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The Fourth Circuit has clarified the standard for evaluating a nonparty’s attempt to access sealed summary judgment filings under the First Amendment. In United States ex rel. Oberg v. Nelnet, Inc., — F.4th –, No. 23-1808, 2024 U.S. App. LEXIS 14786 (4th Cir. June 18, 2024) (Op.), the Fourth Circuit examined a nonparty’s ability to obtain documents filed under seal in connection with dispositive summary judgment motions. The Fourth Circuit concluded that “irrespective of whether a district court ever resolves a summary judgment motion, the public has a presumptive First Amendment right to access documents submitted in connection with it.” Op. at 18. But, the presumption is not insurmountable. Id.at 14 n.8. Parties seeking to maintain under seal documents filed in connection with summary judgment motions must show that continued sealing is necessitated by a compelling government interest, narrowly tailored to serve that interest. That the district court never ruled on the summary judgment motions or did not rely on the sealed material in resolving the motion is insufficient to overcome the First Amendment access presumption.

Litigation challenging government economic regulation has become more common, as courts appear increasingly less deferential to legislative and executive action. Most of this type of litigation focuses on federal regulation, but states have also taken a more active role in business regulation, prompting more frequent challenges to state laws in federal courts.

It is not uncommon in litigation for parties to introduce testimony through depositions taken for use at trial. It is very uncommon, though, for a party to request to use their own deposition testimony as their trial testimony, rather than appearing as a live witness. A recent decision by EDVA Judge David Novak granting such a request illustrates the flexibility of the rules governing the use of deposition testimony at trial as well as the considerations counsel must consider when planning to offer deposition testimony at trial. Glass v. Metro. Wash. Airport Auth., Civil Action No. 1:23cv1449 (DJN), 2024 U.S.Dist. LEXIS 66062 (E.D.Va. April 10, 2024).

In Colonial River Wealth Advisors, LLC v. Cambridge Investment Research, Inc., No. 3:22cv717, 2024 U.S. Dist. LEXIS 3058 (E.D. Va. Jan. 5, 2024), Judge Young granted the prevailing defendant’s fee petition, awarded $227,357 in attorneys’ fees, and concluded that block billing records provided by the defendant’s counsel “sufficiently permit[ed] the Court to assess the hours expended and the nature of the work completed.” Judge Young rejected the plaintiff’s argument that the block billing practices made it impossible to determine which attorneys’ fees were reasonable. Judge Young acknowledged that, though no per se rule against block billing exists, “in some instances, block billing may inhibit a court from accurately assessing the reasonableness of a fee request,” where lumped fee entries lacked sufficient detail and obscured the amount of time actually spent on the billed-for tasks. When block billing prevents the assessment of the reasonableness of the fees, a reduction of the fee award is appropriate. But in the case of the defendant’s fee petition, Judge Young was able to assess the reasonableness of the fee request, given the level of detail in the defendant’s counsel’s time entry descriptions. Using one example, the court noted that one 8.3 hour entry encompassed 11 discrete tasks, including review of a 309-page deposition transcript, the document production of another party, documents for use in upcoming deposition, and motion to quash various subpoenas. The court found it not unreasonable for the defendant’s counsel to have spent 8.3 hours on those tasks.