Massey Energy Company and Alpha Natural Resources entered into a merger agreement. Massey shareholders sued Massey and its Board in the Circuit Court of Kanawha County, West Virginia, seeking to enjoin the sale and alleging wrongful conduct by Massey and its Board, including former CEO Don Blankenship. To expedite discovery, the parties agreed to a protective order entered by the Court that essentially deemed all discovery produced by Massey to be confidential, and compelled plaintiffs to file all documents and pleadings under seal. The plaintiffs moved for a preliminary injunction and attached exhibits produced during discovery. Following the agreed protective order, the plaintiffs filed their pleading and exhibits under seal.
National Public Radio (NPR) and the Charleston Gazette newspaper moved to intervene for the limited purpose of opposing the motion to seal the record. NPR and the Gazette pointed out that the United States Constitution, the West Virginia Constitution, as well as the common law, all give important rights of presumptive access to court records to the Public and the Press, and that such rights to access court records is necessary for transparency in judicial decisions needed to protect and ensure the integrity of the judicial decisions based on those court records. NPR and the Gazette further showed that Massey and its board members had failed to articulate a sufficient factual or legal basis to justify sealing any portion of the record.
The Circuit Court of Kanawha County, Judge Charles E. King presiding, entered an Order on June 8, 2011 sustaining NPR and the Gazette's opposition to the sealing motion, and denied the motion to seal (except for very limited personal information that might be in deposition transcript exhibits). The court record and file was ordered unsealed and immediately made available for public viewing, inspection and copying.
NPR and the Charleston Gazette were represented by attorneys Sean McGinley, Rudolph DiTrapano and Robert M. Bastress, III, of the law firm of DiTrapano Barrett & DiPiero, PLLC in Charleston, West Virginia.
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