The opinion
Discover Prop. & Cas. Co. v National Football League
2024 NY Slip Op 33489(U)
September 28, 2024
Supreme Court, New York County
Docket Number: Index No. 652933/2012
Judge: Andrea Masley
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04:17 P~ INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 48
----------------------------------------------------------------------------------- X
DISCOVER PROPERTY & CASUAL TY COMPANY, ST. INDEX NO. 652933/2012
PAUL PROTECTIVE INSURANCE COMPANY,
TRAVELERS CASUAL TY & SURETY COMPANY,
TRAVELERS INDEMNITY COMPANY, and TRAVELERS MOTION DATE
PROPERTY CASUALTY COMPANY,
MOTION SEQ. NO. 041
Plaintiffs,
- V -
DECISION+ ORDER ON
MOTION
NATIONAL FOOTBALL LEAGUE, NFL PROPERTIES
LLC,AL TERRA AMERICA INSURANCE COMPANY,
FIREMAN'S FUND INSURANCE COMPANY, TIG
INSURANCE COMPANY, CENTURY INDEMNITY
COMPANY, FEDERAL INSURANCE COMPANY, GREAT
NORTHERNINSURANCECOMPANY,GURANTEE
INSURANCE COMPANY, HARTFFORD ACCIDENT &
INDEMNITY COMPANY, NORTH RIVER INSURANCE
COMPANY, U.S. FIRE INSURANCE COMPANY, ACE
AMERICAN INSURANCE COMPANY, ILLINOIS UNION
INSURANCE COMPANY, ALLSTATE INSURANCE
COMPANY, AMERICAN GUARANTEE AND LIABILITY
INSURANCE COMPANY, ARROWOOD INDEMNITY
COMPANY, CHARTIS SPECIALTY INSURANCE
COMPANY, CHARTIS PROPERTY CASUALTY
COMPANY, CONTINENTAL CASUALTY COMPANY,
CONTINENTAL INSURANCE COMPANY, ILLINOIS
NATIONAL INSURANCE COMPANY, MUNICH
REINSURANCE AMERICA INC.,NATIONAL UNION FIRE
INSURANCE CO OF PITTSBURGH, PA, NEW ENGLAND
REINSURANCE CORPORATION, ONEBEACON
AMERICA INSURANCE COMPANY, VIGILANT
INSURANCE COMPANY, WESTCHESTER FIRE
INSURANCE COMPANY, XL INSURANCE AMERICA,
INC.,DOE DEFENDANTS 1-100, CHARTIS SELECT
INSURANCE COMPANY (3RD PARTY DEFT.), CHARTIS
EXCESS LTD. (3RD PARTY DEFT.), PACIFIC
INDEMNITY COMPANY, XL SELECT INSURANCE
COMPANY, and WESTPORT INSURANCE COMPANY,
Defendants.
----------------------------------------------------------------------------------- X
HON. ANDREA MASLEY:
The following e-filed documents, listed by NYSCEF document number (Motion 041) 1400, 1401, 1402,
1403, 1404, 1405, 1406, 1407, 1408, 1409, 1413
were read on this motion to/for SEAL
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 1 of 9
Motion No. 041
1 of 9
[* 1]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04: 17 PM] INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
In motion sequence number 041, defendant National Football League (NFL)
moves pursuant to the Uniform Rules of the New York State Trial Courts (22 NYCRR) §
216.1 to redact the following documents:
