Schei et al v. AT&T Inc. et al

Filing 154

ORDER granting #151 Letter Motion to Seal. Application GRANTED. The Clerk of Court is directed to file Attachment #1 ("Exhibit 32") to the Declaration of Joshua Yin (Docket #153-1) under seal, visible to the Court and parties only. The Clerk of Court is directed to terminate the pending motion at docket number 151. (Signed by Judge Katherine Polk Failla on 3/22/2023) (rro)

Case 1:21-cv-00718-KPF Document 154 Filed 03/22/23 Page 1 of 2

1(650) 320-1808
[e-mail]

March 21, 2023
VIA ECF AND E-MAIL
Hon. Katherine Polk Failla, U.S.D.J.
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 10007
Re:

MEMO ENDORSED

Network Apps, LLC et al. v. AT&T Inc. et al., Civ. No. 21-cv-00718-KPF
Motion to Seal Additional Exhibit in Support of AT&T Defendants’ Motion to Dismiss

Dear Judge Failla:
On March 20, 2023, the Court directed the parties to submit the documents referenced at page 11
of Exhibit 15 of AT&T’s Motion. See Dkt. 135-8 at 11.
Pursuant to Section 9(C) of this Court’s Individual Rules of Practice, Defendants AT&T Mobility
LLC and AT&T Services, Inc. (collectively, “AT&T”) submit this letter motion for leave to file under seal
identified portions of an additional exhibit consisting of the requested documents in support of AT&T’s
Motion to Dismiss.
On June 24, 2022, AT&T filed a motion to seal identified portions of the opening brief in support of
their Motion to Dismiss along with supporting exhibits. Dkt. 129. On June 27, the Court granted AT&T’s
sealing motion. Dkt 136. On July 25, 2022, Plaintiffs Network Apps, LLC, Kyle Schei, and John Wantz
(collectively, “Plaintiffs”) filed a similar motion to seal identified portions of their opposition to AT&T’s Motion
to Dismiss and supporting documents. Dkt. 137. On July 26, the Court granted Plaintiffs’ sealing motion.
Dkt. 144. The information and documents that were the subject of the parties’ sealing motions pertain to
proprietary and confidential technical and business information of Plaintiffs, AT&T, and/or third parties who
engaged in a business relationship with Plaintiffs, most of which were designated “confidential” or “highly
confidential” by the producing party pursuant to the Stipulated Protective Order at Dkt. 128.
The Second Circuit follows a three-step inquiry for evaluating sealing requests. See Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006). First, the court looks to whether the
document at issue is a “judicial document” that is “relevant to the performance of the judicial function and
useful in the judicial process.” Id. at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)
(“Amodeo I”)). Second, the court determines the weight of the presumption in favor of public access, given
“the role of the material at issue in the exercise of Article III judicial power.” Id. (quoting United States v.
Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo II”)). Finally, the court determines whether the party
moving to seal has demonstrated that the presumption of public access is overcome by the need to protect
“higher values.” Id. at 120.
In granting the parties’ previous sealing motions, the Court necessarily concluded that the factors
weighing against public disclosure of the information outweighed the public’s interest in monitoring the
courts, which can only be achieved by open records and open courtrooms. Nothing about the sensitivity of
the information has changed in the time since the Court granted the parties’ previous motions to seal. The

Case 1:21-cv-00718-KPF Document 154 Filed 03/22/23 Page 2 of 2

Hon. Katherine Polk Failla, U.S.D.J.
March 21, 2023
Page 2

information contained in the documents has not been publicly disclosed and the brief passage of time has
not lessened the sensitivity of the information.
For these reasons, and the reasons explained in AT&T’s previous sealing motions, Dkts. 129 and
145, AT&T seeks the Court’s permission to file under seal identified portions of the requested documents
in support of AT&T’s Motion to Dismiss.
Respectfully submitted,
By: S/ Christopher W. Kennerly
Christopher W. Kennerly (pro hac vice)
[e-mail]
Alexander H. Lee (pro hac vice)
[e-mail]
Joshua Yin (pro hac vice)
[e-mail]
PAUL HASTINGS LLP
1117 S. California Avenue
Palo Alto, California 94304-1106
Telephone: [phone]
Facsimile: 1(650) 320-1900
Robert Laurenzi
[e-mail]
PAUL HASTINGS LLP
200 Park Avenue, 26th Floor
New York, NY 10166
Telephone: [phone]
Facsimile: [phone]
Attorney for Defendants
cc:

All Counsel of Record (via ECF)

Application GRANTED. The Clerk of Court is directed to file
Attachment #1 ("Exhibit 32") to the Declaration of Joshua Yin (Docket
#153-1) under seal, visible to the Court and parties only. The Clerk
of Court is directed to terminate the pending motion at docket number
151.
Dated:

March 22, 2023
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE