Flaherty v. Filardi, et al

Filing 389

ORDER IN RESPONSE TO JANUARY 8, 2020, LETTER FROM PLAINTIFF MARIE FLAHERTY: The Court therefore makes the following provisions in response to her request: If Ms. Flaherty wishes to have the boxes of public filings returned to the Courthouse for her i nspection, she should order the boxes from the Open/Closed Records Department in room 370 of the Courthouse and pay the fee of $181 (the sum of $64 for the first box plus $39 for each of the three additional boxes). To the extent Ms. F laherty seeks access to the sealed filings (Docket Entry Nos. 114, 115, 116, 140, 161, 263, 337 and 338), she must file an affidavit by February 10, 2020, explaining a purpose consistent with the terms of the Stipulation and undertaking to abide by t he terms of the Stipulation. Defendants may make any submission in further opposition to Ms. Flaherty's access request within seven (7) days after her affidavit is docketed. The Court will consider the affidavit, and any submission in response t hereto, in determining whether, and under what conditions, Ms. Flaherty will be given access to the sealed filings. Schedule A hereto lists the contents of the sealed filings. Defense counsel is directed to email a copy of this order to Ms. Flaherty at [e-mail]. Ms. Flaherty is directed to inform the Pro Se Office of any change in her physical address. SO ORDERED. (Signed by Judge Laura Taylor Swain on 1/24/2020) Copies Mailed By Chambers. (kv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MARIE FLAHERTY,
Plaintiff,
-v-

No. 03 CV 2167-LTS

JASON FILARDI et al.,
Defendants.
-------------------------------------------------------x
ORDER IN RESPONSE TO JANUARY 8, 2020, LETTER FROM PLAINTIFF MARIE FLAHERTY
The above-captioned case was closed in this Court in 2009. On March 12, 2012,
the United States Court of Appeals for the Second Circuit issued its mandate affirming the
judgments and orders of this Court that had been challenged in a series of motions and appeals
by the pro se Plaintiff, Marie Flaherty (the “Plaintiff” or “Ms. Flaherty”).
The docket for the case, which was highly contentious, reflects 388 entries, 383 of
which were made before 2011. The hard-copy public record of this case, which was not on the
Electronic Case Filing system, has been transferred to a remote out-of-state federal storage
facility. It comprises four boxes of material. The fee for having them returned at the request of a
party for inspection is $64 for the first box and $39 for each additional box. Return of the boxes
would take approximately three business days.
Documents that were filed under seal by the defendants pursuant to the
Stipulation of Confidentiality and Protective Order (the “Stipulation,” Docket Entry Nos. 101
and 110), and two filings by the Plaintiff that the Court directed be placed under seal (see Docket
Entry No. 339), currently remain in this courthouse.

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On January 8, 2020, Ms. Flaherty, after visiting the Clerk’s Office and requesting
to see the case file, delivered a letter to this Court requesting “access to my case including the
sealed documents which appear to be Docket No.s (sic) 337 and 338 (as I also believe that there
are other orders, etc. that I may not have been aware).” (Docket Entry No. 386 (emphasis in
original).)
The Stipulation, which was never vacated, and which permitted the designation of
material produced in discovery as “Confidential” or “Highly Confidential,” provides that
information so designated can be used “only for purposes directly related to this litigation,
including appeals, and not for any other litigation or proceeding or for any business, commercial,
competitive, personal or other purpose,” and further provides that “[p]hotocopies of documents
containing such information shall be made only to the extent necessary to facilitate the permitted
use hereunder.” (Stipulation at ¶ 13.) It permitted each party’s counsel of record to “retain an
intact set of documents filed with the Court.” (Id. at ¶ 18.) As to court filing of documents, the
Stipulation provides:
All Confidential or Highly Confidential Information filed with the Court, and any
pleadings, motions or other papers filed with the Court disclosing such
information, shall be filed under seal and kept under seal until removal by the
Court or the submitting party. The parties agree that they will use their best
efforts to disclose or include Confidential or Highly Confidential Information in
documents submitted to the Court only when necessary, and agree, where
possible, to designate only the confidential portions of filings with the Court to be
filed under seal.

