Dmarcian, Inc. v. DMARC Advisor BV

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 parties’ “Joint Motion to
Maintain Materials Under Seal” [Doc. 366].
By their motion, the parties jointly seek to maintain the following under
seal: (1) an excerpt from the November 28, 2023, videoconference
deposition of Timothy Draegen (“T. Draegen”) [Doc. 289-3]; (2) exhibit 52 to
the December 5, 2023, deposition of T. Draegan [Doc. 289-4]; (3) certain
excerpts from the November 29, 2023, Zoom deposition of Shannon
Draegan (“S. Draegen”), as well as exhibits 12, 13, and 14 thereto [Doc. 289-
7]; (4) certain excerpts from the December 8, 2023, deposition of S. Draegan,
certain portions of exhibit 18 thereto, and exhibits 19, 20, and 21 thereto
[Doc. 289-8]; and (5) an email marked DM004034 (the “email”) [Doc. 289-9].
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[See Docs. 366; 367]. The parties also agree that the Court should unseal
Docs. 289-1, 289-2, 317-1, 317-3, 317-4, 317-5, 317-6, 317-7, and 319. [See
Doc. 366 at 2].
As grounds for sealing the portions of the materials identified above,
the parties state (1) that the excerpt from T. Draegen’s November 28, 2023,
videoconference deposition involves the discussion of two specific dmarcian
customers by name; (2) that exhibit 52 to the December 5, 2023, deposition
of T. Draegan is an excerpt from his journal discussing “pending litigation
and . . . highly personal matters”; (3) that the excerpts from the November
29, 2023, Zoom deposition of S. Draegan involve the discussion of specific
amounts of various expenditures, and that exhibits 12, 13, and 14 “are
spreadsheets containing information about [dmarcian]’s financial operations
and customers”; (4) that the excerpts from the December 8, 2023, deposition
of S. Draegen, and exhibits 18, 19, 20, and 21 thereto, all involve the
discussion of “specific financial and customer information”; and (5) that the
email involves the discussion of pending litigation. [See Doc. 367 at 6-7].
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. Pub. Citizen, 749 F.3d
246, 265 (4th Cir. 2014). “The common-law presumptive right of access
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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)).
When presented with a motion to seal, the law of this Circuit requires
the 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 parties’ motion. The motion was filed on
May 30, 2024, and it has been accessible to the public through the Court’s
electronic case filing system since that time. Further, the parties have
demonstrated that the materials they seek to maintain under seal reference
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confidential information about dmarcian’s finances, its customers, pending
litigation, and other information of a highly personal nature, as well as that
the public’s right of access to this information is substantially outweighed by
the parties’ compelling interest in protecting the details of such information
from public disclosure. Finally, having considered less drastic alternatives,
the Court concludes that maintaining these materials under seal is narrowly
tailored to serve the interest of protecting this sensitive information.
IT IS, THEREFORE, ORDERED that the parties’ “Joint Motion to
Maintain Materials Under Seal” [Doc. 366] is hereby GRANTED, and that the
specific excerpts from and exhibits to Docs. 289-3, 289-4, 289-7, 289-8, and
289-9 identified by the parties in their motion and discussed above shall
remain under seal until further Order of the Court.
The Clerk of Court is respectfully directed to unseal Docs. 289-1, 289-
2, 317-1, 317-3, 317-4, 317-5, 317-6, 317-7, and 319.
IT IS SO ORDERED. Signed: July 1, 2024
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