Dmarcian, Inc. v. DMARC Advisor BV

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00067-MR
DMARCIAN, INC., 	)
)
Plaintiff, 	)
)
vs. 	) 	O R D E R
)
DMARC ADVISOR BV, f/k/a 	)
dmarcian Europe BV, 	)
)
Defendant. 	)
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s Motion to Seal
Exhibits to Its Brief in Opposition to Defendant’s Motion to Exclude Certain
Opinions of Plaintiff’s Expert John R. Levine, PhD. [Doc. 330].
The Plaintiff moves for leave to file under seal certain exhibits attached
to the Declaration of David Dorey [Docs. 329-2, 329-3] to the Plaintiff’s Brief
in 	Opposition 	to 	Defendant’s 	Motion 	to 	Exclude 	Certain 	Opinions 	of
Plaintiff’s Expert John R. Levine, PhD. 1 [Doc. 330]. 	For grounds, the
Plaintiff states
that these exhibits contain a discussion of the Plaintiff’s trade secrets and
1 While it appears that the Plaintiff seeks only to file Documents 329-2 and 329-3 under
seal, the Plaintiff provisionally filed under seal the entirety of Mr. Dorey’s Declaration and
all of the other exhibits attached thereto as well. 	As the Plaintiff has not sought to seal
these documents, the Court will instruct the Clerk to unseal these other documents.
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confidential 	business 	information 	that 	warrant 	protection 	from 	public
disclosure. 	The Plaintiff has filed in the public record redacted versions of
the exhibits to Mr. Dorey’s Declaration that are sought to be sealed. 	[See
Docs. 332-2, 332-3]. The Plaintiff indicates in its motion that the Defendant
does not consent to the sealing of at least part of these exhibits. 	[Doc. 330
at 2]. 	However, the Defendant has not filed any response in opposition to
the motion to seal.
The press and the public have, under both the First Amendment and
the common law, a qualified right of access to judicial documents and
records filed in civil and criminal proceedings. 	Doe v. Public Citizen, 749
F.3d 246, 265 (4th Cir. 2014). “The common-law presumptive right of access
extends to all judicial documents and records, and the presumption can be
rebutted only by showing that ‘countervailing interests heavily outweigh the
public interests in access.’” 	Id. at 265-66 (quoting in part Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)). 	The First
Amendment right of access “may be restricted only if closure is ‘necessitated
by a compelling government interest’ and the denial of access is ‘narrowly
tailored to serve that interest.’” 	Id. at 266 (quoting in part In re Wash. Post
Co., 807 F.2d 383, 390 (4th Cir. 1986)).
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When presented with a motion to seal, the law of this Circuit requires
this Court to: “(1) 	provide public 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
and for rejecting the alternatives.” 	Ashcraft v. Conoco, Inc., 218 F.3d 288,
302 (4th Cir. 2000).
In the present case, the public has been provided with adequate notice
and an opportunity to object to the Plaintiff’s motion. 	The motion was filed
on February 5, 2024, and it has been accessible to the public through the
Court’s electronic case filing system since that time. Further, the Plaintiff has
demonstrated 	that 	the 	deposition 	excerpts 	attached 	to 	Mr. 	Dorey’s
Declaration reference confidential business information, and that the public’s
right of access to such information is substantially outweighed by the
compelling interest in protecting the details of such information from public
disclosure. Finally, having considered less drastic alternatives to sealing the
documents, the Court concludes that the sealing of these materials is
narrowly 	tailored 	to 	serve 	the 	interest 	of 	protecting 	this 	sensitive
information.
IT IS, THEREFORE, ORDERED that the Plaintiff’s Motion to Seal
[Doc. 330] is GRANTED, and the deposition excerpts filed as
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329-2 and 329-3 shall be filed under seal and shall remain under seal until
further Order of the Court.
The Clerk of Court is respectfully instructed to unseal Documents 329,
329-1, 329-4, 329-5, 329-6, and 329-7.
IT IS SO ORDERED.
Signed: April 22, 2024
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