VANG v. ASHBY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

KENG VANG, )

)

Plaintiff, )

)

v. ) 1:18cv565

)

LAUREN ASHBY, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on “Defendant Shannon

McClattie’s Motion to File her Memorandum of Law in Support of her

Motion for Summary Judgment and Supporting Exhibits Under Seal”

(Docket Entry 44 (the “Motion”)). For the reasons that follow, the

Court will grant the Motion in part.

INTRODUCTION

Plaintiff commenced this action in forma pauperis pursuant to

42 U.S.C. § 1983 in connection with a child abuse investigation.

(See generally Docket Entry 2.) On January 24, 2020, Defendant

McClattie filed her summary judgment motion (Docket Entry 42),

along with a summary judgment brief and related attachments in

redacted form (Docket Entries 43, 43-1, 43-2, 43-3, 43-4, 43-5).

That same day, Defendant McClattie filed the instant Motion seeking

“to file under seal [i] the portions of the affidavits [submitted

with her summary judgment motion] . . . that relate [to] factual

events regarding allegations of abuse, neglect, or dependency of

children, . . . [ii] the response by the Rowan County Department of

Social Services to these allegations . . . [, iii] the deposition

testimony of [] Plaintiff that pertains to these matters . . . [,

and iv] the portions of her [summary judgment brief] that discuss

th[ose] facts and events.” (Docket Entry 44 at 1-2; see also

Docket Entry 47 (memorandum).) In addition, Defendant McClattie

filed sealed unredacted versions of the summary judgment brief and

related attachments. (See Docket Entries 48, 48-1, 48-2, 48-3, 48-

4, 48-5.) Plaintiff did not respond to the Motion. (See Docket

Entries dated Jan. 24, 2020, to present.)

DISCUSSION

“[T]he courts of this country recognize a general right to

inspect and copy . . . judicial records and documents.” Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). “This right of

access to court records is not absolute, however. The trial court

has supervisory power over its own records and may, in its

discretion, seal documents if the public’s right of access is

outweighed by competing interests.” In re Knight Publ’g Co., 743

F.2d 231, 235 (4th Cir. 1984). Further, the United States Court of

Appeals for the Fourth Circuit has recognized that “there may be

instances in which discovery materials should be kept under seal

even after they are made part of a dispositive motion.” Rushford

v. The New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.

1988). However, “[w]hen presented with a request to seal judicial

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records or documents, a district court must comply with certain

substantive and procedural requirements.” Virginia Dep’t of State

Police v. The Washington Post, 386 F.3d 567, 576 (4th Cir. 2004).

Procedurally:

[The district court] must give the public notice of the

request to seal and a reasonable opportunity to challenge

the request; it must consider less drastic alternatives

to sealing; and if it decides to seal it must state the

reasons (and specific supporting findings) for its

decision and the reasons for rejecting alternatives to

sealing. Adherence to this procedure serves to ensure

that the decision to seal materials will not be made

lightly and that it will be subject to meaningful

appellate review.

Id. (internal citation omitted). “As to the substance, the

district court first must determine the source of the right of

access with respect to each document, because only then can it

accurately weigh the competing interests at stake.” Id. (internal

citations and quotation marks omitted).

Moreover, the Fourth Circuit has recognized that the legal

framework for sealing documents, described above, applies to

requests by a party to file a redacted document, i.e., a document

sealed in part. See United States v. Moussaoui, 65 F. App’x 881,

889 (4th Cir. 2003) (“As to those documents subject to a right of

access, we must then conduct the appropriate balancing to determine

whether the remainder of the document should remain sealed, in

whole or in part.”); see also Wolfe v. Green, Civil Action No.

2:08–01023, 2010 WL 5175165, at *2–3 (S.D.W. Va. Dec. 15, 2010)

(unpublished) (granting parties’ joint motion to redact filings and

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holding that parties made necessary showing to address both common

law and First Amendment rights of access); Bethesda Softworks, LLC

v. Interplay Entm’t Corp., Civil Action No. 09–2357, 2010 WL

3781660, at *9–10 (D. Md. Sept. 23, 2010) (unpublished) (treating

motion to redact transcript as motion to seal). “The interest of

the public in the flow of information is protected by [the Court’s]

exercis[e of] independent judgment concerning redactions.”

