Saint-Jean et al v. Emigrant Mortgage Company
MEMORANDUM AND ORDER re 377 Letter Motion to Seal. For the reasons explained in the attached Memorandum and Order, defendant's motion to seal portions of the parties' briefs on summary judgment is denied in its entirety. The Clerk is dir ected, on December 29, 2015, to unseal those briefs ( 364 and 368 ), without attachments, as well as the entirety of the parties' letter briefs regarding this motion to seal ( 377 and 380 ), including attachments. Ordered by Magistrate Judge Roanne L. Mann on 12/10/2015. (Dollar, Thomas)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JEAN ROBERT SAINT-JEAN, EDITH
SAINT-JEAN, FELEX SAINTIL, YANICK
SAINTIL, LINDA COMMODORE,
BEVERLEY SMALL, JEANETTE SMALL,
and FELIPE HOWELL,
EMIGRANT MORTGAGE COMPANY,
EMIGRANT BANK, and EMIGRANT
ROANNE L. MANN, UNITED STATES MAGISTRATE JUDGE:
Currently pending before this Court is a motion filed by Emigrant Mortgage Company,
Emigrant Bank, and Emigrant Bancorp, Inc. (collectively, “Emigrant” or “defendant”) to
maintain under seal portions of Plaintiffs’ Opposition to Defendants’ Motion for Summary
Judgment (Oct. 5, 2015) (“Pl. SJ Opp.”), Electronic Case Filing (“ECF”) Docket Entry
(“DE”) #364, and Defendants’ Reply Memorandum of Law in Support of Motion For
Summary Judgment (Oct. 5, 2015) (“Def. SJ Reply”), DE # 368. See Letter Motion to Seal
(Nov. 11, 2015) (“11/11/15 Def. Mot.”), DE #377.1 For the reasons that follow, the motion
to seal is denied in its entirety.
All papers filed in connection with defendants’ motion for summary judgment were
temporarily filed under seal. See 11/11/15 Def. Mot. at 1 n.1.
Defendant seeks an order sealing portions of the parties’ memoranda of law submitted
in connection with defendant’s motion for summary judgment. To that end, defendant argues
[p]ortions of the briefs should be sealed for two reasons. First, the briefs
referred to, and purport to characterize, communications between Emigrant and
one of its banking regulators, the New York State Banking Department, now
known as the Department of Financial Services (“DFS”). These references are
subject to confidentiality protections imposed by the New York State Banking
Law and should be filed under seal. Second, Emigrant’s confidential and
proprietary business information should also be filed under seal because, if
disclosed, this information will provide competitors with confidential
information about Emigrant’s business strategies, internal deliberations, and
other commercially sensitive information.
11/11/15 Def. Mot. at 1.
Defendant moves to seal nine portions from the brief filed by plaintiffs in opposition to
defendant’s summary judgment motion, and three portions from defendant’s own reply brief
(collectively, the “Banking Portions”), on the ground that these portions are subject to the
confidentiality requirements of section 36(10) of New York’s Banking Law. See 11/11/15
Def. Mot. at 3-4. The referenced statute states that “[a]ll reports of examinations and
investigations, correspondence and memoranda concerning or arising out of such [banking]
examination and investigations . . . shall be confidential communications” and “shall not be
made public” unless authorized by the superintendent of the DFS. N.Y. Banking Law
The Court assumes familiarity with this case, and incorporates by reference its previous
findings and analyses.
§ 36(10). Defendant contends that only the DFS, and not defendant, has the authority to waive
this confidentiality. See 11/11/15 Def. Mot. at 3.3 In addition, defendant also moves to seal
four portions of plaintiffs’ summary judgment opposition brief that refer to internal
communications of Emigrant Bank’s board of directors (the “Board”) regarding Emigrant
Mortgage Co.’s STAR loan program. Defendant argues that these portions (collectively, the
“STAR Portions”) “contain highly confidential and proprietary information about Emigrant’s
business practices[,]” the disclosure of which would “provide an unfair advantage to
competitors.” Id. at 4.4
Plaintiffs oppose defendant’s motion to seal in its entirety. See Response in Opposition
re Letter Motion to Seal (Nov. 24, 2015) (“11/24/15 Pl. Opp.”), DE #380. According to
plaintiffs, Magistrate Judge James Orenstein, to whom the case was previously assigned, has
already ruled that section 36(10) of New York’s Banking Law does not govern in this case, and
the federal bank-examination privilege does not to apply to the factual materials produced to
plaintiffs in discovery (and referenced in the Banking Portions). See 11/24/15 Pl. Opp. at 1.
