Strauss et al v. Credit Lyonnais, S.A.
Filing
283
MEMORANDUM AND ORDER Regarding Modification of Protective Order: For the foregoing reasons, subsection 2(f) of the prior Protective Orders issued in these two cases are vacated and replaced by the Supplemental Protective Order which limits the scope of documents that may be filed under seal and requires that future documents filed herein which contain protected materials should be publicly filed with the protected information redacted. Ordered by Magistrate Judge Marilyn D. Go on 10/6/2011. Associated Cases: 1:06-cv-00702-DLI-MDG, 1:07-cv-00914-DLI-MDG. See attached for further details. (Abdallah, Fida)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------x
MOSES STRAUSS, et al.,
Plaintiffs,
-againstCREDIT LYONNAIS, S.A.,
Memorandum and Order
regarding
Modification of
Protective Order
06-CV-702 (DLI)(MDG)
Defendant.
-----------------------------------x
BERNICE WOLF, et al.,
Plaintiffs,
-against-
07-CV-914 (DLI)(MDG)
CREDIT LYONNAIS, S.A.,
Defendant.
-----------------------------------x
Plaintiffs bring these two related actions under section
2333(a) of the Anti-Terrorism Act of 1992, 18 U.S.C. § 2333(a),
against Credit Lyonnais (the "Bank") for providing material support
to the Islamic Resistance Movement, commonly known as HAMAS.
In
prior proceedings, the Court approved stipulated protective orders
limiting the disclosure and dissemination of certain information
produced in discovery.
See Protective Order in Strauss filed on
March 10, 2006 (ct. doc. 7) and Amended Protective Order in Wolf
filed on July 18, 2007 (ct. doc. 26), which shall be collectively
called the "Prior Orders."
For the reasons discussed below, this Court finds good cause
for modification of the Prior Orders in order to narrow the scope of
information protected in future filings so as to minimize the volume
of documents to be sealed and made inaccessible to the public.
BACKGROUND
After issuance of the Prior Orders, the defendant has
apparently designated most of the materials it produced in
discovery as highly confidential.
Both sides have also sought
leave to file under seal a number of submissions concerning
various discovery disputes.
This Court granted the sealing
applications since the matters in dispute, for the most part,
concerned financial information involving non-parties entitled to
protection under the Prior Orders.
However, when the parties
sought leave to file pre-motion letters under seal, the Honorable
Dora L. Irizarry denied the applications, noting that a showing
of good cause is required for sealing.
See Electronic Orders
filed on 5/17/11 and 5/24/11 in both cases.
As a result, this Court encouraged the parties to agree on
modifications to the Prior Orders which would address the
concerns about public access raised by Judge Irizzary.
This
Court requested the parties to draft more specific definitions of
confidential information to be protected and to propose
procedures for minimizing the volume of materials filed under
seal.
After the parties could not agree on a revised protective
order, the Bank submitted its own proposed changes.
In its new
definition of confidential information, the Bank proposed
eliminating the first category of information protected in the
Prior Orders concerning trade secrets and "sensitive commercial
or financial information," and replacing the second category for
"financial information of persons who are not parties to this
litigation" with more specific descriptions of the types of
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confidential information covered.
See letters of Lawrence
Friedman dated June 17, 2011, July 8, 2011 and October 4, 2011,
ct. docs. 256, 265, 282 (Strauss); 151, 169 (Wolf) discussing
Prior Orders, ¶¶ 1(a)(i) and 1(a)(ii).
The Bank also proposed
that the parties file all documents containing information within
the new definition under seal but also publicly file the same
documents with the confidential information redacted.
Id.
Most of the documents the defendant bank previously
designated as "confidential" or "highly confidential" pursuant to
the Prior Orders pertain to a former customer, Comité de
Bienfaisance et de Secours aux Palestinians a/k/a Comité de
Bienfaisance pour la Solidarite avec la Palestiene ("CBSP").
Plaintiffs initially argued that CBSP has no privacy interests
worthy of protection because it was designated as a Specially
Designated Global Terrorist ("SDGT") organization within the
meaning of 18 U.S.C. § 2339B.
They later expressed a preference
that all documents which contain information designated as
confidential be sealed, in light of their perceived practical
difficulties in having to make redactions of confidential
information contained in their summary judgment submissions.
In order to understand the nature and extent of the
redactions that would be required under the Bank's proposal, this
Court has made an in camera review of documents submitted at the
Court's request by the parties, which they believe constitute a
representative sampling of documents they would be submitting in
connection with the summary judgment motions to be filed.
-3-
DISCUSSION
The legal principles governing the modification of prior
protective orders are well settled.
As the Supreme Court
recognized in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1983),
protective orders issued upon a showing of good cause as to
materials produced in civil discovery are consistent with the
First Amendment since "restraints placed on discovered, but not
yet admitted information are not a restriction on a traditionally
public source of information."
Id. at 33, 37.
Once a protective
order is issued, it is "presumptively unfair for courts to modify
protective orders which assure confidentiality and upon which the
parties have reasonably relied."
AT&T Corp. v. Sprint Corp., 407
F.3d 560, 562 (2d Cir. 2005) (citing S.E.C. v. TheStreet.com, 273
F.3d 222, 230 (2d Cir. 2001)).
Where there has been reasonable
reliance on a previously issued protective order, the order
should not be modified without a showing of "improvidence in the
grant of a Rule 26(c) protective order or some extraordinary
circumstance or compelling need."
Martindell v. Int'l Tel. &
Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979).
However, when protected discovery materials are used in
court filings, the common law right of the public "to inspect and
copy ... judicial records and documents" is implicated and gives
rise to a presumption of access to judicial documents.
Warner Communic'ns, Inc., 435 U.S. 589, 597 (1978).
Nixon v.
"The
presumption of access is based on the need for federal courts,
although independent --indeed, particularly because they are
independent-- to have a measure of accountability and for the
-4-
public to have confidence in the administration of justice."
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
("Amodeo II").
In determining whether the presumption of access under
common law applies, the court must first determine whether a
filed document is a "judicial document."
Lugosch v. Pyramid Co.
of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).
If the
presumption applies, the court must then determine the weight to
be given that presumption and weigh the presumption of access
against countervailing factors.
These factors include, but are
not limited to, "'the danger of impairing law enforcement or
judicial efficiency' and 'the privacy interests of those
resisting disclosure.'"
at 1050).
Id. at 120 (quoting Amodeo II, 72 F.3d
Since the right of access is a qualified right, courts
must identify all the factors to be weighed, examining them "in
light of the relevant facts and circumstances of the particular
case" and "weighing the interests advanced by the parties in
light of the public interest and the duty of the courts."
United
States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995) (quoting Nixon,
435 U.S. at 599, 602).
The presumption of access unquestionably applies at this
juncture since documents submitted in connection with a "motion
for summary judgment are -- as a matter of law -- judicial
documents to which a strong presumption of access attaches, under
both the common law and the First Amendment."
at 121 (emphases added).
Lugosch, 435 F.3d
Where the presumption of public access
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arises under the First Amendment, the Second Circuit has utilized
two different approaches in determining whether access to
judicial documents is required.
Id., 435 F.3d at 120.
Under a
so-called "experience and logic" approach, courts "consider both
whether the documents 'have historically been open to the press
and general public' and whether 'public access plays a
significant positive role in the particular process in
question.'"
Id. (citing Hartford Courant Co. v. Pellegrino, 380
F.3d 83, 92 (2d Cir. 2004) (quoting Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8 (1986)).
The second approach
requires consideration of "the extent to which judicial documents
are 'derived from or [are] a necessary corollary of the capacity
to attend the relevant proceedings.'"
Id. (quoting Hartford
Courant, 380 F.3d at 93).
Whether the presumption of access arises under the common
law or the First Amendment, "documents may be kept under seal if
'countervailing factors' in the common law framework or 'higher
values' in the First Amendment framework so demand."
