Iacovacci v. Brevet Holdings, LLC et al

Filing 261

ORDER granting in part and denying in part 241 Letter Motion to Seal; granting in part and denying in part 246 Letter Motion to Seal; granting in part and denying in part 249 Letter Motion to Seal; granting in part and denying in part 255 Le tter Motion to Seal. Defendant's Motion to maintain under seal portions of the Consolidated Rule 56.1 Statement and Consolidated Rule 56.1 Counter-statement is GRANTED in part. Th e parties are directed to refile the Consolidated Rule 56.1 Sta tement on the public docket in this case and may redact only the precise date that Defendant's Chief Compliance Officer began employment with Defendant. Paragraphs 75 and D16 of the consolidated Rule 56.1 Statement and the consolidated Rule 56.1 Counter-Statement respectively may be redacted in the publicly filed version and a fully unredacted version must be filed on the docket. The Clerk of Court is respectfully requested to close docket entries 241, 246, 249, and 255. (Signed by Judge Mary Kay Vyskocil on 1/11/2022) (ate)

Case 1:18-cv-08048-MKV Document 261 Filed 01/11/22 Page 1 of 5
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 1/11/2022
SOUTHERN DISTRICT OF NEW YORK
PAUL IACOVACCI,
Plaintiff,

1:18-cv-08048-MKV

-against-

ORDER

BREVET HOLDINGS, LLC et al.,
Defendants.
MARY KAY VYSKOCIL, United States District Judge:

On December 10, 2021, the parties in this case filed a joint pre-motion letter in
anticipation of filing motions for summary judgment. [ECF No. 243]. In conjunction with that
joint pre-motion letter, the parties filed a consolidated Rule 56.1 Statement under seal, (56.1 Stmt
[ECF No. 245]), and a consolidated Rule 56.1 Counter-Statement under seal, (56.1 Counterstmt
[ECF No. 253]). Plaintiff opposes maintaining two portions of the consolidated Rule 56.1
Statement under seal, specifically portions of paragraphs P-37 and P-75. [ECF No. 248].
Defendant also requests that the Court maintain under seal a reference to a separation letter of a
former employee referenced in Plaintiff’s Response to paragraph D-16 of the consolidated Rule
56.1 Statement. [ECF No. 255].
“Both the Constitution and longstanding common-law traditions recognize a right of
public access to judicial proceedings and judicial documents.” United States v. Nejad, No. 18-cr224 (AJN), 2021 WL 681427, at *9 (S.D.N.Y. Feb. 22, 2021) (citing Press–Enterprise Co. v.
Superior Court, 464 U.S. 501, 505 (1984)). In this Circuit, there is a three-part inquiry to
determine whether to seal a document. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,
119–20 (2d Cir. 2006). The first question is whether the document is “a judicial document
subject to the [presumed] right of public access,” meaning that the document is “relevant to the
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performance of the judicial function and useful in the judicial process.” Id. at 119 (internal
quotation marks omitted). The second step, if the presumption attaches, is to determine the
weight of the presumption by assessing “the role of the material at issue in the exercise of Article
III judicial power and the resultant value of such information to those monitoring the federal
courts.” Id. The third step is to balance against the presumption any “competing considerations”
such as “the privacy interests of those resisting disclosure.” Id. at 120.
I.

P-37 Of The Consolidated Rule 56.1 Statement
Defendant contends that Paragraph P-37 of the consolidated Rule 56.1 Statement contains

personally identifiable information of Defendant’s Chief Compliance Officer, namely, the date
she began employment with Defendant. (56.1 Stmt ¶ P-37). This Circuit has held that the
“privacy interests of innocent third parties . . . should weigh heavily in a court’s balancing
equation.” S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001) (quoting United States v.
Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)). Plaintiff asserts that the fact that Defendant’s Chief
Compliance Officer began employment with Defendant in October 2016 is already public. [ECF
No. 248, at 1]; [ECF No. 258, at 1]. However, Plaintiff does not cite any public disclosure of the
specific date when Defendant’s Chief Compliance Officer began employment with Defendant,
only to a document filed with the SEC reflecting the month and year in which she was hired. For
purposes of summary judgment briefing, the Court will permit Defendant to maintain the specific
date that Defendant’s Chief Compliance Officer began employment with Defendant under seal.
See Kewazinga Corp. v. Microsoft Corp., No. 1:18-CV-4500-GHW, 2021 WL 1222122, at *5
(S.D.N.Y. Mar. 31, 2021) (redacting personal information of non-parties); Oliver Wyman, Inc. v.

