Abdel-Razeq et al v. Alvarez & Marsal, Inc. et al
Filing
54
OPINION AND ORDER. Accordingly, for all the foregoing reasons, the application to redact Ryan's name or replace it with a pseudonym is denied. The parties' September 21, 2015 letter will be docketed with this Order. (As further set forth in this order) (Signed by Magistrate Judge Henry B. Pitman on 11/12/2015) Copies Sent By Chambers. (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
MAYSA ABDEL-RAZEQ and
DARRAN ALBERT
:
:
14 Civ. 5601 (HBP)
:
OPINION
AND ORDER
Plaintiffs,
-against:
ALVAREZ & MARSAL, INC., ALVAREZ
& MARSAL TRANSACTION ADVISORY
GROUP, LLC, ALVAREZ & MARSAL
HOLDINGS, LLC, ALVAREZ & MARSAL
GLOBAL SERVICES, LLC, PAUL
AVERSANO, in his individual and
professional capacities, ANTHONY
CAPORRINO, in his individual and
professional capacities, JOEL
PORETSKY, in his individual and
professional capacities, and
LAUREEN RYAN, in her individual
and professional capacities,
:
:
:
:
:
:
:
Defendants.
-----------------------------------X
PITMAN, United States Magistrate Judge:
I.
Introduction
This is a Title VII action in which plaintiffs allege
claims of discrimination, harassment and retaliation.
The
parties have executed a settlement agreement and have made a
joint application seeking that defendant Laureen Ryan's name be
retroactively redacted from or replaced with a pseudonym on the
docket and in all publicly available documents including court
Orders (See Joint Letter Application, dated Sept. 21, 2015
("Sept. 21 Letter"); Joint Letter Motion for Pre-Motion Conference, dated Apr. 15, 2015 (Docket Item ("D.I.") 50)).
All parties have consented to my exercising plenary
jurisdiction pursuant to 18 U.S.C. § 636(c) (D.I. 52, 53).
For the reasons set forth below, the application to
redact Ryan's name or replace it with a pseudonym is denied.
II.
Factual and
Procedural Background
This action was commenced on July 23, 2014 against all
the current defendants except for Ryan (Complaint (D.I. 1); Sept.
21 Letter, at 3).
The Amended Complaint, filed on August 19,
2014, added Ryan as a defendant and asserted claims of aiding and
abetting unlawful discrimination and retaliation (Amended Complaint (D.I. 8); Sept. 21 Letter, at 3).
Plaintiffs filed a
Second Amended Complaint ("SAC") on January 28, 2015 (D.I. 39).
In the SAC, plaintiff Abdel-Razeq alleges that defendant Paul
Aversano subjected her to a pattern of sexual harassment and
racial discrimination and that after she complained of this
abuse, various supervisors retaliated against her and/or aided
and abetted the retaliation.
According to the parties, Abdel-
Razeq was transferred to Ryan's division less than one month
2
before the SAC was filed and had not worked for Ryan before that
time (Sept. 21 Letter, at 3; SAC, ¶ 106).
There are six specific
allegations concerning Ryan in the SAC; the SAC asserts two
claims on behalf of Abdel-Razeq against Ryan for aiding and
abetting (SAC, ¶¶ 4, 24, 106, 108, 110-111, 180-85, 221-27).
Plaintiff Albert does not assert any claims against Ryan.
The parties attended a settlement conference before me
on March 31, 2015 at which they agreed to a settlement (D.I. 50).
Following the conference, the parties jointly made the pending
application to edit the record to remove any reference to Ryan.
In the pending application, the parties argue that Ryan will
suffer financial hardship and loss of professional goodwill if
her name is not redacted or replaced with a pseudonym.
The
parties argue that (1) the relief they seek is narrowly tailored
to address Ryan's concerns about her professional reputation;
(2) plaintiffs will not be prejudiced because they have consented
to the request and there will be no further filings in this case
and (3) the public's interest in Ryan's name is limited.
For the reasons set forth below, the parties' application is denied.
3
III. Analysis
"There is a strong presumption that the public should
be able to access every single document filed with this court of
law."
