Separ v. County of Nassau

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANNE SEPAR,

Plaintiff,

MEMORANDUM

AND ORDER

-against- 2:21-CV-00010 (OEM) (JMW)

COUNTY OF NASSAU et al.,

Defendants.

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A P P E A R A N C E S:

Adam Grogan

Paul Andrew Bartels

Bell Law Group, PLLC

100 Quentin Roosevelt Boulevard, Suite 208

Garden City, NY 11530

Attorneys for Plaintiff

Lauren Ruth Reznick

Borrelli & Associates, P.L.L.C.

910 Franklin Avenue, Suite 205

Garden City, NY 11530

Attorney for Plaintiff

Howard Marc Miller

Jacqueline Giordano

Bond Schoeneck & King, PLLC

1010 Franklin Avenue, Suite 200

Garden City, NY 11530

Attorneys for Defendants

WICKS, Magistrate Judge:

The mere fact that parties stipulate to confidentiality in a settlement agreement does not,

in and of itself, satisfy the requirements to have the agreement filed under seal from public view.

More is needed for secrecy, and that more is absent in this case. As such and for the following

reasons, Defendants’ motion to seal the settlement agreement filed at ECF No. 60, is DENIED.

BACKGROUND

Plaintiff Anne Separ (“Plaintiff”) commenced the underlying action on January 3, 2021

alleging that the County of Nassau and Nassau County Department of Social Services

(collectively “Defendants”) unlawfully discriminated and retaliated against her on the basis of

her age and breast cancer diagnosis. (See generally ECF No. 1.) After more than three years of

litigating that action, the parties appeared before the undersigned for a Settlement Conference on

June 13, 2024 at which time the parties reached a resolution in principle, subject to formalization

of the settlement in a written agreement. (See Electronic Order dated June 13, 2024; see also

ECF No. 61-1, Giordano Aff. at ¶¶ 3-5.)

Following the Settlement Conference, Defendants emailed a draft of the Settlement

Agreement to Plaintiff detailing the agreed upon settlement terms. (ECF No. 61-1, Giordano Aff.

at ¶¶ 5-6.) Approximately three weeks after the Settlement Conference, Plaintiff signed the

Settlement Agreement before a notary public on July 8, 2024. (Id. at ¶¶ 8, 10-12.) Plaintiff,

however, did not sign the Confidentiality and Non-Disparagement Acknowledgment

(“Acknowledgement”) attached to the Settlement Agreement. (Id. at ¶ 14.)

It is this failure (or refusal) to sign the Acknowledgment that prompted Defendants to file

a Motion to Enforce the Settlement Agreement (ECF No. 61) which is sub judice. Relatedly,

Defendants now move to file the Settlement Agreement1 under seal. (ECF No. 60 at p. 1.) The

sole argument advance in support of the application to seal is that the Settlement Agreement

contains a confidentiality clause and, in order to preserve the confidentiality of the settlement

terms, this Court, in compliance with its inherent duty to “encourage and facilitate settlement,”

1 The parties have not yet provided the Court with a copy of the Settlement Agreement, but rather state

that the Agreement is “to be provided to the Court under seal”. (See ECF No. 61, Ex. 1.)

should permit the Settlement Agreement to be filed under seal. (Id.) Plaintiff does not oppose the

sealing application and in fact consents to the relief sought. (Id. at p. 2.)

DISCUSSION

It is axiomatic that there is a presumptive right of public access to judicial documents and

records. See Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d

Cir. 2015); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (“The

common law right of public access to judicial documents is firmly rooted in our nation’s

history.”). That right includes “a general right to inspect and copy such judicial documents.”

Mirlis v. Greer, 952 F.3d 51, 58–59 (2d Cir. 2020) (internal citations omitted), which right of

public access has roots in the First Amendment of our Constitution. See Richmond Newspapers

v. Virginia, 448 U.S. 555 (1980) (guaranteed right under 1st and 14th Amendments of public to

attend criminal trials).

However, the right to inspect and copy judicial records is not absolute as a party may

move to seal judicial records. Such motions to seal must be “‘carefully and skeptically reviewed

to ensure that there really is an extraordinary circumstance or compelling need’ to seal the

documents from public inspection.” Bernstein, 307 F. Supp. 3d at 165 (quoting Video Software

Dealers Ass'n v. Orion Pictures, 21 F.3d 24, 27 (2d Cir. 1994)); see Lugosch, 435 F.3d at 119.

Indeed, “[t]he burden of demonstrating that a document submitted to a court should be sealed

rests on the party seeking such action.” DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818, 826

(2d Cir. 1997); In re Parmalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009) (internal

citations omitted) (“The party opposing disclosure of a judicial document must make a particular

and specific demonstration of fact showing that disclosure would result in an injury sufficiently

serious to warrant protection . . . broad allegations of harm unsubstantiated by specific examples

or articulated reasoning fail to satisfy the test.”).