They also argue that defendant has not met its burden of showing that the STAR Portions do,
in fact, contain competitive business information. See id. at 2-3.
Defendant further asserts that the limited waiver that the DFS previously made in order to
permit the disclosure of some confidential information to plaintiffs did not “allow the entirety of
its correspondence with Emigrant to be filed publicly.” 11/11/15 Def. Motion at 3.
Defendant contends that one of the STAR Portions -- to wit, page 9, lines 19-21 of plaintiffs’
summary judgment opposition brief -- is also subject to the confidentiality requirements of New
York Banking Law § 36(10). See 11/11/15 Def. Motion at 5.
In connection with the motion to seal, the Court directed defendant to serve on the DFS
the Banking Portions, and invited the DFS to express its views regarding the need to seal those
Portions. See Order re Letter Motion to Seal (Nov. 19, 2015) at 2, DE #379. The DFS’s
general counsel responded in a letter that “[t]he Department has reviewed, and does not object
to the unsealed filing of,” the Banking Portions of the parties’ briefs. Letter Faxed to
Chambers from Peter C. Dean . . . (dated Dec. 1, 2015) (“DFS Letter”), DE #381.5
I. The Presumptive Right of Public Access to Judicial Documents
“The courts have long recognized a common law right of public access to judicial
documents.” Stern v. Cosby, 529 F.Supp.2d 417, 420 (S.D.N.Y. 2007) (quotations and
citations omitted); see, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d
Cir. 2006). The public’s “right to inspect and copy . . . judicial records and documents,”
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978), is “founded upon the public’s
interest in monitoring the judiciary’s administration of justice.” United States v. Basciano,
Nos. 03-CR-929, 05-CR-060, 2010 WL 1685810, at *2 (E.D.N.Y. Apr. 23, 2010) (citing
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (“Amodeo II”)). As the Second
Transparency is pivotal to public perception of the judiciary’s
legitimacy and independence. The political branches of
government claim legitimacy by election, judges by reason. Any
The DFS’s letter further “requests that the other confidential supervisory information
produced in this litigation continue to be kept confidentially.” DFS Letter. The Court will
address that request if and when such other information becomes the subject of a dispute between
the parties over sealing additional portions of the record.
step that withdraws an element of the judicial process from public
view makes the ensuing decision look more like fiat and requires
United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008) (quotation and citation omitted).
“The Second Circuit has set forth a three-part analysis for determining whether
documents relating to a lawsuit must be made available to the public.” Stern, 529 F.Supp.2d
at 420 (citing Lugosch, 435 F.3d at 119-20; Amodeo II, 71 F.3d at 1048-52).
First, the court must determine whether the documents are indeed
judicial documents, to which the public has a presumptive right of
access. Second, if the documents are judicial documents, the court must
determine the weight of the presumption, that is, whether the
presumption is an especially strong one that can be overcome only by
extraordinary circumstances or whether the presumption is a low one that
amounts to little more than a prediction of public access absent a
countervailing reason[,] or whether the presumption is somewhere in
between. Third, once the weight of the presumption is determined, a
court must balance competing considerations against it. Countervailing
factors include, among others, the danger of impairing judicial efficiency
and the privacy interests of those resisting disclosure.
Stern, 529 F.Supp.2d at 420 (internal quotations and citations omitted); accord Nycomed US,
Inc. v. Glenmark Generics, Inc., No. 08-CV-5023 (CBA), 2010 WL 889799, at *2 (E.D.N.Y.
Mar. 8, 2010); Diversified Grp., Inc. v. Daugerdas, 217 F.R.D. 152, 158-60 (S.D.N.Y.