Saks Inc. v. Attachmate Corp., 14 Civ. 4902 (CM), 2015 WL
1841136 at *14 (S.D.N.Y. Apr. 17, 2015) (McMahon, D.J.), citing
S.E.C. v. TheStreet.com, 273 F.3d 222, 231 (2d Cir. 2001); see
also United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
("The public's exercise of its common law access right in civil
cases promotes public confidence in the judicial system."),
quoting Leucadia, Inc. v. Applied Extrusion Tech., Inc., 998 F.2d
157, 161 (3d Cir. 1993).
This presumption is rooted in the First
Amendment as well as common-law principles.
See Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597 (1978); Hartford Courant
Co. v. Pellegrino, 380 F.3d 83, 93-94 (2d Cir. 2004);
Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 22 (2d
Cir. 1984); Doe v. Del Rio, 241 F.R.D. 154, 156 (S.D.N.Y. 2006)
(Lynch, D.J.); see also Anonymous v. Medco Health Solutions,
Inc., 588 F. App'x 34, 35 (2d Cir. 2014) (summary order) ("A
'presumption of immediate public access attaches [to some judicial documents] under both the common law and the First Amendment,'"), quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 126 (2d Cir. 2006) (alteration in original).
4
"[T]he weight
to be given the presumption of access must be governed by the
role of the material at issue in the exercise of Article III
judicial power and the resultant value of such information to
those monitoring the federal courts."
supra, 71 F.3d at 1049.
United States v. Amodeo,
Thus, in determining whether to grant a
request such as Ryan's, the court will balance the privacy
interests of the movant in the confidentiality of the information
in question, including a party's identity, against the importance
of the material to the adjudication and the public's interest in
access to such materials.
Nixon v. Warner Communications, Inc.,
supra, 435 U.S. 589, 597–603 (1978); S.E.C. v. TheStreet.com,
supra, 273 F.3d at 232; United States v. Amodeo, supra, 71 F.3d
at 1048-53; Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982).
Specific considerations are applicable to a party's
request for anonymity.
Rule 10(a) of the Federal Rules of Civil
Procedure provides that "[t]he title of the complaint must name
all the parties."
This rule "serves the vital purpose of facili-
tating public scrutiny of judicial proceedings and therefore
cannot be set aside lightly."
Sealed Plaintiff v. Sealed Defen-
dant, 537 F.3d 185, 188-89 (2d Cir. 2008).
The Court of Appeals
has set forth the following non-exhaustive list of factors for
district courts to consider in assessing a plaintiff's motion to
proceed anonymously:
(1) whether the litigation involves matters
5
that are highly sensitive and of a personal nature; (2) whether
identification poses a risk of retaliatory harm to a party
seeking to proceed anonymously or even more critically, to
innocent non-parties; (3) whether identification presents other
harms and the likely severity of those harms; (4) whether plaintiff is particularly vulnerable to possible harm from disclosure;
(5) whether the suit is challenging actions of government or that
of private parties; (6) whether defendant is prejudiced by
allowing plaintiff to press claims anonymously and whether the
nature of that prejudice differs at any particular stage of the
litigation or can be mitigated by the district court; (7) whether
plaintiff's identity has thus far been kept confidential; (8)
whether the public's interest in the litigation is furthered by
requiring plaintiff to disclose his identity; (9) whether,
because of the purely legal nature of issues presented or otherwise, there is an atypically weak public interest in knowing the
litigants' identities and (10) whether there are any alternative
mechanisms for protecting the confidentiality of plaintiff.
Sealed Plaintiff v. Sealed Defendant, supra, 537 F.3d at 189-90,
citing Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d
1058, 1068 (9th Cir. 2000); M.M. v. Zavaras, 139 F.3d 798, 803
(10th Cir. 1998); James v. Jacobson, 6 F.3d 233, 238 (4th Cir.
1993); Doe v. Frank, 951 F.2d 320, 323 (11th Cir. 1992); Doe v.
6
Del Rio, supra, 241 F.R.D. at 157; Doe v. Shakur, 164 F.R.D. 359,
361 (S.D.N.Y. 1996) (Chin, D.J.).