435 F.3d at 124.
Lugosch,
Nonetheless, when "the more stringent First
Amendment framework applies, continued sealing of the documents
may be justified only with specific, on-the-record findings that
sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim."
Id.
As
the Second Circuit has cautioned, "district courts [should] avoid
sealing judicial documents in their entirety unless necessary
[since t]ransparency is pivotal to public perception of the
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judiciary's legitimacy and independence."
United States v. Aref,
533 F.3d 72, 81-83 (2d Cir. 2008).
Since liability discovery is now completed and the parties
are now engaged in briefing summary judgment motions,
reassessment of the scope of the Prior Orders, especially the
procedures set forth therein with respect to sealing documents,
is not only appropriate at this time, but, indeed, necessary.
After review, this Court finds that most provisions in the Prior
Orders need not be changed since they primarily concern the flow
of materials and information in pretrial discovery.
As the
Supreme Court explained, materials obtained in discovery "are not
public components of a civil trial [and] were not open to the
public at common law."
Seattle Times, 467 U.S. at 33.
Because
"[m]uch of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to the
underlying cause of action," the Court held that "restraints
placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information."
Id.
Clearly the provisions in the Prior Order have served to
assist in the discovery process and moving this case toward
trial.
See In re September 11 Litigation, 262 F.R.D. 274, 278
(S.D.N.Y. 2009) (denying motion of plaintiffs to set aside
confidentiality designations made pursuant to stipulated
protective orders).
Thus, this Court sees no reason either to
disturb the confidentiality designations made by the parties in
accordance with the terms of the Prior Orders or to modify the
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restrictions on the disclosure of the materials by the parties
both during and after termination of these actions.
The parties
had agreed to the terms of the Prior Orders before approval by
the Court and have relied on them during discovery without
objection to designations of confidentiality made.
Likewise, the
non-parties to whom the parties have provided documents
designated as confidential presumably have already signed
agreements required by the Prior Orders to limit use and
distribution of all confidential materials.
However, in light of concerns of public access to documents
filed in connection with any summary judgment motion to be filed
or other motion affecting determination of the merits of these
actions, the provision in the Prior Orders requiring the sealing
of all documents filed with the Court which contain information
designated as "confidential" or "highly confidential" cannot
stand.
Thus, the provisions in subsection 2(f) of the Prior
Orders are hereby vacated and are replaced and supplemented by a
Supplemental Protective Order to be filed herewith, which, as
discussed below, shall govern the filing of documents under seal,
as well as the public filing of redacted documents.
Materials to be Protected
The Bank proposes limiting confidential treatment to eight
categories of documents.
See letters of Lawrence Friedman dated
June 17, 2011, July 8, 2011 and October 4, 2011.
The categories
proposed are intended to replace the general category described
in section 1(a)(ii) of the Prior Orders as records "relating to
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financial information of persons who are not parties to this
litigation."
Six of the categories pertain to banking records
concerning CBSP, a former customer of the Bank alleged by
plaintiffs to be an Islamic charitable foundation that is part of
the global network of charities known as the Union of Good
through which HAMAS raises funds.
The seventh category covers
the contents of declarations the Bank filed with the office for
Treatment of Information and Action against Clandestine Financial
Circuits ("TRACFIN"), the office in the French Ministry of the
Economy, Finances and Industry responsible for monitoring
financial transactions relating to money laundering and
terrorism.
Relatedly, the eighth category covers the minutes of
the statement made by a bank employee to French police.
Both financial records and certain reports by banks to
government authorities have historically not been subject to
public access in the United States.
Courts have recognized that
banking customers have a "justifiable expectation of privacy that
their names and financial records not be revealed to the public."
