The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CHARLES EDWARD BROWN, )
)
Plaintiff, )
)
v. ) 1:23CV195
)
FIRST ADVANTAGE BACKGROUND )
SERVICES CORP., ASHCOTT, LLC, )
)
Defendants. )
MEMORANDUM ORDER
This case concerns claims by Plaintiff Charles Edward Brown
over a background report prepared by First Advantage Background
Services Corporation (“First Advantage”), which erroneously
attributed criminal records to Brown. Before the court are
multiple motions to seal brought by both Brown and First Advantage.
(Docs. 62, 66, 72, 74, 78, 84.) For the reasons stated below, the
court will deny two of First Advantage’s motions (Docs. 72, 84)
and grant in part and deny in part the remaining motions.
I. BACKGROUND
Brown filed this action against First Advantage on March 1,
2023. (Doc. 1.) He amended his complaint and added Ashcott, LLC
(“Ashcott”) as a defendant on May 9, 2024. (Doc. 42.) On September
3, 2024, First Advantage moved to exclude Brown’s expert, Thomas
Jaeb, and attached ten exhibits to its brief. (Doc. 64.) The
same day, it moved to seal two of the exhibits in part. (Doc.
62.) First Advantage simultaneously moved for summary judgment,
attaching thirteen exhibits to its corresponding brief (Doc. 68),
and moved to seal four of those exhibits in part. (Doc. 66.) The
following day, it moved to seal a portion of an additional exhibit
to the brief in support of its motion to exclude Jaeb’s testimony.
(Doc. 72.) Brown responded in opposition to First Advantage’s
motion to exclude Jaeb’s testimony and its motion for summary
judgment. (Docs. 73, 77.) Both responses included a number of
exhibits; Brown moved to seal two exhibits to each response in
their entirety. (Docs. 74, 78.) First Advantage responded in
support of these motions to seal, but requested only portions of
these exhibits be sealed. (Docs. 81, 82.) Finally, First
Advantage replied to Brown’s response in opposition to its motion
for summary judgment (Doc. 85) and moved to seal portions of one
exhibit to its corresponding brief (Doc. 84).
II. ANALYSIS
The Fourth Circuit has recognized a public right of access to
judicial records rooted in both the common law and the First
Amendment. See Rushford v. New Yorker Mag., Inc., 846 F.2d 249,
253 (4th Cir. 1988). The First Amendment right of access applies
to documents filed in connection with a summary judgment motion.
Id. “[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). “The operations
of the courts and the judicial conduct of judges are matters of
utmost public concern,” Landmark Commc’ns, Inc. v. Virginia, 435
U.S. 829, 839 (1978), “and the public’s business is best done in
public,” Cochran v. Volvo Grp. N. Am., LLC, 931 F. Supp. 2d. 725,
727 (M.D.N.C. 2013). “When parties call on the courts, they must
accept the openness that goes with subsidized dispute resolution
by public (and publicly accountable) officials.” Doe v. Pub.
Citizen, 749 F.3d 246, 271 (4th Cir. 2014) (quoting Union Oil Co.
of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)) (internal
quotation marks omitted).
When a party makes a request to seal judicial records, a
district court “must comply with certain substantive and
procedural requirements.” Va. Dep’t of State Police v. Wash. Post,
386 F.3d 567, 576 (4th Cir. 2004). Procedurally, the court must
(1) give the public notice and a reasonable opportunity to
challenge the request to seal; (2) “consider less drastic
alternatives to sealing”; and (3) if it decides to seal, make
specific findings and state the reasons for its decision over the
alternatives. Id. “As to the substance, the district court first
‘must determine the source of the right of access with respect to
each document,’ because ‘[o]nly then can it accurately weigh the
competing interests at stake.’” Id. (quoting Stone v. Univ. of
Md. Med. Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988)). The
denial of access must be “narrowly tailored.” U.S. ex rel. Oberg
v. Nelnet, Inc., 105 F.4th 161, 171 (4th Cir. 2024). “Generally,
the public interest in disclosure heightens as the underlying
motions are directed more to the merits and as the case proceeds
toward trial.” SmartSky Networks, LLC v. Wireless Sys. Sols.,
LLC, 630 F. Supp. 3d 718, 732 (M.D.N.C. 2022). Under this court’s
Local Rules, “[n]o motion to seal will be granted without a
sufficient showing by the party claiming confidentiality as to why
sealing is necessary and why less drastic alternatives will not
afford adequate protection, with evidentiary support.” M.D.N.C.
