Witchko v. Schorsch

Opinion

Case 1:15-cv-06043-AKH Document 300 Filed 01/10/20 Page 1 of 3

UNITED STATES DISTRICT COURT | USDC SDNY SOUTHERN DISTRICT OF NEW YORK DOCUMENT

JOANNE WITCHKO, Derivatively on Behalf of : DOC #: Nominal Defendant AMERICAN REALITY DATE FILED: \ (¢] 2o ZOD CAPITAL PROPERTIES, INC., apettonane- Plaintiff, Lead Case No. 15-cv-6043-AKH Vv. : (Consolidated with Case No. 15-cv- NICHOLAS S. SCHORSCH, et al., Defendants, jee wp and Y ieee \" AMERICAN REALITY CAPITAL PROPERTIES, | INC., ! Nominal Defendant.

NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE UNDER SEAL DOCUMENTS

PLEASE TAKE NOTICE that pursuant to Rule 4(B)(i) of this Court’s Individual Rules of Practice and the Joint Stipulation and Protective Order entered by the Court in Jn Re American Capital Properties, Inc. Litigation, Civ. No. 1:15-mc-00040-AKH on November 15, 2016 (ECF No. 324) (the “Protective Order”), Derivative Plaintiffs, by their attorneys, hereby move the Court for leave to file under seal Exhibits E-DD to the Supplemental Declaration of Matthew M. Houston In Support Of Derivative Counsel’s Motions For Final Approval Of Derivative Settlement And Award Of Attorney’s Fees And Reimbursement Of Expenses. Exhibits E-DD are the billing and expense records for Plaintiffs Derivative Counsel. Although these exhibits will be provided to counsel of record in this action, Derivative Counsel believe such billing records are subject to

Case 1:15-cv-06043-AKH Document 300 Filed 01/10/20 Page 2 of 3

the attorney client privilege and should be withheld from public disclosure. In New York, bills detailing an attorney’s work on behalf of the client are clearly privileged. Ehrich v. Binghampton City School Dist. et al., 210 F.R.D. 17, 20 (N.D.N.Y. 2002). In De La Roche vy. De La Roche, 209 A.D.2d 157, 159, 617 N.Y.S.2d 767, 769 (App. Div. Ist Dep’t 1994), the Appellate Division stated: [B]ills showing services, conversations, and conferences between counsel and others are protected from disclosure. To allow access to such material would disclose discovery and trial strategy, and reveal the factual investigation and legal work that has been done by [the party's] attorneys. (quoting Licensing Corp. v. National Hockey League Players Ass’n., 153 Misc. 2d 126, 127-28, 580 N.Y.S.2d 128 (Sup. Ct. N.Y. County 1992) (holding, pursuant to CPLR 4503, attorney bills that were detailed diaries showing services, conversations, and conferences were privileged since, “[a]lthough the documents themselves do not provide legal advice to [the client], disclosure would reveal certain privileged communications”)). New York courts have uniformly adhered to this principle. Teich v. Teich, 245 A.D.2d 41, 665 N.Y.S.2d 859 (App. Div. Ist Dep’t 1997); Eisic Trading Corp. v. Somerset Marine, Inc., 212 A.D.2d 451, 622 N.Y.S. 2d 728 (App. Ist Dep’t Div. 1995); Orange County Publ'n, Inc. v. County of Orange, 168 Misc. 2d 346, 637 N.Y.S.2d 596 (Sup. Ct. Orange County1995). Although Derivative Plaintiffs have designated Exhibits D-EE as privileged and confidential, pursuant to Paragraph 5(a) of the Protective Order and this Court's Individual Rule 4, Derivative Plaintiffs are contemporaneously: (a) submitting copies of Exhibit E-DD to the Court; and (b) serving copies of the same to the other parties to this action.

Case 1:15-cv-06043-AKH Document 300 Filed 01/10/20 Page 3 of 3

Dated: January 10, 2020 Respectfully submitted, GLANCY PRONGAY & MURRAY LLP Lg LB, Z 2 Eo Sige Aatthew M. Houston Benjamin I. Sachs-Michaels 712 Fifth Avenue, 3lst Floor New York, NY 10019 Tel: (212) 935-7400 Fax: (212) 756-3613

. Liaison Counsel for Plaintiffs