Alexander Interactive, Inc. v. Adorama, Inc. et al

Filing 208

MEMORANDUM AND ORDER granting 198 Motion to Seal Document: For these reasons, Samsung's motion for a sealing order (Docket no. 198) is granted. If and when the documents Bates stamped SEA000001 to SEA0000008 are submitted in connection with the plaintiff's contemplated motion to compel, they shall be filed under seal. (Signed by Magistrate Judge James C. Francis on 9/2/2014) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
ALEXANDER INTERACTIVE, INC.,
: 12 Civ. 6608 (PKC) (JCF)
ALEXANDER SCHMELKIN, and JOSH
:
LEVINE,
:
MEMORANDUM
:
AND ORDER
Plaintiffs,
:
:
- against :
:
ADORAMA, INC., ADORAMA ENTERPRISES :
LLC, EUGENE MENDLOWITS, and MENDEL :
MENDLOWITS,
:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
MENDEL MENDLOWITS, ADORAMA
:
ENTERPRISES LLC, ADORAMA, INC., and:
EUGENE MENDLOWITS,
:
:
Counter Claimants, :
:
- against :
:
ALEXANDER INTERACTIVE, INC, JOSH
:
LEVINE, and ALEXANDER SCHMELKIN,
:
:
Counter Defendants. :
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
Plaintiffs Alexander Interactive, Inc., Alexander Schmelkin,
and Josh Levine (collectively, “Alexander Interactive”) plan to
file a discovery motion supported in part by certain documents
produced by non-party Samsung Electronics America, Inc. (“Samsung”)
pursuant to a subpoena.

Samsung designated the relevant eight

pages -- comprising a “Master Camera Purchase Agreement” between
Samsung and defendant Adorama, Inc. (“Adorama”) and certain pages
of an amendment to that agreement -- “Highly Confidential” pursuant
to the Confidentiality Order filed in this case, which allows that
designation for material that includes
1

particularly sensitive information in the nature of[,]
[among other things,] commercial or financial information
(e.g., confidential financial and sales information,
confidential marketing plans, confidential consumer
identity
and
‘contact’
persons
and
the
similar
information), the disclosure of which the Producing Party
reasonably and in good faith believes is likely to have
the effect of harming the Producing Party.
(Confidentiality

Order

and

(“Confidentiality

Order”)

§§

Stipulation
1,

3).

The

and

Addendum

Addendum

to

the

Confidentiality Order prohibits any submission from being filed
under seal unless the standard outlined in Lugosch v. Pyramid Co.
of

Onandaga,

435

F.3d

110

(2d

Cir.

(Confidentiality Order, Addendum).

2006),

has

been

met.

Samsung now seeks an order

requiring that, when these documents are filed in connection with
Alexander Interactive’s contemplated motion, they be filed under
seal.

(Declaration of Kenneth Murata dated Aug. 13, 2014 (“Murata

Decl.”), ¶¶ 2-3; Declaration of Michael N. Mulvania dated Aug. 13,
2014, ¶ 3).

Adorama agrees that the documents should be filed

under seal.

(Memorandum of Law in Support of Motion for Sealing

Order (“Adorama Memo.”) at 3-4).
object to Samsung’s application.

Alexander Interactive does not
(Plaintiffs’ Response to Samsung

Electronics’ [sic] of America, Inc’s [sic] Motion for Sealing
Order, ¶ 13).
Discussion
Recognizing that the deeply-rooted “common law right of public
access” creates a presumption that “judicial documents” will be
publicly filed, the Second Circuit in Lugosch set forth a test for
analyzing

whether

a

nevertheless be sealed.

document

connected

with

a

lawsuit

Lugosch, 435 F.3d at 119-20.
2

may

First, the

court must determine whether the document at issue is a “judicial
document”

--

that

is,

a

document

that

is

“relevant

to

the

performance of the judicial function and useful in the judicial
process.”

Id. at 119 (quoting United States v. Amadeo, 44 F.3d

141, 145 (2d Cir. 1995)); accord Schiller v. City of New York, Nos.
04 Civ. 7921, 04 Civ. 7922, 2006 WL 2788256, at *3 (S.D.N.Y Sept.
27, 2006).

If it is, the court must evaluate the weight to be

accorded the presumption of public access, “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.”

Stern v. Cosby, 529 F. Supp. 2d 417, 420

(S.D.N.Y. 2007) (internal quotation marks omitted) (citing Lugosch,
435 F.3d at 119; United States v. Amadeo, 71 F.3d 1044, 1050 (2d
Cir. 1995) (“Amadeo II”)).