1. NFL's letter to TIG dated February 25, 2014 (NYSCEF 1394, 1395, 1396, and
1397)1
2. Anastasia Danias' deposition transcript (NYSCEF 969, 1366, and 1080)2
3. Christy Jones' deposition transcript (NYSCEF 1089 and refiled at NYSCEF
1399 with NFL's proposed redactions)3
4. Insurers' reply memorandum of law in further support of their motions for
summary judgment (NYSCEF 1214, 1237, 1260, 1283, 1323, 1324, 1325,
and 1326)4
5. John Hatch's supplemental affirmation (NYSCEF 1220, 1243, 1266, and
1289)5
6. Paul Tagliabue's deposition transcript (NYSCEF 833 and refiled at NYSCEF
1342 with NFL's proposed redactions) 6
7. Dr. Elliot Pellman's deposition transcript (NYSCEF 834 and refiled at
NYSCEF 1344 with NFL's proposed redactions)7
1 Redacted copies are publicly available at NYSCEF 1070, 1124, 1149, and 117 4.
2 A redacted copy is publicly available at NYSCEF 1365.
3 A redacted copy is publicly available at NYSCEF 1398.
4 Redacted copies are publicly available at NYSCEF 1213, 1236, 1259, 1282, 1319,
1320, 1321 and 1322.
5 Redacted copies are publicly available at NYSCEF 1219, 1242, 1265, and 1288,
respectively.
6 A redacted copy is publicly available at NYSCEF 1341.
7 A redacted copy is publicly available at NYSCEF 1343.
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 2 of 9
Motion No. 041
2 of 9
[* 2]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04: 17 PM] INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
8. Roger Goodell's deposition transcript (NYSCEF 835 and refiled at NYSCEF
1346 with NFL's proposed redactions) 8
9. Paul Hicks' deposition transcript (NYSCEF 836 and refiled at NYSCEF 1348
with NFL's proposed redactions) 9
10. Jefferey Pash's deposition transcript (NYSCEF 837 and refiled at NYSCEF
1350 with NFL's proposed redactions) 10
11. Joseph Siclare's deposition transcript (NYSCEF 838 and refiled at NYSCEF
1352 with NFL's proposed redactions) 11
12. John Mara's deposition transcript (NYSCEF 839 and refiled at NYSCEF1354
with NFL's proposed redactions) 12
13. Mark Murphy's deposition transcript (NYSCEF 840 and refiled at NYSCEF
1356 with NFL's proposed redactions) 13
14. Peter Abitante's deposition transcript (NYSCEF 841 and refiled at 1358 with
NFL's proposed redactions) 14
15. Dr. Jonathan Rosand's deposition transcript (NYSCEF 842 and 1005 and
refiled at NYSCEF1360 with NFL's proposed redactions) 15
16. Email containing communication strategy dated August 17, 2010 (NYSCEF
844 and refiled at NYSCEF 1362 with NFL's proposed redactions) 16
8 A redacted copy is publicly available at NYSCEF 1345.
9 A redacted copy is publicly available at NYSCEF 1347.
10 A redacted copy is publicly available at NYSCEF 1349.
11 A redacted copy is publicly available at NYSCEF 1351.
12 A redacted copy is publicly available at NYSCEF 1353.
13 A redacted copy is publicly available at NYSCEF 1355.
14 A redacted copy is publicly available at NYSCEF 1357.
15 A redacted copy is publicly available at NYSCEF 1359.
16 A redacted copy is publicly available at NYSCEF 1363.
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 3 of 9
Motion No. 041
3 of 9
[* 3]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04: 17 PM] INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
17. John Hatch's deposition transcript (NYSCEF 987 and refiled at NYSCEF
1368 with NFL's proposed redactions) 17
18. James Campbell's deposition transcript (NYSCEF 997 and refiled at NYSCEF
1370 with NFL's proposed redactions) 18
19. Robert Sampson's deposition transcript (NYSCEF 1001 and refiled at
NYSCEF1372 with NFL's proposed redactions) 19
20. Nicholas Bentley's deposition transcript (NYSCEF 1374) 20
21. Dr. Christopher Randolph's deposition transcript (NYSCEF 1007 and refiled
at NYSCEF 1376 with NFL's proposed redactions) 21
22. Dr. Rudolph Castellan i's deposition transcript (NYSCEF 1009 and refiled at
NYSCEF 1378 with NFL's proposed redactions) 22
23. Dr. William Barr's deposition transcript (NYSCEF 1011 and refiled at
NYSCEF 1380 with NFL's proposed redactions) 23
24. November 2013 settlement email chain (NYSCEF 1393)24
The motion is unopposed. For the reasons stated below, motion sequence
number 041 is granted.
