FD Special Opportunities V, LLC v. Silver Arch Capital Partners, LLC

Opinion

BERNSTEIN CHERNEY LLP ATTORNEYS AT LAW 955 Park Avenue, Fifth Floor West New York, N.Y. 10028

Hartley T. Bernstein, Esq. Phone: (212) 381-9684 Fax: (646) 304-8070 hbernstein@bernsteincherney.com September 28, 2023 Hon. Jennifer L. Rochon U.S.M.J. United States Courthouse 500 Pearl Street New York N.Y. 10007 Re: FD Special Opportunities V, LLC et al v. Silver Arch Capital Partners LLC et al, 21-cv-00797(VM) Dear Judge Rochon: We represent Defendants Silver Arch Capital Partners, LLC (“SACP”), Jeffrey Wolfer and Matthew Cole in the above-referenced litigation. We are today filing a Motion for Summary Judgment on behalf of Defendants. We are requesting that Exhibits 9, 12, 23, 24, 25 and 26 be filed under seal pursuant to the Protective Order in this litigation. In accordance with Your Honor’s Individual Rules of Practice we have done so, pending Your Honor’s approval of this request. Please advise us of any other action we need to take in order to assure that these Exhibits remain under seal.

Respectfully, Nastiey 7. Bernation Hartley T. Bernstein DENIED without prejudice to renewal. Defendants request to seal documents solely on the basis of a protective order i However, Rule 4(B)(i1) of the Court's Individual Rules makes clear that, "[i]n general, the parties’ consent or the fact that is subject to a confidentiality agreement between litigants is not, by itself, a valid basis to overcome the presumpt of public access to judicial documents.” (emphasis added). In other words, “that a document was produced in discove to a protective order has no bearing on the presumption of access that attaches when it becomes a judicial document.” / Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-mc-02542 (VSB), 2023 WL 196134, at *5 (S.D.N.Y. Jan. 1’ ) (quoting Doe v. U.S. Immigr. & Customs Enforcement, No. 19-cv-08892 (AJN), 2021 WL 3862708, at *3 (S.D.N.Y. Aug. )); see Dodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015) (“Thus, even if material is prop as Confidential or Highly Confidential by a protective order governing discovery, that same material might not overc« resumption of public access once it becomes a judicial document.”). Instead, Defendants must demonstrate that sealing (or is warranted under both the "common law right of public access to judicial documents" and the press and public's First Amendment right to attend judicial proceedings and to access certain judicial documents.” Lugosch v. Pyramid ( 435 F.3d 110, 119-20 (2d Cir. 2006) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004)). ndants have not done so. Accordingly, their request is DENIED. If Defendants wish to renew their request, they shall file □ e letter-motion by October 3, 2023, and the document(s) they seek to redact or seal in accordance with Rules 4(B)(iii)(b)-(c Individual Rules of Practice in Civil Cases. The letter-motion shall provide sufficient explanation and be narrowly to the Lugosch standard. If no renewed motion is made by that date, the Court will direct the Clerk of Court to unseal th ments at that time. The Clerk of Court is directed to terminate ECF Nos. 161 and 165, SO ORDERED. September 28. 2023 OD yt fa“