In re Knowville News-Sentinel Company, Inc., 723 F.2d 470, 477
(6th Cir. 1983); see also Aaron Ferer & Sons, Ltd. v. Chase
Manhattan Bank, 731 F.2d 112, 123 (2d Cir. 1984) (recognizing
bank's duty under New York law to keep customer's records
confidential); Peoples Bank of Virgin Islands v. Figueroa, 559
F.2d 914, 917 (3d Cir. 1977) (banks have a general duty to keep
customer records confidential); Conopco, Inc. v. Wein, 2007 WL
2119507, at *2 (S.D.N.Y. 2007) (recognizing the privacy interests
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in financial records which can be protected under a
confidentiality order).
In addition, financial records are
protected from disclosure under federal laws and regulations.
In
re Knowville, 723 F.2d at 476-77 (discussing the restrictions on
financial institutions under the Right to Financial Privacy Act,
12 U.S.C. §§ 3401-3421; the Freedom of Information Act, 5 U.S.C.
§ 552(b)(8) and FDIC regulations); Fed. R. Civ. P. 5.2 (requiring
redaction of all but the last four digits of financial account
numbers).
Although the Bank has raised a concern over bank
secrecy only under French law, the fact remains that both
American courts and Congress have recognized the importance of
protecting the confidentiality of banking records.
The records
themselves plainly contain information "traditionally considered
private rather than public...."
Amodeo II, 71 F.3d at 1051.
More importantly, as Judge Matsumoto previously recognized,
French bank secrecy laws prohibit the disclosure of materials
that plaintiffs have sought.
Strauss v. Credit Lyonnais, 249
F.R.D. 429, 438 (E.D.N.Y. 2008).
Although she held that French
law should give way to the need for discovery in these cases, she
also recognized that any potential hardship to the Bank for
violating French bank secrecy laws would be lessened by the
existence of the Prior Orders prohibiting public disclosure of
information produced by the Bank.
Strauss, 249 F.R.D. at 455.
Because the Prior Orders have, in fact, preserved the
confidentiality of the bank records produced in discovery, the
interests under French law in bank secrecy have not been
-10-
completely disregarded.
Continued protection of the bank records
in court filings would also promote interests under the doctrine
of international comity, which the Supreme Court described as
"the spirit of cooperation in which a domestic tribunal
approaches the resolution of cases touching the laws and
interests of other sovereign states."
Societe Nationale
Industrielle Aerospatiale v. United States District Court, 482
U.S. 522, 543 n.27 (1987).
The status of CBSP as a SDGT is not a reason for this court
to ignore longstanding practices and "logic (i.e., public
policy)"1 which have prompted courts to prohibit public access to
financial records of litigants and non-parties in civil cases.
It is significant that the banking records also concern financial
transactions involving many other persons and entities who have
not been notified of their rights to object.
Moreover, while the parties undoubtedly will use discrete
items of information contained in the bank records in their
motions to be filed, the actual bank documents themselves are not
likely, either singly or collectively, to be important to
understanding the issues to be presented by the parties.
If
used, the bank records are likely to be filed in a large bundle
and cited as support for arguments made in other submissions.
Given the vigorous advocacy in this case, the parties will
1
See In re New York Times Co. to Unseal Wiretap, 577 F.3d 401,
409 (2d Cir. 2009).
-11-
undoubtedly make sure that any data derived from bank records are
accurately portrayed in the submissions.
Because of the countervailing factors of bank secrecy,
privacy interests and comity and the marginal importance of
access to the bank records to understanding the motions to be
filed, this Court finds a compelling interest in sealing the
documents produced by Credit Lyonnais which fall under its six
proposed categories concerning CBSP.
The seventh category proposed by defendant covers the
contents of declarations filed with TRACFIN.
Even though the
fact that the Bank filed declarations with TRACFIN concerning
CBSP is publicly known, the declarations were not made available
to the plaintiffs until after this Court issued a letter request
pursuant to the Convention on the Taking of Evidence Abroad in
Civil or Commercial Matters, Mar. 18, 1970, 23 U.S.T. 2555, 847
UNTS 231 (the "Hague Convention").
Comparable reports filed with governmental authorities in
the United States are not generally publicly accessible under
United States laws.
