The opinion
The parties’ letter-motion (ECF No. 490) requesting to redact confidential information from Plaintiffs’
reply submission is GRANTED. The redactions to Plaintiffs’ submission referenced in ECF No. 490, and
requested by both Plaintiffs and Defendants, may be filed under seal, viewable only to the parties and
the Court.
‘)
The Clerk of Court is respectfully directed to terminate ECF No. 490. C ails Hn
( SARA L. a
SO ORDERED 11/10/2021 United States Magistrate Judge
VIA ECF
Magistrate Judge Sarah L. Cave
Daniel Patrick Moynihan Courthouse
500 Pearl Street, Room 1670
New York, NY 10007
Re: Jowa Pub. Emps.’ Ret. Sys. et al. v. Bank of Am. Corp. et al., No. 17-cv-6221
(KPF/SLC)
Dear Judge Cave:
Section 9 of the Protective Order (Dkt. Nos. 150, 228) provides that for any filing that
quotes or refers to discovery material that has been designated Confidential, Highly Confidential,
or Highly Confidential Data, the party “shall request to file such documents or portions thereof
containing or making reference to such material or information in redacted form or under seal.”
Consistent with the process this Court approved for such requests (Dkt. No. 408), and prior
approvals (Dkt. No. 443) the Parties now move for sealing or redaction of certain materials filed
with Plaintiffs’ Reply in Support of Plaintiffs’ Class Certification Motion. The Parties’
justifications for sealing or redacting those materials under Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006), and its progeny are as follows.
Plaintiffs’ Justifications and Designations
Plaintiffs’ reply papers quote from, discuss, and refer to discovery material produced by
certain Parties subject to confidentiality designations, which include trade secrets, other
confidential research, development, or commercial information, or other private or competitively
sensitive information, including personal data. Accordingly, Plaintiffs request that the marked
portions of Plaintiffs’ reply memorandum of law, portions of Exhibits 163 and 164 to the
Declaration of Daniel L. Brockett dated October 5, 2021 (“Brockett Reply Declaration’), and the
Brockett Reply Declaration itself, be filed in redacted form.
Plaintiffs’ reply memorandum and certain supporting materials also quote from, discuss,
and refer to the substance of discovery material produced by Third-Parties subject to
confidentiality designations, which likewise include trade secrets, other confidential research,
development, or commercial information, or other private or competitively sensitive information,
including personal data. Plaintiffs have proposed, and Defendants have had the opportunity to
review, filing under seal or with redactions consistent with the designations made by Third-
Parties and Lugosch, except where such Third-Parties have provided their consent for such
materials to be filed publicly. Accordingly, Plaintiffs request on their behalf that marked
portions of Plaintiffs’ reply memorandum and Exhibits 163 and 164 to the Brockett Reply
Declaration be filed in redacted form. We also request that Exhibits 169 and 178 to the
Brockett Reply Declaration be filed under seal.
Plaintiffs take no position with respect to Defendants’ redaction and under-seal
requests beyond those which we request ourselves, and reserve all rights under the Protective
Orders.
Defendants’ Justifications and Designations
Plaintiffs’ reply memorandum and certain supporting materials quote from, discuss,
and make reference to the substance of documents and data designated Confidential and
Highly Confidential under the Parties’ January 2, 2019 Protective Order (Dkt. No. 150), and
Highly Confidential Data under the Parties’ October 30, 2019 Supplemental Protective Order
(Dkt No. 228). Such materials include trade secrets, other confidential research, development,
or commercial information, and other private or competitively sensitive information, including
personal data. Consequently, in accordance with the Court’s January 19, 2021 Order (Dkt. No.
408), Defendants provided Plaintiffs with proposed redactions to Plaintiffs’ reply
memorandum and certain supporting material, and Plaintiffs have had the opportunity to
review the proposed redactions. Defendants request that Plaintiffs’ reply memorandum and
Exhibits 163-164 and 172 to the Brockett Reply Declaration, as well as the Brockett Reply
Declaration itself, be filed in redacted form. We also request that Exhibits 166, 168, 170, 173-
174, 176 and 178 to the Brockett Reply Declaration be filed under seal. This is in accordance
with Section 9 of the Protective Order, which provides that for “papers containing or making
reference to the substance of [“Confidential”, “Highly Confidential”, or “Highly Confidential
Data”] material or information, [a Party] shall request to file such documents or portions
thereof containing or making reference to such material or information in redacted form or
under seal.”
Plaintiffs’ reply memorandum and certain supporting materials also quote from,
discuss, and refer to the substance of discovery material produced by Third-Parties subject to
confidentiality designations, which likewise include trade secrets, other confidential research,
development, or commercial information, or other private or competitively sensitive
information, including personal data, or make reference to non-parties to the
litigation. Defendants have proposed, and Plaintiffs have had the opportunity to review, filing
such materials with redactions consistent with the designations made by Third-Parties and
Lugosch. Accordingly, Defendants request on their behalf that marked portions of Plaintiffs’
reply memorandum and Exhibits 163-164 and 172 to the Brockett Reply Declaration be filed
in redacted form.
Respectfully submitted,
/s/ Michael B. Eisenkraft /s/ Daniel L. Brockett
Michael B. Eisenkraft Daniel L. Brockett
COHEN MILSTEIN SELLERS & TOLL QUINN EMANUEL URQUHART &
PLLC SULLIVAN, LLP