“[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
How later courts described this case
- “[T]he decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
Written by the judges who cited it.
The opinion
Crowell
Crowell & Moring LLP
Eric Steve Fanchiang 3 Park Plaza
EFanchiang@crowell.com 20th Floor
(949) 798-1338 direct Irvine, CA 92614
LA Ag +1.949.263.8400 main
UNITED STATES DISTRICT JUDGE +1.949.263.8414 fax
November 4, 2022 Application GRANTED. For the reasons statec
Plaintiffs’ letter, the joint letter may be filed
The Honorable Lorna G. Schofield under seal. The Clerk of Court is respectfully
US, District Court for the Southern District of New York girected to close the gavels at Dkts. No. 68 an
Thurgood Marshall United States Courthouse 80.
40 Foley Square
New York, New York 10007 Dated: November 15, 2022
New York, New York
Re: Compass, Inc. and Compass RE NY, LLC v. Real Estate Board of New York — Case No. 1:21-
CV-02195-LGS | Request For Authorization to File Redacted Joint Letter
Dear Judge Schofield:
Pursuant to Rule I.D.3 of the Court’s Individual Rules and Procedures for Civil Cases, Plaintiffs
Compass, Inc. and Compass RE NY, LLC (“Compass”) respectfully request that the Court
authorize Compass to file its joint letter (the “Joint Letter”) with non-party NRT New York LLC
d/b/a The Corcoran Group (“Corcoran”) regarding Compass and Corcoran’s discovery dispute
with limited redactions under seal. Compass seeks to redact quotations from and discussions of a
confidential settlement agreement that the Court ordered Compass and Corcoran to submit under
seal. See ECF No. 77. Corcoran does not oppose this request.
In accordance with this Court’s Individual Rules, Compass will publicly file a version of the
Joint Letter with the proposed redactions and electronically file a sealed version of the Joint
Letter with the proposed redactions highlighted. Attached hereto as Appendix A 1s a list of all
parties and attorneys of record who should have access to the unredacted Joint Letter.
I. Relevant Background
Compass and Corcoran currently have a dispute regarding whether Corcoran should produce
documents in response to Request Nos. 4-8 and 18-20 of Compass’s Subpoena to Produce
Documents (collectively, the “Subpoena”). See ECF No. 68. Part of Corcoran’s argument as to
why it should not produce documents relates to a confidential settlement agreement Compass
and Corcoran! entered into on September 28, 2022. See ECF No. 77 at 2-3. Compass and
Corcoran submitted the discovery dispute to the Court, and the Court ordered that they meet and
confer further and submit a joint letter outlining their remaining disputed issues on November 4,
2022. See id. at 4; ECF No. 79. The Court also ordered that when Compass and Corcoran
submit the Joint Letter, they submit the relevant settlement agreement via e-mail and under seal.
ECF No. 77 at 4. Compass now asks the Court that, in addition to filing the settlement
' The settlement agreement was entered into by Corcoran and other related corporate family members, as defined in
the settlement agreement.
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agreement under seal, Compass be further allowed to file the Joint Letter with quotations from
and references to the content of the confidential settlement agreement redacted.
II. Legal Standard
Under appropriate circumstances, a Court may enter an order sealing all or a portion of a
proceeding. See, e.g., Church Ins. Co. v. Ace Prop. & Cas. Ins. Co., No. 10-cv-698, 2010 WL
3958791, at *2-3 (S.D.N.Y. Sept. 23, 2010); Glob. Reinsurance Corp.-U.S. Branch v. Argonaut
Ins. Co., No. 07-cv-8196, 2008 WL 1805459, at *1-2 (S.D.N.Y. Apr. 24, 2008), as amended
(Apr. 24, 2008). Although “[t]he 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. Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006) (internal quotation marks omitted); see also
Nixon v. Warner Commce’ns, Inc., 435 U.S. 589, 599 (1978) (“[T]he decision as to access is one
best left to the sound discretion of the trial court, a discretion to be exercised in light of the
relevant facts and circumstances of the particular case.”). As a result, Federal Rule of Civil
Procedure 26(c)(1)(G) allows confidential “commercial information” to be protected from public
access.