Financial institutions in the United States
are required by law to file a Suspicious Activity Report ("SAR")
when they suspect any suspicious transaction relevant to a
possible violation of law or regulation.
Lee v. Bankers Trust
Co., 166 F.3d 540, 543 (2d Cir. 1999) (discussing section 5318(g)
of the Annunzio–Wylie Anti–Money Laundering Act (the "Act"), 18
U.S.C. §5318).
Both the Act and regulations implemented by
various federal agencies regulating financial institutions,
-12-
including the Federal Deposit Insurance Corporation (FDIC), the
Office of the Comptroller of the Currency (OCC), the Office of
Thrift Supervision (OTS) and the Financial Crimes Enforcement
Network (FinCEN), prohibit the disclosure of SARs, even to
persons involved in the transaction.
See United States v.
LaCost, 2011 WL 1542072, at *6-7 (C.D.Ill. 2011); see also Hasie
v. Office of the Comptroller of the Currency of the United
States, 633 F.3d 361, 366 (5th Cir. 2011) (holding "SARs are
'non-public information'" not required to be released under the
Freedom of Information Act, 5 U.S.C. § 1818(u), for use in civil
litigation); Lee, 166 F.3d at 543; Weil v. Long Island Savings
Bank, 195 F. Supp.2d 383 (E.D.N.Y. 2001) (prohibiting disclosure
of SAR in civil case after examination of legislative history).
In addition, the concerns of international comity are
greater as to this proposed category.
In requesting these
reports, this Court stated that any disclosed material would be
treated as "Highly Confidential" by the parties pursuant to the
Prior Orders and would be disclosed only in accordance with the
restrictions therein.
Since the Prior Orders provided that all
materials designated as highly confidential would be filed under
seal, the confidentiality promised in the letter request is a
significant countervailing factor against public access.
Thus, this Court finds a compelling need to seal the TRACFIN
declarations.
To the extent the parties submit the TRACFIN
declarations with their motions, there is no need, and no point,
in publicly filing redacted versions.
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Although the proposed
category covers only the contents of the TRACFIN declarations,
the remainder of the document provides minimal information making
redaction meaningless.
The eighth category proposed concerns the minutes of the
statement made by Robert Audren of Credit Lyonnais on September
19, 2002 to Bernard Baclet, Police Commander of the S.R.P.J. in
Nancy.
These minutes were provided to this Court by the French
Ministry of Justice in response to a letter request dated
December 4, 2008 issued by this Court under the Hague Convention.
See ct. doc. 183 (Strauss); 100 (Wolf).
As noted in the letter request, Mr. Audren made his
statements to Mr. Bernard Baclet, Police Superintendent of the
Detective Division of the Police Force in Nancy and pertain to a
preliminary investigations of CBSP.
Under American law,
statements made in connection with an investigation are protected
by the law-enforcement privilege.
As explained by the Second
Circuit, this privilege stems from the common-law executive
privilege, whose purpose is to protect "the necessary functioning
of a department of the executive branch."
In re The City of New
York, 607 F.3d 923, 940, 944 (2d Cir. 2010) (quoting Black v.
Sheraton Corp. of Am., 564 F.2d 531, 541-42 (D.C. Cir. 1977)).
The information protected "includes information pertaining to
'law enforcement techniques and procedures,' information that
would undermine 'the confidentiality of sources,' information
that would endanger 'witness and law enforcement personnel [or]
the privacy of individuals involved in an investigation,' and
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information that would 'otherwise ... interfere[ ] with an
investigation.'"
Id. at 944 (quoting In re Dep't of
Investigation of the City of New York, 856 F.2d 481, 484 (2d Cir.
1988)).
"An investigation" that is protected by this privilege
need not be the ongoing investigation to which the document
pertains; the privilege is meant to protect "the ability of a law
enforcement agency to conduct future investigations."
Id. at
944-45 (internal quotations omitted).
The law enforcement privilege clearly applies to the minutes
obtained under the Hague Convention since the statements were
made in connection of an investigation.