Section 216.1 (a) of the Uniform Rules for Trial Courts empowers courts to seal
documents upon a written finding of good cause. It provides:
17 A redacted copy is publicly available at NYSCEF 1367.
18 A redacted copy is publicly available at NYSCEF 1369.
19 A redacted copy is publicly available at NYSCEF 1371.
20 A redacted copy is publicly available at NYSCEF 1373.
21 A redacted copy is publicly available at NYSCEF 1375.
22 A redacted copy is publicly available at NYSCEF 1377.
23 A redacted copy is publicly available at NYSCEF 1379.
24 A redacted copy is publicly available at NYSCEF 1379.
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 4 of 9
Motion No. 041
4 of 9
[* 4]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04:17 P~ INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
"(a) Except where otherwise provided by statute or rule, a court shall not
enter an order in any action or proceeding sealing the court records,
whether in whole or in part, except upon a written finding of good cause,
which shall specify the grounds thereof. In determining whether good
cause has been shown, the court shall consider the interests of the public
as well as of the parties. Where it appears necessary or desirable, the
court may prescribe appropriate notice and opportunity to be heard."
"Under New York law, there is a broad presumption that the public is entitled to access
to judicial proceedings and court records." (Masai/em v Berenson, 76 AD3d 345, 348
[1st Dept 2010] [citations omitted].) The "party seeking to seal court records has the
burden to demonstrate compelling circumstances to justify restricting public access" to
the documents. (Id. at 349 [citations omitted].) Good cause must "rest on a sound
basis or legitimate need to take judicial action." (Danco Lab, Ltd. v Chemical Works of
Gedeon Richter, Ltd., 27 4 AD2d 1, 8 [1st Dept 2000] [internal quotations omitted].)
In the business context, courts have sealed records where the disclosure of
documents "could threaten a business's competitive advantage." (Masai/em, 76 AD3d
at 350 [citations omitted].) Courts have held that good cause exists to seal/redact
confidential communications between a policyholder and its insurers concerning claims
and the defense or settlement of such claims, particularly when the underlying claims
and issues are actively under litigation as the disclosure of such information could
disadvantage litigants in the underlying litigation. (See Century lndem. Co. v. Liberty
Mut. Ins. Co., 2011 NY Slip Op 33691 [U], *15 [Sup Ct, NY County 2011 ]. )
Confidential defense and settlement information
The NFL has demonstrated good cause to redact confidential defense and
settlement information in its letter to TIG dated 02/25/2014, the deposition transcripts of
Danias, Jones, Pash, Sinclare, Hatch, Campbell, Sampson, and Bentley, as well as the
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 5 of 9
Motion No. 041
5 of 9
[* 5]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04:17 P~ INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
insurers' reply memorandum of law, John Hatch's supplemental affirmation, and the
November 2013 email chain. The disclosure of this information could adversely affect
defendant's ability to effectively defend itself in future head injury claims where similar
issues might be implicated. (NYSCEF 1333, Decision & Order at 5 [mot. seq. nos. 031,
032].) Courts have also held that good cause exists to seal settlement agreements
which implicate nonparties as the disclosure of settlement information could infringe the
privacy interests of such third parties. (See Spot & Co. of Manhattan, Inc. v. Rudin,
2022 NY Slip Op 33980[U], *6 [Sup Ct, NY County 2022].) Accordingly, these
documents shall be sealed.
Personal identifying information
The NFL has also demonstrated good cause to redact personal identifying
information in the deposition transcripts of Danias, Tagliabue, Pellman, Goodell, Hicks,
Siclare, Mara, Murphy, Abitante, Hatch, and Campbell, as well as the August 17, 2010
email and November 2013 email chain. There exists good cause to redact personal
identifying information of third parties. (See Natixis Real Estate Capital Trust 2007-HE2
v. Natixis Real Estate Capital, Inc., 2023 NY Slip Op 50027[U], *2 [Sup Ct, NY County
2023] ["documents containing personal identifying information of nonparty borrowers
should be sealed"].) Accordingly, these documents shall be sealed.