Moussaoui, 65 F. App’x at 888 (citing United States v. Pelton, 696

F. Supp. 156, 159 n. 2 (D. Md. 1986) (noting that court would

“carefully compare the redacted version [of a transcript] to the

unredacted version for accuracy and to determine whether all the

proposed deletions are necessary”)).

In this case, both Plaintiff and the public have received

notice of the Motion on or about January 24, 2020, but neither

Plaintiff nor any non-party has contested the proposed

redactions/sealing. (See Docket Entries dated Jan. 24, 2020, to

present.) Accordingly, the Court finds all procedural

prerequisites satisfied, as any interested persons have received

“notice of the request to seal and a reasonable opportunity to

challenge the request,” Virginia Dep’t of State Police, 386 F.3d at

576.

Next, the Court must determine what, if any, public access

right attaches to the items covered by the instant sealing request.

See id. The demanding First Amendment standard applies to exhibits

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submitted with dispositive motions. See Rushford, 846 F.2d at

252–53 (“Once the documents are made part of a dispositive motion,

such as a summary judgment motion, they lose their status of being

raw fruits of discovery. . . . We believe that the more rigorous

First Amendment standard should also apply to documents filed in

connection with a summary judgment motion in a civil case.”

(internal quotation marks and citations omitted)). The documents in

question thus fall subject to the right of access granted by the

First Amendment, because (as shown in the Introduction) Defendant

McClattie filed them in connection with her summary judgment

motion.

To justify the sealing proposed in the Motion, Defendant

McClattie has asserted that her brief “filed in support of her

[summary judgment motion], the [supporting] affidavits . . ., and

[Plaintiff’s testimony] set forth in his deposition transcript . .

. rely upon information that is confidential under North Carolina

law.” (Docket Entry 47 at 2.) More specifically, she contended

that

[i]nformation obtained by a department of social services

regarding the abuse, neglect, or dependency of a child,

and the child protective services’ case record for a

juvenile, are confidential under North Carolina law and

can be disclosed only in limited circumstances. In

addition, records of juvenile court proceedings alleging

abuse, neglect, or dependency are confidential. Absent

a court order, the statute makes no provision for the

public disclosure of this information.

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(Id. at 3 (citing N.C. Gen. Stat. §§ 7B-302, 7B-2901; 10 N.C.

Admin. Code 70A.0113) (emphasis omitted).)

Defendant McClattie correctly has described North Carolina

law. See N.C. Gen. Stat. §§ 7B-302(a)(1) (requiring that “[a]ll

information received by the department of social services

[involving the report, assessment, and evaluation of abuse,

neglect, or dependency] . . . be held in strictest confidence by

the department”), 7B-2901(a) (defining “the complete record” to

include “the summons, petition, custody order, court order, written

motions, the electronic or mechanical recording of the hearing, and

other papers filed in the proceeding”); 10 N.C. Admin. Code

70A.0113(a) (prohibiting county director of department of social

services from “allow[ing] anyone outside of the county department

of social services other than state and federal agency personnel

carrying out their lawful responsibilities for program audit and

review to examine a protective services case record”). Further,

federal courts in North Carolina have recognized the need to

preserve confidentiality pursuant to these statutes. See, e.g.,

Brunson v. North Carolina Dep’t of Soc. Servs., No. 5:09-CT-03063,

2013 WL 1768681, at *4 (E.D.N.C. Apr. 24, 2013) (unpublished)

(recognizing that North Carolina law protects records of child

protective services investigation from public disclosure),

reconsideration denied, 2013 WL 3923996 (E.D.N.C. July 29, 2013)

(unpublished).

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Consequently, Defendant McClattie has argued that

“countervailing interests outweigh the public’s interest in access

to this material [because c]ourts recognize that confidentiality

laws governing child protective proceedings demonstrate legislative

intent to protect child victims from undue trauma and humiliation,

facilitate rehabilitation of families, and encourage people to

report child abuse and neglect by protecting their identities.”

(Docket Entry 47 at 4 (citing Tower v. Leslie-Brown, 167 F. Supp.

2d 399, 405 (D. Me. 2001)).) In the decision cited by Defendant

McClattie, the court granted a motion to seal based, in part, upon

its finding that,

[a]lthough the statutes closing [] state proceedings do

not govern [] civil rights action[s] in federal court,

they do demonstrate a legislative judgment that [states

have] an interest in maintaining the confidentiality of

child protective proceedings . . . . If [ c]ourts were to

allow [] parties to import confidential documents into

federal court and thereby make them public, it would

seriously undermine the state’s policy.

