# Shargian v. Shargian

> District Court, E.D. Louisiana · February 8, 2024

URL: https://www.frixlaw.com/law-library/cases/10190479

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** February 8, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10190479

## How later opinions describe it (automated extraction)

- explaining that “the bald assertion of competitive harm is insufficient” to support sealing

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MOSHE SHARGIAN CIVIL ACTION
VERSUS NO. 21-2282
YOEL SHARGIAN SECTION “O”

ORDER AND REASONS

Before the Court is the opposed motion1 of Defendant Yoel Shargian for leave
to file a sealed exhibit to his motion2 in limine to exclude testimony, evidence, or
argument about certain “Private Placement Memoranda” issued by non-party SKK
Opportunity Zone Fund I, LLC. That motion asks the Court to seal the unredacted
deposition transcript of Plaintiff Moshe Shargian’s expert forensic accountant Harold
Asher because, according to Defendant, Asher’s testimony is irrelevant and would put

the multi-million-dollar Charity Hospital redevelopment project at risk. But
Defendant has failed to carry his burden to satisfy “the exacting standard for sealing”
by presenting “compelling countervailing interests” sufficient to rebut “the working
presumption” that Asher’s unredacted deposition transcript should be accessible to
the public. Bin Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 419, 421 (5th Cir. 2021).
For that reason and for those that follow, the motion to seal is DENIED.

1 ECF No. 64.
2 ECF No. 59.
I. BACKGROUND
This case arises from a dispute between cousins Moshe and Yoel Shargian over
an alleged oral contract to split the proceeds of a project to redevelop Charity Hospital

in New Orleans, Louisiana. The facts are recounted in detail in Judge Vance’s opinion
on Defendant’s motion for summary judgment.3 The Court recounts here only those
facts strictly necessary to resolve the narrow motion to seal that is before it.
Plaintiff retained Harold Asher as an expert forensic accountant to opine on
Plaintiff’s alleged damages and other topics.4 Asher formed his opinion after
reviewing a set of financial documents that included the so-called “Private Placement

Memoranda”—prospectuses that SKK Opportunity Zone Fund, an investor in the
Charity Hospital redevelopment project and a partner of Defendant, issued to other
investors.5 The Private Placement Memoranda are subject to a stipulated
confidentiality agreement and protective order;6 they contain “confidential financial
projections and financing structures” of the Charity Hospital redevelopment project.7
Asher gave deposition testimony that criticized representations SKK
Opportunity Zone Fund made to investors in the Private Placement Memoranda.8

Defendant now moves for leave to file an unredacted transcript of that deposition

3 ECF No. 80.
4 ECF No. 59-3 at 8.
5 Id. at 2.
6 ECF No. 44.
7 ECF No. 64-1 at 1–2.
8 ECF Nos. 64-2 (redacted, unsealed) & 64-4 (unredacted, sealed).
testimony as a sealed exhibit to his motion in limine to exclude evidence, testimony,
and argument regarding the Private Placement Memoranda. Plaintiff opposes.9
II. LEGAL STANDARD

“The public’s right of access to judicial proceedings is fundamental.” Binh Hoa
Le, 990 F.3d at 418. After all, “[j]udicial records belong to the American people; they
are public, not private, documents.” Id. at 417. “‘The public has an interest in
transparent court proceedings that is independent of the parties’ interests.’” June
Med. Servs., L.L.C. v. Phillips, 22 F.4th 512, 519 (5th Cir. 2022) (quoting In re Gee,
No. 19-30953, 2019 WL 13067384, at *4 (5th Cir. Nov. 27, 2019) (Elrod, J.,

concurring)). Courts are therefore “duty-bound to protect public access to judicial
proceedings and records.” Binh Hoa Le, 990 F.3d at 417. And Courts should “be
ungenerous with their discretion to seal judicial records.” Id. at 418.
Accordingly, “the working presumption is that judicial records should not be
sealed.” Binh Hoa Le, 990 F.3d at 419; accord, e.g., June Med. Servs., L.L.C, 22 F.4th
at 519–20 (“[W]e heavily disfavor sealing information placed in the judicial record.”).
That working presumption against sealing “can be rebutted only by compelling

countervailing interests favoring nondisclosure.” Bin Hoa Le, 990 F.3d at 421. “And,
to the extent that any sealing is necessary, it must be ‘congruent to the need.’” June
Med. Servs., L.L.C., 22 F.4th at 521 (quoting Binh Hoa Le, 990 F.3d at 420).

