Doe 1 v. The College Board

IM □□□ NO. 25 dddress GO MOU daaress Udge secrets, sOUCEeS OF DUSIMES5S DOCUMENT

or other sensitive topics sufficient to warrant sealing. The vast majority of the

for which Defendants seek redaction is available in the publicly filed Complaint (Dkt. | OAWILMERMALE >

the SAT "Terms and Conditions" document (Dkt. No. 8-1), the transcript from the July 18, DO :

conference (Dkt. No. 12) and in filings concerning arbitration (Dkt. Nos. 8, 16, 19). SO DATE FILED: 2/18/2020

: February 18, 2020 Alan E. Schoenfeld

February 14, 2020 +1212 907 724

LorNa G. SCHOFIEL cow,

VIA ECF UNITED STATES DISTRICT JUDGE alan.schoenfeld@wilmerhale.com

Honorable Lorna G. Schofield

United States District Court

Thurgood Marshall United States Courthouse

40 Foley Square

New York, New York 10007

Re: John Doe #1 et al. v. The College Board, No. 19-cv-6660 (LGS)

Dear Judge Schofield,

This firm represents the College Board in the above-referenced matter. I write pursuant

to the Court’s Order dated February 10, 2020, ECF No. 20, which called for the submission of

additional evidence and invited the parties to submit a motion to seal, as appropriate. Consistent

with that Order and the Court’s Individual Rules, the College Board has filed a provisionally

redacted Affidavit of Camille Thompson. ECF No. 24. The College Board requests that the

Court so-order the proposed highlighted redactions at ECF No. 23.

“Although the common law right of public access to judicial documents is firmly rooted

in our nation’s history, this right is not absolute, and courts must balance competing

considerations against the presumption of access.” Allianz Global Investors GMBH v. Bank of

Am. Corp., No. 18 Civ. 10364, ECF No. 293 (S.D.N.Y. Sept. 17, 2019) (Schofield, J.) (internal

quotation marks and alterations omitted) (quoting Lugosch v. Pyramid Co. of Onondaga, 435

F.3d 110, 119-20 (2d Cir. 2006)). These competing considerations include, among others, “trade

secrets and sources of business information that might harm a litigant’s competitive standing,”

Deodona I, LLC v. Goldman, Sachs & Co., 119 F. Supp. 3d 152, 155 (S.D.N.Y. 2015), as well as

the privacy interests of minors, see P.M. v. Evans-Brant Cent. Sch. Dist., 2008 WL 4379490, at

*3 (W.D.N.Y. Sept. 22, 2008).

The College Board submits that the proposed redactions at ECF No. 23 are narrowly

tailored and that the privacy interests protected by those redactions overcome the presumption of

public access. These redactions are especially appropriate given the unusually sensitive topics

implicated here. This is not a run of the mill commercial dispute. To substantiate the issues

discussed at the July 18, 2019 hearing, Ms. Thompson’s affidavit must address highly sensitive

matters, including the misconduct of minor students as well as the College Board’s procedures

for handling cases of test taker misconduct. How the College Board identifies misconduct on the

SAT is the College Board’s version of the formula for Coke: highly confidential, trade secret,

and core to its business and the public interest it serves.

Failure to safeguard this information would not only prejudice the College Board’s

commercial interests, but it could also make its misconduct detection procedures more

Wilmer Cutler Pickering Hale and Dorr itp, 7 World Trade Center, 250 Greenwich Street, New York, New York 10007

Beijing Berlin Boston Brussels Denver Frankfurt London Los Angeles New York Palo Alto Washington

Hon. Lorna G. Schofield WILMERHALE

February 14, 2020

Page 2

vulnerable to circumvention. This is not a remote threat. See, e.g., Hurtado, College Board

Targets SAT Loophole in Bid to Avert Cheating, Bloomberg (May 17, 2019)

https://www.bloomberg.com/news/articles/2019-05-17/sat-loophole-targeted-by-college-board-

in-bid-to-avert-cheating; Dudley, How test-prep companies swiftly exposed the brand-new SAT,

Reuters (March 28, 2016), https://www.reuters.com/investigates/special-report/college-sat-two;

Anderson, 20 Students Now Accused in L.I. Case on Cheating, The New York Times (Nov. 22,

2011), https://www.nytimes.com/2011/11/23/education/more-students-charged-in-long-island-

sat-cheating-case.html.

Courts regularly permit sealing where disclosure threatens commercial harm or

competitive disadvantage. See, e.g., Dalla-Longa v. Magnetar Capital LLC, No. 19-cv-11246,

ECF No. 26 (S.D.N.Y. Jan. 20, 2020) (Schofield, J.) (“But for the redactions identified below,

the proposed redactions are necessary to prevent unauthorized dissemination of confidential

business information.”); Louis Vuitton Malletier S.A. v. Sunny Merch. Corp. 9L EF. Supp. 3d 485,

S11 (S.D.N.Y. 2015) (redactions of “confidential business information” including “internal

business documents” and “information about [ ] business operations” held “justified”); Dodona [,

LLC, 119 F. Supp. 3d at 156 (granting request to seal information concerning “trading strategies,

objectives and transactions”); see also Standard Inv. Chartered, Inc. v. Fin. Indus. Regulatory

Auth., Ind., 347 F. App’x 615, 616-17 (2d Cir. 2009) (presumption was overcome where

disclosure would subject party to financial harm and competitive disadvantage).

Filing under seal is also appropriate where, as here, it could undermine the College

Board’s efforts to detect and thwart misconduct. Louis Vuitton Malletier, 97 F. Supp. 3d at 511

(sealing Louis Vuitton’s “enforcement policies and investigation information”); see also Encycl.

Brown Prods., Ltd. v. Home Box Office, Inc., 26 F. Supp. 2d 606, 614 (S.D.N.Y. 1998) (allowing

sealing where disclosure “may provide valuable insights into a company’s current business

practices that a competitor would seek to exploit”).

For the foregoing reasons, the College Board respectfully requests the Court so-order its

proposed redactions at ECF No. 23.

We are, of course, available to discuss this or any other matter.

Respectfully submitted,

/s/ Alan E. Schoenfeld

Alan E. Schoenfeld

ce: All counsel of record (via ECF)