Coventry Capital US LLC v. EEA Life Settlements, Inc. et al

Filing 451

MEMORANDUM OPINION AND ORDER re: 438 LETTER MOTION to Seal Portions of Coventry's Responsive Pre-Motion Letters and Accompanying Exhibits addressed to Judge Jennifer L. Rochon from Kenneth J. Brown dated March 16, 2023. filed by Coventry Capital US LLC, 431 LETTER MOTION to Seal Coventry's Pre-Motion Letter Regarding Summary Judgment addressed to Judge Jennifer L. Rochon from Kenneth J. Brown dated February 23, 2023. filed by Coventry Capital US LLC, [ 448] LETTER MOTION to Seal Portions of Coventry Opposition Letter, and Certain Exhibits addressed to Judge Jennifer L. Rochon from Lauren F. Dayton dated March 21, 2023. filed by EEA Life Settlements, Inc., 444 LETTER MOTION to Se al Portions of EEA's Opposition Letter and Exhibits addressed to Judge Jennifer L. Rochon from Lauren F. Dayton dated March 16, 2023. filed by EEA Life Settlements, Inc., 447 LETTER MOTION to Seal Certain of EEA's Exhibit s to its Responsive Pre-Motion Letter addressed to Judge Jennifer L. Rochon from Renee M. Griffin dated March 21, 2023. filed by Coventry Capital US LLC, 436 LETTER MOTION to Seal Portions of Coventry Pre-Motion Letter and Exhibits addressed to Judge Jennifer L. Rochon from Lauren F. Dayton & Paul B. Koepp dated February 27, 2023. filed by EEA Life Settlements, Inc. Accordingly, the parties' letter-motions to seal are DENIED in part and GRANTED in part, without preju dice to renewal. Should the parties wish to renew their motions to seal, they shall provide a joint letter-motion by April 20, 2023, not to exceed eight pages, and attach the information they seek to redact or seal in accordance with Rules 4(B)(iii ) (b)-(c) of the Court's Individual Rules of Practice in Civil Cases. If no renewed letter-motion is filed by April 20, 2023, the parties shall publicly file an unredacted version of their respective premotion papers by April 27, 2023, except that the personal identifying information of non-party insureds should be redacted as set forth herein. The Clerk of Court is respectfully directed to terminate ECF Nos. 431, 436, 438, 444, 447, 448. The documents at ECF Nos. 432, 437, 439, 440, and 445 should remain under seal and visible to the Court and parties. (And as further set forth herein.) SO ORDERED. (Motions due by 4/20/2023.) (Signed by Judge Jennifer L. Rochon on 4/6/2023) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
COVENTRY CAPITAL US LLC,
Plaintiff,
-againstEEA LIFE SETTLEMENTS, INC., et al.,

1:17-cv-07417 (JLR) (SLC)
MEMORANDUM OPINION
AND ORDER

Defendants.

JENNIFER L. ROCHON, United States District Judge:
The parties have filed several letter-motions to seal in whole or part their premotion
summary judgement letters and exhibits. See ECF Nos. 431, 436, 438, 444, 447, 448. For the
following reasons, the letter-motions are DENIED in part and GRANTED in part, without
prejudice to renewal.
Plaintiff seeks to seal or redact information, including in documents marked
“Confidential” under the Amended Protective Order, that (i) “refer[s] by name to certain insured
individuals whose life-insurance policies were part of the portfolio of policies at issue in this
case,” ECF Nos. 431, 438; or (ii) “contain[s] information involving confidential and
commercially sensitive topics concerning Coventry’s diligence on life-insurance policies and
portfolios it is considering purchasing,” ECF Nos. 431, 447. Defendants seek to seal or redact
information that (i) “contain[s] commercially sensitive topics relating to the parties’ negotiations
and valuations of both EEA’s portfolio and individual life insurance policies from which
confidential information could be derived,” ECF Nos. 436, 444, 448; or (ii) “contain[s]
confidential medical information of non-party insureds,” ECF No. 444; see ECF No. 448.
“The burden of demonstrating that a document submitted to a court should be sealed rests
on the party seeking such action . . . .” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826

