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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DENISE MINTER, ET AL. V. WELLS FARGO BANK, N.A., ET AL. * * * CIVIL NO. WMN-07-3442

MEMORANDUM OPINION Before the Court is defendant Long & Foster Real Estate, Inc.'s Motion for Protective Order to Preclude, Postpone, and/or Limit the Deposition of P. Wesley Foster, Jr. (Paper No. 92), and defendant Long & Foster Real Estate, Inc.'s Motion to File Documents Under Seal Pursuant to Local Rule 105.11 (Paper No. 90) -- specifically the motion, memorandum, and exhibits supporting the motion for protective order. No hearing is necessary. The matters are fully briefed. For the following

Local Rule 105.6.

reasons, the Court shall DENY in part and GRANT in part Long & Foster Real Estate, Inc.'s motion for protective order and DENY Long & Foster Real Estate, Inc.'s motion to seal. I. DISCUSSION

This is a class action in which plaintiffs allege that Wells Fargo, in conjunction with Long & Foster Real Estate, Inc. ("L&F"), created Prosperity Mortgage -- a sham Affiliated Business Arrangement ("ABA") -- to facilitate the collection of unlawful referral fees and kickbacks. (Paper No. 18 at 2.)

According to plaintiffs, Prosperity is not a mortgage company,

but rather a "conduit" through which L&F receives kickbacks for referring mortgages to Wells Fargo. (Id.) Unsuspecting

borrowers essentially pay the referral fee disguised as legitimate charges, for which they receive no additional goods or services -- a practice plaintiffs assert violates state and federal laws. (Id. at 15.) (Id.) At the helm of L&F is P. Wesley Foster Jr.

Although his level of involvement in L&F and

Prosperity operations is disputed, there is evidence that he has played a significant role in steering L&F agents to use Prosperity and that he has a significant economic interest in both companies. (Id.) A. Motion to Seal

L&F moves that the following documents, filed in support of its motion for protective order, be filed under seal: 1) L&F's Motion for Protective Order to Preclude, Postpone, and/or Limit the Deposition of P. Wesley Foster, Jr.; 2) the Memorandum of Law in Support of the Motion for Protective Order; 3) the Declaration of P. Wesley Foster, Jr., dated February 2009 ("Foster Declaration"); 4) the Declaration of Jay N. Varon dated February 20, 2009 ("Varon Declaration"); and 5) three additional exhibits accompanying the motion and memorandum of law which are comprised of correspondence between counsel (specifically exhibits 2, 4, and 5). (Paper No. 90 at 1.) For the reasons discussed below,

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the Court hereby DENIES the motion.1 Local Rule 105.11 requires that a party seeking to seal documents offer reasons supported by specific factual representations justifying the sealing.2 The common law presumes

the right of the public to inspect and copy all judicial records. Va. Dep't of State Police v. The Washington Post, 386 F.3d 567, 575 (4th Cir. 2004); see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580, n. 17 (1980) (noting that "historically both civil and criminal trials have been presumptively open"). "This presumption of access, however, can

be rebutted if countervailing interests heavily outweigh the public interests in access." Rushford v. New Yorker Magazine, Ultimately, the

Inc., 846 F.2d 249, 253 (4th Cir. 1988).

decision whether to allow public access to judicial records is a matter of the district court's "supervisory" and discretionary
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This opinion and the documents at issue will remain under seal until L&F has exhausted any appeal of this judge's decision in this Court.
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Local Rule 105.11 states:

Any motion seeking the sealing of pleadings, motions, exhibits or other documents to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) and explanation why alternatives to sealing would not provide sufficient protection. The Court will not rule upon the motion until at least 14 days after it is entered on the public docket to permit the filing of objections by interested parties. Materials that are the subject of the motion shall remain temporarily sealed pending a ruling by the Court. If the motion is denied, the party making the filing will be given an opportunity to withdraw the materials. Upon termination of the action, sealed materials will be disposed of in accordance with L.R. 113.

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power.

Id. (citing Nixon v. Warner Comm'ns, Inc., 435 U.S. 589, But the right of access may only be abrogated in Stone v. Univ. of Md. Med. Sys. Corp.,

598-99 (1978)).

"unusual circumstances."

855 F.2d 178, 182 (4th Cir. 1988). When the First Amendment provides a right of access, the district court may seal documents only "on the basis of a compelling government interest," a higher standard than described in the preceding paragraph. Stone, 855 F.2d at 180. The First

Amendment right of access has been held expressly to apply in criminal cases, and to materials made part of a dispositive motion in civil cases. Rushford, 846 F.2d at 253 (opining that

the more rigorous standard applies to documents made part of dispositive civil motions). There is no reason to assume that the First Amendment protection does not apply even more broadly, to non-dispositive motions and materials, such as those at issue here. existing precedent suggests this broader reach. In fact,

In Richmond

Newspapers, the Supreme Court held that the right of the public to attend criminal trials is implicit within certain First Amendment guarantees. 448 U.S. at 578-80. "[A] presumption of

openness inheres in the very nature of a criminal trial under our system of justice." Id. at 573. Courts have interpreted

Richmond Newspapers broadly, and "make little distinction between the right of access to court proceedings and the right of access

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to court records."

