Rattray v. Cadavid et al

Filing 270

ORDER denying without prejudice 268 Letter Motion to Seal. The motion is denied without prejudice. Defendants' sealing motion does not meet the requirements set out in this Court's Individual Rule of Practice II.B., which requires t hat "any redaction or sealing of a court filing [] be narrowly tailored to serve whatever purpose justifies the redaction or sealing and must be otherwise consistent with the presumption in favor of public access to judicial documents." J. Gardephe Individual Rule II.B. (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006)). Defendants do not explain how sealing Officer Cadavid's disciplinary record complies with the Lugosch standard. Further, to th e extent that Defendants' motion is premised on a protective order issued in this case, Rule II.B. also provides that "[i]n general, the parties' consent or the fact that information is subject to a confidentiality agreement betwee n litigants is not, by itself, a valid basis to overcome the presumption in favor of public access to judicial documents." Id. (citing In re Gen. Motors LLC Ignition Switch Litig., 2015 WL 4750774, at *4 (S.D.N.Y. Aug. 11, 2015)). The Clerk of Court is directed to terminate the motion pending at Dkt. No. 268. (Signed by Judge Paul G. Gardephe on 8/24/2023) (ate)

Case 1:17-cv-08560-PGG-KHP Document 268 Filed 08/23/23 Page 1 of 3

HON. SYLVIA O. HINDS-RADIX
Corporation Counsel

T HE CITY OF NEW YORK

LAW DEPARTMENT
100 CHURCH STREET
NEW YORK, NY 10007

HANNAH V. FADDIS
Senior Counsel
Phone: [phone]
Fax: [phone]
[e-mail]

August 23, 2022
VIA ECF
Honorable Paul G. Gardephe
United States District Judge
Southern District of New York
40 Foley Square
New York, New York 10007
Re:

Wentworth Rattray v. City of New York, et al.,
17 Civ. 8560 (PGG)

Your Honor:
I am one of the attorneys representing defendants (“Defendants”) in this matter.
Defendants write to respectfully request that the Court issue an Order directing the Clerk of the
Court to seal Docket Entry No. 265-1, with access limited to all parties and counsel in this
action, and directing that any future filings incorporating confidential information be made under
seal. The parties have conferred and plaintiff has indicated that he will provide a position on this
request once it is filed.1
On August 11, 2023, plaintiff’s counsel filed a declaration in opposition to defendants’
motions in limine which included a confidential document produced by the defendants in
discovery. (ECF No. 265-1). This document is a disciplinary record—one page of the Central
Personnel Index (“CPI”) for defendant Officer Jose Cadavid— produced as confidential in this
action. It concerns a 2017 off-duty incident involving Officer Cadavid. This document was
produced subject to the stipulation of confidentiality and protective order in effect in this action
(ECF No. 127, “Protective Order”) and is marked accordingly. The Protective Order entered
into by the parties in this case and endorsed by the Court provides, in relevant part, that, “The
Confidential Information disclosed will be held and used by the person receiving such
information solely for use in connection with the action,” and that “documents designated as
1

This conferral took place by phone on August 22, 2023. Prior to this phone conversation, the
parties also exchanged emails regarding this issue. Defendants have requested that plaintiff seek
to have the materials removed from the docket or sealed, which requests have been denied.

Case 1:17-cv-08560-PGG-KHP Document 268 Filed 08/23/23 Page 2 of 3

“CONFIDENTIAL” shall not be disclosed to any person,” except counsel, their employees,
consultants, or the Court. (Protective Order, ¶¶ 2, 7). Thus, in filing this document on the
docket, which is publicly accessible, plaintiff has plainly and unquestionably violated core
provisions of the Protective Order. Moreover, plaintiff failed to comply with the Court’s
Individual Rules of Practice, in that he did not seek to have the materials filed under seal based
on the confidentiality designation in order to provide defendants the opportunity to file “a letter
explaining the need to seal or redact the materials.” (Rule II(B)).
While this document was produced prior to the repeal of Gen. Mun. L. § 50-a, it is
defendants’ position that this particular document still warrants confidential treatment.2 While
basic information regarding the subject matter of the document is publicly available, it is not
clear that this particular NYPD record and the additional details contained therein are otherwise
publicly available. Indeed, Courts in this District continue to approve protective orders
governing NYPD personnel and disciplinary records notwithstanding the repeal of § 50-a. See
Elliot v. City of New York, No. 20 Civ. 702 (NRB), 2020 U.S. Dist. LEXIS 216028 (S.D.N.Y.
2020), *2; Jones v. City of New York, No. 21 Civ. 10082 (MKV), 2023 U.S. Dist. LEXIS
87693, *15. In upholding the default confidentiality of these documents under the Section 1983
Plan Protective Order, Judge Buchwald noted that “good cause exists independent of Section 50a for the provisions of the Protective Order, including the specific treatment of NYPD personnel
and disciplinary records as confidential.” Elliot, at *12-13. Upon information and belief, the CPI
is not otherwise publicly available. Elliot, at *10.
In addition, even if the document itself were suitable for de-designation, which plaintiff
never sought defendants’ consent to, Your Honor’s Individual Rules and the provisions of the
Protective Order still prohibit plaintiff from filing information designated confidential on the
docket without any interim protections or notice to the defendants. Indeed, the Protective Order
itself states that any challenge to a confidentiality designation must first be raised between the
parties before being put before the Court. (Protective Order, ¶ 6). At no time, however, did
plaintiff alert defendants to his intention to use a confidential document in connection with
motions in limine. To permit the plaintiff to effectively unilaterally de-designate confidential
materials, which he has done here, would undermine the efficacy of these types of protective
orders and the “free flow” of information they are meant to facilitate in discovery.
Accordingly, defendants respectfully request that the Court enter an Order sealing this
docket entry (ECF No. 265-1), and directing that any future filings incorporating confidential
information be made under seal in accordance with the Protective Order and Court’s Individual
Rules of Practice.

Based on the parties’ conferral, defendants anticipate that plaintiff may suggest there are no
grounds to deem this document confidential based on the repeal of § 50-a and the public
availability of some disciplinary records.
2

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Case 1:17-cv-08560-PGG-KHP Document 268 Filed 08/23/23 Page 3 of 3

Defendants thank the Court for its consideration herein.
Respectfully submitted,

/s/
Hannah V. Faddis
Senior Counsel
Special Federal Litigation Division
cc:

VIA ECF
All Counsel of Record

MEMO ENDORSED: The motion is denied without prejudice. Defendants’ sealing motion does not meet
the requirements set out in this Court’s Individual Rule of Practice II.B., which requires that “any
redaction or sealing of a court filing [] be narrowly tailored to serve whatever purpose justifies the
redaction or sealing and must be otherwise consistent with the presumption in favor of public access to
judicial documents.” J. Gardephe Individual Rule II.B. (citing Lugosch v. Pyramid Co. of Onondaga, 435
F.3d 110, 119-20 (2d Cir. 2006)). Defendants do not explain how sealing Officer Cadavid’s disciplinary
record complies with the Lugosch standard. Further, to the extent that Defendants’ motion is premised on
a protective order issued in this case, Rule II.B. also 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.” Id. (citing In re Gen.
Motors LLC Ignition Switch Litig., 2015 WL 4750774, at *4 (S.D.N.Y. Aug. 11, 2015)). The Clerk of
Court is directed to terminate the motion pending at Dkt. No. 268.

Date: August 24, 2023

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