Tower, 167 F. Supp. 2d at 405 (internal citations omitted).

However, the Tower Court addressed only the common law right of

access, not the First Amendment right of access. See id. at

404–05.

Under the First Amendment sealing standard, the Court may seal

material “‘only on the basis of a compelling governmental interest

and only if the denial [of access] is narrowly tailored to serve

that interest.’” Bell v. Shinseki, No. 1:12CV57, 2013 WL 3157569,

at *9 (M.D.N.C. June 20, 2013) (unpublished) (quoting Stone v.

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University of Md. Med. Sys. Corp., 855 F.2d 178, 180 (4th Cir.

1988)). “[{S]afeguarding the physical and psychological well-being

of a minor [qualifies as] a compelling [interest]” that can

outweigh the public’s right of access. Globe Newspaper Co. v.

Superior Court for the Cty. of Norfolk, 457 U.S. 596, 607-08

(1982). Hence, “[c]lourts have found a compelling government

interest in sealing sensitive medical or other personal

information, especially when relating to minors.” Interstate Fire

& Cas. Co. v. Dimensions Assurance Ltd., Civ. Action No. 13-3908,

2014 WL 6388334, at *2 (D. Md. Nov. 13, 2014) (collecting cases).

A minor’s non-party status heightens the justification for such

sealing. See id.

Defendant McClattie has proposed the redaction of the

following documents: approximately 12 pages of her summary judgment

brief (see Docket Entry 43 at 4-12, 18-21); 14 paragraphs of her

supporting affidavit (see Docket Entry 43-1, QI 4-18); 28

paragraphs of the supporting affidavit filed by a previously

dismissed co-defendant, Laura Ashby (see Docket Entry 43-2,

3-30); six paragraphs of the supporting affidavit filed by

Cynthia Dry (see Docket Entry 43-3, 741 3-8); eight paragraphs of

the supporting affidavit filed by Detective Cody Trexler (see

Docket Entry 43-4, 3-10); and approximately 82 entire pages of

Plaintiff’s deposition (see Docket Entry 43-5 at 22-89, 95-108), as

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well as numerous lines of text on pages not wholly redacted (see

id. at 15–16, 19–21, 90, 94, 109, 113).

A large portion of the proposed redacted material concerns the

“report, assessment and evaluation of abuse, neglect, or

dependency,” N.C. Gen. Stat. § 7B-302, of Plaintiff’s children

and/or includes references to related confidential state court

records, see N.C. Gen. Stat. § 7B-2901. The Court finds that a

compelling interest in protecting the minors’ privacy outweighs the

public’s right of access to those materials. See Globe Newspaper

Co., 457 U.S. at 607-08 (noting that protection of minor’s welfare

constitutes compelling interest). Also, some redacted portions

concern sensitive information regarding a non-party and appear to

constitute the sort that courts recognize as raising privacy

concerns. See United States v. Sattar, 471 F. Supp. 2d 380, 387–90

(S.D.N.Y. 2006) (recognizing that interest in preventing disclosure

of items of highly personal nature can outweigh First Amendment

right of access). In particular, the foregoing justifications

generally apply to the four supporting affidavits and the summary

judgment brief’s quotation from or direct reference to the

affidavits. (See Docket Entries 43, 43-1, 43-2, 43-3, 43-4.)

However, some of this information played an essential part in

the determination of the dispositive motions in this matter, as

noted in the undersigned’s recent recommendation. (See Docket

Entry 55 at 3 n.2 (stating that “resolution of the parties’

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competing summary judgment motions necessitated public disclosure

of some of the redacted material”).) The recommendation’s reliance

upon — and necessary disclosure of — portions of the redacted

material moots the sealing request as to those limited excerpts

from the affidavits and Plaintiff’s deposition. The undersigned

disclosed the minimum information sufficient to explain the basis

for the recommended disposition. In this regard, the undersigned

recommended that the Court grant Defendant McClattie’s summary

judgment motion and, in making that determination, found that the

“record conclusively establishe[d] that Plaintiff not only

voluntarily consented to Defendant McClattie’s entry, but actually

invited her into his home” (id. at 13), thereby rendering it

“unnecessary” to discuss Defendant McClattie’s “authori[ty] to

enter Plaintiff’s home without a court order to take temporary

custody of [his] children” (id. at 10 n.4). Given that the

recommendation reproduces the pertinent portions of the affidavits

and compelling privacy concerns otherwise warrant protection of the

entirety of those filings, they may remain on the Docket in their

present form.

