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DSC Document 13 Filed 07/06/11 Page 1 of 15 on September 11, 2008, Mr

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DSC Document 13 Filed 07/06/11 Page 1 of 15 on September 11, 2008, Mr UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION BRIAN Z. FRANCE, ) ) No. 3:11-CV-186-MOC-DSC Plaintiff, ) ) vs. ) MEMORANDUM OF LAW IN ) OPPOSITION TO PLAINTIFF’S MEGAN P. FRANCE, ) MOTION TO SEAL ) ALL COURT FILINGS Defendant. ) ) Pursuant to Local Civil Rules 6.1 and 7.1, The Charlotte Observer Publishing Company d/b/a The Charlotte Observer (“ Charlotte Observer ”) and WCNC-TV, Inc. (“WCNC,” and collectively with Charlotte Observer , the “Media Movants”) submit this Memorandum of Law in opposition to Plaintiff’s Motion to Seal All Court Filings. STATEMENT OF THE CASE The Charlotte Observer is a daily newspaper published and circulated in Charlotte, North Carolina and through much of the State of North Carolina and through parts of South Carolina. WCNC is a television station in Charlotte, North Carolina, affiliated with NBC, which broadcasts news programming. Media Movants regularly report information regarding the state and federal civil justice systems, including proceedings involving public and other figures. Plaintiff Brian Z. France is the Chairman and CEO of NASCAR and a well known national public figure. The instant action represents the third lawsuit initiated by Mr. France against his ex-wife in which he has sought to seal records and restrict access to the public in contravention of the United States Constitution and established case law. Case 3:11-cv-00186-MOC -DSC Document 13 Filed 07/06/11 Page 1 of 15 On September 11, 2008, Mr. France filed a Complaint against Defendant Megan P. France in Mecklenburg County District Court (civil action number 08 CVD 20661), alleging Ms. France breached certain confidentiality provisions in the parties’ Separation Agreement. Rather than initially seeking contractual remedies for Ms. France’s alleged breach, Mr. France instead sought a declaratory judgment that he was entitled to a sealed court file not only in that matter but in all future civil actions related to the Separation Agreement. Media Movants had no knowledge of this motion and were therefore unable to oppose it. Judge Todd Owens granted Mr. France’s request, sealing the court files (and his own Order) in 08 CVD 20661 and in all subsequent (as then unfiled) actions between the two parties (“Owens Order”). However, the Owens Order expressly stated that the court file could be unsealed “by further order of the Court.” On December 31, 2008, Mr. France initiated a second civil action against Ms. France, 08 CVD 28389. 1 In this lawsuit, Mr. France sought contractual remedies for damages, specific performance, or rescission for Ms. France’s alleged breach of the Separation Agreement’s confidentiality provisions. Mr. France also filed a Motion to Seal Proceedings which requested complete closure of all courtroom proceedings to the public. Again, Media Movants had no knowledge of this motion and were therefore unable to oppose it. However, Judge Jena Culler, finding “there was no compelling reason to close the proceedings that outweighed the public’s right to open courts as espoused by the North Carolina and United States Constitutions,” denied Mr. France’s motion and ordered that the proceedings remain open (“First Culler Order”). Mr. France appealed the First Culler Order on November 13, 2009 (“Appeal I”). 1 This second action was initially filed in Mecklenburg County Superior Court, but was then properly transferred to District Court. - 2 - Case 3:11-cv-00186-MOC -DSC Document 13 Filed 07/06/11 Page 2 of 15 On November 17, 2009, pursuant to N.C. Gen. Stat. § 1-72.1, Media Movants filed a Motion to Determine Access in both 08 CVD 20661 and 08 CVD 28389. Media Movants sought to keep the courtroom proceedings open to the public and to unseal the court files in both cases. On December 18, 2009, Judge Culler granted Media Movants’ motion (“Second Culler Order”). Specifically she found, “There is no compelling countervailing public or governmental interest to be protected as it relates to the parties that outweighs the public’s longstanding presumptive right to open courts as espoused in the North Carolina Constitution, North Carolina statutory law, . and the related case law.” On December 21, 2009, Mr. France appealed the Second Culler Order (“Appeal II”). The North Carolina Court of Appeals issued a Writ of Supersedeas the following day staying enforcement of the Second Culler Order pending the outcome of Appeal II. 2 The North Carolina Court of Appeals issued its opinion regarding Appeals I and II on February 1, 2011. France v. France , --- N.C. App. ---, 705 S.E.2d 399 (2011). The Court rejected Mr. France’s attempt to close all state court proceedings to the public and affirmed the trial court’s ruling that the court proceedings would be open. Instead of examining the constitutionality of the Owens Order sealing all court records, the Court ruled that the trial court did not have subject matter jurisdiction to hear Media Movants’ motion seeking access to those court records. Importantly, however, the Court specifically stated that the Owens Order could be revisited upon a showing of change in circumstances. 