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Eielson, 282 F. Supp. 3d 684, 706 (S.D.N.Y. 2017) (sealing employment information of nonparties).
II.

P-75 Of The Consolidated Rule 56.1 Statement
Paragraph P-75 of the consolidated Rule 56.1 Statement contains the names of

Defendant’s “past and/or prospective clients, including past and/or prospective investors and
transaction counterparties.” [ECF No. 246, at 1]; (56.1 Stmt ¶ P-75). A court may deny access
to records that are “sources of business information that might harm a litigant's competitive
standing.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (citations omitted).
Courts in this Circuit regularly seal information that might disclose trade secrets or confidential
business information. See In re New York Times Co. to Unseal Wiretap & Search Warrant
Materials, 577 F.3d 401, 410 (2d Cir. 2009) (“When litigation requires disclosure of trade
secrets, the court may disclose certain materials only to the attorneys involved.”); Re: Mindbody,
Inc. Sec. Litig., No. 1:19-CV-08331-VEC, 2021 WL 3500176, at *1 (S.D.N.Y. Aug. 9, 2021)
(redacting “information [that] sheds light on [defendant’s] proprietary business relationships,
which can be used by [defendant’s] competitors to potentially undercut [defendant’s] relationship
with those entities.); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp., 97 F. Supp. 3d 485, 511
(S.D.N.Y. 2015) (permitting redaction of specific business information and strategies, which, if
revealed, may provide insights into the company's business practices that another party could
seek to exploit); Hesse v. SunGard Sys. Int’l, No. 12 CIV. 1990 CM JLC, 2013 WL 174403, at *2
(S.D.N.Y. Jan. 14, 2013) (“Courts have limited public access to sensitive business information by

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sealing portions of the record, finding that safeguarding trade secrets can overcome the
presumption of access.”).
Plaintiff argues that this information has already been disclosed in public filings in this
case or the related New York State action. [See ECF No. 79 (Counterclaims) ¶¶ 53, 140]; see
also Exhibit K, Dkt. No. 1476, at 3, 7, 14 of PDF, Iacovacci v. Brevet Holdings et al, N.Y. Cty.
Index No. 158735/2016. However, none of these documents disclose all the names of the
counterparties together with a description of their relationship to Defendant. As such, the Court
will maintain this information under seal.
III.

D-16 Of The Consolidated Rule 56.1 Counter-Statement
Plaintiff’s response to D-16 of the consolidated Rule 56.1 Statement includes a reference

to a former employee’s separation letter. (56.1 Counterstmt ¶ D-16). This reference discloses
confidential information pertaining to a non-party’s employment and separation from Defendant.
As such, the non-party’s privacy interest exceeds public interest in disclosure. See
TheStreet.Com, 273 F.3d at 232; Kewazinga Corp., 2021 WL 1222122, at *5. The Court will
maintain this information under seal.
CONCLUSION
Defendant’s Motion to maintain under seal portions of the Consolidated Rule 56.1
Statement and Consolidated Rule 56.1 Counterstatement is GRANTED in part. The parties are
directed to refile the Consolidated Rule 56.1 Statement on the public docket in this case and may
redact only the precise date that Defendant’s Chief Compliance Officer began employment with
Defendant. Paragraphs 75 and D16 of the consolidated Rule 56.1 Statement and the consolidated

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Rule 56.1 Counter-Statement respectively may be redacted in the publicly filed version and a
fully unredacted version must be filed on the docket.
The Clerk of Court is respectfully requested to close docket entries 241, 246, 249, and
255.

SO ORDERED.

_________________________________

Date: January 11, 2022
New York, NY

MARY KAY VYSKOCIL
United States District Judge

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