Although the Court of Appeals did not explicitly limit
its holding to plaintiffs who wish to proceed anonymously, an
application to remove a defendant's name from the public record
raises distinct, albeit overlapping, considerations from those
considered by the Court of Appeals in Sealed Plaintiff v. Sealed
Defendant.
See North Jersey Media Group Inc. v. Doe Nos. 1-5, 12
Civ. 6152 (VM)(KNF), 2012 WL 5899331 at *4 (S.D.N.Y. Nov. 26,
2012) (Fox, M.J.) ("'The problem of anonymous plaintiffs involves
considerations entirely different from those involving 'John Doe'
defendants'"), quoting Doe v. Deschamps, 64 F.R.D. 652, 652-53
n.1 (D. Mont. 1974).
For instance, a plaintiff who has privacy
concerns has the option of either not commencing or discontinuing
the action rather than revealing his or her identity to the
world; a defendant does not have this option.
Nevertheless, I
find the factors articulated in Sealed Plaintiff to be informative in assessing a defendant's application to remove her name
from the record.
Accord Next Phase Distribution, Inc. v. Does 1-
138, 11 Civ. 9706 (KBF), 2012 WL 691830 at *1-*2 (S.D.N.Y. March
1, 2012) (Forrest, D.J.) (applying Sealed Plaintiff to defendant's request to proceed pseudonymously); North Jersey Media
Group Inc. v. Doe Nos. 1-5, supra, 2012 WL 5899331 at *4-*9
7
(acknowledging the distinction but applying Sealed Plaintiff
factors where defendant sought to proceed anonymously).
I shall
therefore address the present application by analyzing the
factors articulated in Sealed Plaintiff and other relevant
considerations.
A.
Whether the Litigation
Involves Matters that
Are Highly Sensitive
and of a Personal Nature
Ryan does not contend that the allegations against her
are of a highly sensitive and personal nature.
Indeed, the
allegations against Ryan are substantially less sensitive than
the class of allegations that are typically found to meet this
standard.
See Michael v. Bloomberg L.P., 14 Civ. 2657 (TPG),
2015 WL 585592 at *3 (S.D.N.Y. Feb. 11, 2015) (Griesa, D.J.)
(citing as examples "claims involving sexual orientation, pregnancy, or minor children"); North Jersey Media Group Inc. v. Doe
Nos. 1-5, supra, 2012 WL 5899331 at *4 (citing matters "such as
birth control, abortion, homosexuality or the welfare rights of
illegitimate children or abandoned families") (citation omitted);
Next Phase Distribution, Inc. v. Does 1-138, supra, 2012 WL
691830 at *1-*2 (noting "highly sensitive nature and privacy
issues that could be involved with being linked to a pornography
film" and allowing defendant to proceed pseudonymously "until
8
further order of this Court").
Moreover, the potential for
embarrassment or public humiliation does not, without more,
justify a request for anonymity.
See, e.g., M.M. v. Zavaras,
supra, 139 F.3d at 803 (affirming denial of plaintiff inmate's
motion to proceed under pseudonym where she alleged corrections
officers denied her funds for an abortion and that "her inability
to proceed under a pseudonym 'might subject her to humiliation,
embarrassment and to possible intimidation and retaliation by
staff members of the institution where she is detained'"); Doe v.
Shakur, supra, 164 F.R.D. at 362 (rejecting plaintiff's argument
that she would be publicly humiliated if she proceeded with
sexual assault claims against famous individual in her true
name).
Because the allegations against Ryan are not highly
sensitive or of a personal nature, this factor weighs against the
request for anonymity.
B.
Whether Identification Poses
Risk of Retaliatory Harm to
Party Seeking to Proceed
Anonymously or to Innocent Non-Parties
The parties do not contend that identification poses
risk of retaliatory harm to Ryan or to innocent non-parties.
C.f., Javier H. v. Garcia-Botello, 211 F.R.D. 194, 196 (W.D.N.Y.
2002) (plaintiffs had a substantial privacy interest in proceeding anonymously because the defendants had threatened them with
9
violence and were criminally charged for those threats).
Thus,
this factor does not weigh in favor of the parties' application.
C.
Whether Identification
Presents Risk of Other Harms
and Likely Severity of Those Harms
Ryan's primary basis for requesting anonymity is that
being named in this action may cause her economic hardship and
loss of professional goodwill.