3 Id. at ---, 705 S.E.2d at 405 n. 3. Media 2 Despite the fact that Appeal II was based on Media Movants’ motion, Mr. France refused to serve Media Movants with the transcript or with a proposed record in Appeal II as required by N.C. R. App. P. 11. Mr. France then filed a motion with the Court of Appeals seeking a ruling that Media Movants were “not ‘appellees’ in this appeal.” The Court denied Mr. France’s motion, and Mr. France ultimately served Media Movants with a proposed record on April 5, 2010. Mr. France then filed a Motion for Leave to File Brief under Seal which was also denied by the Court. 3 In this respect, Media Movants vehemently object to Plaintiff’s characterization that the Court of Appeals left “undisturbed Judge Owens’ order sealing all of the court documents filed in the state court action.” (Dkt. 8 at 2, n. 1). - 3 - Case 3:11-cv-00186-MOC -DSC Document 13 Filed 07/06/11 Page 3 of 15 Movants have therefore filed another Motion to Determine Access pursuant to N.C. Gen. Stat. § 1-72.1, again seeking access to the filings sealed by the Owens Order based on, inter alia , the trial court now having subject matter jurisdiction to hear Media Movants’ motion, and also based on the parties’ own public disclosure of certain documents and information in connection with the appeals. That motion is currently pending in Mecklenburg County District Court. On April 15, 2011, Mr. France filed this lawsuit against Ms. France, alleging Ms. France violated the Federal Wiretap Act by wrongfully recording certain telephone conversations between the parties. (Dkt. 1). Mr. France seeks damages and an injunction prohibiting Ms. France from “distributing the contents” of these recordings. Ms. France moved to dismiss the Complaint (Dkt. 5), stating Mr. France has attempted to bully and intimidate her in the ongoing state court case. In response to that motion, Mr. France filed a Motion to Seal All Court Filings, requesting that this court seal “all pleadings, non-dispositive motions, and other documents filed by the parties with the Court.” (Dkt. 7). Mr. France then filed an Amended Complaint under seal. (Dkt. 10). Upon information and belief, this Court has not issued an Order sealing any documents and no Rule 26(e) protective order has been entered in this case. Media Movants then filed a Motion to Intervene (Dkt. 11), seeking permission to intervene in this case for the limited purposes of protecting the public’s right to access court filings and opposing Mr. France’s efforts to unconstitutionally seal the entire court file. On behalf of the public, Media Movants now oppose Mr. France’s Motion to Seal All Court Filings and respectfully request that it be denied. - 4 - Case 3:11-cv-00186-MOC -DSC Document 13 Filed 07/06/11 Page 4 of 15 ARGUMENT PURSUANT TO THE UNITED STATES CONSTITUTION AND COMMON LAW, MEDIA MOVANTS – AND THE PUBLIC – HAVE A PRESUMPTIVE RIGHT OF ACCESS TO JUDICIAL RECORDS AND PLAINTIFF’S MOTION SHOULD THEREFORE BE DENIED. The United States Supreme Court and the Fourth Circuit Court of Appeals have long recognized that the public has a presumptive right of access to court proceedings and judicial records. This right of access is essential to maintaining the integrity of the American justice system. As Justice Oliver Wendell Holmes observed while sitting on the Supreme Judicial Court of Massachusetts, It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed. Cowley v. Pulsifer , 137 Mass. 392, 394 (1884). The Supreme Court cogently expressed this proposition in Richmond Newspapers v. Virginia , 448 U.S. 555, 572 (1980): “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” The Fourth Circuit Court of Appeals elaborated: “Publicity of such records, of course, is necessary in the long run so that the public can judge the product of the courts in a given case.” Va. Dep’t of State Police v. Wash. Post , 386 F.3d 567, 575 (4th Cir. 2004) (quoting Columbus–America Discovery Group v. Atlantic Mut. Ins.
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