Although the privilege
is qualified, there is a strong presumption against lifting the
privilege.
Id. at 945.
Although the minutes may related to an
inquiry into events not longer under investigation, they
nonetheless may contain sensitive material leading to future
investigations or reveal investigative techniques of the French
police.
Also, the concerns of international comity discussed
above with respect to the TRACFIN declarations are equally
applicable here, because this Court stated in the letter request
that the materials obtained would be treated as "highly
confidential" pursuant to the Prior Orders.
This Court therefore finds a compelling need to seal the
minutes of Mr. Audren's statements to the French police.
Last, as discussed at the last conference, the Prior Orders
also protect documents or information that "contain or are
derived from personal private financial, medical, employment,
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educational information or disclose the current or past location
of a party."
Prior Orders at ¶
1(a)(iii).
This category
relates to documents or information that will be produced only
after the parties engage in damages discovery.
While this Court
agrees certain personal private information may merit protection
from disclosure in public filings, such as bank records, as
discussed above, this category, as defined, is broader than what
courts have typically protected from public disclosure.
The
scope of protection in public filings to be afforded information
encompassed in these categories shall be reassessed when the
parties engage in damages discovery.
Protected Information in Other Filings
Even though the documents in the proposed categories of
documents discussed above may be sealed, there has been no
showing of compelling need for sealing the entirety of any other
document filed which utilizes protected confidential information
and will be filed in connection with the summary judgment and
Daubert motions that the parties are in the process of briefing.
As they acknowledge, the documents to be filed will contain much
material that is not confidential.
In light of the strong
interest in insuring public access to documents that will be
considered by the Court in determining the future dispositive
motions to be filed, redactions of protected information suffice
to preserve the need for confidentiality.
Plaintiffs initially objected to the descriptions of some of
the categories proposed by the Bank.
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After further elaboration
by the Bank's counsel at conferences held on June 28, 2011 and
July 22, 2011 and by letter dated July 8, 2011, the Court finds
the Bank’s proposed descriptions sufficient to apprise the
plaintiffs of the types of information and bank documents
concerning CBSP that are protected.
Therefore, the following
nine categories of documents and information shall constitute
"Protected Information" to be protected in future filings as set
forth herein and a separate Supplemental Protective Order to be
filed herewith:
(i)
specific transactions Comité de Bienfaisance et
de Secours aux Palestinians a/k/a Comité Bienfaisance pour
la Solidarite avec la Palestiene ("CBSP") conducted in its
accounts with the defendant Bank (including cash operations,
portfolio operations or lending operations);
(ii)
CBSP’s account numbers;
(iii)
the types of CBSP accounts;
(iv)
CBSP’s transfer, collection, withdrawal and
payment instructions to the Bank;
(v)
CBSP’s account balances;
(vi)
the identities of transferees and depositors
into CBSP accounts, including their names, addresses, the
location of their bank accounts and their bank account
numbers;
(vii)
the contents of TRACFIN declarations the Bank
filed concerning CBSP;
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(viii) the minutes of the statement made by Robert
Audren of Credit Lyonnais on September 19, 2002 to Bernard
Baclet, Police Commander of the S.R.P.J. in Nancy; and
(ix)
other personal or confidential documents and
information that the Court may designate upon application of
a party for leave to file under seal.
Determining the scope of permissible redactions is
complicated by the fact that plaintiffs' counsel have also
obtained information about CBSP and other entities alleged in the
complaint to have supported HAMAS from sources other than the
documents obtained from the defendant in discovery in these
cases.
The fact that CBSP and certain other persons and entities
engaged in financial transactions between 2000 to September 2003,
when the Bank closed the CBSP accounts, is widely known.
As
counsel advised, some records of financial transactions that
would otherwise be protected herein have been made publically
available as "open source" material from records seized by
Israeli authorities.
See, e.g., Strauss, ct. doc. 266 at 30.