The parties explain the conten-
tion as follows:
Ms. Ryan is a Managing Director in Alvarez & Marsal's
Global Forensic and Dispute Services practice and
specializes in accounting and forensic investigations,
and disputes with complex economic, valuation, solvency
and financial issues. Her special set of expert skills
is demanded by clients and courts with high stakes
complicated problems and litigation who want no questions about her integrity or background. These discerning clients almost universally run comprehensive
background checks in advance of retaining expert services. In most instances, Ms. Ryan's background is
reviewed by law firms on behalf of a client against
court docket searches prior to retention. Even less
sophisticated clients are likely to perform internet
searches for Ms. Ryan's name and would learn of Ms.
Ryan's implication in this lawsuit. . . .
. . . Plaintiff's litigation against Ms. Ryan could
very well affect her reputation, compensation and
employment, as it risks Ms. Ryan losing opportunities
to be retained as an expert by those who fear her
involvement in this lawsuit will create a litigation
'side show' if she is retained.
(Sept. 21 Letter, at 2-3).
The parties assert that the allega-
tions in the complaint implicate Ryan's ethics and credibility
10
and, thus, endanger her income as an expert (Sept. 21 Letter, at
2-3).
The parties also state that any "lost opportunities to be
retained as an expert will directly impact [Ryan's] future
employment advancement opportunities and her ability to join
Boards of Directors" (Sept. 21 Letter, at 3).
Ryan's potential professional losses are not a compelling reason to grant her motion because she has not demonstrated
any real, non-speculative, impact on her professional prospects.
Although courts do sometimes grant requests for anonymity to
protect "privacy or confidentiality concerns" that are "sufficiently critical," James v. Jacobson, supra, 6 F.3d 233 at 238,
courts have consistently rejected anonymity requests predicated
on harm to a party's reputational or economic interests.
See,
e.g., Nat'l Commodity & Barter Ass'n v. Gibbs, 886 F.2d 1240,
1245 (10th Cir. 1989) (per curiam) (explaining that anonymity
"has not been permitted when only the plaintiff's economic or
professional concerns are involved" and collecting cases); Doe v.
United Servs. Life Ins. Co., 123 F.R.D. 437, 439 n.1 (S.D.N.Y.
1988) (Sweet, D.J.) (rejecting proposition that litigants may
proceed anonymously "to protect the parties' professional or
economic life").
Further, where, as here, the claims of pur-
ported economic harm are unsubstantiated, the claims are entitled
to little weight.
See Michael v. Bloomberg L.P., 14 Civ. 2657
11
(TPG), 2015 WL 585592 at *2-*3 (S.D.N.Y. Feb. 11, 2015) (Griesa,
D.J.) (denying a plaintiff's request for anonymity in action
asserting claims for unpaid wages despite plaintiff's concern
regarding future job opportunities due to employer's history of
publicly disparaging employees who brought similar suits); cf.
Doe v. Shakur, supra, 164 F.R.D. at 362 (although plaintiff
claimed that she faced death threats, request to seal was denied
because she failed to "provid[e] any details" or "explai[n] how
or why the use of her real name in court papers would lead to
harm").
This present case is similar to Anonymous v. Medco
Health Solutions, Inc., supra, 588 F. App'x 34, in which the
Court of Appeals affirmed a decision denying a plaintiff physician's motion to proceed anonymously and to seal the entire court
record.
The plaintiff in that case, an orthopedic surgeon
diagnosed with Parkinson's disease, brought suit for defendant's
unauthorized disclosure of plaintiff's medical condition to
plaintiff's medical office.
The plaintiff wished to proceed
anonymously, arguing that any further identification of his
medical condition would "adversely impact his patient base as he
is a specialist who relies largely upon referrals from other
physicians."
Anonymous v. Medco Health Solutions, Inc., supra,
588 F. App'x at 35.
The Court of Appeals found this claim to be
12
speculative because there was no support for the proposition that
other physicians would erroneously conclude that plaintiff's
condition would adversely affect his work as a physician.
Anonymous v. Medco Health Solutions, Inc., supra, 588 F. App'x at
35.
