McCane v. Wilkowski et al

Filing 73

DECISION AND ORDER denying 71 Motion to Seal without prejudice. Signed by Hon. Elizabeth A. Wolford on 11/21/2022. (MGB)

Case 1:18-cv-01489-EAW-JJM Document 73 Filed 11/21/22 Page 1 of 4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
DAVID MCCANE,
Plaintiff,
DECISION AND ORDER
v.
1:18-CV-01489 EAW
CORRECTION OFFICER D. WILKOSWKI,
CORRECTION OFFICER MASUCCI,
CORRECTION OFFICER T. BUNN,
CORRECTION OFFICER FLINCH, and
CORRECION OFFICER SERGEANT
APPLEBERRY, in their individual capacities,
Defendants.
____________________________________
Plaintiff David McCane (“Plaintiff”), represented by counsel, has filed a motion to
seal his summary judgment motion in its entirety. (Dkt. 71). For the reasons discussed
below, the Court denies Plaintiff’s motion to seal without prejudice.
In order to overcome the presumption of public access to judicial documents, it is
necessary for the Court to make “specific, on-the-record findings that sealing is necessary
to preserve higher values” and any sealing order must be “narrowly tailored to achieve that
aim.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006). “[T]he
Second Circuit has emphasized that the weight of the presumption as it relates to
documents filed in connection with summary judgment motions is of the highest:
‘documents used by parties moving for, or opposing, summary judgment should not remain
under seal absent the most compelling reasons.’” Moroughan v. Cnty. of Suffolk, No. 12-1-

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CV-0512 JFB AKT, 2021 WL 280053, at *2 (E.D.N.Y. Jan. 24, 2021) (emphasis in
original and quoting Lugosch, 435 F.3d at 123); Burns v. Rovella, No. 3:19-CV-553 (JCH),
2021 WL 4263372, at *7 (D. Conn. Sept. 20, 2021) (“The Second Circuit has instructed
that ‘documents submitted to a court for its consideration in a summary judgment motion
are—as a matter of law—judicial documents to which a strong presumption of access
attaches, under both the common law and the First Amendment.’” (quoting Trump v.
Deutsche Bank AG, 940 F.3d 146, 151 (2d Cir. 2019))).
Plaintiff’s motion to seal is grossly insufficient to justify the relief he seeks. He has
provided scant information to support his contention that sealing his entire summary
judgment submission is warranted. For example, in his notice of motion he indicates that
the documents sought to be sealed “contain personal information pursuant to Fed. R. Civ.
P. 5.2 and confidential medical information,” (Dkt. 71 at 1), and his counsel similarly
declares that “Plaintiff wishes to include Exhibits which contain personal information
subject to Fed. R. Civ. P. 5.2 and confidential medical information,” (Dkt. 71-1 at ¶ 3).
Counsel further indicates that some of the exhibits Plaintiff wishes to file under seal include
those produced by Defendants pursuant to an “attorneys’ eyes only” provision in the
Confidentiality Stipulation and Protective Order (Dkt. 40) entered in this case. (Dkt. 71-1
at ¶ 4).
However, it is well-established that “[c]onfidentiality agreements alone are not an
adequate basis for sealing” and “[m]aterial designated as Confidential by a protective order
‘might not overcome the presumption of public access once it becomes a judicial
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document.’”

Metcalf

v.

TransPerfect

Translations

Int’l,

Inc.,

No.

19CV10104(AJN)(KHP), 2022 WL 2116686, at *1 (S.D.N.Y. June 13, 2022) (quoting
Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015));
Scism v. City of Schenectady, No. 1:18-CV-672 (TWD), 2021 WL 4458819, at *3
(N.D.N.Y. Sept. 29, 2021) (“However, ‘that a document was produced in discovery
pursuant to a protective order has no bearing on the presumption of access that attaches
when it becomes a judicial document.’” (quoting Collado v. City of New York, 193 F. Supp.
3d 286, 289-90 (S.D.N.Y. 2016))), aff’d, No. 21-2622-CV, 2022 WL 289314 (2d Cir. Feb.
1, 2022), cert. denied, No. 21-1422, 2022 WL 4657197 (Oct. 3, 2022). Nor are conclusory
statements about the alleged confidentiality of the information sufficient to support sealing.
See, e.g., Rowe v. Google LLC, No. 19 CIV. 8655 (LGS), 2022 WL 4467628, at *3
(S.D.N.Y. Sept. 26, 2022) (requiring party to show with particularity the basis for a sealing
request to permit the court to make specific findings as to the necessity for sealing); Bronx
Conservatory of Music, Inc. v. Kwoka, No. 21CV1732(AT)(BCM), 2021 WL 2850632, at
*3 (S.D.N.Y. July 8, 2021) (“Neither ‘conclusory assertion[s]’ of harm nor ‘[b]road and
general findings by the trial court’ will suffice [to support sealing judicial documents].”
(quoting In re N.Y. Times Co., 828 F.2d 110, 116 (2d Cir. 1987))). Plaintiff’s papers
seeking sealing consist almost entirely of these kinds of cursory, insufficient assertions.
Plaintiff also has not narrowly tailored his sealing requests. He seeks to seal his
notice of motion, attorney declaration, statement of facts, entire memorandum of law, and
every exhibit filed in support of his summary judgment motion. The Court seriously doubts
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that Plaintiff’s notice of motion and boilerplate legal argument would require sealing, and
similarly factual information also contained in other filings on the docket, including in
Plaintiff’s complaint and Defendant’s summary judgment motion (Dkt. 72), would not be
appropriate for sealing. While certain information in Plaintiff’s filings may be subject to
sealing, there are substantial portions of the summary judgment submission that, on their
face, contain no confidential information whatsoever and Plaintiff has made no attempt to
limit the information to be shielded from public view.
For these reasons, the Court denies the pending motion to seal (Dkt. 71) without
prejudice. If Plaintiff wishes to pursue his request to seal, he must file a new motion to
seal with properly supported, narrowly tailored proposed redacted submissions by no later
than November 29, 2022. If Plaintiff seeks to seal information because Defendants have
identified the information as confidential, he must specifically identify any such
information in his new motion to seal and proposed redacted submissions, and Defendants
must file papers on or before December 6, 2022, justifying the basis for the sealing of any
such information that they have designated confidential, consistent with the legal standards
set forth herein. Once the Court has had an opportunity to resolve any new motion to seal,
a briefing schedule on Plaintiff’s motion for summary judgment and Defendant’s motion
for summary judgment (Dkt. 72) will be issued.
SO ORDERED.

_________________________________
ELIZABETH A. WOLFORD
Chief Judge
United States District Court

Dated: November 21, 2022
Rochester, New York
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