Doe v. New York University
Filing
120
ORDER granting 90 Letter Motion to Seal; granting 97 Letter Motion to Seal. For the reasons explained below, both motions are GRANTED. As further set forth by this Order. The Clerk of Court respectfully is requested to close the Motions at ECF Nos. 90 and 97. SO ORDERED. (Signed by Judge Mary Kay Vyskocil on 3/22/2023) (tg)
Case 1:20-cv-01343-MKV Document 120 Filed 03/22/23 Page 1 of 6
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 3/22/2023
SOUTHERN DISTRICT OF NEW YORK
JOHN DOE,
Plaintiff,
1:20-cv-1343 (MKV)
-against-
ORDER
NEW YORK UNIVERSITY,
Defendant.
MARY KAY VYSKOCIL, United States District Judge:
Plaintiff brought this case against New York University (“NYU”), asserting various
claims stemming from the decision by NYU to expel him following a disciplinary proceeding,
which found Plaintiff “responsible” for stalking, sexual harassment, and sexual exploitation.
On June 23, 2022, Defendant NYU filed a letter motion requesting that Judge Woods,
then presiding over this case, seal portions of certain of its evidentiary submissions in connection
with its summary judgment motion.1 ECF No. 90. On July 27, 2022, Plaintiff John Doe filed a
similar motion seeking to seal certain portions of his evidentiary submissions. ECF No. 97. For
the reasons explained below, both motions are GRANTED.
Although “[t]he common law right of public access to judicial documents is firmly rooted
in our nation’s history,” this right is not absolute, and courts “must balance competing
considerations against” the presumption of access. Lugosch v. Pyramid Co. of Onondaga, 435
F.3d 110, 119-20 (2d Cir. 2006). In Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020), the Second
Circuit summarized the three steps that the Court must follow to determine whether the
presumption of public access has been rebutted with respect to a particular document. First, the
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This case was reassigned to me on March 8, 2023.
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Court determines whether the document is a “judicial document,” namely, “one that has been
placed before the court by the parties and that is relevant to the performance of the judicial
function and useful in the judicial process.” Id. (quotation omitted). Second, if the materials are
“judicial documents,” the Court “proceeds to ‘determine the weight of the presumption of access
to that document.’” Id. (quoting United States v. Erie Cnty., 763 F.3d 235, 239, 241 (2d Cir.
2014)). “The weight to be accorded is ‘governed by 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. (quoting United States v. Amodeo, 71 F.3d 1044, 1049 (2d
Cir. 1995)). “Finally, the court must identify all of the factors that legitimately counsel against
disclosure of the judicial document, and balance those factors against the weight properly
accorded the presumption of access.” Id. Applications to seal documents must therefore be
“carefully and skeptically review[ed] . . . to [e]nsure that there really is an extraordinary
circumstance or compelling need” to seal the documents from public inspection. Video Software
Dealers Ass’n v. Orion Pictures Corp., 21 F.3d 24, 27 (2d Cir. 1994).
All of the documents at issue in both motions are judicial documents, because they have
been put before the Court by the parties in connection with the pending summary judgment
motions and are relevant and useful to this Court’s deliberative process. Merlis, 952 F.3d at 59.
However, the presumption has modest weight for most of the information that the parties seek to
seal. With the exception of two videos filed as Defendant’s exhibits 22 and 25—which will be
discussed below—both Plaintiff and Defendant seek only to seal the names (or other identifying
information) of Plaintiff, Jane, Plaintiff’s mother, and certain third-party witnesses. See ECF No.
91 Exs. 1–2, 4–5, 7, 10–21, 23–24, 26–69, 71–84; ECF No. 100 Exs. 1–6, 8–11, 13–16, 19. 2
For pictures with sensitive information beyond a person’s name or identifying information, the parties have put
already redacted images before the Court for its review. See, e.g., ECF No. 91 Ex. 4 at 13. As a result, it is these
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Moreover, where the actual names of those individuals have been redacted, the parties have
replaced Plaintiff’s name with “John Doe” and Jane’s name with “Jane Roe.” See id. As a
result, the public will be able to read and fully understand each document, and the Court’s
summary judgment opinion, even with identifying information redacted. See United States v.
UCB, Inc., No. 14-cv-2218, 2017 WL 838198, at *5 (S.D.N.Y. 2017) (noting that while “the
public . . . has an interest in monitoring the judicial process,” and that “the public’s ability to
monitor the judicial process ‘is not possible without access to testimony and documents that are
used in the performance of Article III functions,’” where only names are sought to be redacted,
the presumption of public access is relatively low because “the public can still glean from” the
Court’s use of those redacted documents “the substance of [the] arguments and the manner in
which the Court handled them” (quoting Lugosch, 435 F.3d at 119); see also ECF No. 41
(finding that the weight of the documents sought to be sealed, at the motion to dismiss stage, was
modest “because the names and images of the individuals whose information was redacted did
not play a role in the Court’s evaluation of the motion to dismiss”).
There are, moreover, significant and weighty “factors that legitimately counsel against
disclosure of” the names redacted by the parties. Mirlis, 952 F.3d at 59. As the parties agree,
and as Judge Woods previously recognized, “[t]his case undoubtedly involves highly sensitive
and personal matters.” ECF No. 5 (Plaintiff’s motion to proceed pseudonymously); see ECF No.