Similarly in Doe v. Delta Airlines, Inc., the Honorable
Paul A. Engelmayer, United States District Judge, denied a motion
by a practicing attorney to proceed anonymously in a lawsuit in
which the plaintiff's public intoxication was in issue.
Doe v.
Delta Airlines, Inc., 13 Civ. 6287 (PAE), -- F.R.D. --, 2015 WL
5781215 at *2 (S.D.N.Y. Oct. 2, 2015).
Judge Engelmayer applied
the Sealed Plaintiff factors and found that the plaintiff's
argument that she would be harmed in her "reputation and finances" if it was revealed that she was arrested for public
intoxication did not outweigh the presumption of access.
Specif-
ically, Judge Engelmayer found plaintiff's concerns that "as a
practicing lawyer, she will suffer professionally, and therefore
financially, if her name is disclosed" to be "invalid."
Doe v.
Delta Airlines, Inc., supra, 2015 WL 5781215 at *1, *3-*4; see
also Doe v. City of New York, 201 F.R.D. 100, 102 (S.D.N.Y. 2001)
(Kaplan, D.J.) (rejecting attorney's request to proceed anonymously in claim for false arrest; although claim of "reputational
13
injury is not to be discounted entirely . . . claim of threatened
harm is speculative and exaggerated").1
Admittedly, unlike the cases discussed above, Ryan is
not a plaintiff who brought suit and voluntarily put her conduct
in issue; she had no control over Abdel-Razeq's naming her in the
lawsuit or the allegations Abdel-Razeq made.
However, like the
foregoing cases, the parties' argument that being named as a
defendant will cause Ryan to lose potential clients is based on
conjecture.
The parties are unable to demonstrate any real,
rather than speculative, harm that the allegations against Ryan
will have on a potential client's decision to hire Ryan as an
accounting expert.
The parties do not assert that this litiga-
tion, which has been pending against Ryan since August 2014, has,
in fact, affected any of her prior existing engagements or
impacted any specific potential engagements.
The parties' contention that there will be a "litigation 'side show' if she is retained" in future actions is not
1
The parties cite Doe v. New York University, 6 Misc. 3d
866, 879, 786 N.Y.S.2d 892, 903 (Sup.Ct. N.Y. Co. 2004) for the
proposition that the danger of "social stigmatization" is a
substantial privacy interest that outweighs the public's interest
in disclosure (Sept. 21 Letter, at 3). That case, however,
involved plaintiffs who were victims of sexual assault, suffered
emotional distress, and had undergone psychotherapy. Doe v. New
York University, supra, 6 Misc. 3d at 880, 786 N.Y.S.2d at 904.
Given the sensitive nature of the conduct at issue in Doe, the
privacy considerations implicated in that case are not present in
this case.
14
convincing (Sept. 21 Letter, at 3).
Although the parties do not
elaborate on the nature of the "side show," the fact that Ryan
was named as a defendant in an action that was settled could not
be used to impeach her credibility.
If offered in another
action, Abdel-Razeg's allegations against Ryan would be hearsay
and would be inadmissible.
See Rivera v. Metro. Transit Auth.,
750 F. Supp. 2d 456, 461 (S.D.N.Y. 2010) (Kaplan, D.J.) ("An
unsworn statement by a non-party in a complaint in another
lawsuit is hearsay when offered to prove the truth of that
statement.
It is not admissible."); see also Greene v. Brentwood
Union Free Sch. Dist., 576 F. App'x 39, 41 (2d Cir. 2014) (summary order) ("complaints and charges are also inadmissible
hearsay and not evidence of discrimination"); Beechwood Restorative Care Ctr. v. Leeds, 856 F. Supp. 2d 580, 604 (W.D.N.Y.
2012) ("[C]omplaints, and the charges and allegations they
contain, are hearsay under the Federal Rules of Evidence."),
quoting Insignia Sys. Inc. v. News America Mktg. In-Store, Inc.,
04 Civ. 4213 (JRT)(AJB), 2011 WL 382964 at *2 (D. Minn. Feb. 3,
2011)(alteration in original; internal quotation marks omitted);
Dent v. U.S. Tennis Ass'n, Inc., 08 Civ. 1533 (RJD) (VVP), 2008
WL 2483288 at *3 (E.D.N.Y. June 17, 2008) ("In addition to being
inadmissible as hearsay, unproved allegations of misconduct are
not proof of anything.").
