Mortgage Resolution Servicing, LLC et al v. JPMorgan Chase Bank, N.A. et al
Filing
183
MEMORANDUM AND ORDER. For the reasons discussed, the plaintiffs' Motion Challenging the Designations of the Deposition Transcripts of Third-Party Witnesses Bryan Bly and Erika Lance (Docket no. 165) is granted, but the effect of this order is st ayed as set forth above. So ordered. Granting 165 MOTION CHALLENGING THE DESIGNATION OF THE DEPOSITION TRANSCRIPTS OF THIRD-PARTY WITNESSES BRIAN BLY AND ERIKA LANCE. (Signed by Magistrate Judge James C. Francis on 5/16/2017) Copies transmitted this date. (rjm)
to discovery from “annoyance, embarrassment, oppression, or undue
burden” or to maintain the confidentiality of a “trade secret or
other
confidential
information.”
research,
development,
or
commercial
Fed. R. Civ. P. 26(c)(1).
The party seeking a protective order “must [] show good
cause for restricting dissemination on the ground that it
would be harmed by its disclosure.” The showing of harm
may not be couched in generalities; the party resisting
unfettered disclosure must demonstrate a “clearly
defined” and “specific” injury which is “serious” or
“significant.”
Closed Joint Stock Company “CTC Network” v. Actava TV, Inc., No. 15
Civ. 8681, 2016 WL 1364942, at *3 (S.D.N.Y. March 28, 2016) (first
quoting 8A Charles Alan Wright et al., Federal Practice and
Procedure § 2043 (3d ed. 2010); then quoting John Wiley & Sons,
Inc. v. Book Dog Books, LLC, 298 F.R.D. 184, 186 (S.D.N.Y. 2014)).
Frequently, the parties will stipulate to, or the court will enter,
a “blanket” confidentiality order, like the one in this case, that
does not identify the specific information subject to protection,
but instead permits the parties (or non-parties) to designate
information as confidential.
“In such a case, the ‘good cause’
showing is temporarily postponed ‘until a party or intervenor
challenges
the
continued
confidential
treatment
of
certain
particular documents’ or testimony, at which point ‘the burden of
establishing good cause then lies with the party seeking to prevent
the disclosure.’”
Koch v. Greenberg, No. 07 Civ. 9600, 2012 WL
2
1449186, at *1 (S.D.N.Y. April 13, 2012) (quoting In re Parmalat
Securities Litigation, 258 F.R.D. 236, 243 (S.D.N.Y. 2009)).
Here, neither the Deponents nor National Title have met their
burden. Although the Deponents have submitted affidavits attesting
that
they
have
dissemination
been
of
subject
their
to
harassment
testimony
in
as
prior
the
result
of
mortgage-related
litigation (Affidavit of Bryan Bly dated May 2, 2017, ¶¶ 4-5;
Affidavit of Erika Lance dated May 2, 2017, ¶¶ 3-4), they have not
explained what it was about their prior testimony that might have
caused them to be harassed or how their current testimony might
have
similar
particularity
consequences.
which
Nor
questions
have
and
they
answers
in
identified
the
with
deposition
transcript could subject them to retaliation if disclosed.
Nor
have they suggested why, even if some of the testimony merits
confidential treatment, it should be designated as Attorneys’ Eyes
Only and shielded from the parties.
Similarly, although the Chief
Legal Officer for National Title asserts that the depositions
contain trade secrets and confidential information (Affidavit of
Myron Finley dated May 3, 2017, ¶¶ 7-9), he has not identified any
specific
proprietary processes revealed in the testimony.
Because of the potential harm that may be caused by the
dissemination of truly confidential information, the Deponents and
National
Title
should
be
accorded
3
a
second
opportunity
to
demonstrate what portions of the deposition transcripts, if any,
merit continued protection. This exercise, however, may ultimately
be rendered moot. The plaintiffs have filed a motion in the United
States District Court for the Middle District of Florida seeking to
compel Ms. Lance to answer questions to which she refused to
respond in her initial deposition; that motion has been transferred
to this court by agreement of the parties.
(Plaintiffs’ Reply in
Further Support of Motion Challenging the Designation of the
Deposition Transcripts of Third-Party Witnesses Bryan Bly and Erika
Lance (“Pl. Reply”) at 6 & n.2).
Apparently, the transcript
depositions for both Deponents were submitted with the motion.
(Pl. Reply at 6).
To the extent that the determination of the
motion to compel were to be predicated on the transcripts, there
would arise a strong presumption that the public would have a right
of access to those documents.
Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 119–21 (2d Cir. 2006).
The appropriate resolution, then, is to grant the plaintiffs’
motion but to stay setting aside the confidentiality designations
pending
the
submission
of
Deponents or National Title.
any
supplemental
argument
by
the
Therefore, within two weeks of the
determination of the motion to compel, Deponents and National Title
may provide supplemental briefing addressing the concerns set forth
here.
If they do not make such a submission, the stay will
4
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