UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

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1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION BRIAN Z. FRANCE, v. MEGAN P. FRANCE, Plaintiff, Defendant. Case No. 3:11-CV PLAINTIFF S MEMORANDUM OF LAW IN SUPPORT OF HIS MOTION TO SEAL COURT FILINGS Plaintiff, Brian France, pursuant to Local Civil Rule 6.1, respectfully submits this memorandum of law in support of his Motion to Seal Court Filings. Mr. France seeks an order directing that all non-dispositive materials filed in this action be filed under seal, consistent with the protection of his rights and interests under federal law. Mr. France has a compelling interest in the present matter which requires the sealing of all nondispositive documents filed in this case. This interest overrides any common law right of access to judicial documents, and there is no alternative to sealing all court filings that would adequately protect Mr. France s interests. For these reasons, Mr. France respectfully urges the Court to grant this motion and enter an order directing that all nondispositive materials filed in this action must be filed under seal. I. RELEVANT FACTS This case arises out of a highly contested and lengthy divorce proceeding between Brian France and his former wife, Megan France. That divorce proceeding is pending in the Superior Court for Mecklenburg County, bearing Case Number 08-CVD That 1 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 1 of 9

2 case is under seal, and all of the pleadings and future documents filed in that action are protected from public access. 1 On April 15, 2011, Mr. France initiated this action against Megan France, seeking an injunction and damages for her violations of the Federal Wiretap Act, 18 U.S.C. 2510, et seq. (Doc. 1). Specifically, Mr. France seeks to prevent Megan France from disclosing the details of certain telephone conversations between them, in which the two discussed details relating to property distribution, custody of the pair s two minor children, and other sensitive personal and financial matters. Megan France secretly recorded these conversations on a series of tapes, without Mr. France s knowledge or consent, and then she threatened to disclose them to third parties and business associates of Mr. France if he did not meet her financial demands. Mr. France seeks to prevent this disclosure, and prohibit the information from being made available to the public, and therefore Mr. France comes to this Court seeking to enforce his rights to protect his privacy interests. Subsequent to the filing of the original Complaint, Ms. France filed a Motion to Dismiss. (Doc. 4). While Mr. France believes the original Complaint is more than sufficient to withstand a motion to dismiss, consistent with the standards of Rule 15(a)(1)(B), Mr. France is filing an Amended Complaint. The Amended Complaint expands the factual discussion relating to the information contained on the tape and Ms. 1 On December 18, 2008, District Court Judge Todd Owens entered an order sealing the record in the parties state court case. Two subsequent orders, by District Court Judge Jena Culler were then issued in the same case. The first Culler order denied a request to close the courtroom. The second Culler order overruled Judge Owens order sealing the court filings and instead ordered the record unsealed. Judge Culler s orders were appealed, and the North Carolina Court of Appeals vacated Judge Culler s order unsealing the record, leaving undisturbed Judge Owens order sealing all of the court documents filed in the state court action. The Court of Appeals also upheld Judge Culler s order refusing to seal the courtroom. Therefore, the documents and pleadings in the state court companion case are still under seal. 2 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 2 of 9

3 Frances attempts to extort money from Mr. France. As detailed above, Mr. France wishes to protect his personal and professional interests, as well as those of his children, and therefore seeks leave of Court to seal all court filings made by the parties in this case. II. LEGAL ARGUMENT As a general rule, the common law affords the general public a right of access to judicial documents and filings. See Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978); Stone v. University of Maryland Medical System Corp., 855 F.2d 178, 180 (4th Cir. 1988). This common law right attaches to all judicial records and documents, or documents that a court uses in determining litigants substantive rights. Haas v. Golding Transport Inc., No.1:09CV1016, 2010 WL (M.D.N.C. Mar. 26, 2010). However, the public right to access is not absolute and may be limited in situations where there is a countervailing interest that mandates against access. Nixon, 435 U.S. at 590. In general, the common law presumption of access may be overcome if competing interests outweigh the interest in access. Stone, 855 F.2d at In addition, a court that grants a motion seeking the sealing of records must provide the public with adequate notice and consider alternatives to filing under seal. Id. Here, Mr. France has several compelling interests that support the sealing of all documents filed in this case, and there are no alternatives to sealing that would preserve 2 There is also a First Amendment guarantee of access that attaches only to particular judicial records and documents. See Stone, 855 F.2d at 181. The documents which receive this First Amendment right of access may be sealed only upon the showing of a compelling governmental interest. Haas v. Golding Transport Inc., No.1:09CV1016, 2010 WL (M.D.N.C. Mar. 26, 2010). It is Mr. France s contention that the judicial documents which generally receive protection under the First Amendment, such as a motion for summary judgment in a civil case and plea hearings in a criminal case, are not at issue here. See Stone, 855 F.2d at However, the Fourth Circuit has endorsed the position that a private business interests can overcome both the common law and the First Amendment rights of access without addressing this governmental interest question. Haas, 2010 WL , at *7 n.4. In this motion, Mr. France deals only with non-dispositive pleadings, motions, and discovery documents, but will further brief this issue if the parties decide to file dispositive motions. 3 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 3 of 9