The right of public access gives rise to a rebuttable presumption of public availability,
the weight of which presumption “must be governed by the role of the material at issue in the
exercise of Article III judicial power and the resultant value of such information to those
monitoring the federal courts.” Amodeo II, 71 F.3d at 1049. “[D]ocuments used by parties
moving for, or opposing,” a dispositive motion are subject to the strongest presumption of
public access. Lugosch, 435 F.3d at 123; see Gambale v. Deutsche Bank AG, 377 F.3d 133,
140 (2d Cir. 2004) (“[T]he presumptive right to ‘public observation’ is at its apogee when
asserted with respect to documents relating to ‘matters that directly affect an adjudication.’”);
Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by parties moving for, or
opposing, summary judgment should not remain under seal absent the most compelling
reasons.”); Stern, 529 F.Supp.2d at 422 (reasoning that the strength of the presumption turns
on whether the submissions were made in support of a motion on the merits); Diversified Grp.,
217 F.R.D. at 158-59 (“The presumption is given great weight where the requested documents
were . . . material to a court’s disposition of a case on the merits.”). In applying the
presumption of access, “‘a judge must carefully and skeptically review sealing requests to
insure that there really is an extraordinary circumstance or compelling need’ for the request.”
Mariano v. La Fitness, Inc., No. CV 09-1395(LDW)(ETB), 2010 WL 1459383, at *1
(E.D.N.Y. Apr. 13, 2010) (quoting Video Software Dealers Ass’n v. Orion Pictures Corp., 21
F.3d 24, 27 (2d Cir. 1994)).6
The Second Circuit has also recognized a qualified constitutional presumption of access to both
civil and criminal proceedings and judicial documents, arising under the First Amendment. See
Nycomed, 2010 WL 889799, at *3 (citing Lugosch, 435 F.3d at 124; Gambale, 377 F.3d at 140
& n.4). Under the constitutional standard, “[d]ocuments may be sealed if specific, on the record
findings are made demonstrating that closure is essential to preserve higher values and is
narrowly tailored to serve that interest.” Standard Inv. Chartered, Inc. v. Fin. Indus.
Regulatory Auth., Ind., 347 F.App’x 615, 616-17 (2d Cir. 2009) (internal quotations and
citations omitted). Because defendant has made no showing sufficient to rebut the common law
presumption of access to the judicial documents at issue here, the Court need not determine
While not disputing that the parties’ summary judgment briefs are entitled to a strong
presumption of public access, defendant nonetheless contends that “countervailing factors”
overcome that presumption. See 11/11/15 Def. Mot. at 1 (citing In re Sept. 11 Litig., 723
F.Supp.2d 526, 530 (S.D.N.Y. 2010); Lugosch, 435 F.3d at 119-20). Defendant argues that
“[d]ocuments falling into categories commonly sealed are those containing trade secrets,
confidential research and development information, marketing plans, revenue information,
pricing information, and the like.” Id. at 2 (quoting Cumberland Packing Corp. v. Monsanto
Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999)).
II. The Banking Portions
As a threshold matter, plaintiffs are correct that section 36(10) of New York’s Banking
Law does not govern in this case, see 11/24/15 Pl. Opp. at 3, which arises under federal law,
see Amended Complaint (Oct. 2, 2014) ¶ 10, DE #264. “Assertions of privilege in federal
question cases, even those involving pend[e]nt state law claims, are governed by federal
common law, rather than state law.” Rouson ex rel. Estate of Rouson v. Eicoff, No.
04-CV-2734 (ARR)(KAM), 2006 WL 2927161, at *4 (E.D.N.Y. Oct. 11, 2006) (rejecting, as
inapplicable, claim of privilege arising under New York Bank Law § 36(10)); see von Bulow
v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); see also Transcript of Proceedings Held on
whether those documents are also subject to a First Amendment presumption of access, which
“demands broader disclosure than the common law.” In re NBC Universal, Inc., 426 F.Supp.2d
49, 56 (E.D.N.Y. 2006) (emphasis omitted) (citing Lugosch, 435 F.3d at 124); see generally
Basciano, 2010 WL 1685810, at *2 n.3 (where common law right of access required public
disclosure, court declined to reach constitutional question of access).
January 30, 2014 Before Judge Orenstein (docketed Jan. 31, 2014) (“1/30/14 Tr.”) at 16, DE
#169 (Judge Orenstein notes that as “this is a federal case involving a federal statute,” the
Supremacy Clause trumps assertions of privilege under state laws). The federal bank
examination privilege protects only “expressions of opinion or recommendations in
intragovernmental documents; it does not protect purely factual material.” In re Franklin Nat’l
Bank Sec. Litig., 478 F.Supp. 577, 581 (E.D.N.Y. 1979) (collecting cases). Even with
respect to opinions and recommendations, that privilege is not absolute: “[T]he privilege is a
discretionary one that depends upon [a]d hoc considerations of competing policy claims.”
