“Examples of such countervailing values may include, depending on the circumstances . . . the protection of attorney-client privilege.” (citing Lugosch, 435 F.3d at 125)
How later courts described this case
- “Examples of such countervailing values may include, depending on the circumstances . . . the protection of attorney-client privilege.” (citing Lugosch, 435 F.3d at 125)
- “[I]ndividuals, including government employees and officials, have privacy interests in the dissemination of their names.”
Written by the judges who cited it.
The opinion
(eager ee eee EE EEE SIE SEES ISIE SSE
SEES United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007
June 29, 2021
BY ECF and Federal Express
Honorable Ronnie Abrams
United States District Judge
Thurgood Marshall United States Courthouse
40 Foley Square
New York, New York 10007
Re: Susan V. Wallace v. Christine Wormuth, 18 Civ. 6525 (RA) (SN)
Dear Judge Abrams:
This Office represents defendant Christine Wormuth (“Defendant”), the Secretary of the
Army, in the above-referenced case. We write to follow up on our letter dated June 16, 2021, to
request that the record of the proceedings before the Merit Systems Protection Board (“MSPB”)
related to Plaintiffs claims be filed under seal, with a redacted version to be filed with the Clerk
of Court by DVD.
On June 16, 2021, Defendant filed a letter motion for leave to file the MSPB record by
DVD, due to the size of the record. (Dkt. No. 112.) Defendant simultaneously mailed the Court
a DVD containing a copy of the record. (/d.) On June 17, 2021, the Court granted Defendant’s
request. (Dkt. No. 123.) We subsequently determined that portions of the record consist of
communications protected by the attorney-client and/or work product privileges, or reference
Equal Employment Opportunity (“EEO”) complaints or requests for accommodation by specific
U.S. Army Corp of Engineers (“USACE”) employees. The record contains such materials
because Plaintiff was employed as an attorney in the USACE Office of Counsel, and certain of
the communications in the record reflect discussions involving or among attorneys concerning
legal issues arising in the context of litigation, contract negotiations, or other legal matters.
Accordingly, we write in accordance with Section 5.A.i1 of Your Honor’s Individual
Practices to request a protective order pursuant to Federal Rule of Civil Procedure 5.2(e),
permitting the Government to redact privileged portions of the MSPB record in the public
version while submitting an unredacted record to the Court for its review. Defendant has
conferred with counsel for Plaintiff, who does not object to the redactions.
Defendant’s proposed redactions affect only a small portion of the MSPB record and,
given the nature of the redacted material, are proper. While judicial documents are accorded a
presumption of public access, see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20
(2d Cir. 2006), courts may issue protective orders permitting the redaction of information for
“good cause,” Fed. R. Civ. P. 5.2(e)(1). “The Second Circuit has set forth a three-part analysis
for determining whether documents relating to a lawsuit must be made available to the public.”
The Honorable Ronnie Abrams
Page 2 of 2
Stern v. Cosby, 529 F. Supp. 2d 417, 420 (S.D.N.Y. 2007). First, the court must determine
whether the documents at issue are “‘judicial documents.’” Jd. at 420 (quoting Lugosch, 435
F.3d at 119). Second, the court must determine the “weight of the presumption” of public
access. /d. Third, the court must weigh countervailing interests against the presumption. Jd.
Here, the majority of the material redacted from the public version of the MSPB record consists
of communications protected by the attorney-client and/or work product privileges. The
protection of such communications constitutes a “countervailing value” that weighs against the
presumption of public access. See, e.g., Brown v. Maxwell, 929 F.3d 41, 47 n.13 (2d Cir. 2019)
(“Examples of such countervailing values may include, depending on the circumstances . . . the
protection of attorney-client privilege.” (citing Lugosch, 435 F.3d at 125)). Similarly, the
redaction of the names of USACE employees who filed EEO complaints or requested reasonable
accommodations are intended to protect those individuals’ privacy interests—which likewise
constitute countervailing interests weighing against the presumption of public access. See, e.g.,
Massey v. FBI, 3 F.3d 620, 624 (2d Cir. 1993) (“[I]ndividuals, including government employees
and officials, have privacy interests in the dissemination of their names.”). These countervailing
interests supporting the Government’s redactions overcome the presumption of public access that
attaches to the MSPB record.
For the foregoing reasons, Defendant respectfully requests that the Court permit
Defendant to maintain the proposed redactions in the version of the MSPB record that will be
filed with the Clerk of Court by DVD. In accordance with Your Honor’s Individual Practices,
enclosed is a copy of the portions of the MSPB record with proposed redactions, with those
proposed redactions denoted, as well as a copy of the redacted record that we propose to file with
the Clerk of Court.
We thank the Court for its attention to this request.
Respectfully submitted,
AUDREY STRAUSS
United States Attorney for the
Southern District of New York
By: /s/ Rachael L. Doud
Application granted. The proposed RACHAEL L. DOUD
redactions to the MSPB record are JENNIFER C. SIMON
appropriate, and Defendant may Assistant United States Attorneys
file the redacted version with the 86 Chambers St., 3rd Floor
Clerk of Court. New York, New York 10007
(212) 637-3274
SO ORDERED.
on. Ronnie Abrams
07/09/2021