19 (order granting that motion). Judge Woods granted Plaintiff’s motion to proceed
pseudonymously because of Plaintiff’s and Jane’s inherently strong privacy interests given the
subject matter of this case. The same rationale supports the redactions of names and identifying
pre-redacted images that are the “judicial documents” that the Court has reviewed, and the parties do not seek any
additional “sealing” of these documents.
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information for Plaintiff, Jane, and Plaintiff’s mother. Clearly, taking the case’s sensitive subject
matter into account, the non-parties whose names are redacted in the relevant submissions also
have substantial privacy interests here. See SEC v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir.
2001) (“[T]he privacy interests of innocent third parties . . . should weigh heavily in a court’s
balancing equation.”). In short, the Court concludes that the privacy interests of Plaintiff, Jane,
Plaintiff’s mother, and other third parties significantly outweigh the presumption of public access
to their names and identifying information.
That conclusion leaves only Defendant’s exhibits 22 and 25 to evaluate. Both exhibits
are videos that, as a practical matter, cannot be partially redacted. See ECF No. 90 at 2. As a
result, Defendant requests that the videos be sealed in full. Id. As with the other documents
sought to be redacted, these videos are judicial documents because they have been put before the
Court by the parties and are relevant and useful to this Court’s judicial function. Merlis, 952
F.3d at 59. The weight of the presumption, moreover, is stronger as to these videos than as to the
other documents. Unlike the other documents, where only names and identifying information
have been redacted, Defendant asks the Court to prevent the public from seeing these videos at
all. The information sought to be sealed, in other words, has more “value” to “those monitoring
the federal courts” than does the names and identifying information for Plaintiff, Jane, Plaintiff’s
mother, and other third parties, making the presumption of judicial access stronger as to the
videos. Id.
Nonetheless, the Court will grant Defendant’s motion to seal as to these exhibits also at
this stage of the litigation. Important to the Court’s calculus is that Defendant has publicly filed
transcripts of the videos which identify what is said in each video and by whom. See ECF No.
88 Exs. 22, 25. And in Merlis, the Second Circuit described at length why filing a public
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transcript makes sealing a video more appropriate, particularly where the video contains
sensitive subject matter:
[T]he availability of a transcript of the deposition does not in our
view necessarily eliminate or even diminish a party’s privacy
interest in the publication or copying of a video of those
proceedings. To the contrary: That the substance of the desired
content is publicly available in some format (i.e., a transcript) tends
in the circumstances presented here to cut against the public interest
in the release of the content in a different form (i.e., video), since the
primary public interest—general availability of the relevant
information—has already been served. . . .
We have not set an absolute rule that the public availability of a
[transcript] guarantees the court’s protection of a . . . video, nor do
we do so now. As we observed in CBS [v. Salerno], “[videos]. . .
convey the meaning of [statements] more accurately and preserve
demeanor evidence as well.” 828 F.2d at 960. These undoubtedly
are valuable components of the truth-finding process. The general
rule of production that we applied in 1987 in CBS thus remains vital
today. . . .
But we must also acknowledge what has changed since we decided
CBS in 1987: The astonishing and pervasive rise of the Internet; the
attendant ease with which videos may be shared worldwide by
individuals; and the eternal digital life with which those videos are
likely endowed by even a single display online. These are all factors
that multiply and intensify the privacy costs to the individual of
releasing sensitive videos; those costs are undeniably greater than
what they might have been 30 years ago. Whereas the subject of a
video deposition made public in 1987 may have suffered brief
notoriety and embarrassment as the subject of an evening’s
newscast, today, [an individual] could reasonably fear that, for the
rest of his life, this video would be the first result of an internet
search for his name.
952 F.3d at 65–66. This explanation directly maps onto the sensitive facts of this case:
The use of a transcript allows the public to obtain the relevant information in some form,
while avoiding the very real threat to the privacy of Plaintiff, Jane, or both that making
the actual videos public could cause. As a result, the Court finds that as to Defendant’s
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Exhibits 22 and 25, the privacy interests of Plaintiff and Jane outweigh presumption of
public access to the videos at this stage of the litigation.
In sum, the Court finds that the factors legitimately counseling against disclosure
of submissions or portions of submissions that both Defendant and Plaintiff seek to seal
outweighs the presumption of public interest to those documents or portions of
documents. Id. at 59. As a result, both Defendant and Plaintiff’s motions to seal are
granted.
Two final points are worth emphasizing. First, in granting the parties’ motions to seal,
the Court relies on Second Circuit precedent as applied to these specific requests at this stage of
the litigation. It does not rely on prior confidentiality orders, which expressly “placed on notice”
all parties that “the Court is unlikely to seal or otherwise afford confidential treatment to any
Discovery Material introduced into evidence at trial, even if such material has been sealed or
designated as Confidential.” ECF No. 55 ¶ 9. Second, and relatedly, the Court emphasizes that
its sealing determinations are made only with respect to the information at issue at this stage of
the case and on this record. The Court anticipates that, at trial, the factors governing sealing (and
pseudonymity) determinations may very well weigh differently than they have to this point, and
the parties should not take this order as any indication to the contrary.
The Clerk of Court respectfully is requested to close the Motions at ECF Nos. 90 and 97.
SO ORDERED.
Date: March 22, 2023
New York, NY
_________________________________
MARY KAY VYSKOCIL
United States District Judge
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