L.R. 5.4.
Sealing confidential business information may be appropriate
absent an improper purpose or countervailing interest. See Nixon,
435 U.S. at 598; Abjabeng v. GlaxoSmithKline, LLC, No. 1:12-CV-
568, 2014 WL 459851, at *3 (M.D.N.C. Feb. 5, 2014). In order to
determine whether confidential business information should be
sealed, courts consider (1) “whether the party has shown that the
information sought to be sealed is confidential”; (2) “whether
disclosure would harm the party’s competitive standing or
otherwise harm its business interest”; (3) “whether the motion is
narrowly tailored”; and (4) “whether the interests in non-
disclosure are compelling and heavily outweigh the public’s
interest in access to the information.” Sims v. BB&T Corp.,
No. 1:15-CV-732, 2018 WL 3466945, at *2 (M.D.N.C. July 18, 2018).
However, it is not enough to assert generally that exhibits
contain “sensitive and confidential business information” without
supplying “specific underlying reasons for the district court to
understand how [the party’s interest] reasonably could be affected
by the release of such information.” Trs. of Purdue Univ. v.
Wolfspeed, Inc., No. 1:21-CV-840, 2023 WL 2776193, at *2 (M.D.N.C.
Feb. 28, 2023) (quoting Wash. Post, 386 F.3d at 579); see also
Glaston Corp. v. Salem Fabrication Techs. Grp, Inc., 744
F. Supp. 3d 430, 445 (M.D.N.C. Aug. 9, 2024) (holding that sealing
is warranted when public access to confidential business
information could harm the litigant’s competitive standing).
Both parties have moved to seal certain documents. First
Advantage seeks to seal the following: portions of the deposition
transcript of Matthew O’Connor from August 30, 2023 (“O’Connor
Deposition”) (Exhibit E in Docs. 65-6, 69-7, 75-2, 79-2, 86-5);
audit information and data of recorded errors involving Ashcott
(“Audit Data”) (Doc. 65-10 at Ex. D1; Doc. 69-10 at Exs. D1, D4);
and the contract between Ashcott and First Advantage outlining the
scope of Ashcott’s services (“Agreement”) (Doc. 69-6 at Ex. 2;
Doc. 65-7 at Ex. 2). (See Docs. 62, 66, 72, 84.) Brown further
moved to seal excerpts of the O’Connor Deposition (Docs. 75-2, 79-
2)1 and the Public Records Report on Brown (Docs. 75-3, 79-7).
(See Docs. 74, 78.) First Advantage responded in support of
1 Brown seeks to seal the entirety of Exhibit 2 to his response in
opposition to First Advantage’s motion to exclude expert testimony and
of Exhibit 2 to his response in opposition to First Advantage’s motion
for summary judgment. These exhibits contain sixteen and thirty-seven
pages, respectively, of the O’Connor Deposition.
Brown’s motions to seal but requests that only portions of the
O’Connor Deposition excerpt be sealed. (Docs. 81, 82.)
A. O’Connor Deposition
As to the information contained in the excerpts of the
O’Connor Deposition, the parties assert that the portions they
seek to seal contain confidential information regarding First
Advantage’s proprietary business interests and strategies.
Specifically, they cite information detailing First Advantage’s
process for conducting a background check, the nature of its work
with Ashcott, how and where data is stored, and the manner in which
data is transmitted. (Docs. 62, 66, 74, 84.) Though the parties
agree that portions of the deposition excerpts ought to be sealed,
such an agreement alone is an insufficient reason to seal it.
M.G.M. by and through Mabe v. Keurig Green Mountain, Inc.,
No. 1:22-CV-36, 2022 WL 6170557, at *2 (M.D.N.C. Oct. 7, 2022).
