Carrington v. Graden

New +Y1o.r2k1, 2N.8Y4 180.4002020-6069

D: 212.848.4424 sfishbein@shearman.com

D: 212.848.4432 christopher.lavigne@shearman.com

September 4, 2020

BY ECF AND EMAIL

The Honorable Katherine Polk Failla MEMO ENDORSED

United States District Judge

40 Foley Square

New York, New York 10007

Re: Rovier Carrington v. Brian Graden, et al., No. 18-cv-04609 (KPF)

Dear Judge Failla:

We write, pursuant to Rule 9(C) of Your Honor’s Individual Rules of Practice in Civil

Cases, on behalf of all Defendants in the above-captioned matter to seek leave to file under

seal Exhibit 3 to Defendants’ pre-motion letter filed on September 4, 2020 (the “Letter”).

As set forth in the Letter, Defendants request an expedited pre-motion conference in

advance of seeking an injunction against Mr. Carrington to prevent him from filing additional

claims related to the subject matter of this case without leave of this Court. Defendants

attached Exhibit 3 to the Letter, an August 27, 2020 “settlement demand” from Mr. Carrington,

because it demonstrates Mr. Carrington’s latest threat to file suit, his extortive demands, and the

need for an injunction to avoid potentially imminent litigation. Exhibit 3 also includes a litany of

inflammatory allegations against Defendants and their counsel that are directly related to those

that have already been litigated and resolved pursuant to the Court’s October 11, 2019 Order,

which imposed terminating sanctions upon Plaintiff, dismissed the action with prejudice against

all Defendants, and granted Defendants leave to submit applications for attorneys’ fees and

costs against Plaintiff. Dkt. No. 147. Exhibit 3 also asserts equally incendiary allegations

concerning non-parties to this action and identifies them by name (including public figures who

are not parties to this litigation).

Accordingly, Defendants request to file Exhibit 3 under seal. While a presumption of

public access attaches to all judicial documents, whether this presumption prevails over a

party’s request to seal requires a three part analysis: (i) whether the document is in fact a

judicial document, (ii) the strength of the presumption that attaches to the document in question,

and (iii) whether competing considerations outweigh the presumption that attaches to the

document. Olson v. Major League Baseball, No. 20-CV-632 (JSR), 2020 WL 3127313, at *2

(S.D.N.Y. June 12, 2020). Here, this analysis weighs in favor of sealing Exhibit 3.

First, as a private settlement communication between parties, Exhibit 3 does not

constitute a “judicial document” because it is not “relevant to the performance of the judicial

function [or] useful in the judicial process.” United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.

1995); see also Wolinsky v. Scholastic Inc., 900 F. Supp. 2d 332, 337 (S.D.N.Y. 2012) (“[I]n

many—if not most—cases, a settlement agreement would not qualify as a ‘judicial

document’….”).

Second, even if Exhibit 3 were to be deemed a “judicial document,” the confidentiality

and privacy considerations attendant with the letter outweigh the presumption of public access.

For example, courts generally consider settlement communications such as Exhibit 3 to be non-

public and sensitive. See Schoeps v. Museum of Modern Art, 603 F. Supp. 2d 673, 676

(S.D.N.Y. 2009) (granting sealing of settlement agreement and noting that “the Second Circuit

strongly endorses the confidentiality of settlement agreements in virtually all cases”); Travelers

Indem. Co. v. Excalibur Reinsurance Corp., No. 3:11-CV-1209 (CSH), 2012 WL 13029602, at

*10 (D. Conn. May 10, 2012) (finding that confidential settlement negotiations were a

“compelling reason[]” to seal documents). In addition, Exhibit 3 includes allegations of

wrongdoing that have not been filed publicly, including ones relating to non-parties to this

litigation. These privacy interests “of innocent third parties ... should weigh heavily in a court's

balancing equation” in determining whether to allow a document to be filed under seal. United

States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) (internal quotation marks and alterations

omitted); see also Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 603 (1978) (holding that

access to judicial documents should not be permitted “to gratify private spite or promote public

scandal with no corresponding assurance of public benefit”).

We thank the Court for its attention to this matter.

Respectfully submitted,

SHEARMAN & STERLING LLP

s/ Christopher LaVigne

Stephen Fishbein

Christopher LaVigne

599 Lexington Avenue

New York, New York 10022-6069

Telephone: (212) 848-4000

sfishbein@shearman.com

christopher.lavigne@shearman.com

Attorneys for Defendants ViacomCBS Inc.,

Viacom International Inc., and

Paramount Pictures Corporation

RUSS AUGUST & KABAT

s/ Stanton L. Stein

Stanton L. Stein

Diana A. Sanders

12424 Wilshire Boulevard, 12th Floor

Los Angeles, California 90025

Telephone: (310) 826-7474

lstein@raklaw.com

dsanders@raklaw.com

Attorneys for Defendants Brian Graden

and Brian Graden Media, LLC

LOEB & LOEB LLP

s/ Wook Hwang

Wook Hwang

Sarah Schacter

345 Park Avenue

New York, New York 10154-1895

Telephone: (212) 407-4000

whwang@loeb.com

sschacter@loeb.com

Attorneys for Defendants Brad Grey,

Brad Grey Estate, and Brad Alan Grey Trust

Cc via email: Plaintiff (RovierCarrington@gmail.com); Counsel G. Scott Sobel

(GscottSobel@gmail.com)

Application GRANTED. The Clerk of Court is permitted to file under seal

Exhibit 3 to its letter at docket entry 174, viewable to the Court and

parties only.

Dated: September 8, 2020 SO ORDERED.

New York, New York

HON. KATHERINE POLK FAILLA

UNITED STATES DISTRICT JUDGE