Valvetech, Inc. v. Aerojet Rocketdyne, Inc.

Filing 165

DECISION AND ORDER denying 164 Motion to Seal Document. The Court denies without prejudice Plaintiff's motion to seal Exhibits 1, 3, and 5 to Plaintiff's Response to Defendant's Brief Regarding Two Issues Impacting the Appropriate S cope of the Deposition of Mr. Joel Landau and attached to the Declaration of John D. Esterhay. (ECF No. 164.) Plaintiff has ten days after the filing of this decision and order to renew its motion, after which time, if no motion is made, the documents sought to be filed under seal will be electronically filed and available to the public. Signed by Hon. Mark W. Pedersen on 2/17/21. (KAP)

Case 6:17-cv-06788-FPG-MJP Document 165 Filed 02/18/21 Page 1 of 16

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
VALVETECH, INC.,
Plaintiff,
-vs-

DECISION AND ORDER
17-CV-6788-FPG-MJP

AEROJET ROCKETDYNE, INC.,
Defendant.
Pedersen, M.J. Plaintiff ValveTech, Inc. (“Plaintiff”) commenced an
action in 2017 in New York State Supreme Court against defendant, Aerojet
Rocketdyne, Inc., (“Defendant”), alleging various claims, the vast majority of
which have been dismissed. Defendant removed the case to federal court in
December 2017. (ECF 1 No. 1.)
On January 13, 2021, Plaintiff electronically filed correspondence
addressed to the Court wherein Plaintiff’s counsel vaguely listed several
discovery disputes between the parties. (ECF No. 150.) 2 On January 27, 2021,
“ECF” stands for Electronic Case Files, which is the Court’s filing system. The
system assigns a document number to most filings. In this Decision and Order, the
Court will use the ECF number to refer to the filed documents.
1

While Plaintiff labeled its letter a “Motion for Discovery” (ECF No. 150),
Plaintiff did not comply with Rule 7 of the Local Rules of Civil Procedure for the
Western District of New York, which provides, in part, that “[a] notice of motion is
required for all motions, and must state: the relief sought, the grounds for the request,
the papers submitted in support, and the return date for the motion, if known. A
moving party who intends to file and serve reply papers must so state in the notice of
motion.” W.D.N.Y. Loc. R. Civ. P. 7(a)(1). In addition, Plaintiff is required to file a
memorandum of law. W.D.N.Y. Loc. R. Civ. P. 7(a)(2)(A). The motion should also be
accompanied by an attorney affirmation or declaration, if necessary. W.D.N.Y. Loc. R.
Civ. P. 7(a)(3). Plaintiff is cautioned to comply with these rules moving forward.
2

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Defendant emailed a response to Plaintiff’s correspondence, in which Defendant
provided detail regarding the parties’ discovery disputes. During a Zoom
conference with the Court on January 27, 2021, the parties elaborated on the
discovery disputes and several of the issues were resolved. (ECF No. 156.)
However, two issues remained outstanding, both addressing the scope of the
deposition of Defendant’s in-house counsel, Joel Landau, as follows:
1. Whether Tailored Lighting, Inc. v. Osram Sylvania Products, Inc.,
255 F.R.D. 340 (W.D.N.Y. 2009) (“Tailored Lighting”) applies to this
case regarding the scope and procedure of Plaintiff’s noticed
deposition of Mr. Landau; and
2. Whether a common interest exists between Defendant and third party
Boeing Co. (“Boeing”), to determine whether communications between
Mr. Landau and Boeing regarding the Orbital Maneuvering and
Control (“OMAC”) program are protected by the common interest
exception to the attorney-client privilege.
The Court set a briefing schedule with respect to the forgoing issues and
both parties have submitted their briefs. Defendant filed its brief in support of
its position on February 3, 2021. (Def.’s Mem. of Law, ECF No. 160.) Plaintiff
filed its brief in opposition to Defendant’s position on the two issues on February
5, 2021 (Pl.’s Mem. of Law, ECF No. 162) and Plaintiff’s counsel filed a
declaration in support of Plaintiff’s opposition (Esterhay Decl., ECF No. 163.)
In addition, Plaintiff filed a motion seeking leave to file under seal Exhibits 1,