Rouson, 2006 WL 2927161, at *5 (quoting In re Franklin, 478 F.Supp. at 582).
Here, the Banking Portions contain only factual materials not subject to the federal
bank examination privilege, as plaintiffs were denied access to materials reflecting bank
regulators’ opinions. See 11/24/15 Pl. Opp. at 4 (citing Motion to Compel (Dec. 13, 2013),
DE #116 (seeking to compel production of bank regulators’ deliberative materials); 1/30/14
Tr. at 18-19 (noting that Judge Orenstein denied this motion to compel)). Accordingly,
defendant’s motion to seal the Banking Portions is denied.7
III. The STAR Portions
Defendant argues that the four STAR Portions, which refer to statements made in
Furthermore, the DFS has consented to the public filing of the Banking Portions contained in
the parties’ summary judgment briefs. See DFS Letter. Thus, even if the federal bank
examination privilege -- or New York Banking Law § 36(10) -- were to apply to these materials,
that privilege would be deemed waived to this limited extent. See Rouson, 2006 WL 2927161,
at *3 (noting that assertions of bank regulators’ privilege are waivable by bank regulators).
Despite DFS’s waiver, defendant has not withdrawn its objections to unsealing the Banking
various Board meetings, are “confidential insofar as they reveal the Board’s internal
communications, which were never intended to be made public.” 11/11/15 Def. Mot. at 5.
Having reviewed these Portions, the Court concludes otherwise: defendant has not made a
sufficient showing to overcome the presumption of public access. Defendant does not show
how disclosure of the brief references to the STAR lending programs (which Emigrant Bank
ended in 2008, see Pl. SJ Opp. at 9) would put defendant at a competitive or financial
disadvantage. Cf. Standard Inv. Chartered, 347 F.App’x at 617 (affirming redaction of
financial data contained in defendant’s correspondence with the IRS that an outsider could use
to “deduce [defendant’s] negotiation tactics”). While defendant complains that disclosure of
Board deliberations “would chill the free flow of discussion at future meetings,” 11/11/15 Def.
Mot. at 5, this conclusory assertion is not, without more, sufficient ground for sealing portions
of the parties’ summary judgment briefs. See, e.g., Standard Inv. Chartered, Inc. v. Nat’l
Ass’n of Sec. Dealers, Inc., No. 07Cv.2014(SWK), 2008 WL 199537, at *12 (S.D.N.Y. Jan.
22, 2008) (rejecting “generalized arguments about a chilling effect” on corporate board
deliberations as insufficient grounds to warrant sealing). In fact, in ruling on motions for
summary judgment, courts in this Circuit often refer to board discussions that, as here, do not
include competitive information. See, e.g., Cardone v. Empire Blue Cross & Blue Shield, 884
F.Supp. 838, 843 (S.D.N.Y. 1995) (quoting from minutes of a meeting of defendant’s board);
Bernhardt v. Interbank of N.Y., No. 92 CV 4550, 2009 WL 255992, at *2 (E.D.N.Y. Feb. 3,
2009) (discussing notes from a meeting of defendant’s board). As plaintiffs correctly observe
in opposing sealing, the STAR Portions “describe merely the presentations of Emigrant
executives and the final actions taken by the Board, rather than the contents of ‘free flow[ing]’
discussions of Board members.” 11/24/15 Pl. Opp. at 2.
In short, defendant has not met its burden of showing a “most compelling reason” to
warrant sealing of summary judgment briefs. See Joy, 692 F.2d at 893. Defendant’s motion
to seal the four STAR Portions is therefore denied.
For the foregoing reasons, defendant’s motion to seal portions of the parties’ briefs on
summary judgment is denied in its entirety. The Clerk is directed, on December 29, 2015, to
unseal those briefs (DE # 364 and 368), without attachments,8 as well as the entirety of the
parties’ letter briefs regarding this motion to seal (DE #377 and #380), including attachments.
Brooklyn, New York
December 10, 2015
Roanne L. Mann
ROANNE L. MANN
UNITED STATES MAGISTRATE JUDGE
Out of an abundance of caution, and in light of the fact that this first round of sealing litigation
was limited to the summary judgment briefs themselves, the attachments to the summary
judgment briefs will remain under seal absent further order of the Court.
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