Posted: February 7, 2018

Magistrate Judge Pollak Denies Motion To File Reply Under Seal Explaining That The Requirements To File Under Seal Are More Exacting Than Confidentiality Under A Discovery Protective Order

Posted by Solomon N. Klein, Litigation Partner

Magistrate Judge Cheryl L. Pollak recently denied a plaintiff’s motion to file her reply under seal despite a confidentiality stipulation and order requiring that documents designated as confidential be filed under seal. (Martinez v. City of New York, 16 CV 79 (E.D.N.Y. Jan. 26, 2018) (AMD)(CLP)). The Court explained that the nature of what is confidential under a discovery protective order is quite different than the requirements for a document to be filed under seal. In the confidentiality stipulation in this particular case, the burden of filing the motion to seal confidential documents was imposed on the party wishing to use the documents in court.

The court order does not spell out the nature of the documents and the party that claimed confidentiality, but the general scenario is quite familiar to civil litigators: Documents are produced in discovery with confidentiality designations – often using broad designations with the consent of the parties – and the receiving party then wishes to use them in submissions to the court.

(Practitioner Tip: This type of stipulation, which requires the receiving party to move to seal, provides little incentive to the producing party to avoid a motion to file under seal, even where the nature of the information is only marginally confidential. The New York State Commercial Division has attempted to resolve this issue by allowing parties to temporarily file redacted copies of the filing which are to be replaced with unredacted copies within 7 days unless the producing party moves to seal the documents.)

The Court in Martinez explained:

[T]he decision to allow documents to be filed under seal in connection with motions and court proceedings is a wholly separate inquiry governed by a different standard than whether to maintain documents disclosed in discovery in confidence.” Johnson v. Federal Bureau of Prisons, No. 16 CV 3919, 2017 WL 5197143, at *3 (E.D.N.Y. Nov. 9, 2017). To determine whether it is appropriate to allow documents to be filed under seal, courts engage in a two-part inquiry.

First, the court decides how strong a presumption of access a document deserves with reference to its role in the judicial process. Next, the court will “balance the weight of that presumption, if any, with competing interests, namely, the private interests and concerns of judicial efficiency and law enforcement, to determine whether or not to seal a document.” Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999).

A “judicial document” is one that is presented to the Court and “relevant to the performance of the judicial function and useful in the judicial process.” United States v. Amodeo (“Amodeo I”) , 44 F.3d 141, 145 (2d Cir. 1995). Such documents are presumptively subject to public inspection and thus not properly sealed. See id. at 146. The presumption of access that attends judicial documents stems both from the common law tradition and from the Constitution: “[a]s the exercise of Article III [judicial] powers is a formal act of government, it should be subject to public scrutiny absent exceptional circumstances.” Cumberland Packing Corp. v. Monsanto Co. , 184 F.R.D. at 505.

In contrast to judicial documents, “[d]ocuments that play no role in the performance of Article III functions . . . lie entirely beyond the presumption’s reach . . . and stand on a different footing than a motion filed by a party seeking action by the court or . . . any other document which is presented to the court to invoke its powers or affect its decisions.” United States v. Amodeo (“Amodeo II”) , 71 F.3d 1044, 1050 (2d Cir. 1995) (emphasis added) (citations and quotation marks omitted).

The Court has reviewed plaintiff’s Reply and has determined that good cause to file the Reply under seal is lacking. The Reply was presented to the Court in connection with a motion for sanctions that resulted in this Court’s Recommendation that dispositive sanctions be imposed on the defendants. (See generally 1/25/2018 Report and Recommendation, ECF No. 100). The document is therefore subject to the presumption of public access. No party has offered, and the Court is unable to discern, any competing interests, let alone interests that would defeat the public’s presumptive right of access.

(Martinez v. City of New York, 16 CV 79 (E.D.N.Y. Jan. 26, 2018) (AMD)(CLP)).

The Court then directed plaintiff to file her reply on the public docket and directed either party to inform the Court if the exhibits related to the briefing that had been filed under seal “should be unsealed under the analysis provided in the order.”

Posted by Solomon N. Klein, Litigation Partner

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