Johnson v. McMorrow

Opinion

° Arthur G. Larkin Hale & Monico LLC Direct (646) 858-1180 alarkin@ahalelaw.com 53 W. Jackson Blvd. 7 S. Fairview, Ste. 201 456 Fulton Ave. The Woolworth Building Ste. 330 Park Ridge, IL 60068 Ste. 218 233 Broadway Chicago, IL 60604-3406 847-696-9021 (fax) Peoria, IL 61602 Ste. 820 312-341-9656 (fax) 309-637-1106 (fax) 646-858-1180

June 1, 2020 BY ECF The Court has modified the proposed stipulation to remove orig Hon. Lisa M. Smith paragraph 5 (in an appropriate circumstance a party may seek | United States Magistrate Judge order to prevent a party from having possession of a particular United States District Court . 300 Quarropas Street document), renumbered the paragraphs including internal refer New York, New York 10601 to paragraphs, has not adopted the proposal to provide names addresses of complainants (in an appropriate circumstance a re Re: Johnson v. McMorrow, 19-CV-6480 (NSR) (LMS) may be made to the Court for the information), has adopted pla Your Honor: . language for bringing a matter to the Court, and has retained or We write in connection with the draft confidentiality stipulation (the “Stipulation’’). paragraph 19, now paragraph 18. As the matters were not agre Attached is the redlined draft that reflects the four (4) provisions on which the parties disagree. The redlined changes on the attache EMRE ASP. rderede At is.ne longer a stipulation the Note end of the Order. 80 ORDERED: ont We summarize plaintiff’s position below. ion, Lisa MaSdaret Smith U.S.M.d. First, on page three, plaintiff objects to defendants’ proposed paragraph by which 6/5/2C defendants seek to prevent the plaintiff from having any copies of “confidential” information, and would instead allow the undersigned only to show copies of “confidential” materials to the plaintiff during in-person meetings. We submit that this provision is unreasonable particularly in light of the Covid-19 restrictions on travel and meetings. The plaintiff is subject to the provisions of the Stipulation and may not share “confidential” information with unauthorized persons. To the extent defendants have concerns about dissemination of confidential information, those concerns are adequately addressed by the Stipulation’s other terms.

modified to allow for disclosure of the names and addresses of persons who filed complaints

against the named defendants, if any are ordered to be disclosed. Those persons may be witnesses either at deposition or trial. Third, on page 7, we submit that the party asserting confidentiality should bear the burden of moving for appropriate relief in the event that counsel cannot resolve any dispute over confidentiality. “To the extent a party seeks a protective order under Rule 26(c), that party ‘has the burden of showing that good cause exists for issuance of that order.’” Rocky Aspen Management 204 LLC v. Hanford Holdings LLC, 394 F. Supp. 3d 461, 465 (S.D.N.Y. 2019) (quoting Gambale v. Deutsche Bank AG, 377 F.3d 133, 142 (2d Cir. 2004)). “Ordinarily, good cause exists when a party shows that disclosure will result in a clearly defined, specific and serious injury.” Id. (citing In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222

(S.D.N.Y. 2006)). “[T]he grant and nature of protection is singularly within the discretion of the district court.” Id. (quoting Dove v. Atlantic Capital Corp., 963 F.2d 15, 19 (2d Cir. 1992)). Because the party seeking confidential treatment for discovery materials bears the burden of demonstrating “good cause,” that party should bear the burden of seeking court intervention in the event of any dispute. In the absence of a stipulated order, the Rule would operate in that manner, e.g., the party asserting confidentiality would bear the burden of seeking relief. We further submit that failure to move should constitute a waiver of any claim to confidentiality. Fourth, we submit that paragraph 19 on page 8 is superfluous and should be deleted. Respectfully submitted,

/s/ Arthur G. Larkin, Esq. HALE & MONICO LLC AGL/m cc: All Counsel (by ECF)