360 N. Rodeo Drive, LP v. Wells Fargo Bank, National Association et al

Filing 91

ORDER granting 85 Letter Motion to Seal. The request is GRANTED. The Clerk of Court is directed to close Dkt. 85. SO ORDERED. (Signed by Judge Arun Subramanian on 6/3/2024) (vfr)

Sheppard, Mullin, Richter & Hampton LLP
333 South Hope Street, 43rd Floor
Los Angeles, California 90071-1422
213.620.1780 main
213.620.1398 fax
www.sheppardmullin.com

May 31, 2024

Damani C. Sims
212.634.3068 direct
[e-mail]

VIA ECF
Hon. Arun Subramanian, United States District Judge
United States District Court for the Southern District of New York
500 Pearl Street, Courtroom 15A
New York, New York 10007
Re:

360 N. Rodeo Drive, LP v. Wells Fargo Bank, N.A., et al., Case No. 1:22-cv-00767 (AS)

Dear Judge Subramanian:
We write on behalf of Defendants pursuant to Rule 11 of the Court’s Individual Practices
in Civil Cases and the Stipulated Protective Order (ECF No. 55) to request leave to file under seal
one document offered in support of Defendants’ Motion of Summary Judgment against Plaintiff.
Certain Exhibits to the Declaration of Juthamas J. Suwatanapongched (“the Declaration”)
in support of the Motion were designated confidential by Plaintiff in document production, and
certain passages in the Deposition of Aron Harkham were so designated and separately bound in
accordance with the Protective Oder.
Paragraph 6 of the Protective Order requires that the “parties will use their best efforts to
minimize” filings under seal. Before filing the Motion, Defendants shared the motion papers with
Plaintiff so that Plaintiff might re-evaluate its confidentiality designations. As noted in Paragraph
14 of the Declaration, Plaintiff has determined that the emails designated Confidential and attached
as Exhibits to the Declaration do not need to be submitted under seal. Similarly, Plaintiff has
determined that certain passages in the Aron Harkham Deposition do not need to be submitted
under seal. One separately bound portion for which Plaintiff wishes to maintain confidentially,
comprising pages 59-72, could be and is omitted from the transcript attached as Exhibit 12 to the
Declaration.
That leaves Exhibit 8 to the Declaration, which is a Microsoft Excel spreadsheet of real
estate properties owned or partially owned by Efrem Harkham. The spreadsheet, which had been
submitted to a lender, was updated on June 25, 2021, and attached to a June 25 email that makes
up part of Exhibit 1 to the Declaration. The spreadsheet contains nonpublic financial information
about each of the properties, including, but not limited to the properties’ respective market values,
mortgage balances, rental revenues, operating expenses, and net cash flow. The spreadsheet has
been removed from Exhibit 8 of today’s publicly filed copy of the Declaration. The Microsoft
Excel version of the spreadsheet has been converted to pdf in the version of the Declaration filed
under seal today.

Hon. Arun Subramanian, United States District Judge
May 31, 2024
Page 2

There is ample authority for such material to be sealed E.g., In re B & C KB Holding
GmbH, 22-mc-180, 2023 WL 2021299, at *1 (S.D.N.Y. Feb. 14, 2023) (“courts in this District
routinely permit parties to seal or redact commercially sensitive information in order to protect
confidential business and financial information”); see also Valassis Commc’ns, Inc. v. News Corp.,
17-cv-7378, 2020 WL 2190708, at *3 (S.D.N.Y. May 5, 2020) (granting plaintiff’s motion to seal
and holding that plaintiff’s “interest in protecting the sensitive business information of its active
business units, such as the financial metrics of [a business] division, outweighs the public’s
presumed right of access at this stage of the litigation. . . . [Plaintiff]’s proposed redactions covering
this information are narrowly tailored to protect these specific financial metrics”). Thus, it is
appropriate for the Court to grant this Motion, which is narrowly tailored to seal the financial
information contained in a single spreadsheet.
We thank the Court for its consideration.
Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By:

/s/ Damani C. Sims.
Damani C. Sims
30 Rockefeller Plaza
New York, New York 10112
Telephone: [phone]
Facsimile: [phone]
[e-mail]

Attorneys for Defendants Wells Fargo Bank, N.A., as
Trustee for the Benefit of the Holders of Comm 2017COR2 Mortgage Trust Commercial Mortgage PassThrough Certificates, Series 2017-COR2 and Midland
Loan Services, a Division of PNC Bank, N.A.

The request is GRANTED.
The Clerk of Court is
directed to close Dkt. 85.
SO ORDERED.

Arun Subramanian, U.S.D.J.
Date: June 3, 2024