The State of New York Ex Rel Vinod Khurana et al v. Spherion Corp

Filing 154

MEMORANDUM OPINION AND ORDER: Accordingly, the Court sua sponte reconsiders and VACATES Paragraph 12 of the Stipulation and Order and MODIFIES it to read as follows. The remainder of the Stipulation and Order remains in full force and effect. No lat er than August 2, 2019, any party that believes any currently sealed documents should remain under seal shall file a letter-motion, not to exceed ten pages, explaining why each such instance of redaction or sealing is consistent with the presumption in favor of public access to judicial documents and narrowly tailored to serve whatever interest justifies it. (Signed by Judge Jesse M. Furman on 7/19/2019) (ne)

Case 1:15-cv-06605-JMF-OTW Document 154 Filed 07/19/19 Page 1 of 4

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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STATE OF NEW YORK ex rel. VINOD KHURANA, :
et al.,
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Plaintiffs,
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-v:
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SPHERION CORP. (N/K/A SFN GROUP, INC.),
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Defendant.
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:
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15-CV-6605 (JMF)
MEMORANDUM
OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:
On January 4, 2016, the judge to whom this case was previously assigned “so ordered”
a Stipulation and Order for the Protection and Exchange of Confidential Information. See
Docket No. 30 (“Stipulation and Order”). Paragraph 12 of that Stipulation and Order
provides:
All Confidential Information filed with the Court, and all portions of pleadings,
motions or other papers filed with the Court that disclose such Confidential
Information shall be filed under seal with the Clerk of the Court and kept under
seal until further order of the Court. The parties will use their best efforts to
minimize such sealing. In any event, any party filing a motion or any other
papers with the Court under seal shall also publicly file a redacted copy of the
same, via the Court’s Electronic Case Filing system, that redacts only the
Confidential Information, and not text that in no material way reveals the
Confidential Information.
Id. ¶ 12. In light of Brown v. Maxwell, — F.3d —, No. 16-3945-CV, 2019 WL 2814839 (2d
Cir. July 3, 2019), decided on July 3, 2019, the Court finds that paragraph problematic.
Accordingly, the Court will vacate the paragraph and substitute a modified version in its
place.

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Both the common law and the First Amendment create a presumption of public access
to judicial documents. See, e.g., Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-24
(2d Cir. 2006). Although the analysis is “somewhat different” depending on which source of
law creates the presumption, Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814
F.3d 132, 141 (2d Cir. 2016), once the presumption is triggered, a court must “make specific,
rigorous findings before sealing the document or otherwise denying public access,” Newsday
LLC v. Cty. of Nassau, 730 F.3d 156, 167 n.15 (2d Cir. 2013). That requires a court to
“review the documents individually and produce specific, on-the-record findings that sealing
is necessary to preserve higher values,” where the First Amendment presumption is
implicated, Brown, 2019 WL 2814839, at *4 (internal quotation marks omitted), or
“countervailing factors,” where the common-law framework applies, Lugosch, 435 F.3d at
124. In short, and as the Second Circuit emphasized in Brown, any conclusion that sealing or
redaction of documents that qualify as judicial documents is appropriate requires
“individualized” — that is, document-by-document — “review.” Brown, 2019 WL 2814839,
at *6.
Furthermore, “[t]he mere fact that information is subject to a confidentiality agreement
between litigants . . . is not a valid basis to overcome the presumption in favor of public
access to judicial documents.” In re Gen. Motors LLC Ignition Switch Litig., No. 14-MD2543 (JMF), 2015 WL 4750774, at *4 (S.D.N.Y. Aug. 11, 2015); accord Accent Delight Int’l
Ltd. v. Sotheby’s, No. 18-CV-9011 (JMF), 2019 WL 2602862, at *8 (S.D.N.Y. June 25,
2019); see also, e.g., Under Seal v. Under Seal, 273 F. Supp. 3d 460, 471 (S.D.N.Y. 2017)
(explaining that “courts in this district have repeatedly found that the preservation of such
bargained-for confidentiality does not overcome the presumption of access to judicial

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documents” and collecting cases). That is, a party must demonstrate reasons to justify sealing
or redaction separate and apart from a private agreement to keep information confidential.
In light of those principles, a protective order authorizing the parties themselves to
designate confidential material and to file such material under seal — without prior
“individualized review” and “specific, on-the record findings” by the Court that such sealing
or redaction is warranted — is inappropriate. Brown, 2019 WL 2814839, at *4, *6.
Accordingly, the Court sua sponte reconsiders and VACATES Paragraph 12 of the
Stipulation and Order and MODIFIES it to read as follows:
Any party filing Confidential Material with the Court shall seek leave of
the Court to file the material under seal or in redacted form in accordance
with the procedures described in Paragraph 7 of the Court’s Individual
Rules and Practices in Civil Cases, which are available at
http://www.nysd.uscourts.gov/judge/Furman. The parties shall use their
best efforts to minimize any proposed redactions or sealing in accordance
with the presumption in favor of public access to judicial documents. See
generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20
(2d Cir. 2006).
The remainder of the Stipulation and Order remains in full force and effect.
No later than August 2, 2019, any party that believes any currently sealed documents
should remain under seal shall file a letter-motion, not to exceed ten pages, explaining why
each such instance of redaction or sealing is consistent with the presumption in favor of public
access to judicial documents and narrowly tailored to serve whatever interest justifies it. Any
party filing such a letter-motion should follow the procedures described in Paragraph 7 of the
Court’s Individual Rules and Practices, including by providing the Court with a set of
electronic courtesy copies of any material sought to be maintained under seal or in redacted
form. In the case of documents sought to be maintained entirely under seal, the moving party
should provide the Court with a clean copy of such documents; in the case of any material

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sought to be maintained in redacted form, the moving party should provide the Court with
copies of such documents highlighting the information that has been redacted in the existing
ECF filing. If any such electronic courtesy copies are too large to submit by email, the
moving party shall deliver them to the Court on a CD-ROM (not a flash drive). The Court
will thereafter unseal any document with respect to which the presumption is not overcome
(or with respect to which no letter-motion is filed). Finally, if the parties wish the Court to
“so order” a new version of the Stipulation and Order reflecting the above modification to
Paragraph 12 (or wish to propose different language consistent with this Memorandum
Opinion and Order), they shall file an amended version of the proposed Stipulation and Order
on ECF by the same date.

SO ORDERED.
Dated: July 19, 2019
New York, New York

__________________________________
JESSE M. FURMAN
United States District Judge

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