9 ECF No. 78.
Before sealing judicial records, the Court “must undertake a case-by-case,
‘document-by-document,’ ‘line-by-line’ balancing of ‘the public’s common law right of
access against the interests favoring nondisclosure.’” Binh Hoa Le, 990 F.3d at 419

(quoting United States v. Sealed Search Warrants, 868 F.3d 385, 390 (5th Cir. 2017)).
“Sealings must be explained at ‘a level of detail that will allow for [Fifth Circuit]
review.’” Id. (quoting Sealed Search Warrants, 868 F.3d at 397). “And a court abuses
its discretion if it ‘mak[es] no mention of the presumption in favor of the public’s
access to judicial records’ and fails to ‘articulate any reasons that would support
sealing.’” Id. (quoting S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993)).

III. ANALYSIS
Defendant moves for leave to file Asher’s unredacted deposition transcript as
a sealed exhibit to Defendant’s motion in limine. Defendant submits that the
unredacted deposition transcript should be sealed for three principal reasons: first,
because Asher based his deposition testimony on a review of confidential business
information that is subject to a protective order; second, because public disclosure of
Asher’s testimony could harm the Charity Hospital redevelopment project; and third,

because Asher’s testimony is irrelevant. The Court considers each argument in turn.
First, Defendant has not carried his burden to justify sealing Asher’s
unredacted deposition transcript simply because Asher based his testimony on a
review of confidential business information subject to a protective order. “That a
document qualifies for a protective order under Rule 26(c) for discovery says nothing
about whether it should be sealed once placed in the judicial record.” June Med.
Servs., 22 F.4th at 521 (quoting Binh Hoa Le, 990 F.3d at 521); accord LOCAL CIVIL
RULE 5.6 (“[R]eference to a stipulation or protective order is not sufficient to establish
the necessity of sealing any document or other tangible item.”). True, “sealing may be

appropriate where [a document] incorporate[s] confidential business information.” N.
Cypress Med. Ctr. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 204 (5th Cir.
2015). But Defendant has not “identif[ied] any particular confidential information”
within the four corners of Asher’s unredacted deposition transcript “that may cause
[Defendant] harm.” Id.; accord Cox Operating, LLC v. Atina M/V, No. 20-CV-2845,
2023 WL 3092797, at *1–2 (E.D. La. Apr. 26, 2023) (Milazzo, J.) (denying motion to

seal “sensitive commercial information” because the movants failed to “identify any
particular confidential information” that would harm them (quotation omitted)). It is
insufficient for Defendant to claim merely that Asher reviewed confidential business
records before his deposition, while saying nothing of what confidential information
Asher may or may not have revealed in the transcript Defendant seeks to seal.
Second, and similarly, Defendant has not carried his burden to support sealing
based on the supposed harm that Asher’s unredacted transcript could cause the

Charity Hospital redevelopment project if that transcript were publicly accessible.
“[A] showing that disclosure of the information sought to be sealed would harm a
party’s reputation or its business is not sufficient to overcome the strong common law
presumption in favor of public access.” Payne v. Payne, No. 3:22-CV-2709, 2023 WL
3136417, at *1 n. 5 (N.D. Tex. Apr. 27, 2023) (citing Brown & Williamson Tobacco
Corp. v. F.T.C., 710 F.2d 1165, 1179 (6th Cir. 1983)). The bare assertion that Asher’s
unredacted deposition transcript would harm the project is inadequate to support
sealing. See Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443,
451 (5th Cir. 2019) (explaining that “the bald assertion of competitive harm is