2

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3, and 5 attached to the Declaration of John D. Esterhay filed in support of
Plaintiff’s Response to Defendant’s Brief regarding Two Issues Impacting the
Appropriate Scope of the Deposition of Mr. Joel Landau. (ECF No. 164.)
For the reasons discussed below the Court finds that Tailored Lighting
is applicable to this case regarding the scope and procedure of the noticed
deposition of Defendant’s in-house counsel, Joel Landau. The Court further
finds that Defendant has failed to satisfy its burden of demonstrating that the
common

interest

exception

to

the

attorney-client

privilege

protects

communications between Defendant and Boeing regarding the OMAC program.
Finally, the Court denies Plaintiff’s motion to seal.
STANDARD OF LAW
The scope of discovery permitted under the Federal Rules of Civil
Procedures is set forth in Rule 26(b)(1): “Unless otherwise limited by court
order, ... [p]arties may obtain discovery regarding any nonprivileged matter
that is [1] relevant to any party’s claim or defense and [2] proportional to the
needs of the case.” Id. “Proportionality and relevance are ‘conjoined’ concepts;
the greater the relevance of the information in issue, the less likely its discovery
will be found to be disproportionate.” Walker v. City of New York, No. 14-CV680 (WFK) (PK), 2018 WL 1686102, at *2 (E.D.N.Y. Mar. 30, 2018) (quoting
Vaigasi v. Solow Mgmt. Corp., 11 Civ. 5088 (RMB)(HBP), 2016 WL 616386, at
*14 (S.D.N.Y. Feb. 16, 2016)).
Relevance is “construed broadly to encompass any matter that bears on,
or that reasonably could lead to other matter that could bear on, any issue that
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is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351
(1978). “Relevance is a matter of degree, and the standard is applied more
liberally in discovery than it is at trial.” Walker, 2018 WL 1686102, at *2.
“[P]roportionality focuses on the ‘marginal utility of the discovery sought’
and requires a balancing of the multiple factors set forth in [Rule] 26(b)(1).”
Equal Employment Opportunity Comm’n v. Staffing Sols. of WNY, Inc., No. 18CV-562-LJV-JJM, 2020 WL 7407736, at *2 (W.D.N.Y. Oct. 16, 2020) (quoting
Vaigasi, 2016 WL 616386, at *14). Those factors include:
[i] the importance of the issues at stake in the action, [ii] the
amount in controversy, [iii] the parties’ relative access to relevant
information, [iv] the parties’ resources, [v] the importance of the
discovery in resolving the issues, and [vi] whether the burden or
expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1).
Rule 26 vests the trial judge with broad discretion over making these
determinations. Woelfle v. Black & Decker (U.S.) Inc., No. 1:18-CV-486, 2020
WL 1180749, at *5 (W.D.N.Y. Mar. 12, 2020) (citing Crawford-El v. Britton, 523
U.S. 574, 598 (1998)).
ANALYSIS
Tailored Lighting is applicable to the scope and procedure of Mr.
Landau’s deposition.
In contending that Tailored Lighting is not applicable to this case,
Defendant argues that the relevance standard under Rule 26 of the Federal
Rules of Civil Procedure has changed since the issuance of Tailored Lighting,
stating that the current discovery standard “differs markedly.” (Def.’s Mem. of
Law at 1, Feb. 3, 2021, ECF No. 160.) This is not accurate.
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Rule 26(b) was amended in 2015 to relocate the proportionality language
and place it prominently with relevance as defining the scope of discovery. See
Black v. Buffalo Meat Serv., Inc., No. 15-CV-49S, 2016 WL 4363506, at *6
(W.D.N.Y. Aug. 16, 2016). The 2015 amendments, however, did not establish a
new limit on discovery; rather they merely relocated the limitation from Rule
26(b)(2)(C)(iii) to Rule 26(b)(1). Robertson v. People Magazine, 14-CV-6759
(PAC), 2015 WL 9077111, at *2 (S.D.N.Y. Dec. 16, 2015) (noting that
proportionality has been a limit on discovery since the 1983 amendments to
Rule 26); Advisory Committee Notes to the 2015 Amendments to Rule 26
(“Restoring the proportionality calculation to Rule 26(b)(1) does not change the
existing responsibilities of the court and the parties to consider proportionality
....”); see also Sibley v. Choice Hotels Int’l, CV-14-634(JS)(AYS), 2015 WL
9413101, at *2 (E.D.N.Y. Dec. 22, 2015). The change was intended to “reinforce[]
the Rule 26(g) obligation of the parties to consider [the proportionality factors]
in making discovery requests, responses, or objections.” Advisory Committee
Notes to the 2015 Amendments to Rule 26. Thus, the 2015 Amendments
constitute a reemphasis on the importance of proportionality in discovery but
not a substantive change in the law. Robertson, 2015 WL 9077111, at *2 (“[T]he
2015 amendment [to Rule 26] does not create a new standard; rather it serves
to exhort judges to exercise their preexisting control over discovery more exactingly.”).

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Based upon the forgoing, proportionality was always meant to be part of
the calculation in determining the scope of discovery and, thus, Defendant’s
attempt to distinguish Tailored Lighting on this basis is not persuasive.
However, even if the standard was markedly different now, this Court finds the
Honorable Marian W. Payson’s reasoning in that decision applicable here as the
discovery sought by Plaintiff is not disproportionate to the needs of the case.
Indeed, as referenced by the undersigned in a prior decision in this case,
“[p]rotection of trade secrets is a very important societal issue as it was
recognized by our founding fathers in the United States Constitution, which
provides that Congress has the power ‘[t]o promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their perspective Writings and Discoveries. U.S. Const. art.
1, § 8, cl. 8.’” ValveTech, Inc. v. Aerojet Rocketdyne, Inc., No. 17-CV-6788-FPGMJP, 2020 WL 6120348, at *2 (W.D.N.Y. Oct. 16, 2020).
In addition, as addressed in the aforementioned case, Defendant admits
that this case could involve “in the hundreds of thousands of dollars” or “a few
million” based upon Plaintiff’s claims. Id. Further, Defendant has access to
much greater resources than does Plaintiff and information that could be
relevant to Plaintiff’s claims, particularly given Plaintiff’s representation that
it seeks to depose Mr. Landau because the “information [he] relied on in making
his verifications is crucial to understanding [Defendant’s] discovery
responses.” (Pl.’s Mem. of Law at 3 (emphasis in original.)) Finally, the Court

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does not find that the cost of one additional deposition would be
disproportionate to the needs of the case, especially given Defendant’s
resources. Based upon the forgoing, the Court finds that Tailored Lighting
applies in this case.
With respect to Defendant’s argument regarding “discovery on discovery”
the Court finds that the discovery sought by Plaintiff is not “collateral to the
relevant issues,” but rather directly relevant to Plaintiff’s claims. (Def.’s Mem.
of Law at 2); see Winfield v. City of New York, No. 15-CV-05236, 2018 WL
840085, at *3 (S.D.N.Y. Feb. 12, 2018)). Accordingly, the Court is not persuaded
by this argument.
Finally, both parties appear to agree that a weighing of the factors
discussed In re Friedman, 350 F.3d 65 (2d Cir. 2003), and utilized in Tailored
Lighting, should guide a court’s decision on whether to permit the deposition of
in-house counsel. (Def.’s Mem. of Law at 4; Pl.’s Mem. of Law at 2–3.) These
factors include:
the need to depose the lawyer, the lawyer’s role in connection with
the matter on which discovery is sought and in relation to the
pending litigation, the risk of encountering privilege and workproduct issues, and the extent of discovery already conducted.
In re Friedman, 350 F.3d at 72.
The first factor, the need to depose the lawyer, weighs in favor of
Plaintiff. Defendant asserts that Plaintiff failed to articulate a need to depose
Mr. Landau, but Plaintiff specifically argues that Mr. Landau’s deposition is
necessary because he appears to be the only individual who could testify as to

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the “myriad bases” for Defendant’s responses to Plaintiff’s interrogatories and
requests for admission. 3 (Pl.’s Mem. of law at 4–5.) In addition, as Judge Payson
found in Tailored Lighting, the timing of Mr. Landau’s deposition vis à vis the
deadline for discovery would effectively preclude Plaintiff from conducting any
follow-up discovery, including further depositions, regarding information
Plaintiff may garner during that deposition. See Tailored Lighting, 255 F.R.D.
at 345.
The second Friedman, the lawyer’s role in connection with the matter on
which discovery is sought and in relation to the pending litigation, the Court
finds that this factor also weighs in Plaintiff’s favor. Defendant is correct that
this factor must also be balanced with the third Friedman factor, the risk of
encountering privilege and work-product issues. Defendant asserts that these
factors weigh against deposing Mr. Landau because he is leading Defendant’s
defense in this matter and is involved in all decision-making, which would
render implicating attorney-client or work-product protected information
“inescapable.” (Def.’s Mem. of law at 4.) However, in Tailored Lighting, the
attorney also played a central role in discovery and, acknowledging the risk of
the potential disclosure of privileged information, Judge Payson narrowlycircumscribed the scope of the attorney’s deposition to balance the second and

Plaintiff concedes that Mr. Landau verified five out of six of Defendant’s sets
of interrogatory responses, and that it would not depose Mr. Landau regarding the one
set of interrogatories he did not verify. (Pl.’s Mem. of Law at 2, n.3.)
3

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third Friedman factors. The Court finds that the same circumscriptions will
help balance those two factors here.
Finally, with respect to the fourth Friedman factor, the extent of
discovery already conducted, Defendant asserts that Plaintiff has already
conducted the depositions of many of its employees during which Plaintiff had
the opportunity to ask about the facts underlying the interrogatory responses.
(Def.’s Mem. of Law at 4.) In addition, Defendant contends that Plaintiff
specifically listed the topic, “Your responses to ValveTech’s Interrogatories,” as
an area in which Defendant’s Federal Rule of Civil Procedure 30(b)(6) deponent
would be questioned. (Id. at 4–5.) However, Plaintiff counters that the 30(b)(6)
deposition has already taken place and Defendant’s representative did not
provide the requested information, providing an example of how Defendant’s
counsel specifically instructed the deponent not to answer questions regarding
two of Plaintiff’s affirmative defenses, about which Plaintiff had asked in its
interrogatories. (Pl.’s Mem. of Law at 5–6.) The Court finds this factor also
weighs in favor of Plaintiff because it already attempted to obtain responses to
certain

questions

posed

to

the

30(b)(6)

deponent

regarding

certain

interrogatories and was unsuccessful. Further, while Defendant contends that
its responses to the interrogatories were specifically listed as a topic for
Defendant’s 30(b)(6) deponent, it does not indicate whether that deponent
provided a response to that topic. As noted above, Plaintiff’s representations
suggest otherwise. In sum, given the “flexible approach to lawyer depositions

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whereby the judicial officer supervising discovery takes into consideration all of
the relevant facts and circumstances to determine whether the proposed
deposition would entail an inappropriate burden or hardship,” Friedman, 350
F.3d at 72, the Court finds that a limited-scope deposition of Mr. Landau is
appropriate in this case.
Defendant requests the Court direct that Mr. Landau’s deposition be
conducted by “narrowly subscribed written questions,” citing Johnson v. City of
New York, No. 16 Civ. 6426, 2018 WL 6727329 (E.D.N.Y. Dec. 21, 2018), in
support of the request. (Def.’s Mem. of Law at 5.) The Court agrees with Plaintiff
that this case is distinguishable from Johnson and that a limited-scope
deposition, rather than written questions, is appropriate in this case. (See Pl.’s
Mem. of Law at 6.)
Based upon the forgoing, the Court orders that Plaintiff may conduct a
limited-scope deposition of Mr. Landau on the following issues:
(1) identifying the information provided to and relied upon by Mr.
Landau, whether through communications with individuals or
review of documents, in answering the interrogatories and
requests for admission;
(2) identifying the source (person or record) of that information;
and
(3) non-privileged communications between Mr. Landau and his
human sources about that information that occurred while
investigating and answering the interrogatories and requests for
admission.

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The common interest exception does not apply to communications
between Defendant and Boeing regarding the OMAC program.
The dispute between the parties on this issue involves conversations
between Mr. Landau and Boeing’s former in-house counsel, Dionne Hamilton.
Defendant asserts that such communications are protected by the “common
interest privilege” 4 and, therefore, are not subject to discovery. (Def.’s Mem. of
Law at 5–6.) Defendant contends that it and Boeing share a common interest
due to the existence of an indemnification provision in the contract between
them. (Id. at 5.) Defendant refers to a “cease and desist” letter sent by Plaintiff’s
counsel to Boeing’s counsel after commencement of this litigation, which
informed Boeing that “any use or dissemination of ValveTech Proprietary
Information is in violation of ValveTech’s enforceable legal rights, including
without limitation, copyright infringement, trade secret theft and/or
misappropriation, and patent infringement.” (Id., Ex. B at 2, ECF No. 160-2.)
In general, the exception to the attorney client privilege applies to protect
confidential communications to third parties where the third party and a party
share a common legal interest. Marciano v. Atl. Med. Specialities, Inc., No. 08CV-305-JTC, 2011 WL 294487, at *3 (W.D.N.Y. Jan. 27, 2011).
[T]he common interest doctrine permits the disclosure of a
privileged communication without waiver of the privilege provided
the party claiming an exception to waiver demonstrates that the
parties communicating: (1) have a common legal, rather than

As Plaintiff correctly contends, at issue is the common interest exception to
waiver of the attorney-client privilege, not, as Defendant calls it, the “common interest
privilege.” (Pl.’s Mem. of Law at 7.) Hopkins v. Booth, No. 16-CV-1020V(F), 2019 WL
4941863, at *2 (W.D.N.Y. Oct. 8, 2019).
4

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commercial, interest; and (2) the disclosures are made in the
course of formulating a common legal strategy.
Id. “The burden of establishing the attorney-client privilege, in all its elements,
always rests upon the person asserting it.” United States v. Schwimmer, 892
F.2d 237, 244 (2d Cir. 1989). Further, “[t]here must be a substantial showing
by parties attempting to invoke the protections of the privilege of the need for
a common defense as opposed to the mere existence of a common problem.”
Egiazaryan v. Zalmayev, 290 F.R.D. 421, 434 (S.D.N.Y. 2013); Denney v.
Jenkens & Gilchrist, 362 F. Supp. 2d 407, 415 (S.D.N.Y. 2004) (“The party
asserting the common interest rule bears the burden of showing that there was
an agreement, though not necessarily in writing, embodying a cooperative and
common enterprise towards an identical legal strategy …. Some form of joint
strategy is necessary to establish a [joint defense agreement], rather than
merely the impression of one side.”) (internal quotations and citation omitted).
Defendant has not satisfied its burden of demonstrating that an
agreement exists between it and Boeing such that the common interest
exception applies to the communications between Mr. Landau and Boeing’s
former in-house counsel. Defendant has failed to submit any proof of such an
agreement. On the contrary, Plaintiff has submitted proof that Boeing denied
it had an agreement with Defendant to engage in a joint legal strategy.
(Esterhay Decl. at Ex. 4.) Boeing’s counsel specifically referenced the indemnity
clause that Defendant relies on to establish the existence of a common interest.
In relevant part, that clause provides:

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Boeing’s contract with AJR, which governs the Starliner project,
includes a “patent, trademark, and copyright” indemnity
provision, which could apply to any future action filed by
ValveTech against Boeing in connection with Boeing’s alleged
“use” of ValveTech’s “proprietary information” and under which
AJR could be required to “indemnify, defend, and hold harmless”
Boeing. Boeing understands that an indemnification agreement,
under certain circumstances, could give rise to a common‐interest
relationship.
(Id.) (emphasis added).
The Court finds that communications between Mr. Landau and Boeing’s
former in-house counsel regarding the OMAC program are not protected by any
common interest between Defendant and Boeing at this time.
Plaintiff’s motion to seal.
On February 5, 2021, Plaintiff made a motion pursuant to Rule 5.3 of the
Local Civil Rules of the Western District of New York seeking leave to seal
Exhibits 1, 3, and 5 to Plaintiff’s Response to Defendant’s Brief Regarding Two
Issues Impacting the Appropriate Scope of the Deposition of Mr. Joel Landau
and attached to the Declaration of John D. Esterhay. (Pl.’s Mot. to Seal, ECF
No. 164.) The three exhibits Plaintiff seeks to seal have been designated by
Defendant and/or third party Boeing as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to the parties’
Stipulated Protective Order. (Id. 2.)
The Supreme Court has held that the First Amendment presumptive
right of access applies to all criminal trials. Newsday LLC v. Cty. of Nassau, 730
F.3d 156, 163–64 (2d Cir. 2013) (citing Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 580 (1980)). The Second Circuit has extended that
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principle, holding that the First Amendment right applies “to civil trials and to
their related proceedings and records.” N.Y. Civil Liberties Union v. N.Y.C.
Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012). In so holding, the Second Circuit
noted that the First Amendment “does not distinguish between criminal and
civil proceedings,” but rather “protects the public against the government's
arbitrary interference with access to important information.” Id. (internal
quotation marks omitted). Based on this logic, the Second Circuit has held that
the First Amendment right applies to pretrial motions and written documents
submitted in connection with them. In re New York Times Co., 828 F.2d 110,
114 (2d Cir. 1987).
The Local Rules of Civil Procedure explain that “there is a presumption
that Court documents are accessible to the public and that a substantial
showing is necessary to restrict access.” W.D.N.Y. Loc. R. Civ. P. 5.3(a); see also
In re Orion Pictures Corp., 21 F.3d 24, 26 (2d Cir. 1994) (“[C]ourts have
recognized a strong presumption of public access to court records. This
preference for public access is rooted in the public's first amendment right to
know about the administration of justice.”) (citation omitted). If a party makes
a “proper showing,” the Court may seal the case in its entirety or seal specific
documents. W.D.N.Y. Loc. R. Civ. P. 5.3(b); see also Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 124 (2d Cir. 2006) (“sealing of [such] documents may
be justified only with specific, on-the-record findings that sealing is necessary

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to preserve higher values and only if the sealing order is narrowly tailored to
achieve that aim.”).
The Second Circuit “has emphasized that a district court ‘must carefully
and skeptically review sealing requests to insure that there really is an
extraordinary circumstance or compelling need’ to seal court records.” WheelerWhichard v. Doe, No. 10-CV-0358S, 2010 WL 3395288, at *5 (W.D.N.Y. Aug. 25,
2010) (quoting Orion Pictures, 21 F.3d at 27) (internal citation omitted).
Plaintiff has failed to meet the above standard, offering no explanation
or justification for its request to seal other than that the exhibits it seeks to seal
“may contain information considered sensitive” to Defendant and/or Boeing.
(Esterhay Decl. at 1–2, Feb. 5, 2021, ECF No. 164-1.) Accordingly, Plaintiff’s
motion to seal is denied without prejudice. Plaintiff has ten days from the date
of the filing of this decision and order to renew its motion, and, if no motion is
made, the documents sought to be filed under seal will be electronically filed
and available to the public.
CONCLUSION
For the reasons discussed above, the Court finds that Tailored Lighting,
Inc. v. Osram Sylvania Products, Inc., 255 F.R.D. 340 (W.D.N.Y. 2009) applies
to this case regarding the scope and procedure of Plaintiff’s noticed deposition
of Mr. Landau, such that Plaintiff is permitted to conduct a limited-scope
deposition of Mr. Landau on the following issues:
(1) identifying the information provided to and relied upon by Mr.
Landau, whether through communications with individuals or

15

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review of documents, in answering the interrogatories and
requests for admission;
(2) identifying the source (person or record) of that information;
and
(3) non-privileged communications between Mr. Landau and his
human sources about that information that occurred while
investigating and answering the interrogatories and requests for
admission.
The Court also finds that the common interest exception to the attorneyclient privilege does not apply to communications between Mr. Landau and
Boeing’s former in-house counsel, thus permitting Plaintiff to depose Mr.
Landau regarding their communications regarding the OMAC program.
Finally, the Court denies without prejudice Plaintiff’s motion to seal
Exhibits 1, 3, and 5 to Plaintiff’s Response to Defendant’s Brief Regarding Two
Issues Impacting the Appropriate Scope of the Deposition of Mr. Joel Landau
and attached to the Declaration of John D. Esterhay. (ECF No. 164.) Plaintiff
has ten days after the filing of this decision and order to renew its motion, after
which time, if no motion is made, the documents sought to be filed under seal
will be electronically filed and available to the public.
IT IS SO ORDERED.
DATED:

February 17, 2021
Rochester, New York
/s/ Mark W. Pedersen
MARK W. PEDERSEN
United States Magistrate Judge

16