In
the course of discovery, plaintiffs have demonstrated knowledge
regarding these and other persons alleged to have assisted
terrorist organizations based on information derived from sources
other than documents obtained in discovery from the defendant and
produced pursuant to the confidentiality provisions of the Prior
Orders.
Clearly, information obtained by plaintiffs from public
sources is not confidential and may be used as they deem
appropriate.
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Significantly, as discussed at prior conferences, plaintiffs
are likely, in most instances, to aggregate the financial data
contained in the banking records produced by defendant, rather
than to focus on discrete transactions reflected in a single
document or group of banking records.
That was the case with
respect to a report by one of plaintiffs' experts, who did not
discuss any specific transactions and grouped transactions in his
report and summarized the transactions reflected in bank records
in appendices to his report.
Because of the public availability of some of the documents
or information in the bank records, the public knowledge that
CBSP engaged in financial transactions through accounts at Credit
Lyonnais and passage of eight years since the accounts were
closed, this Court finds that compelling need has not been
established to justify protection from disclosure of all
information contained in the protected banking records.
Only
information which would reveal specific transactions, including
amounts, dates and persons involved, may be redacted.
In
contrast, where a submission contains a discussion that does not
disclose the specific amount or date of any transaction, the
names of any customers, persons or entities involved, or account
information, the interest in preserving the confidentiality of
information incorporated in the submission may not be as great as
the importance of access to enable understanding of the arguments
made by the parties.
-19-
Accordingly, discussion of aggregated financial information
need not be redacted if the amounts and dates of specific
transactions are not disclosed.
For example, in its motion
papers regarding contention interrogatories, the Bank had
initially redacted a discussion regarding a spike in donations to
CBSP following certain terrorist attacks.
The Court directed
that this discussion be disclosed since the fact that CBSP
received donations is widely known and the "spike" did not reveal
any specific banking record produced.
Complaint (Strauss) at ¶¶
See Third Amended
640, 657 (referring to published
reports regarding CBSP and alleging defendant transferred
"significant sums of money").
Also, to maximize public access and understanding, when
referring in their submissions to non-parties who are associated
with any private banking information that has not already been
publicly disclosed, the parties should use non-identifying
abbreviations in cases where the identity of a non-party is
important to a discussion and there are repeated references to
that non-party.
Finally, as acknowledged by the Bank, any documents or
information that are otherwise publicly available or that
plaintiffs obtained other than from defendants need not be sealed
or redacted.
However, if, for ease of logical review, a publicly
available document is submitted with a group of similar nonpublic documents, the publicly available document, upon
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appropriate application, may be filed under seal with the other
documents.
These guidelines provide a framework for redaction which,
while requiring some effort on the part of the parties, are not
unduly onerous given the importance of providing public access to
information that may be material to determination of the motions
to be filed.
Most recently, the parties have filed their
redacted versions of their cross-motions to compel responses to
contention interrogatories which had earlier been filed under
seal.
See ct. doc. 276 in Strauss and ct. doc. 163 in Wolf.
The
redacted filed versions correspond to the categories of protected
information proposed by the Bank, as modified, and serve as a
template for redactions that shall be made by the parties in
their summary judgment submissions.
As for the protocol to be followed, as discussed at
conferences on July 22, 2011 and September 27, 2011, each side
will serve its motion papers on the opposing side in unredacted
form.
The serving party must then serve a redacted copy and the
receiving party then must respond with any further proposed
redactions or opposition to redactions within the time limits as
discussed at the last conference and as generally incorporated in
a
Supplemental Protective Order filed herewith.
Should the
parties be unable to resolve any dispute over redactions, they
may seek guidance from the Court.
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CONCLUSION
For the foregoing reasons, subsection 2(f) of the prior
Protective Orders issued in these two cases are vacated and
replaced by the Supplemental Protective Order which limits the
scope of documents that may be filed under seal and requires that
future documents filed herein which contain protected materials
should be publicly filed with the protected information redacted.
SO ORDERED.
Dated:
Brooklyn, New York
October 6, 2011
_/s/_________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE
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