insufficient” to support sealing); see also Omega Hosp., LLC v. Cmty. Ins. Co., 14-CV-
2264, 2015 WL 13534251, at *4 (E.D. La. Aug. 12, 2015) (Barbier, J.) (denying motion
to seal “confidential and proprietary business information” because the movant
offered only “broad, unsupported allegations” to support its sealing request).
Third, the asserted irrelevance of Asher’s deposition testimony to Plaintiff’s
breach-of-contract claim is not an independent ground for sealing. Whatever the

relevance of Asher’s deposition testimony to that claim, Defendant has made Asher’s
testimony relevant to the public’s understanding of this litigation by submitting
Asher’s deposition transcript in support of Defendant’s pending motion in limine.
That motion in limine asks the Court to award Defendant affirmative, meaningful
relief—an order excluding evidence about the Private Placement Memoranda—based
in part on the very deposition testimony that Defendant asks the Court to seal.
Obliging Defendant’s request would lead to an “important judicial decision[]” being

“made behind closed doors and then announced in conclusive terms to the public, with
the record supporting the court’s decision sealed from public view.” United States v.
Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010) (quoting In re
Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 230 (5th Cir. 2008)).
Finally, the two cases Defendant cites do not support sealing Asher’s
unredacted deposition transcript. The first case considered an unopposed motion to
seal exhibits that “primarily contain[ed] trade secrets and confidential information.”
Acad. of Allergy & Asthma in Primary Care v. La. Health Serv. & Indem. Co., 18-CV-
399, 2023 WL 3862033, at *1–3 (E.D. La. June 7, 2023) (Currault, M.J.). The court

granted the motion in part, “adjust[ing]” the movant’s proposed redactions “to shield
from the public view only the confidential business information and detailed financial
records contained within each exhibit.” Id. The sealing analysis there does not inform
the sealing analysis here for a fundamental reason: Unlike the movant there,
Defendant here has not specifically identified any confidential business information
within the four corners of Asher’s deposition transcript that would harm Defendant.

Defendant’s second cited case also does not meaningfully advance Defendant’s
argument. See Mendoza v. Doyle Int’l La., LLC, No. 17-CV-437, 2019 WL 5391389, at
*3 (M.D. La. Oct. 22, 2019). Mendoza granted a party’s unopposed motion to seal a
document filed by another party but later withdrawn from the record. Id. The court
reasoned that the strong presumption of public access did not attach because the
motion sought to seal “a proposed pleading that was withdrawn.” Id. That rationale
does not apply here. Unlike the proposed pleading in Mendoza, Asher’s deposition

transcript has not been withdrawn; it remains in the record because Defendant put
it there—as an attachment to Defendant’s own motion in limine.
In sum, Defendant has failed to carry his burden to satisfy “the exacting
standard for sealing” by presenting “compelling countervailing interests” sufficient to
rebut “the working presumption” that Asher’s unredacted deposition transcript
should be accessible to the public. Bin Hoa Le, 990 F.3d at 419 & 421.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that Defendant’s opposed motion for leave to file the
unredacted deposition transcript of Plaintiffs expert forensic accountant Harold
Asher as a sealed exhibit to Defendant’s motion in limine to exclude testimony,
evidence, and argument regarding the Private Placement Memoranda is DENIED.

IT IS FURTHER ORDERED that if Defendant wishes to withdraw the
motion in limine, Asher’s unredacted deposition transcript, or both, Defendant must
file a motion to withdraw by February 15, 2024. If Defendant does not timely move
to withdraw, the Clerk of Court is respectfully directed to unseal and file into the
public record Asher’s unredacted deposition transcript!° on February 16, 2024.

New Orleans, Louisiana, this 8th day of February, 2024.

BRANDON 8. LONG
UNITED STATES DISTRICT JUDGE

10 ECF No. 64-4.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10190479. Public record. Not legal advice.