Because excerpts of the O’Connor Deposition were filed in
support of a motion for summary judgment,2 the First Amendment
right of access applies. See Rushford, 846 F.2d at 253. The
motions have been filed with the court since September 3, 2024,
and there has been no objection. The interest in sealing some of
2 Though First Advantage initially filed an excerpt of the O’Connor
Deposition in support of its motion to exclude expert testimony (Doc.
65-6), it again filed excerpts of the deposition in its brief supporting
its motion for summary judgment (Doc. 69-6) and in its reply (Doc. 86-
5). Similarly, Brown filed an excerpt of the O’Connor Deposition in his
brief opposing summary judgment (Doc. 79-2) requesting the entirety of
the exhibit be sealed. (Doc. 78.)
the material in the O’Connor Deposition excerpts is significant
because of the impact its disclosure may have on First Advantage’s
competitive standing. First Advantage has demonstrated that the
“testimony reveals confidential, proprietary policies and systems
essential to operating FADV’s business.” (Doc. 62.) In
particular, revealing information about how First Advantage
manages and processes data, which are integral business functions,
would be harmful. In addition, details about First Advantage’s
process for creating a background report are sensitive because
their disclosure could harm First Advantage’s efforts to compete.
However, the parties have failed to narrowly tailor their suggested
redactions. Brown has moved to seal the entirety of two exhibits
containing excerpts of the O’Connor Deposition (Docs. 74, 78), and
First Advantage has suggested redactions that exceed the scope of
the proprietary protections, for example, seeking to seal general
information about its business (see, e.g., Doc. 65-6 at 13; Doc.
69-7 at 6; Doc. 75-2 at 4, 15). These suggested redactions are
too broad and must be more narrowly tailored so that only
information pertaining to proprietary business information and
trade secrets is subject to seal. Thus, the court will deny the
motions to seal with respect to the excerpts of the O’Connor
Deposition. Consequently, the court will unseal the O’Connor
Deposition in ten days unless the parties file redacted versions
of its excerpts for public viewing consistent with this order.
B. The Agreement
First Advantage moves to seal its agreement retaining Ashcott
for public record search services. First Advantage contends the
Agreement contains “confidential, proprietary business methods
. . . [and] terms between [First Advantage] and its vendors.”
(Doc. 72 at 1-2.) In a declaration, Natalie Cascario, an attorney
for First Advantage, explains the entire Agreement is sensitive
because it reveals “confidential, proprietary business methods,
information, and policies” that render it impossible to make
redactions. (Id. ¶ 5.)
Because the Agreement was filed in support of a motion for
summary judgment (Doc. 69) the First Amendment right of access
applies. See Rushford, 846 F.2d at 253. Under the First Amendment
right of access, parties must “narrowly tailor[]” the denial of
access. See Nelnet, 105 F.4th at 171. This court’s local rules
prohibit “overly broad motions to seal.” M.D.N.C. L.R. 5.4. Here,
First Advantage has not narrowly tailored its suggested redactions
and instead asserts that the entire document warrants sealing due
to the difficulty in parsing out sensitive information. Because
of the First Amendment right of access to the Agreement, the bar
for sealing an entire document is high and an attempt to narrowly
tailor the redactions is required.
Here, First Advantage has failed to narrowly tailor its
sealing request so that only sensitive information that would cause
it harm if made accessible to the public is redacted. Furthermore,
First Advantage has failed to adequately demonstrate why the
content contained within the Agreement requires the entire
document to be sealed. Thus, if First Advantage wants to seal the
Agreement, it must first narrowly tailor its redactions to any
sensitive information at issue and explain why those redactions
are necessary. For example, the pricing terms within the contract
are likely sensitive, while other terms governing the relationship
between the parties are not clearly sensitive. The court will
therefore unseal the Agreement in ten days unless First Advantage
files a redacted version consistent with this order.
C. Public Records Report
Brown moves to seal the entirety of the Public Records Report,
asserting the document contains “confidential information such as
Plaintiff’s personal identifying information.” (Doc. 78 at 2.)