4 Mr. France s rights to protect his interests in this Court. As such, Mr. France s motion seeking closure should be granted, and all documents to be filed in this case, with the exception of dispositive motions, should be ordered filed under seal. A. Countervailing Interest In assessing the competing interests regarding access, the United States Supreme Court has counseled that the courts are to perform a balancing test, and the Fourth Circuit urges courts to consider [w]hether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public s understanding of an important historical event; and whether the public has already had access to the information contained in the records. In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir. 1984). The Supreme Court thus stated: [T]he common law right of inspection has bowed before the power of a court to insure that its records are not used to gratify private spite or promote public scandal through the publication of the painful and sometimes disgusting details of a divorce case. Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant s competitive standing. Nixon, 435 U.S. at 598. In addition, courts have found a competing interest sufficient to outweigh the common law right of access in situations where public access would eviscerate the protections that a party seeks to preserve, such as the denial of a motion to seal in a trade secrets protection case. See Laboratory Corporation of America Holdings, v. Cardinal Health System, Inc., No.5:10-CV-353-D, 2010 WL , *1 (E.D.N.C. Oct. 6, 2010). 4 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 4 of 9

5 Mr. France has several interests here that override the usual presumption allowing the public to freely access the judicial documents and records that will be filed in this action. First, the complaint that was filed in this case seeks an injunction preventing Megan France from disclosing the information she obtained in violation of Mr. France s legal rights. (Doc. 1.). This entire case involves the unauthorized recording and threatened disclosure of sensitive, confidential information that Mr. France rightfully seeks to keep private. (Id.). Specifically, Mr. France is trying to prevent the disclosure of sensitive and private financial and custodial information that, if disclosed, could harm him in both a personal and professional capacity. (Id., 6). If this Court were to allow the record to remain unsealed, large portions of those illegally recorded conversations and information would be filed on the record, for the entire world to see. Similar to the protection sought in the Laboratory Corporation case, Mr. France s remedy would be entirely eviscerated. Allowing the record to remain unsealed would guarantee public access, but it would result in the court house door becoming effectively closed to Mr. France for redress of his injuries here. Secondly, this case stems from a highly contested divorce proceeding and accompanying property distribution dispute involving Mr. France, Megan France, and the couple s two minor children. Private financial and family information will be discussed at several points in this case. Mr. France seeks to prevent this financial and custodial information from becoming public and harming his personal and business interests. Nixon, 435 U.S. at 598. In addition, as noted by the Supreme Court in Nixon, this case will likely involve the disclosure of the painful and sometimes disgusting details of a divorce case. Id. Protection of these painful and private details from unwarranted 5 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 5 of 9

6 publicity triggers an interest that overrides the general public right of access to judicial documents. Finally, there is no competitive public interest present in this case. This case is a private matter, involving private conversations about private issues. This case does not involve the promotion of public understanding of an immensely important historical occurrence that arguably would flow from the release of the information in the pleadings and documents that will be filed. Nixon, 435 U.S. at 602. Nor is the information that would be revealed in this case information that is already available to the public at large. 3 Rather, the only interest in allowing the public access to the judicial records and documents in this action is the promotion of a divorce scandal involving a highly regarded public figure. As stated by the courts consistently, the common law right of access does not exist so that court files might become a vehicle for improper purposes or reservoirs of libelous statements for press consumption. Nixon, 435 U.S. at 602. B. Alternatives to Sealing As part of its determination, the court ruling on a motion to seal must also consider alternatives to sealing. In re Knight Publishing Company, 743 F.2d 231, 235 (4th Cir. 1984). In general, courts have determined that when the information sought to be kept private is so integral to, and pervasive throughout, the judicial documents, mere redaction is not sufficient. See Silicon Knights, Inc. v. Epic Games, Inc., No.5:07-CV- 275, 2011 WL , *2 (E.D.N.C. Mar. 15, 2011). When the judicial filings refer extensively to confidential information or trade secrets, redaction is not a practical or 3 In fact, the opposite is true. As discussed above, North Carolina District Court Judge Owens order sealing the record in the parties state court case was left standing on appeal. 6 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 6 of 9

7 efficient alternative. Laboratory Holdings Corporation of America, 2010 WL , at *2. Here, the entire dispute between the parties turns on the nature of the information on the tapes Megan France illegally recorded. (Doc. 1). These tapes detail private custodial and financial information that Mr. France rightfully seeks to keep private. (Id., 6-7). All of the judicial filings will contain specific information relating to these details. In order for the Court to fully consider the merits of each party s positions, this information will need to be presented through the pleadings, discovery, and nondispositive motions. Redaction is simply not a viable alternative. III. CONCLUSION With this motion, Mr. France seeks to preserve his rights against the disclosure of illegally recorded non-public, personal, sensitive financial and custodial information. While the public has a right to access judicial documents, such right exists only when that public interest outweighs any private interest, and that is not the case here. In addition, there is no practical alternative to sealing all of the pleadings, discovery, and nondispositive motions, as the information is integral to the relief sought and will run throughout the documents to be filed in this case. Accordingly, Mr. France respectfully requests that this Court enter an order sealing all of the pleadings, discovery, and nondispositive motions that will be filed in this action. /// /// /// /// 7 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 7 of 9

8 Respectfully submitted this 27th day of June, BRADLEY ARANT BOULT CUMMINGS LLP /s/ James C. Smith James C. Smith (NC Bar No. 8510) Avery A. Simmons (NC Bar No ) Bank of America Corporate Center 100 N. Tryon Street, Suite 2690 Charlotte, NC (704) Telephone (704) Facsimile Attorneys for Plaintiff Brian Z. France 8 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 8 of 9

9 CERTIFICATE OF SERVICE I hereby certify that a copy of the Memorandum of Law in Support of Motion to Seal All Court Filings was filed with the Court using the CM/ECF function, which will send notification to the parties listed below: Martin L. Brackett, Jr. Robinson Bradshaw & Hinson, P.A. 101 N. Tryon Street Suite 1900 Charlotte, NC Attorney for Plaintiffs This 27 th day of June, /s/ James C. Smith James C. Smith, Esq. 9 Case 3:11-cv MOC -DSC Document 8 Filed 06/27/11 Page 9 of 9

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