Phillips et al v. The National Basketball Association et al

Filing 124

ORDER granting 120 Letter Motion to Seal. APPLICATION GRANTED SO ORDERED. (Signed by Judge Vernon S. Broderick on 2/5/2024) (jca)

Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299

February 1, 2024
By ECF
Vernon S. Broderick, U.S.D.J.
United States District Court
Southern District of New York
Thurgood Marshall United States Courthouse
40 Foley Square, Room 415
New York, New York 10007

Elise M. Bloom
Partner
d +1.212.969.3410
f 212.969.2900
[e-mail]
www.proskauer.com

Dated: February 5, 2024

Re: Phillips, et al. v. NBA, et al., Civil. Action No. 22-cv-09666 (VSB)
Dear Judge Broderick:
We represent Defendants National Basketball Association and NBA Services Corp.
(“Defendants”) in the above-referenced matter. In accordance with this Court’s Individual Rule
& Practice 5.B, we write to request the sealing of excerpts of the deposition transcripts of Neal
Stern (NBA Senior Vice President and Assistant General Counsel) and Byron Spruell (NBA
President of League Operations), which Defendants are filing in connection with their opposition
to the objections filed by Plaintiffs to Magistrate Judge Lehrburger’s January 12, 2024 Order.
On January 12, 2024, Magistrate Judge Lehrburger denied Plaintiffs’ motion seeking to conduct
an additional two hours of deposition testimony each with Spruell and Stern, both of whom
Plaintiffs already deposed for seven hours each. (ECF No. 110.) On January 18, 2024, Plaintiffs
filed objections to the January 12, 2024 Order. (ECF No. 112.) In connection with their opposition
to Plaintiffs’ objections and to assist in the Court’s determination, Defendants have filed excerpts
of Spruell’s and Stern’s deposition transcripts (which Plaintiffs neglected to do) in further support
of their opposition. Defendants seek to maintain under seal those deposition excerpts as they
implicate significant privacy interests regarding both non-party employees and Spruell and Stern
themselves (including religious beliefs); and confidential and proprietary business information
concerning Defendants.
In determining whether certain materials should be allowed to be filed under seal, courts recognize
“[c]ountervailing considerations” to the presumption of judicial access, including “‘the privacy
interests of those resisting disclosure.’” Mirlis v. Greer, 952 F.3d 51, 59 (2d Cir. 2020) (citing
United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995)). The Second Circuit has “held that
the privacy interests of innocent third parties should weigh heavily in a court’s balancing
equation.” Amodeo, 71 F.3d at 1051 (internal citation and alteration omitted). Similarly, a
business’s confidential and proprietary business information can overcome the presumption of
judicial access. See Skyline Steel, LLC v. PilePro, LLC, 101 F. Supp. 3d 394, 412-13 (S.D.N.Y.
2015) (granting motion to seal documents containing, among other things, emails revealing
confidential business decisions).

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Judge Vernon S. Broderick, U.S.D.J.
February 1, 2024
Page 2
Here, Defendants are seeking to maintain under seal excerpts of Spruell’s and Stern’s deposition
testimony as they implicate their privacy interests and/or the privacy interests of non-parties, or
concern Defendants’ confidential and proprietary business information that is not within the public
domain. Specifically, the deposition excerpts contain: (i) private information concerning nonparty employees’ and/or non-party referees’ religious exemption requests; (ii) non-public and
sensitive information concerning Spruell’s and Stern’s religious beliefs, personal views about
sensitive matters entirely unrelated to Plaintiffs’ claims, and involvement in disciplinary action
involving non-party employees; and (iii) confidential and proprietary business information
concerning Defendants’ handling of personnel matters, including non-public discussions and/or
correspondence involving NBA executives and in-house counsel, many of which were conducted
in a privileged capacity.
The materials that Defendants seek to maintain under seal would invade the privacy interests of
non-parties and/or Defendants, and therefore outweigh the presumption of judicial access.
Accordingly, Defendants respectfully request that the Court grant Defendants’ motion for the
materials described herein to remain under seal.
Respectfully submitted,
/s/ Elise M. Bloom
Elise M. Bloom
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All Counsel of Record (by ECF)