The attorney for the Plaintiff in Preiss v. Wine and Design Franchise, LLC, 2018 NCBC 53, apparently didn’t bother to read the Business Court’s Rules on what must be done in order to file a document under seal. That lawyer failed on three separate occasions to comply with the Court’s procedures for sealing a document.
So Judge McGuire took the Plaintiff’s lawyer to school, though pretty gently. He said:
On the charitable assumption that Plaintiffs counsel’s continued failure to comply with the applicable BCR regarding filing under seal is a result of ignorance of the procedures, rather than a flagrant disregard for this Court’s authority, the Court will outline the applicable rules and procedures below.
Op. at 3.
Those procedures? It’s best to read the Business Court Rules, mostly Rule 5.2, but if you want a document to stay under seal, you have to file it “provisionally” under seal along with a Motion for leave for it to be filed under seal. BCR 5.2(b). Your Motion has to be accompanied by a brief. BCR 7.2.
The motion and brief must contain enough information to persuade the Court that sealing is warranted. The Rule lists seven categories of necessary information:
(1) a non-confidential description of the material sought to be sealed;
(2) the circumstances that warrant sealed filing;
(3) the reason(s) why no reasonable alternative to a sealed filing exists;
(4) if applicable, a statement that the party is filing the material under seal because another party (the “designating party”) has designated the material under the terms of a protective order in a manner that triggered an obligation to file the material under seal and that the filing party has unsuccessfully sought the consent of the designating party to file the materials without being sealed;
(5) if applicable, a statement that any designating party that is not a party to the action is being served with a copy of the motion for leave;
(6) a statement that specifies whether the party is requesting that the document be accessible only to counsel of record rather than to the parties; and
(7) a statement that specifies how long the party seeks to have the material maintained under seal and how the material is to be handled upon unsealing.
Most of those items are pretty easy to assemble. But it is clear that the most critical ingredient is 5.2(b)(2), “the circumstances that warrant the sealed filing.” What is it that you are asking the Court to take out of the public eye? I’m not aware of a published Business Court Opinion discussing what will justify a sealed filing, but Judge Bledsoe said this in a 2016 unpublished Order granting a Motion to Seal: “sealing documents from the public record may be appropriate where the documents contain business information, including pricing and cost information, that could harm a litigant’s competitive standing.” Order at 2.
Remember that you start on a Motion to seal by running uphill. The Business Court will begin its consideration of a Motion to Seal:
with the ‘presumption that the civil court proceedings and records at issue. . . must be open to the public.’ The party seeking to have a filing sealed bears the burden of overcoming this presumption ‘by demonstrating that the public’s right to open proceedings [is] outweighed by a countervailing public interest.’
Op. at 6 (quoting France v. France, 209 N.C. App. 406, 414, 705 S.E.2d 405, 406 (2011).
So what could be such a “countervailing public interest”? The Business Court Rules give no guidance, but Plaintiff didn’t have whatever it takes. The document filed under seal (a brief) was immediately unsealed by the Court.
What do you have to do while your Motion to Seal is pending? BCR 5.2(d) says that you must:
Within five business days of the filing or provisional filing file a public version of the document. The public version may bear redactions or omit material, but the redactions or omissions should be as limited as practicable.
If you are attempting to file an entire document under seal (as this Plaintiff was):
the filing party must file a notice that the entire document has been filed under seal. The notice must contain a non-confidential description of the document that has been filed under seal.
This Plaintiff”s counsel repeatedly ignored the Business Court Rules about sealing. Judge McGuire lectured that “[t]hese rules and procedures for making sealed filings are not frivolous ‘make-work’ for attorneys, nor are they intended to be optional exercises” Op. at 5 (emphasis added).
So did Judge McGuire sanction the Plaintiff? Not now, but he reserved the right to do so. He said:
because Plaintiffs have now failed for the third time to make efforts to comply with the applicable BCR or this Court’s past Orders, the Court takes under advisement such further relief as may be just and appropriate, including whether the complained-of conduct of Plaintiffs’ counsel merits imposition of sanctions under Rule 11 or other authority.
In Plaintiff’s counsel’s defense, he may have thought he was entitled to file documents under seal because the parties had agreed to a Consent Protective Order which said that “documents designated by any Party as Confidential ‘shall be filed under seal.'”
But the agreement of the parties had no bearing on whether the described documents could be filed under seal. BCR 5.2(a) says explicitly that a Protective Order dealing with sealing of documents “should include procedures similar to those described in subsections (b) through (d) of this rule.”