Maher v. Bank of Nova Scotia et al
Filing 114
ORDER: granting (508) Letter Motion to Seal; granting (518) Letter Motion to Seal; granting (523) Letter Motion to Seal in case 1:14-md-02548-VEC. Plaintiffs' and Defendants' sealing applications, at docket entries 508, 518, and 523, are he reby GRANTED. The parties make two separate sealing requests: First, Plaintiffs and Defendants seek to redact the information quoted or displayed in Plaintiffs' opposition brief that was produced by Defendants and designated as confidential purs uant to the parties' Protective Order. See Pls. Letter Motion, Dkt. 518 at 1, 5; Defs. Letter Motion, Dkt. 523 at 2. Second, Plaintiffs seek to redact the work product of its consultants that was "included, quoted, and described in" e ither Plaintiffs' or Defendants' briefs and exhibits in connection with Defendants' motion. See Pls. Letter Motion, Dkt. 518 at 1. A presumption of public access applies to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). The Second Circuit has found that "[i]n defining 'judicial records and documents,' we have emphasized that 'the mere filing of a paper or document with the court is insufficient to render that pap er a judicial document subject to the right of public access.' Instead, 'the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.&# 039;" Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019) (citing United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995). With respect to the first sealing request, the information produced by Defendants and designated confidential, the Court fi nds that such information does not constitute judicial documents under the Lugosch standard and so the presumption of public access does not apply. While such information went to Defendants' alleged role in the Fixing process, it did not concer n whether Plaintiffs' experts are immune from deposition. Because the presumption of public access does not apply, the sealing request as to such information is granted. With respect to the second sealing request, the information produced by Pl aintiffs' consultants, Plaintiffs contend that such information also does not constitute judicial documents. See Pls. Letter Motion, Dkt. 518 at 2-3. But the Court finds that the redacted materials are judicial documents. Although Defendants ' motion centers on whether Abrantes- Metz and Bamberger are entitled to the protections of Rule 26(b)(4)(D) of the Federal Rules of Civil Procedure, Rule 26(b)(2)(C) requires a Court to limit discovery when it is "unreasonably cumulative o r duplicative." See Fed. R. Civ.P. 26(b)(2)(C). In order to assess whether the depositions at issue would be unreasonably cumulative or duplicative, the Court must consider their potential subject matter, an inquiry which necessarily bears upo n the redacted materials. Accordingly, because the materials are "implicated in judicial proceedings," they are squarely judicial documents. See Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 166 (2d Cir. 2013). But a relatively weak presum ption of public access applies to these materials because they were filed in connection with a discovery dispute. See Brown, 929 F.3d at 49 ("[T]he presumption of public access in filings submitted in connection with discovery disputes... is g enerally somewhat lower than the presumption applied to material introduced at trial, or in connection with dispositive motions such as motions for dismissal or summary judgment."). The Court finds that there is sufficient information in the pub lic record to understand the basis for the Court's decision without needing to review the redacted materials. Additionally, the Court agrees that the materials contain sensitive and possibly proprietary information that could be used by the con sultants' competitors and possibly by future defendants in other price manipulation lawsuits. See Pls. Letter Motion, Dkt. 518 at 4-5; see also Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511 (S.D.N.Y. 2015); Encyclo pedia Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 614 (S.D.N.Y. 1998). Accordingly, given the low presumption of access in discovery disputes, Plaintiffs' application to redact material produced by Plaintiffs' consultants is granted. The Clerk of Court is respectfully directed to close the open motions at docket entries 508, 518, and 523. SO ORDERED. (Signed by Judge Valerie E. Caproni on 6/14/2021) Filed In Associated Cases: 1:14-md-02548-VEC et al. (ama)
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