(Id. at ¶ 14.) The Court has inspected the sealed filings. It appears that defendants filed certain
submissions consisting in part of material designated Confidential or Highly Confidential under
seal in their entirety (Docket Entry Nos. 116, 161, 263) and filed certain other submissions under
seal that do not appear to include any Confidential or Highly Confidential markings (Docket

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Entry Nos. 114, 115 and 140). It is clear from the docket entries, which include motions to strike
and submissions in reply to motion papers to which the sealed documents relate, that Ms.
Flaherty received contemporaneous service copies of the papers that the Court is holding under
seal. As noted above, the parties’ Stipulation discouraged, but did not prohibit, the filing of
entire submissions that contained information designated Confidential or Highly Confidential.
Ms. Flaherty has no standing to complain of the filing of entire documents including confidential
information, as it was permitted by the Stipulation to which she assented, which was so-ordered
and which has been affirmed by the Second Circuit. (See Docket Entry Nos. 350, 351, 355, 371
and 385.)
Ms. Flaherty challenged the confidentiality designations and the Stipulation in
appeals that were subsequently dismissed for failure to comply with scheduling orders. (See
Docket Entry Nos. 323, 350, 355, and 371.) In its final Mandate, the Court of Appeals declined
to consider, as waived, Ms. Flaherty’s attempts “to appeal judgments or orders of the district
court that were appropriately the subject of her previous appeals in this Court,” and affirmed “the
challenged judgments and orders of the district court.” (Docket Entry No. 385.)
Ms. Flaherty’s letter proffers no information as to the reason for her request for
access to the sealed documents, a fact noted in the objection that defense counsel has filed in
opposition to her request. (See Docket Entry No. 387.) In light of the restrictive use provisions
of the Stipulation and the fact that Ms. Flaherty flagrantly and intentionally violated the
Stipulation during the course of the litigation and was held in contempt and sanctioned for doing
so (the relevant orders and judgments also having been affirmed by the Second Circuit – see
Docket Entry Nos. 350, 351, 355, 371 and 385), caution with respect to Ms. Flaherty’s request
for access to the documents now, some eight years after the final conclusion of the litigation, is

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warranted. Furthermore, the two sealed filings that Ms. Flaherty specifies in her letter – Docket
Entry Nos. 337 and 338 – were specifically ordered by the Court in connection with the
contempt proceedings. They are voluminous bound documents, including documents covered by
the Stipulation, that Ms. Flaherty herself had filed on the public docket in violation of the
Stipulation. She later posted the confidential documents on a blog and persisted in that conduct
even after court proceedings seeking injunctive relief were under way. (See Docket Entry No.
351.) The Court notified her that it would have the complete filings put under seal and gave her
permission to refile the non-confidential portions of the submissions on the public docket. (See
Docket Entry No. 339 and Docket Entry No. 351 at 5.) Ms. Flaherty did not refile the documents
in redacted form. The Court has no basis for confidence that Ms. Flaherty seeks access to the
sealed filings for any proper purpose or, indeed, that she has any need for them since she was
served with the papers and created some of them herself.
The Court therefore makes the following provisions in response to her request:
If Ms. Flaherty wishes to have the boxes of public filings returned to the
Courthouse for her inspection, she should order the boxes from the Open/Closed Records
Department in room 370 of the Courthouse and pay the fee of $181 (the sum of $64 for the first
box plus $39 for each of the three additional boxes).
To the extent Ms. Flaherty seeks access to the sealed filings (Docket Entry Nos.
114, 115, 116, 140, 161, 263, 337 and 338), she must file an affidavit by February 10, 2020,
explaining a purpose consistent with the terms of the Stipulation and undertaking to abide by the
terms of the Stipulation. Defendants may make any submission in further opposition to Ms.
Flaherty’s access request within seven (7) days after her affidavit is docketed. The Court will

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consider the affidavit, and any submission in response thereto, in determining whether, and under
what conditions, Ms. Flaherty will be given access to the sealed filings.
Schedule A hereto lists the contents of the sealed filings.
Defense counsel is directed to email a copy of this order to Ms. Flaherty at
[e-mail]. Ms. Flaherty is directed to inform the Pro Se Office of any
change in her physical address.
SO ORDERED.
Dated: New York, New York
January 24, 2020

/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
Copy Mailed to:
Marie Flaherty, Esq.
1 Stuyvesant Oval
#12G
New York, NY 10009

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Schedule A
Flaherty v. Filardi, et al., 03-CV-2167-LTS
Sealed Documents Chart
Key: Confidential – “Conf.”
Highly Confidential – “HC”
Docket
Date
Entry No.
114
2/14/2006

