Rusk v. New York State Thruway Authority et al
Filing
123
DECISION AND ORDER denying 109 Plaintiff's Motion to Seal; granting 112 Defendants' Motion to Unseal. The Court orders as follows: 1. The Clerk of Court shall fully unseal the following documents on the docket: ECF Nos. 98, 9 9, 102, 103, 104, 105, 107, 108, 113, 114, 115, 116, 117, 120, 121.2. By August 14, 2020, Defendants shall file unredacted versions of their motion to unseal and reply brief (ECF Nos. 112, 122).3. By August 14, 2020, Plaintiff shall provide, by mail or electronically, John Doe and his counsel with copies of this Decision & Order. By August 17, 2020, Plaintiff shall file a certificate of service (and may redact John Doe's and his counsel's addresses therein).4. By August 21, 2020, Plaintiff shall file his motion to vacate publicly. In his motion, Plaintiff shall not redact the identities of John Doe or the accused defense counsel, nor may he refer to John Doe or the accused defense counsel by pseudonym.5. To the ext ent Plaintiff requests post-judgment discovery in conjunction with his motion to vacate, Plaintiff shall file such request as a separate motion.6. Moving forward, neither party shall redact the identity of or refer pseudonymously to John Doe or the accused defense counsel.IT IS SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 8/7/2020. (MFM)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
BRIAN RUSK,
Case # 10-CV-544-FPG
v.
DECISION AND ORDER
NEW YORK STATE THRUWAY AUTHORITY, et al.,
Defendants.
Plaintiff Brian Rusk alleges that he was terminated from the New York State Thruway
Authority (“NYSTA”) on improper grounds and in contravention of his rights under state and
federal law. In August 2014, the Court granted summary judgment in Defendants’ favor. ECF
Nos. 92, 93. In May 2019, Plaintiff filed an ex parte motion to vacate. ECF No. 98. The Court
ultimately denied the motion without prejudice to refiling a non-ex parte motion. ECF No. 105.
Plaintiff now moves to seal his non-ex parte motion to vacate. ECF No. 109. Defendants
oppose the motion and also move to unseal the documents filed, and the orders issued, in
conjunction with Plaintiff’s ex parte motion. ECF No. 112. For the reasons that follow, Plaintiff’s
motion to seal is DENIED and Defendants’ motion to unseal is GRANTED. 1
Briefly stated, Plaintiff alleges that “John Doe,” an employee (or former employee) of the
NYSTA, informed his attorney that the NYSTA had destroyed relevant emails while Plaintiff’s
lawsuit was pending. Furthermore, John Doe claims that one of the defense attorneys in this case
knew about the destruction of the evidence but proceeded to make false representations to the
Court about the existence of such evidence. On that basis, Plaintiff moves to vacate the judgment.
1
Defendants move to unseal the documents associated with the ex parte motion “for their view only.” ECF No. 122
at 3. But because Plaintiff does not come close to making the requisite showing to justify sealing, the Court unseals
the documents fully for public disclosure and does not limit it to Defendants alone.
1
Initially, Plaintiff filed his motion ex parte and referred to John Doe by pseudonym,
alleging that Doe feared retaliation from NYSTA and was otherwise concerned about his
“economic, personal and professional well-being” should his name be revealed. In his current
motion to seal, Plaintiff similarly requests that the materials related to his motion be placed under
seal and that the identities of John Doe and the accused defense counsel be redacted. Plaintiff
claims that defense counsel’s identity should be kept from public disclosure given her privacy
interests and the serious nature of the allegations.
The Court appreciates that Plaintiff has taken the steps he has taken not to protect his own
interests, but those of a non-party and opposing counsel. Nevertheless, two developments in this
case wholly undercut the reasons Plaintiff proffers for sealing. First, Defendants and the accused
defense counsel oppose Plaintiff’s motion to seal, stating that counsel “needs full disclosure if she
is to defend herself and the Defendants from Plaintiff’s counsel’s accusations of fraud on the
Court.” 2 ECF No. 112-1 at 19. Second, John Doe did not take up the Court’s invitation to
intervene in the case and be heard on the matter. 3 See ECF No. 119. Thus, these individuals do
not themselves invoke the privacy interests that Plaintiff attempts to raise on their behalf.
Accordingly, an extended analysis of the motions is unnecessary, as the Court can readily
conclude that neither sealing nor redaction is appropriate. It is well-established that the public has
a right to access judicial documents that may not be overcome absent a strong countervailing
showing. See, e.g., In re Avaya, Inc., No. 17-10089, 2019 WL 1750908, at *6 (S.D.N.Y. Mar. 28,
2
Furthermore, it is unfortunately fairly commonplace for attorneys to be accused (and accuse one another) of discovery
or litigation misconduct in the course of a lawsuit. The Court is unconvinced that a mere accusation of misconduct in
the oftentimes rough-and-tumble world of civil litigation merits the sort of privacy protections Plaintiff seeks.
3
The Court notes that Plaintiff filed affidavits of service attesting that he mailed copies of the Court’s order to John
Doe and John Doe’s counsel. See ECF No. 121. Moreover, it is evident from Plaintiff’s prior filings that John Doe
and his counsel have been aware of these proceedings for several months and took no action to participate. See, e.g.,
ECF No. 116 at 3.
2
2019) (“The person who seeks to prevent disclosure must support his request with a concrete
showing of potential harm.” (emphasis added)); Williams v. Bean, No. 16-CV-1633, 2017 WL
5179231, at *18 (D. Conn. Nov. 8, 2017) (“[A]ny claimed exception to the right of access should
be based on a particularized showing of need.”). Likewise, a strong showing is required to justify
non-disclosure of a witness’s name to the opposing party. See, e.g., Plumbers & Pipefitters Local
Union No. 630 Pension-Annuity Trust Fund v. Arbitron, Inc., 278 F.R.D. 335, 344 (S.D.N.Y.
2011). Because Plaintiff only relies on hearsay and speculation to support his request, he has not
met these stringent standards. 4 Therefore, Plaintiff’s motion to seal (ECF No. 109) is DENIED
and Defendants’ motion to unseal (ECF No. 112) is GRANTED. The Court orders as follows:
1. The Clerk of Court shall fully unseal the following documents on the docket: ECF Nos. 98,
99, 102, 103, 104, 105, 107, 108, 113, 114, 115, 116, 117, 120, 121.
2. By August 14, 2020, Defendants shall file unredacted versions of their motion to unseal
and reply brief (ECF Nos. 112, 122).
3. By August 14, 2020, Plaintiff shall provide, by mail or electronically, John Doe and his
counsel with copies of this Decision & Order. By August 17, 2020, Plaintiff shall file a
certificate of service (and may redact John Doe’s and his counsel’s addresses therein).
4. By August 21, 2020, Plaintiff shall file his motion to vacate publicly. In his motion,
Plaintiff shall not redact the identities of John Doe or the accused defense counsel, nor may
he refer to John Doe or the accused defense counsel by pseudonym.
5. To the extent Plaintiff requests post-judgment discovery in conjunction with his motion to
vacate, Plaintiff shall file such request as a separate motion.
6. Moving forward, neither party shall redact the identity of or refer pseudonymously to John
Doe or the accused defense counsel.
IT IS SO ORDERED.
Dated: August 7, 2020
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief, United States District Court
4
For the same reason, the Court denies as unnecessary Plaintiff’s request for an order barring Defendants from
retaliating against John Doe.
3
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