Finally, “competing considerations,”

which include “the danger of impairing judicial efficiency and the
privacy interests of those resisting disclosure,” must be balanced
against the presumption of access.

Id. (internal quotation marks

omitted) (citing Lugosch, 435 F.3d at 120; Amadeo II, 71 F.3d at
1050).
Here, the documents to be submitted are in support of a motion
to compel discovery and presumably will be necessary to or helpful
in

resolving

that

motion.1

They

1

are,

therefore,

judicial

In performing this analysis, I am disadvantaged by the fact
that I have not seen the motion and its supporting documents.
However, the Confidentiality Order does not appear to require, as
3

documents.

See Schiller, 2006 WL 2788256, at *4-5 (finding that

briefs and supporting papers presented as part of motion are
judicial documents); accord In re Omnicom Group, Inc. Securities
Litigation, No. 02 Civ. 4483, 2006 WL 3016311, at *2 (Oct. 23,
2006) (finding letter briefs with accompanying exhibits submitted
in support of motion to compel “certainly qualify as judicial
documents”).
However, the weight of the presumption is not particularly
great.

The documents are not to be submitted in connection with a

dispositive motion, but merely a motion to compel further discovery
from a party.

See Stern, 529 F. Supp. 2d at 422 (“[E]ven if the

[document] is filed for purposes of a motion to compel, the
presumption that would attach to the transcript would be low.

On

any such motion, I would not be making any decision on the merits,
but I would simply be reviewing excerpts of [the document] to
resolve a discovery dispute.”).

The motion to compel will not be

directed

Decl.,

at

Samsung

(Mulvania

¶

3),

and

there

is

no

indication that the information in these documents is relevant to
the claims asserted by Alexander Interactive and Adorama against
each other, including breach of contract, copyright infringement,
and defamation. Cf. In re Omnicom, 2006 WL 3016311, at *4 (denying
motion to seal where information sought to be filed under seal
included “facts pertinent to th[e] claims in th[is] case” and
therefore “inevitably [would] be made . . . public” during the
support for an application to seal, in camera review of the
relevant documents or any motion or application to which they are
related. (Confidentiality Order, ¶ 10 & Addendum).
4

course of litigation). In this situation, the presumption in favor
of public access is weak.
Finally, Samsung and Adorama have presented persuasive reasons
that the document should remain non-public. Samsung is a non-party
to

this

litigation,

information

about

and

its

the

documents

relationship

with

contain
its

confidential

dealer-customer,

defendant Adorama.

(Memorandum of Law in Support of Non-Party

Samsung

America,

Electronics

(“Samsung Memo.”) at 3-4).

Inc.’s

Motion

for

Sealing

Order

This includes non-public information

about pricing, credit, and termination terms, which, if made
public, could adversely effect Samsung’s relationships with other
dealer-customers, as well as Adorama’s relationships with other
suppliers.

(Samsung Memo. at 3; Murata Decl., ¶ 6; Adorama Memo.

at 3; Declaration of Harry Drummer dated Aug. 21, 2014, ¶ 5).
Indeed, the documents include information that was sufficiently
sensitive for Samsung to designate them Highly Confidential, a
label that has not been questioned notwithstanding a provision in
the

Confidentiality

designation.

Order

allowing

challenges

(Confidentiality Order, ¶ 9).

to

such

a

I therefore find that

the interests of Samsung and Adorama in keeping the content of
these documents confidential outweigh the public interest in access
to judicial documents.
Conclusion
For these reasons, Samsung’s motion for a sealing order
(Docket no. 198) is granted.

If and when the documents Bates

stamped SEA000001 to SEA0000008 are submitted in connection with
5

the plaintiff's contemplated motion to compel, they shall be filed
under seal.
SO ORDERED.

AMES C. FRANCIS IV
ITED STATES MAGISTRATE JUDGE
Dated:

New York, New York
September 2, 2014

Copies mailed this date:
Denise L. Savage, Esq.
Savage & Associates, P.C.
400 Blinn Road
Suite 1010
Croton-on-Hudson, NY 10520
Kenneth P. Norwick, Esq.
Norwick, Schad & Goering
110 East 59th Street, 29th Flr
New York, NY 10022
Matthew H. Sheppe, Esq.
Eric J. Vardi, Esq.
Daniel J. Brown, Esq.
Reiss Sheppe LLP
425 Madison Ave.
New York, NY 10017
Ian C. Richardson, Esq.
Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C.
1615 M Street, N.W., Suite 400
Washington, D.C. 20036

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