Additionally, after comparing the unredacted and redacted

versions of all relevant documents, the Court has determined that

some of the proposed redactions include information which does not

directly concern the “report, assessment and evaluation of abuse,

neglect, or dependency,” N.C. Gen. Stat. § 7B-302, of Plaintiff’s

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children and/or directly reference related confidential state court

records, see N.C. Gen. Stat. § 7B-2901. In particular, the final

paragraph on the tenth page of the summary judgment brief describes

Defendant McClattie’s arrival at Plaintiff’s home on March 9, 2018

(the day of the incident giving rise to his claim) and the

interaction that ensued. This information directly relates to the

merits of Plaintiff’s claim and its disclosure does not undermine

important privacy interests. Consistent with those considerations,

the undersigned relied on that particular account in the

recommended disposition and necessarily revealed some details in

the recommendation. Accordingly, Defendant McClattie must submit

another version of the proposed redactions of the summary judgment

brief, tailoring the redactions to serve the compelling interest in

protecting the welfare of non-party minors while disclosing, where

appropriate, information now part of the public record.

Moreover, upon close review of both versions of Plaintiff’s

deposition, the Court has determined that a substantial amount of

the proposed redacted material bears little, if any, significance

to Defendant McClattie’s argument in the summary judgment brief.

For example, the summary judgment brief cites excerpts from

approximately 48 pages of the 119-page deposition, the majority of

which Defendant McClattie seeks to redact. (Compare Docket Entry

43-5, with Docket Entry 48-5.) Each one of the summary judgment

brief’s citations to the deposition references redacted material.

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(See Docket Entries 43, 43-5.) The undersigned’s recommendation

ultimately depended on material appearing on only eight (entirely

redacted) pages of the deposition. (See Docket Entries 48-5, 55.)

As with the summary judgment brief, the proposed redactions in the

deposition also cover information central to adjudication of

Plaintiff’s claim that falls outside the scope of N.C. Gen. Stat.

§§ 7B-302 and § 7B-2901. The complete redaction of pages 61

through 68 raises particular concerns in that regard.

Furthermore, the filing of Plaintiff’s entire deposition

prompted the request for redaction of material that need not have

entered the public record in the first place, especially given

Defendant McClattie’s limited reliance on much of the deposition in

support of her summary judgment motion. See generally Cochran v.

Volvo Group North Am., LLC, 931 F. Supp. 2d 725, 727 (M.D.N.C.

2013) (“‘Judicial records’ are ‘documents filed with the court

[that] play a role in the adjudicative process, or adjudicate

substantive rights.’”) (emphasis added). Under these

circumstances, leaving in the record only the determinative

excerpts from Plaintiff’s deposition constitutes the appropriate

course.

Finally, the current version of the redacted deposition fails

to comply with Federal Rule of Civil Procedure 5.2, which prohibits

the filing of documents containing the names of minors. See Fed.

R. Civ. P. 5.2(a)(3). Despite the otherwise heavy redactions, the

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filing impermissibly reveals, on several occasions, the full names

of Plaintiff’s minor children.

CONCLUSION

Application of the First Amendment test for sealing warrants

protection from public disclosure of some, but not all, of the

information Defendant McClattie seeks to redact.

IT IS THEREFORE ORDERED that the Motion (Docket Entry 44) is

GRANTED IN PART and DENIED IN PART, as follows:

1. Defendant McClattie shall re-file Docket Entry 43 in a

redacted form consistent with this Order’s conclusions concerning

pages 10 and 11;

2. Defendant McClattie shall refile Docket Entry 43-5 in a

redacted form that includes only material relied upon in her

summary judgment brief and that redacts information consistent with

this Order’s conclusions (to include redaction of the names of

Plaintiff’s minor children); and

3. The Clerk shall maintain under seal Docket Entries 43-1,

43-2, 43-3, and 43-4 in their current form.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 28, 2020

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