Anne-Therese Bechamps, Sealed Out-of-Court

Settlements: When Does the Public Have a Right to Know?, 66 Notre Dame L. Rev. 117, 135 (1990) and cases cited therein. "These

courts understand Richmond Newspapers to recognize the public's general right to receive information within a court's control." Id. at 135-36. Indeed, "in some civil cases the public interest

in access, and the salutary effect of publicity, may be as strong as, or stronger than, in most criminal cases." DePasquale, 443 U.S. 368, 386 n. 15 (1979). In Virginia Department of State Police v. The Washington Post, the Fourth Circuit stated that it has "never held that the public has a First Amendment right of access to a pretrial hearing on a non-dispositive civil motion." 386 F.3d at 580. Gannett Co. v.

The Court nonetheless continued that "proceedings in civil cases are traditionally open." Id. (citing In re Grand Jury Subpoena,

836 F.2d 1468, 1475 n. 11 (4th Cir. 1988) ("Sealing the discovery process in civil proceedings . . . sacrifices the traditional interest of the public in obtaining access to civil proceedings")). Ultimately, however, the Fourth Circuit declined Id. at 580.

to reach the question on the record before it.

Although the Fourth Circuit thus has not explicitly held that a First Amendment right of access exists with regard to nondispositive civil motions and hearings, the precedent strongly favors that view, with the higher burden for sealing.

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Even if the First Amendment right of access does not apply to these non-dispositive motion papers, L&F's motion easily fails under the less stringent common law right of access.3 Defendant

has failed to demonstrate any "countervailing interests [that] heavily outweigh the public's interest in access." F.2d at 253. In ruling on a motion to seal, "[a] district court must [also] . . . weigh the appropriate competing interests under the following procedure: it 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." 576. Washington Post, 386 F.3d at Rushford, 846

In simpler terms, if the Court decides to seal documents,

it has to explain itself in a complete and thorough manner. Courts have a duty to protect the public right of access. Tobacco Tech., Inc. v. Taiga Int'l, 2007 WL 172524, 1 (D. Md. Jan. 17, 2007). The public notice and opportunity to challenge

requirements are easily met by allowing time for objections to be made, once a motion to seal has been filed. See Padco Advisors,

For an informative history exploring the roots of both the common law and First Amendment rights of access, see the discussion in Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-70 (3rd Cir. 1984).

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Inc. v. Omdahl, 179 F.Supp.2d 600, 614 (D. Md. 2002) (opining that since the motion had been on the docket for an amount of time sufficient to allow for objections to be made, the notice and objections requirements had been met). This is why Local

Rule 105.11 states that the Court "will not rule upon the motion until at least 14 days after it is entered on the public docket." Local Rule 105.11. A sufficient amount of time has now passed to

allow the Court to rule on the instant motion. Defendant L&F must meet a heavy burden. Defendant asserts

that its motion to seal should be granted, because the materials contain highly sensitive information of a personal and commercial nature. (Paper No. 90 at 2-3.) The cases cited by L&F are not

persuasive for a number of reasons, including that most involve unopposed motions. See Briggs v. Marriott Int'l, Inc., 368

F.Supp.2d 461, 463 n. 1 (D. Md. 2005) (granting "uncontested" motion in a footnote); Stratagene v. Invitrogen Corp., 206 F.R.D. 121, 122 (D. Md. 2002) (granting motion to seal "in light of the absence of objection"); Padco Advisors, 179 F.Supp.2d at 614-15 (motions to seal were "unopposed"). is vigorously contested. Moreover, the information that the movant attempts to seal is not on its face "sensitive" medical or personal information or confidential trade secrets. Nor has movant through its Here, L&F's motion to seal

declarations offered the requisite "specific factual

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representations" justifying secrecy. 1. Sensitive Personal Information Local Rule 105.11 requires that a party seeking to seal documents offer reasons supported by specific factual representations justifying the sealing, and the case law only allows sealing in unusual circumstances. Stone, 855 F.2d at 180.

L&F misconstrues case law in support of its argument that the documents contain sensitive personal information. The court in

Briggs granted a motion to seal, on account of sensitive personal information. 368 F.Supp.2d at 463. But the documents contained

actual medical information and detailed medical records, filed in conjunction with a claim for disability insurance benefits. The documents presently at issue are much different; to the extent the documents contain personal information about Mr. Foster, it is vague information related to Mr. Foster's age and stamina. For example, in The Declaration of P. Wesley Foster, he claims to "have various health issues that flare up from time to time," and his "stamina has declined over the years . . ." (Paper No. 92-3 at 2.) Another document -- a letter written by Id.

Jay N. Varon -- points out the he is 75 years old and "works shorter days . . ." (Paper No. 92-6 at 2.) By no stretch of the

imagination does this information warrant secrecy, as intensely personal information.

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2.

Sensitive Business Information L&F also argues that the documents contain sensitive

business information, akin to "trade secrets," and therefore should be sealed. (Paper No. 101 at 3.) While trade secrets

enjoy a "broad definition," they must still be a "formula, pattern, device or compilation of information which is used in one's business, and which gives [the owner] an opportunity to obtain an advantage over competitors . . ." 3 Jack B. Weinstein,

Weinstein's Federal Evidence

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