Thus, there appears to be little
15
likelihood that the "sideshow" Ryan fears will come to pass and
this factor does not weigh in favor of the parties' request.
D.
Whether The Requesting Party
is Particularly Vulnerable
to Possible Harms of Disclosure
The parties do not contend that Ryan is particularly
vulnerable to possible harms of disclosure.
Hence, this factor
weighs against the motion.
E.
Whether Suit Challenges
Governmental or Private Action
This factor has been applied when a plaintiff brings an
action against a governmental defendant and demonstrates that
disclosure of plaintiff's identity may subject plaintiff to harm
in the form of criminal prosecution or civil penalties.
Because
this action is not brought against a governmental entity and
there is no chance of retaliatory charge, this factor also weighs
against the parties' motion.
F.
Whether Abdel-Razeq
Is Prejudiced by
Allowing Ryan Anonymity
There is no dispute that Abdel-Razeq will not be
prejudiced from the removal of Ryan's true name because AbdelRazeq has known Ryan's identity since the beginning of this
16
action and Abdel-Razeq consents to this application (Sept. 21
Letter at 4).2
G.
Whether Defendant's
Identity Has Thus
Far Been Kept Confidential
Ryan's name has been part of the public record since
August 2014 without any objection, and that fact weighs against
her request for anonymity.
The parties do not argue that there
is any change in Ryan's circumstances that justifies her application here other than the settlement and resultant dismissal of
the case.
Moreover, third-party websites have posted information
concerning the action, including the fact that Ryan is named as a
defendant.3
This factor also weighs against the parties' appli
2
The parties cite two cases in support of their argument
that plaintiff's consent to Ryan's request for anonymity is
relevant. Those cases, however, found that a party's consent
combined with other compelling factors justified the request for
limited sealing (Sept. 21 Letter, at 4, citing Danco Labs. v.
Chem. Works of Gedeon Richter, 274 A.D.2d 1, 711 N.Y.S.2d 419
(1st Dep't 2000) (consent a factor where disclosure would reveal
trade secrets and the identities of persons who may be targeted
for harassment or violence); Malibu Media, LLC v. Doe, 15 Civ.
1834 (JGK), 2015 WL 4403407 at *1-*2 (S.D.N.Y. July 20, 2015)
(Koeltl, D.J.) (denying motion to quash subpoena where plaintiff
sought defendant's true name and noting plaintiff's consent to
defendant's proceeding anonymously in case "minimiz[ed] the
possible embarrassment and reputational damage" associated with
downloading pornography)).
3
See, e.g., Abdel-Razeq et al v. Alvarez & Marsal, Inc. et
al, http://www.law360.com/cases/53d277ef4fd0c5556d000001 (last
(continued...)
17
cation for Ryan to be expunged from the record of this case.
See
Doe v. Shakur, supra, 164 F.R.D. at 362 (claims of potential
public embarrassment through media attention belied by fact that
plaintiff admitted that "press has known her name for some
time").
H.
The Impact of
Anonymity on the Public's
Interest in the Litigation
The public's interest in this action also weighs
against the parties' application.
There is a strong public policy in favor of enforcing
federal anti-discrimination laws and deterring workplace discrimination on the basis of race, sex, and national origin through
the pursuit of Title VII claims.
See McKennon v. Nashville
Banner–Publishing Co., 513 U.S. 352, 358 (1995) (noting that like
Title VII, an ADEA "private litigant who seeks redress for his or
her injuries vindicates both the deterrence and compensation
objectives" of the anti-discrimination law); Alexander v.
Gardner–Denver Co., 415 U.S. 36, 44 (1974) (the private Title VII
plaintiff "not only redresses his own injury but also vindicates
3
(...continued)
visited Nov. 10, 2015); Abdel-Razeq et al v. Alvarez & Marsal,
Inc. et al, http://www.plainsite.org/dockets/2klvfdmjn/newyork-southern-district-court/abdelrazeq-et-al-v-alvarez-and-marsa
l-inc-et-al/ (last visited Nov. 10, 2015).
