Tzumi Innovations, LLC v. Wheeler

Opinion

U.S. Department of Justice Was Sia DS . United States Attorney a oe . . We Southern District of New York

86 Chambers Street New York, New York 10007

November 9, 2021 BY ECF The Honorable Lorna G. Schofield United States District Judge Thurgood Marshall United States Courthouse 40 Foley Square New York, New York 10007 Re: Tzumi Innovations, LLC v. Regan, et al. No. 21 Civ. 122 (LGS)' Dear Judge Schofield: With plaintiff Tzumi Innovations’ consent, the Government respectfully requests that the Court enter an order authorizing the Government to file a portion of the administrative record in this case under seal. As provided by the Court’s case management order, Dkt. No. 57, the Government will file the administrative record in this matter today. The bulk of that record contains non-confidential material that the Government will file in the public docket. However, the record also includes approximately 85 pages of information in the record that may constitute “confidential business information” (“CBI”) protected from disclosure by EPA’s regulations at 40 C.F.R. part 2, subpart B. These materials include a list of retailers selling Tzumi’s devices, a list of imports of Tzumi’s devices, and various communications between Tzumi, a retailer, and a private product testing company relating to Tzumi’s Wipe Out! product that reference or attach a quote sheet, label artwork, and a test report. Pursuant to EPA’s regulations, EPA generally may not disclose information that is CBI. The regulations authorize the agency to disclose these materials as directed by a Court order, however. Accordingly, EPA respectfully requests, with Tzumi’s consent, that the Court enter an order providing that the Government may file the CBI material in the Court’s docket under seal. The remaining portion of the record will be publicly filed. We thank the Court for its consideration of this request.

' Michael S. Regan, who became the Administrator of the Environmental Protection Agency on March 11, 2021, is automatically substituted for former Administrator Andrew R. Wheeler as the defendant in this action. See Fed. R. Civ. P. 25(d).

The Honorable Lorna G. Schofield November 9, 2021 Page 2

Respectfully submitted, DAMIAN WILLIAMS United States Attorney for the Southern District of New York By: /s/ Allison M. Rovner ALLISON M. ROVNER Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Tel.: (212) 637-2691 Email: Allison.Rovner@usdoj.gov

cc: Counsel of Record (by ECF) Application GRANTED. The EPA shall file the material potentially containing confidential business information under provisional seal. By November 18, 2021, if Plaintiff seeks to seal that material, Plaintiff shall file a letter providing the basis for sealing in accordance with the three-part test in Lugosch. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006). If Plaintiff believes redactions are appropriate, it shall also submit proposed redactions attached to the letter. Dated: November 9, 2021 New York, New York LORNA G. SCHOFIEL UNITED STATES DISTRICT JUDGE