First Advantage agrees with sealing the entire Public Records
Report because it is a document “exclusively maintained in [First
Advantage’s] internal, confidential systems” and “reveals
sensitive, confidential, and proprietary processes and data used
by [First Advantage] when preparing certain reporting
information.” (Doc. 82 at 2.)
A First Amendment right of access attaches to the Public
Records Report because it was filed by Brown in opposition to First
Advantage’s motion for summary judgment. See Rushford, 846 F.2d
at 253. The information has been filed with the court since
October 3, 2024, and no objection has been lodged. The Public
Records Report contains personal identifiable information relating
to Brown and is a document detailing First Advantage’s process in
conducting background reports. The public does not have a right
to access the personal identifiable information of the Plaintiff
and no general public interest is served in disclosing such
information.
As to the internal operating information of First Advantage,
First Advantage has adequately demonstrated that the document
should be sealed. There is an interest in sealing confidential
and sensitive information that pertains to the proprietary
function of businesses. The Public Records Report would allow the
public to access the proprietary methods and procedures used by
First Advantage when conducting a background investigation. This
information could damage First Advantage’s competitive standing if
released publicly. Due to the nature of the document, to narrowly
tailor the sensitive information would require redacting the
entire document. Therefore, sealing of the entire Public Records
Report is warranted.
D. Audit Data
First Advantage moves to seal the Audit Data, which contain
data from audits of searches performed by Ashcott, because it
reveals “sensitive, confidential data used only in First
Advantage’s internal operations.” (Doc. 66 at 2.)
A First Amendment right of access applies to the Audit Data
because it was filed by First Advantage in support of its motion
for summary judgment. See Rushford, 846 F.2d at 253. The
information has been filed with the court since September 3, 2024,
and no objection has been filed. The Audit Data contains
sensitive proprietary information that First Advantage uses
internally to operate its background reporting service. It records
the number of errors in Ashcott searches performed for First
Advantage, the dispute rate for First Advantage reports, and
numerous details about the nature of Ashcott’s errors. This
information is especially sensitive, as public access to the Audit
Data could negatively impact First Advantage’s competitive
standing in the market. The interest in ensuring that First
Advantage’s proprietary information is protected outweighs the
public’s interest in accessing the information. First Advantage
requests a complete seal of the Audit Data because narrowly
tailored redactions would only result in the entire document being
redacted. The court agrees. Therefore, sealing of the Audit Data
is warranted.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that:
First Advantage’s motion to seal (Doc. 62) is GRANTED IN PART
and DENIED IN PART. The motion is GRANTED with respect to Exhibit
D1 to I (Doc. 65-10) and DENIED with respect to Exhibit E (Doc.
65-6).
First Advantage’s motion to seal (Doc. 66) is GRANTED IN PART
and DENIED IN PART. The motion is DENIED with respect to Exhibit
2 to E (Doc. 69-6) and Exhibit F (Doc. 69-7). The motion is
GRANTED with respect to Exhibit D1 to I (Doc. 69-10) and Exhibit
D4 to I (Doc. 69-10).
First Advantage’s motion to seal (Doc. 72) is DENIED.
Brown’s motion to seal (Doc. 74) is GRANTED IN PART and DENIED
IN PART. The motion is DENIED with respect to Exhibit 2 (Doc. 75-
2) and is GRANTED with respect to Exhibit 3(Doc. 75-3).
Brown’s motion to seal (Doc. 78) is GRANTED IN PART and DENIED
IN PART. The motion is DENIED with respect to Exhibit 2 (Doc. 79-
2) and GRANTED with respect to Exhibit 7 (Doc. 79-7).
First Advantage’s motion to seal (Doc. 84) is DENIED.
IT IS FURTHER ORDERED that for all materials as to which a
motion to seal is DENIED (Docs. 65-6, 69-6, 69-7, 75-2, 79-2, and
84), the court will direct the Clerk of Court to unseal each of
them in ten (10) days unless the moving party files a proposed
redacted version consistent with the terms of this Order before
then.
/s/ Thomas D. Schroeder
United States District Judge
July 11, 2025