18
the important congressional policy against discriminatory employment practices"); Vuona v. Merrill Lynch & Co., 10 Civ. 6529
(PAE), 2013 WL 1971572 at *5 (S.D.N.Y. May 14, 2013) (Engelmayer,
D.J.) ("there is an important public interest served by the
pursuit of colorable Title VII claims.") (citation and internal
quotation marks omitted).
One salutary effect of private discrimination actions
is deterrence; open proceedings serve the function of putting
would be discriminators on notice that illegal discrimination not
only results in a direct financial obligation to the victim, it
also results in an embarrassing public record of the illegal
conduct.
See Doe v. Del Rio, supra, 241 F.R.D. at 159 ("Private
civil suits, individually and certainly in the aggregate, do not
only advance the parties' private interests, but also further the
public's interest in enforcing legal and social norms.").
Finally, transparent proceedings foster public confidence in the integrity of the judiciary and serve to demonstrate
to the public that the laws are being enforced even- handedly.
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. . . .
Although courts have a number of internal checks, such
as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of
democratic control. Monitoring both provides judges
with critical views of their work and deters arbitrary
19
judicial behavior. Without monitoring, moreover, the
public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access
to testimony and documents that are used in the performance of Article III functions.
United States v. Amodeo, supra, 71 F.3d at 1048.
Access to all
proceedings in discrimination cases gives the public confidence
that the law is being applied fairly.
I.
Whether, Because of the Purely
Legal Nature of the Issues
Presented or Otherwise, There is
an Atypically Weak Public Interest
in Knowing the Litigants' Identities
The parties' arguments related to the public's interest
in Ryan's identity are addressed above in the discussion of the
eighth factor.
J.
Whether There Are Any
Alternative Mechanisms for
Protecting Confidentiality of Defendant
The parties have not addressed this factor.
K.
Summary
In summary, the balance of factors discussed above
weigh against the parties' request for retroactive anonymity for
Ryan and in favor of the presumption of access to judicial
proceedings.
The allegations at issue in this case are not of a
20
highly sensitive and personal nature nor does Ryan face any form
of retaliation if her name remains in the judicial record.
Further, the parties have not demonstrated any real, rather than
speculative, harm to Ryan's professional opportunities due to the
disclosure of her name, either to date or in the future.
Al-
though plaintiff consents to this application and it is undisputed that she would face no prejudice if Ryan's name is removed
from the record, the strong public interest in access to the
public record in employment discrimination cases like this one
also weighs strongly in favor of continued disclosure.
Finally, granting this motion would set an untenable
precedent.
It would invite any defendant named in a civil
complaint who settles a case to seek to have his or her name
expunged from the record because it may shed a negative light on
his or her professional life.
Defendant's argument that this
case is different and that in "most cases" the public would not
investigate or care about an executive being named in a lawsuit
(Sept. 21 Letter, at 2) is incorrect.
In today's internet-based
society, it has become the norm to seek and to access publicly
available information about potential employees and consultants
as well as professional and personal acquaintances.
The increas-
ing availability of electronically accessible court records is
21
simply not a basis for taking steps to seal court records in
cases like this one.
IV.
Conclusion
Accordingly, for all the foregoing reasons, the application to redact Ryan's name or replace it with a pseudonym is
denied.
The parties' September 21, 2015 letter will be docketed
with this Order.
Dated:
New York, New York
November 12, 2015
SO ORDERED
HENRY P
United States Magistrate Judge
Copies transmitted to:
Andrew s. Goodstadt, Esq.
Goodstadt Law Group, PLLC
Suite 347
1 Old Country Road
Carle Place, New York 11514
Douglas H. Wigdor, Esq.
Lawrence M. Pearson, Esq.
Elizabeth J. Chen, Esq.
Jeanne-Marie B. Christensen, Esq.
Thompson Wigdor LLP
Fifth Floor
85 Fifth Avenue
New York, New York 10003
22
A. Michael Weber, Esq.
Meredith L. Kaufman, Esq.
Littler Mendelson, P.C.
Seventh Floor
900 Third Avenue
New York, New York 10022
23
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