“Courts can seal ‘business information that might harm a litigant’s competitive standing’ in the
market.” New York v. Actavis, PLC, No. 14 Civ. 7473, 2014 WL 5353774, at *3 (S.D.N.Y. Oct.
21, 2014) (quoting /n re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009)). Depending
on the facts of a case, a party’s “assertion that its competitors who do not now have this
information could use it to do competitive injury” can be “a sufficient basis to grant the [party’s]
motion to seal,” even if the information the party “desires to keep confidential [is] not ‘trade
secrets’ in the traditional sense.” Gelb v. Am. Tel. & Tel. Co., 813 F. Supp. 1022, 1035
(S.D.N.Y. 1993). The key is the information’s “potential to do commercial harm,” as well as
whether the information was “arguably a part of” an adverse party’s “efforts to gain competitive
advantage.” /d. A party, for example, “has a plain privacy interest in maintaining the
confidentiality of its settlement terms” that militates against “disclosure of the agreement” when
it “would be highly detrimental to that interest.” Ciccotelli v. Deutsche Bank AG, No. 2:15-CV-
105, 2016 WL 2588169, at *9 (D. Vt. May 4, 2016), aff'd, 701 F. App’x 67 (2d Cir. 2017).
III. Redaction of Compass and Corcoran’s Settlement Agreement Provisions Is
Warranted
Filing the Joint Letter with redacted quotations from and references to the content of the relevant
settlement agreement is necessary to prevent the unauthorized dissemination of confidential
business information, as “the disclosing company is engaged in a highly competitive industry
and deliberately has shielded such information from its competitors.” New York, 2014 WL
5353774, at *3. Specifically, Compass seeks to preserve as confidential limited discussions of
contractual provisions included the confidential settlement agreement, the disclosure of which
would detrimentally harm Compass’s business in the competitive New York real estate
brokerage market. Compass and Corcoran have “deliberately . . . shielded” the terms of the
settlement agreement from their competitors and request that the Court extend said shield to the
Joint Letter. New York, 2014 WL 5353774, at *3. The Court has already ordered the settlement
agreement be filed under seal, see, e.g., ECF No. 77 at 4, and redacting discussions of the
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settlement agreement in the Joint Letter is consistent with the Court’s direction that the
settlement agreement itself be filed under seal.
Compass’s interest in keeping this limited amount of commercial information confidential
significantly outweighs any interest in public access to such information, as the settlement
agreement was a confidential settlement between Compass and Corcoran. Additionally, aside
from the present discovery dispute, the terms of the settlement agreement between Compass and
non-party Corcoran do not impact the present action before the Court, so it is not the sort of
judicial document that has a presumption of access. See, e.g., Lugosch, 435 F.3d at 119-20.
Compass’s privacy interest is further sufficient because the settlement agreement was between
Compass and Corcoran who “is not a party to the present suit.” Ciccotelli, 2016 WL 2588169,
at *9,
IV. Requested Relief
For these reasons, Compass respectfully requests that the Court authorize Compass to file its
Joint Letter with Corcoran with quotations from or references to the contents of the relevant
settlement agreement redacted.
Respectfully submitted,
/s/ Eric Fanchiang
Chahira Solh (pro hac vice)
Marlee Santos (Bar No. 5570593)
Eric Fanchiang (pro hac vice)
CROWELL & MORING LLP
3 Park Plaza, 20th Floor
Irvine, CA 92614
(949) 263-8400
csolh@crowell.com
msantos@crowell.com
efanchiang@crowell.com
Glen G. McGorty
CROWELL & MORING LLP
590 Madison Ave, 20th Floor
New York, New York 10022
(212) 223-4000
gmcgorty@crowell.com
Attorneys for Plaintiffs
Compass, Inc. and Compass RE NY, LLC
ce: All Counsel of Record (via ECF); Counsel for Corcoran (via ECF and email)
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Appendix A
The following parties and attorneys of record should have access to the unredacted joint
letter:
Counsel for Plaintiffs Compass, Inc. and Compass RE NY, LLC
Chahira Solh
Glen McGorty
Marlee Santos
Eric Fanchiang
Non-Party NRT New York LLC d/b/a The Corcoran Group
Nicholas Sarokhanian
Robert J. Burns