that contained highly sensitive business or personal information, the disclosure of which might cause significant harm.

The court granted the motion to seal. The documents at issue contained sensitive financial data, including gross profit data, pertaining to both parties. The court found that disclosure of such information would be highly likely to cause significant harm to the business competitive position of both parties. The plaintiff had docketed its motion to seal and the docket had been made available to the public; therefore, interested parties had been given a reasonable opportunity to object. The court found that redaction, a less drastic alternative to sealing the documents, would gut the documents substantially, rendering them useless to the public. The court held that sealing these documents was appropriate and narrowly tailored to protect confidential business information.

Lexis.com subscribers can access a Lexis enhanced version of the East West, LLC v. Rahman, 2012 U.S. Dist. LEXIS 126242 (E.D. Va. Sept. 4, 2012) decision.

Read the rest of the article at the Virginia Business Litigation Lawyer blog.

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