Personal health information
The NFL has demonstrated good cause to redact personal health information in
the deposition transcripts of Danias, Tagliabue, Pellman, Goodell, Hicks, Siclare,
Murphy, Abitante, Rosand, Randolph, Castellani, and Barr. There exists good cause to
redact personal medical information, which itself is not at issue in the litigation. (See
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 6 of 9
Motion No. 041
6 of 9
[* 6]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04: 17 PM] INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
Natl. Union Fire Ins. Co. of Pittsburgh, Pa. v Fresenius Med. Care Holdings, Inc., 2021
WL 4841024, *2, 2021 NY Misc. LEXIS 54275, *3 [Sup Ct, NY County Oct. 13, 2021]
[there exists "good cause to seal the nonparty medical information, which itself is not at
issue in this litigation" (citation omitted)].) Accordingly, these documents shall be
sealed.
Confidential financial information
Finally, the NFL has demonstrated good cause to redact confidential financial
information in the deposition transcripts of Danias and Siclare. Records concerning
financial information may be sealed where there has not been a showing of relevant
public interest in the disclosure of that information. ( See Dawson v White & Case, 184
AD2d 246, 247 [1st Dept 1992].) A party "ought not to be required to make their private
financial information public ... where no substantial public interest would be furthered by
public access to that information." (D'Amour v Ohrenstein & Brown, 17 Misc 3d
1130[A], 2007 NY Slip Op 52207[U], *20 [Sup Ct, NY County 2007] [citations omitted].)
Therefore, these documents shall be sealed.
Accordingly, it is
ORDERED that motion sequence number 041 is granted and the County Clerk,
upon service of this order, shall seal NYSCEF 1394, 1395, 1396, 1397, 969, 1366,
1080, 1089, 1399, 1214, 1237, 1260, 1283, 1323, 1324, 1325, 1326, 1220, 1243, 1266,
1289, 833, 1342, 834, 1344, 835, 1346, 836, 1348, 837, 1350, 838, 1352, 839, 1354,
840, 1356, 841, 1358, 842, 1005, 1360, 844, 1362, 857, 1364, 987, 1368, 997, 1370,
1001, 1372, 1374, 1007, 1376, 1009, 1378, 1011, 1380 and 1393; and it is further
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 7 of 9
Motion No. 041
7 of 9
[* 7]
!FILED: NEW YORK COUNTY CLERK 09/30/2024 04: 17 PM! INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
ORDERED the New York County Clerk shall restrict access to the sealed
documents with access to be granted only to authorized court personnel and designees,
the parties and counsel of record in the above-captioned action, and any representative
of a party or of counsel of record upon presentation to the County Clerk of written
authorization from counsel; and it is further
ORDERED that the NFL serve a copy of this order upon the Clerk of the Court
and the Clerk of the General Clerk's Office in accordance with the procedures set forth
in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed
Cases (accessible at the "E-Filing" page on the court's website at the address
www.nycourts.gov/supctmanh)]; and it is further
ORDERED that if any party seeks to redact identical information in future filings
that the court is permitting to be redacted here, that party shall submit a proposed
sealing order to the court (via SFC-Part48@nycourts.gov and NYSCEF) instead of filing
another seal motion; and it is further
ORDERED that this order does not authorize sealing or redacting for purposes of
trial.
9/28/2024
DATE ANDREA MASLEY, J.S.C.
CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION
GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 8 of 9
Motion No. 041
8 of 9
[* 8]
[FILED: NEW YORK COUNTY CLERK 09/30/2024 04:17 P~ INDEX NO. 652933/2012
NYSCEF DOC. NO. 1422 RECEIVED NYSCEF: 09/28/2024
652933/2012 DISCOVER PROPERTY & CASUALTY vs. NATIONAL FOOTBALL LEAGUE Page 9 of 9
Motion No. 041
9 of 9
[* 9]