(2d Cir. 1997). A court must evaluate a request to seal under both a “common law right of
public access to judicial documents,” and the press and public’s “qualified First Amendment
right to attend judicial proceedings and to access certain judicial documents.” Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (quoting Hartford Courant Co.
v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004)). “If a sealing request cannot survive the common
law test, it will not survive scrutiny under the First Amendment test.” In re Keurig Green
Mountain Single-Serve Coffee Antitrust Litig., No. 14-mc-02542 (VSB), 2023 WL 196134, at *1
(S.D.N.Y. Jan. 17, 2023).
There are three steps for evaluating the common law right of access: first, determine
whether the information to be sealed is a “judicial document” to which the presumption of public
access applies; second, determine the “weight of that presumption”; and third, “after determining
the weight of the presumption of access, . . . balance competing considerations against it.”
Lugosch, 435 F.3d at 119-20 (quoting United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir.
1995)). With respect to the third step, competing considerations may include the “need to
protect sensitive commercial information from disclosure to competitors” and “the privacy
interests of innocent third parties . . . .” In re Keurig Green Mountain Single-Serve Coffee
Antitrust Litig., 2023 WL 196134, at *32-33. However, these considerations “must be concretely
and specifically described.” Id. at *34. As the Magistrate Judge held when denying Defendants’
motion to seal the Complaint in this case, “[t]he party opposing disclosure [of a judicial
document] must make a particular and specific demonstration of fact showing that disclosure
would result in an injury sufficiently serious to warrant protection; broad allegations of harm
unsubstantiated by specific examples or articulated reasoning fail to satisfy the test.” ECF
No. 29 at 6 (quoting In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009)).

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Additionally, “the older the information is, the less appropriate it is to seal that information,
particularly when the party does not explain with specificity why, despite the passage of time,
the information should still be sealed.” In re Keurig Green Mountain Single-Serve Coffee
Antitrust Litig., 2023 WL 196134, at *35.
Here, the parties cite Lugosch but do not specifically apply the three-step analysis in their
letter-motions. Applying the three-step framework, the Court finds that the parties’ sealing
requests are not narrowly tailored nor justified under the Lugosch standard. With respect to steps
one and two, the documents at issue here are “judicial documents” entitled to “a strong
presumption of access” because the parties submitted them in connection with their anticipated
summary judgment motions. Lugosch, 435 F.3d at 121 (“[D]ocuments submitted to a court for
its consideration in a summary judgment motion are – as a matter of law – judicial documents to
which a strong presumption of access attaches, under both the common law and the First
Amendment.”); see also Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) (“[D]ocuments used by
parties moving for, or opposing, summary judgment should not remain under seal absent the
most compelling reasons.”).
With respect to the third step, the parties have failed to show that competing
considerations outweigh the strong presumption of access for at least five reasons. First, the
parties’ letter-motions are perfunctory. The letter-motions do not concretely and specifically
describe business interests and harms sufficient to overcome the strong presumption of public
access. See, e.g., ECF No. 436 (seeking redaction of quotation from Exhibit 14 on page 3 of
Plaintiff’s premotion letter without elaboration of why it is sufficiently commercially sensitive).
Nor are the purported interests, harms, and sensitive nature of the information clear on the face
of each document the parties seek to seal. Without more, the Court declines to speculate that the

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information at issue is sufficiently sensitive in nature and tailored to the Lugosch standard to be
sealed from the public. See, e.g., Nat’l Credit Union Admin. Bd. v. U.S. Bank Nat’l Ass’n, No.
18-cv-11366 (LLS), 2023 WL 2674742, at *2 (S.D.N.Y. Mar. 29, 2023) (denying request to seal
because the parties did not “make a specific on-the-record showing of concrete harm” and
“commercially sensitive information . . . is not clear on the face of the[] exhibits”); Matter of
Upper Brook Cos., No. 22-mc-00097 (PKC), 2023 WL 172003, at *6 (S.D.N.Y. Jan. 12, 2023)
(“The Court declines to speculate about the harm that could result if PIAM’s competitors learned
of the fees it charged and amounts it shared with third parties. It is PIAM’s burden to
demonstrate that the information warrants sealing, and it has failed to do so.”).
Second, the proposed sealing and redaction requests are overbroad. For instance,
Plaintiff seeks to seal in full Exhibits 2, 3, 4, and 5 of its March 16, 2023 premotion letters, yet
Plaintiff does not seek to redact quotations of those exhibits in their letter because “the quoted
portions do not disclose insureds’ information or otherwise sensitive information and so do not
require redaction . . . .” ECF No. 438. If information in a document does not require redaction,
then the document does not require wholesale sealing. See, e.g., Oliver Wyman, Inc. v. Eielson,
282 F. Supp. 3d 684, 707 (S.D.N.Y. 2017) (denying sealing request that was “overbroad because
the information contained within those redactions are otherwise included, unredacted, elsewhere
in the document”).
Third, at least some of the information the parties seek to seal or redact is several years
old, and the parties have not shown why this information, even if commercially sensitive years
ago, is sufficiently sensitive at this time. See, e.g., ECF Nos. 445-5 (proposed redactions to
communications from mid-2017), 445-12 (same); Matter of Upper Brook Cos., 2023 WL
172003, at *6 (denying sealing request where “the underlying invoices and agreements date back

