Anwar et al v. Fairfield Greenwich Limited et al

Filing 1443

ENDORSED LETTER addressed to Judge Victor Marrero from Robert A. Wallner dated 11/5/2015 re: We respectfully request that the Court schedule a pre-motion conference so that we may further address this matter. ENDORSEMENT: The parties are directed to respond by 11-10-15, by letter not to exceed three (3) pages, to the matter set forth above by Successor Trustee, showing cause why the relief requested should not be granted. (Signed by Judge Victor Marrero on 11/6/2015) (lmb)

NEW YORK
LOS ANGELES
DETROIT

Robe1t A. Wallner
Direct Dial: 212-946-9335
[e-mail]

Novermber S, 2015
VIA FAX
The Honorable Victor Marrero
United States District Judge
Southern District of New York
Daniel Patrick Moynihan United States Courthouse
500 Pearl Street
New York, New York 10007

Re: Anwar v. Fairfield Greenwich Ltd., 09-118 (VM)
Dear Judge Marrero:
We represent non-party New Greenwich Litigation Trustee, LLC, as Successor Trustee
("Trustee") of the Greenwich Sentry and Greenwich Sentry Partners Litigation Trusts. 1 We
write pursuant to Your Honor's local rules to request a pre-motion conference to address the
Trustee's contemplated motion to intervene for the limited purpose of obtaining documents filed
under seal by the plaintiffs and the PwC defendants in connection with their motions in limine
(Dkt. Nos. 1437, 1438; see Dkt. No. 1440). 2
The sealing of the documents is unwarranted, given the strong presumption of public
access to judicial documents. See Lugosch v. Pyramid <:;o. of Onondaga, 435 F.3d 110, 119 (2d
Cir. 2006)~ Doe v. Ashcroft, 317 F. Supp. 2d 488, 492 (S.D.N. Y. 2004) (Marrero, J.) (in case
implicating national security concerns, noting Government's burden to show "the specific and
compelling reasons" for "each particular redaction," citing "exacting First Amendment
standards"); United States v. Martoma, 2013 U.S. Dist. LEXIS 182959, at * 10 (S.D.N.Y. Dec.
28, 2013 (denying motion to seal in limine papers filed in criminal case, explaining: "a qualified
First Amendment right of access extends 'to a pretrial hearing on a ... motion to preclude the use
of certain evidence at trial,' as well as to ' [w]ritten documents filed in connection with pretrial
motions.'") (ellipsis and brackets in original) (quoting In re New York Times Co., 828 F.2d 110,
114 (2d Cir. 1987)), appeal dismissed, 2014 U.S. App. LEXIS 601 (2d Cir. Jan. 8, 2014).
1

Lawsuits on behalf of the trusts are pending in New York state court against
PricewaterhouseCoopers LLP and PricewaterhouseCoopers Accountants, N.V. (collectively,
"PwC"), Citco Fund Services (Europe) BV, and Citco (Canada) Inc. Appeals from the supreme
court's grant of motions to dismiss the complaints are being briefed in the First Department.
2

PwC's motion -- styled an "omnibus" motion -- does not even disclose what relief is requested.

One Pennsylvania Plaza · New York, NY 10119 · T 212.594.5300 · F 212.868.1229 · milberg.com

The Honorable Victor Marrero
November 5, 2015
Page 2

The presumption is especially compelling here, given that, inter alia, the Court has
denied PwC's summary judgment motion on the issue of negligence (Dkt. No. 1430), and
defendants themselves have emphasized "the broad public interest in the Madoff matter."
Defendants' Letter to Hon. Frank Maas, dated August 19, 2013, at Exhibit A, p. 6 (Dkt. No.
1378, at p. 40 of 53).
Even if the papers contain information designated as "Confidential" under the Second Amended
Stipulation and Order Governing Confidentiality of Discovery Material ("Order") (Dkt. No.
591), that fact would not satisfy the parties' burden of overcoming the presumption. See
Lugosch, 435 F.3d at 125-26. Indeed, the Order (at ~ 9) contemplates challenges to
confidentiality designations and provides that, in the event of a challenge, the party seeking
confidential treatment bears "the burden of demonstrating that the designated material should be
protected under ... the applicable law." Because the events at issue occurred so many years ago,
it would be especially difficult for the parties to meet that burden. See In re "Agent Orange"
Prod. Liability Litig., 104 F.R.D. 559, 575 (E.D.N. Y. 1985), aff'd, 821 F.2d 139 (2d Cir. 1987).
We respectfully request that the Court schedule a pre-motion conference so that we may
further address this matter.

~ully,
Robert

A·~

cc (via email):
David A. Barrett, Esq.
Sarah L. Cave, Esq.
Timothy A. Duffy, Esq.
Robert C. Finkel, Esq.
Andrew G. Gordon, Esq.
Victor E. Stewart, Esq.

7Z>- ~.s ar-e_ directed to rz~pond
by llC/RZ by letter not to exceed~
5.
( ~) page~ set forth above by
<;IA.<~
, showing cause why

the relief requested should not be granted.
SO ORDERED.

l(~-tf
DATE

Mlrs~RG LLP