Allstate Insurance Company et al v. Surya et al

Filing 21

PROTECTIVE ORDER re 20 : see attached Order for details. Ordered by Magistrate Judge Arlene R. Lindsay on 9/17/2013. c/ecf (Johnston, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ALLSTATE INSURANCE COMPANY, et al.,
Plaintiffs,

ORDER
CV 13-1044 (ADS)(ARL)

-againstGERALD SURYA, M.D., et al.,
Defendants.
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LINDSAY, Magistrate Judge:
Before the court is the parties’ motion for a stipulated protective order. (Doc. No. 20.)
For the reasons set forth below, the parties’ motion is granted, except as to paragraphs 8 and 12
of the Stipulated Protective Order.
Paragraph 8 of the Stipulated Protective Order states in pertinent part:
Use of Confidential Information . . . . Use for purposes of this litigation shall
include use in testimony and exhibits at trial, and in connection with motions,
depositions, or witness preparation . . . subject to the restrictions of this Order.
(Stipulated Protective Order, filed September 16, 2013, ¶ 8.) Paragraph 12 of the Stipulated
Protective Order states:
Court Filings Under Seal. The Clerk of the Court is directed to maintain under
seal all documents, papers, and transcripts of depositions or hearings, filed in the
Court in this litigation that have been designated, in whole or in part, as
Confidential Information, which shall not be opened or released from the custody
of the Clerk except upon order of the Court.
(Stipulated Protective Order, filed September 16, 2013, ¶ 12.)
The Supreme Court observed in Seattle Times Co. v. Rhinehart that protective orders
issued upon a showing of good cause as to materials produced in civil discovery, are consistent
with the First Amendment because “restraints placed on discovered, but not yet admitted
information are not a restriction on a traditionally public source of information.” 467 U.S. 20, 33,
37 (1983). Once protected discovery materials are used in court filings, however, 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. Nixon v. Warner Communic’ns, Inc.,
435 U.S. 589, 597 (1978). “Documentary exhibits and trial testimony are also strongly presumed
to be public, since they are a direct part of the process of adjudication.” Encyclopedia Brown
Productions, ltd v. American Int’l Cablevision Communications, 26 F. Supp. 2d 606, 612

(S.D.N.Y. 1998) (citations omitted). “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 public to have confidence in the administration of justice.”
United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). That being said, 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.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,
119-20 (2d Cir. 2006).
The parties’ agreement in paragraphs 8 and 12 concerning the use and filing with a Court
a document under seal, without more, is not a sufficient basis for granting such an order. See
United States v. Aref, 533 F.3d 72, 81-83 (2d Cir. 2008) (“district courts [should] avoid sealing
judicial documents in their entirety unless necessary [since t]ransparency is pivotal to public
perception of the judiciary’s legitimacy and independence”). If either party wants to designate
anything filed with, or presented to, the Court as confidential and place it under seal whether
during motion practice or at trial, that party must make a separate motion in accordance with the
instructions on filing a motion for leave to e-file a sealed document in this district (which are
located at www.nyed.uscourts.gov), specifying precisely what the parties wish to be kept under
seal and making a particularized showing of good cause as to why the Court should depart from
the strong presumption against sealing any court records to public inspection. See Nixon v.
Warner Comm., Inc., 435 U.S. 589, 597-99 (1978); United States v. Graham, 257 F.3d 143, 150
(2d Cir. 2001). Upon a showing of compelling circumstances, this Court may order certain
records to be sealed based on the undersigned’s document-by-document review of the particular
portions of the document that a party wishes to be kept under seal and after considering whether
the requested order is no broader than necessary to serve the interests that require protection. See
United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995).

Dated: Central Islip, New York
September 17, 2013

SO ORDERED:

__________/s________________
ARLENE R. LINDSAY
United States Magistrate Judge

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