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several years, and PIAM has not attempted to show that the information is not ‘stale’ and why
disclosure would still cause harm”).
Fourth, the information sought to be sealed appears to be central to the instant dispute
and, therefore, may be important to understanding the Court’s ultimate resolution of the
anticipated summary judgment motions. Indeed, the parties chose to highlight and append the
information for the Court in their three-page premotion letters. In circumstances like this, courts
are particularly “skeptical of sealing information that is commercially sensitive . . . where it is
highly relevant to the dispute and by extension, to the public’s understanding of the court’s
decision.” In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 2023 WL 196134,
at *33.
Fifth, the existence of the Amended Protective Order does not provide sufficient grounds
to seal. Rule 4(B)(ii) of the Court’s Individual Rules of Practice in Civil Cases provides that,
“[i]n general, the parties’ consent or the fact that information is subject to a confidentiality
agreement between litigants is not, by itself, a valid basis to overcome the presumption in favor
of public access to judicial documents.” “[T]hat a document was produced in discovery pursuant
to a protective order has no bearing on the presumption of access that attaches when it becomes a
judicial document.” In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., 2023 WL
196134, at *5 (quoting Doe v. U.S. Immigr. & Customs Enf’t, No. 19-cv-08892 (AJN), 2021 WL
3862708, at *3 (S.D.N.Y. Aug. 30, 2021)); see Dodona I, LLC v. Goldman, Sachs & Co., 119 F.
Supp. 3d 152, 155 (S.D.N.Y. 2015) (“Thus, even if material is properly designated as
Confidential or Highly Confidential by a protective order governing discovery, that same
material might not overcome the presumption of public access once it becomes a judicial
document.”). In sum, the information sought to be sealed is entitled to a strong presumption of

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public access, and the parties have not overcome that presumption with respect to most of the
information they seek to seal or redact.
The Court does agree with the parties that identifying information, including names and
policy numbers, of non-party insureds warrants redaction in order to protect the non-party
insureds’ privacy and because this information appears to be tangential to the instant dispute.
See, e.g., United States v. King, No. 10-cr-00122 (JGK), 2012 WL 2196674, at *2 (S.D.N.Y.
June 15, 2012) (sealing personal identifying information of non-party individuals). However, the
parties’ proposed redactions regarding the non-party insureds are overbroad. Although redaction
of names and policy numbers is warranted, once the identifying information is redacted,
accompanying financial information related to the insureds (which the parties also redacted) does
not need to be redacted because it does not identify any non-party specifically or otherwise
present sufficient privacy concerns. Therefore, only the non-party insureds’ identifying
information, i.e., names and policy numbers, warrants redactions.
Accordingly, the parties’ letter-motions to seal are DENIED in part and GRANTED in
part, without prejudice to renewal. Should the parties wish to renew their motions to seal, they
shall provide a joint letter-motion by April 20, 2023, not to exceed eight pages, and attach the
information they seek to redact or seal in accordance with Rules 4(B)(iii)(b)-(c) of the Court’s
Individual Rules of Practice in Civil Cases. The letter-motion shall provide sufficient
explanation and be more narrowly tailored to the Lugosch standard and this Memorandum
Opinion and Order. If no renewed letter-motion is filed by April 20, 2023, the parties shall
publicly file an unredacted version of their respective premotion papers by April 27, 2023,
except that the personal identifying information of non-party insureds should be redacted as set
forth herein.

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The Clerk of Court is respectfully directed to terminate ECF Nos. 431, 436, 438, 444,
447, 448.
The documents at ECF Nos. 432, 437, 439, 440, and 445 should remain under seal and
visible to the Court and parties.
Dated: April 6, 2023
New York, New York
SO ORDERED.

JENNIFER L. ROCHON
United States District Judge

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