115

2/14/2006

116

2/14/2006

140

03/27/2006

Contents

Content Stamped
Confidential or Highly Confidential

Declaration of Jonathan B. Oblak in
Opposition to Plaintiff’s Motion for Partial
Summary Judgment, with Exhibits 1-4
Defendants’ Joint Opposition to Plaintiff’s
Motion for Partial Summary Judgment
Declaration of Katy E. Koski in Support of
Defendants’ Joint Motion to Strike Pro Se
Plaintiff’s Affirmation in Support of Motion
for Partial Summary Judgment, with
Exhibits A-C

Declaration of Brian M. Tallevi in Support
of Defendants’ Joint Opposition to

SCHEDULE A - FLAHERTY 200108 LETTER.DOCX

None

None
Exhibit A:
1. “Jailbabe.com” Screenplay (HC)
2. “Suburban Sista” (HC)
3. “In the Houz” Screenplay (Conf.)
4. 3/16/00 Email from Disney (HC)
5. Talent information sheet (HC)
6. Contract for purchase of rights to Jailbabe.com
(HC)
7. Disney Standard Terms (HC)
8. 4/19/00 Fax cover sheet re: Jailbabe.com (HC)
9. 6/26/01 Letter re: In the Houze (HC)
10. Cover sheet to contract between Disney and
Jason Filardi (HC)
11. 10/16/01 Cover sheet re: contract between
Disney and Jason Filardi (HC)
12. 6/18/01 Memo re: In the Houz (HC)
None

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161

09/29/2006

263

10/05/2007

Plaintiff’s Motion for Leave to File Second
Amended Complaint, with Exhibits 1-8
Declaration of Jeffrey Conciatori in Support
of Defendants’ Motion for Summary
Judgment, with Exhibits A-R

1.

2.
3.

4.

5.

6.

1. Ex. H: Screenplay of “Jailbabe.com” by Jason
Filardi (HC)
2. Ex. I: Screenplay of “Suburban Sista” by Jason
Filardi (HC)
3. Ex. J: Screenplay of “In the Houz” by Jason
Filardi (HC)
Declaration of Jonathan B. Oblak in
Exhibits to Jason Filardi’s declaration:
Support of Defendants’ Motion for
1. Ex. B: Screenplay of “Jailbabe.com” by Jason
Summary Judgment, with Exhibits
Filardi (HC)
A-B
2. Ex. C:
Declaration of Service
a. 6/26/00 Memo re: Jailbabe.com (HC)
Supplemental Memorandum of Law
b. 6/27/00 Letter re: Jailbabe.com (HC)
in Support of Defendants’ Motion for
c. 3/16/00 Contract for the purchase of
Summary Judgment 1
rights to Jailbabe.com (HC)
Supplemental Statement Pursuant to
Local Rule 56.1 in Support of
Exhibits to Jason Reed’s declaration:
Defendants’ Motion for Summary
1. Ex. B: Screenplay of “Jailbabe.com” by Jason
Judgment
Filardi (HC)
Supplemental Declaration of Jason
2. Ex. C:
Reed in Support of Defendants’
a. 6/26/00 Memo re: Jailbabe.com (HC)
Motion for Summary Judgment, with
b. 6/27/00 Letter re: Jailbabe.com (HC)
Exhibits A-C
c. 3/16/00 Contract for the purchase of
Supplemental Declaration of Jason
rights to Jailbabe.com (HC)
Filardi in Support of Defendants’
Motion for Summary Judgment, with
Exhibits A-D

1

Document No. 3 in Item 263 (the Supplemental Memorandum of Law in Support of Defendants’ Motion for Summary Judgment)
appears to correspond to Document Entry No. 267 on the public docket.
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337 2

1. Ex. 1: Screenplay of “Jailbabe.com” by Jason
Filardi (HC)
2. Ex. 2: Screenplay of “Suburban Sista” by
Jason Filardi (HC)

338

2

Affirmation of Marie Flaherty in Support of
Pro Se Plaintiff’s Motion for Default
Judgment and Other Sanctions, with
Exhibits 1-35 (Vol. 1)
Affirmation of Marie Flaherty in Support of
Pro Se Plaintiff’s Motion for Default
Judgment and Other Sanctions, with
Exhibits 1-35 (Vol. 2)

1. Ex. 6: 5/17/00 Disney Memo re: Jailbabe.com
(HC)
2. Ex. 13: 6/18/01 Memo re: In the Houz (HC)
3. Ex. 33: Jason Filardi’s Notes (Conf.)
4. Ex. 35: Disney “Coverage” Docs (HC)

Items 337 and 338 had previously been filed on the public docket by Ms. Flaherty as Docket Entry Nos. 167 and 168.

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