Pacific Life Insurance Company et al v. The Bank of New York Mellon

Filing 280

ORDER granting 279 Letter Motion to Seal. SO ORDERED. (Signed by Magistrate Judge Robert W. Lehrburger on 11/16/2021) (mml)

Mayer Brown LLP
1221 Avenue of the Americas
New York, NY 10020-1001
United States of America
T: [phone]
F: [phone]
mayerbrown.com

November 15, 2021

Christopher J. Houpt

BY ECF

Partner
T: [phone]
F: [phone]

The Honorable Robert W. Lehrburger
United States Magistrate Judge
United States District Court
Southern District of New York
Daniel Patrick Moynihan
United States Courthouse
500 Pearl St.
New York, NY 10007
Re:

Pacific Life Insurance Company, et al. v. The
Bank of New York Mellon, No. 17-cv-1388
(S.D.N.Y.)

[e-mail]

11/16/2021

Dear Judge Lehrburger:
On behalf of The Bank of New York Mellon (“BNYM”), and pursuant to Your Honor’s
Individual Practices in Civil Cases, we write to request that the Court maintain sealing over
portions of: (i) Plaintiffs’ Memorandum of Law in Further Support of Their Cross-Motion for
Partial Summary Judgment (ECF 275) (“Plaintiffs’ Reply Brief,” attached as Exhibit A); (ii)
Plaintiffs’ Reply Counter-Statement of Undisputed Facts Pursuant to Rule 56.1 of the Local Civil
Rules of The Southern District of New York in Opposition to Defendant’s Motion for Summary
Judgment and in Support of Plaintiffs’ Cross-Motion for Partial Summary Judgment (ECF 276)
(“Plaintiffs’ Reply 56.1”, attached as Exhibit B); and (iii) Exhibits 187.1, 188.1, and 220.1 to the
Kane Declaration (ECF 277-2, 277-3, and 277-5) (“Kane Exhibits,” attached as Exhibits C, D and
E). BNYM does not wish to maintain sealing over any documents not specifically referenced
herein. BNYM has conferred with Plaintiffs, and Plaintiffs have indicated that they take no
position on the redactions applied to Plaintiffs’ Reply Brief, Plaintiffs’ Reply 56.1, or the Kane
Exhibits.
BNYM has analyzed the relevant material, and as set forth below, requests that portions of
Plaintiffs’ Reply Brief, Plaintiffs’ Reply 56.1, and the Kane Exhibits be sealed in accordance with
the three-part test articulated in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006)
and Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir. 2016). “Under
this test, the Court must: (i) determine whether the documents in question are ‘judicial documents’;
(ii) assess the weight of the common law presumption of access to the materials; and (iii) balance
competing considerations against the presumption of access.” Doe v. City of New York, 2019 WL
4392533, at *1 (S.D.N.Y. Sept. 13, 2019) (citing Lugosch, 435 F.3d at 119-20). The documents
for which BNYM seeks to maintain sealing are not “judicial documents.” See, e.g., Under Seal v.
Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017) (“‘[D]ocuments that play no role in the
Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including
Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership)
and Tauil & Chequer Advogados (a Brazilian partnership).

Mayer Brown
The Honorable Robert W. Lehrburger
November 15, 2021
Page 2
performance of Article III functions, such as those passed between the parties in discovery’” are
not “judicial documents” (quoting SEC v. TheStreet.com, 273 F.3d 222, 232 (2d Cir. 2001)).
On August 19, 2021, the Court ordered sealed six exhibits (Kane Exhibits 13, 17, 219, 227,
229, and 240) and ordered redacted the corresponding portions of Plaintiffs’ Counter-Statement of
Undisputed Facts. See August 19 Order Granting Letter Motion to Seal (Dkt. 258). On October
18, 2021, the Court further ordered sealed portions of BNYM’s Reply to Plaintiffs’ CounterStatement of Undisputed Facts which corresponded to the previously sealed material. See October
18 Order Granting Letter Motion to Seal (Dkt. 270).
BNYM now moves to seal select portions of Plaintiffs’ Reply Brief and Plaintiffs’ Reply
56.1 which correspond to either (i) previously redacted portions of Plaintiffs’ Counter-Statement
of Undisputed Facts or BNYM’s Reply to Plaintiffs’ Counter-Statement of Undisputed Facts or
(ii) the six exhibits previously ordered sealed. See Plaintiffs’ Reply Brief at 16; Plaintiffs’ Reply
56.1 at ¶¶ II-2, II-11, II-13, II-517, II-518, II-519, II-523, II-524, II-525, II-526, II-557, II-567, II573. For the same reasons adopted by the Court in its August 19 and October 18 Orders Granting
Letter Motion to Seal, and incorporated herein, BNYM respectfully requests that the foregoing
references be ordered redacted to maintain the sealing designations previously granted.
Further, BNYM requests that select portions of Kane Exhibits 187.1, 188.1, and 220.1 be
sealed. Kane Exhibits 187.1 and 188.1 are internal tracking sheets and Kane Exhibit 220.1 is a
letter to BNYM from Hanover Capital. All of the documents are related to RMBS loans and
contain non-public personal information of borrowers, including loan numbers. BNYM
understands that it is generally prohibited from disclosing such information under the GrammLeach-Bliley Act. See 15 U.S.C. § 6802(a) (“[A] financial institution may not . . . disclose to a
nonaffiliated third party any nonpublic personal information.”). In its August 19 Order Granting
letter Motion to Seal, the Court ordered redacted portions of Kane Exhibit 219 that contained nonpublic personal information of borrowers, including loan numbers. See August 19 Order Granting
Letter Motion to Seal (Dkt. 258). Accordingly, and for the same reasons adopted by the Court in
its August 19 Order Granting Letter Motion to Seal and incorporated herein, BNYM requests to
keep sealed through redaction only the non-public personal information contained in Kane
Exhibits 187.1, 188.1, and 220.1 because they contain “sensitive . . . financial . . . and other
personal information pertaining to non-parties.” See United States v. Wey, 256 F. Supp. 3d 355,
411 (S.D.N.Y. 2017).
We appreciate the Court’s attention to this matter.
Respectfully submitted,
/s/ Christopher J. Houpt
Christopher J. Houpt
Partner
11/16/2021