Falberg v. The Goldman Sachs Group, Inc. et al

Filing 146

MEMO ENDORSEMENT on DEFENDANTS' MOTION FOR LEAVE TO FILE CERTAIN DOCUMENTS UNDER SEAL: granting 139 Motion to Seal. ENDORSEMENT: The Application is Granted. (Signed by Judge Edgardo Ramos on 11/17/2021) (ama)

Case 1:19-cv-09910-ER Document 146 Filed 11/17/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
Leonid Falberg, as representative of a
:
class of similarly situated persons, and
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on behalf of The Goldman Sachs 401(k)
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Plan,
:
:
Plaintiff,
:
:
- against :
:
The Goldman Sachs Group, Inc., The
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Goldman Sachs 401(k) Plan Retirement
:
Committee, and John Does 1–20,
:
:
Defendants.
:

Civil Case No. 1:19-cv-09910-ER
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11/17/2021

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DEFENDANTS’ MOTION FOR LEAVE TO FILE
CERTAIN DOCUMENTS UNDER SEAL
Pursuant to Section 3.ii of the Court’s Individual Practices, Defendants hereby move this
Court for an order allowing them to file the following documents, filed contemporaneously
herewith in opposition to Plaintiff’s Motion to Compel Production of Documents Designated as
Privileged, under seal:


Exhibits 2-4, 6, 8, and 10-11 to the Declaration of Thomas C. White, which have
been designated as “Confidential” pursuant to the Stipulation and Protective
Order in this action (ECF No. 48), entered on July 24, 2020; the Declaration of
Alan Wilmit; and the Declaration of Eric Serron; and



an unredacted copy of Defendants’ Memorandum of Law in Opposition to
Plaintiff’s Motion to Compel Production of Documents Designated as Privileged
and the Declaration of Thomas C. White, that, if filed publicly would disclose
much of the confidential material contained the above-referenced documents.

The parties conferred on November 16, 2021, and Plaintiff takes no position on this motion.
The Supreme Court recognizes that the public has a presumptive right to inspect “judicial
records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978). However,

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the “mere filing of a paper or document with the court is insufficient to render that paper a judicial
document subject to the right of public access.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.
1995) (“Amodeo I”). Rather, “the item filed must be relevant to the performance of the judicial
function and useful in the judicial process in order for it to be designated a judicial document.” Id.
The Second Circuit has ruled that although “evidence introduced at trial or in connection with
summary judgment enjoys a strong presumption of public access,” Brown v. Maxwell, 929 F.3d
41, 49 (2d Cir. 2019), “[d]ocuments that play no role in the performance of Article III functions,
such as those passed between the parties in discovery, lie entirely beyond the presumption’s
reach,” United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (“Amodeo II”).
Here, Defendants propose that the Court permit the above-described redactions and
maintain under seal Exhibit Nos. 2-4, 6, 8, and 10-11 to the Declaration of Thomas C. White, the
Declaration of Alan Wilmit, and the Declaration of Eric Serron filed in support of Defendants’
opposition to Plaintiff’s motion. Exhibits 3 and 8 consist of minutes and materials from meetings
of the Goldman Sachs 401(k) Plan Retirement Committee (the “Committee”). Exhibits 2 and 11
consist of excerpts from the depositions of current and former Goldman Sachs employees taken in
this case. Exhibits 4 and 10 consist of confidential communications between Goldman Sachs
personnel that were produced by Defendants under the protective order. Exhibit 6 consists of a
letter exchanged between the parties’ counsel that identifies detailed identifying information on
current and former Goldman Sachs employees. The Declarations of Alan Wilmit and Eric Serron
describe specific privileged and confidential communications between Goldman Sachs personnel
and their counsel. All of these materials reflect confidential information and documents that were
“passed between the parties in discovery” and therefore are not subject to a presumption of public
access. See Amodeo II, 71 F.3d at 1050. These materials also reflect confidential information that

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is consistent in kind with the information that the Court has previously ruled is properly protected
from public disclosure. (See ECF Nos. 91, 108, 121, 138.)
In addition, all of the materials contain information identifying individual employees and
nonparties, such as the names, telephone numbers, and email addresses of current and former
Goldman Sachs employees. The privacy interests of the current and former Goldman Sachs
employees and nonparty individuals counsel in favor of continued redaction of their personally
identifying information. See United States v. Silver, 2016 WL 1572993, at *7 (S.D.N.Y. Apr. 14,
2016) (“[P]rivacy interests . . . warrant redactions to protect [individuals’] identities.”); Dodona I,
LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 156 (S.D.N.Y. 2015) (permitting redaction
of “sensitive personal information of current and former employees of the parties . . . including
home addresses, biographical information, telephone numbers and compensation”). Exhibits 3, 4,
8 and 10 also contain information that describes confidential investment strategies,
recommendations, and analysis, including confidential discussions of particular third-party funds
and fund managers. The disclosure of these materials would risk hurting business relationships
and chilling the Committee’s willingness to have open dialogue in the future. Courts in this
District routinely permit redaction and sealing of such competitively sensitive business
information. See Louis Vuitton, 97 F. Supp. 3d at 511 (“Specific business . . . strategies . . . if
revealed, may provide valuable insights into a company’s current business practices that a
competitor would seek to exploit.”) (internal quotation marks and citations omitted).
For the foregoing reasons, Defendants respectfully request that the Court enter an Order
allowing Defendants to file the above-referenced documents in redacted form and under seal in
connection with Defendants’ opposition to Plaintiff’s Motion to Compel Production of Documents
Designated as Privileged.

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Case 1:19-cv-09910-ER Document 146 Filed 11/17/21 Page 4 of 4

Dated: New York, New York
November 16, 2021
/s/ Thomas C. White
Richard C. Pepperman II
Thomas C. White
Mark A. Popovsky
SULLIVAN & CROMWELL LLP
125 Broad Street
New York, New York 10004-2498
Telephone: [phone]
Facsimile: 212-558-3588
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants

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