The Second Circuit has adopted a three-part analysis to guide district courts when

determining whether documents filed in a case can and should be placed under seal. See

Lugosch, 435 F.3d at 119–20; see also King Pharm., Inc. v. Eon Labs, Inc., No. 04-CV-5540

(DGT), 2010 WL 3924689, at *4 (E.D.N.Y. Sept. 28, 2010). First, the court “must determine

whether documents are judicial documents that are relevant to the performance of the judicial

function and useful in the judicial process.” Saadeh v. Kagan, No. 20-CV-1945 (PAE) (SN), 2021

WL 965334, at *2 (S.D.N.Y. Mar. 15, 2021) (internal quotation and citations omitted). Second,

the Court must weigh the common law or constitutional presumption of access attached to the

documents in question. See Saadeh, 2021 WL 965334, at *2 (citing Lugosch, 435 F.3d. at 119–

120). And third, the Court must use its discretion to determine “whether there are any

countervailing concerns that would weigh against full public access to the documents.” See

Saadeh, 2021 WL 965334, at *2 (citing Lugosch, 435 F.3d. at 120). The Court considers the

Lugosch factors in turn.

Is the Document a Judicial Document Relevant to the Performance of

Judicial Functions and Useful in the Judicial Process?

“A judicial document is not simply a document filed with the court, but one that is

‘relevant to the performance of the judicial function and useful in the judicial process.’”

Cantinieri v. Versick Analytics, Inc., No. 21-cv-6911 (NJC) (JMW), 2024 WL 759317, at *2

(E.D.N.Y. Feb. 23, 2024) (quoting Lugosch, 435 F.3d at 115) (citation omitted). A document is

relevant to the performance of judicial functions if “it would reasonably have the tendency to

influence a district court’s ruling on a motion or in the exercise of its supervisory powers . . . .”

Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019). As such, judicial documents that are

tantamount to performance of Article III functions likely carry a strong presumption of access

whereas documents that are insignificant in helping a court reach an adjudicative decision

demonstrate a low presumption of access. See United States v. Amodeo, 71 F.3d 1044, 1049–50

(2d Cir. 1995).

Relevantly, a settlement agreement that is submitted to the court for enforcement is

undisputably a judicial document. See Chronicle Books, LLC v. Audible, Inc., No. 19-CV-7913

(VEC), 2020 WL 13556403, at *1 (S.D.N.Y. Feb. 12, 2020) (denying the motion to seal the

entirety of the settlement agreement and noting “there is no doubt that a settlement agreement

over which the Court retains enforcement jurisdiction is a judicial document”); see also

Chigirinskiy v. Panchekova, 319 F. Supp. 3d 718, 737 (S.D.N.Y. 2018) (concluding there was

“no question” that the settlement agreement was a judicial document as it was filed in connection

with the pending motion to enforce the settlement agreement, thus “relevant to the judicial

function of adjudicating [that] motion”). Here, the Settlement Agreement is submitted to the

court for the explicit purpose of enforcement (ECF No. 61), thus there is “no question” that the

Settlement Agreement is a judicial document. See Bernsten v. O’Reilly, 307 F. Supp. 3d 161, 167

(S.D.N.Y. 2018) (characterizing the settlement and arbitration agreements as judicial documents,

thus subject to a high presumption of public access, where defendant requested that the court

“resolve a dispute by relying on the very Agreements [defendant] seeks to shield from public

view”). As such, the Court next considers whether there is a presumption of access associated

with the document and whether there are any countervailing concerns. See Lugosch, 435 F.3d at

119.

Is there a Presumption of Access Associated with the Document?

Judicial documents are presumptively subject to public inspection. Amodeo, 71 F.3d at

1047. “[T]he presumption is at its strongest when the document in question . . . has been

submitted as a basis for judicial decision making.” Cedar Swamp Holdings, Inc. v. Zaman, 476 F.

Supp. 2d 303, 304 (S.D.N.Y. 2007) (quoting Greater Miami Baseball Club Ltd. P’Ship. v. Selig,

955 F. Supp. 37, 39 (S.D.N.Y. 1997)). To determine the weight afforded to this presumption of

access, courts will consider the “role of the material at issue in the exercise of Article III judicial

power”. Amodeo, 71 F.3d at 1049.

Indeed, where documents “directly affect an adjudication,” or are used to determine the

substantive rights of the parties, the presumption of access is “at its zenith” and can only be

overcome by extreme circumstances. 42West LLC v. Gould, No. 21-CV-1581 (OTW), 2024 WL

4263235, at *2 (S.D.N.Y. Sept. 20, 2024) (highlighting that the presumption of access to the

settlement agreement—the document that Plaintiff sought to seal—was “high” and “could only

be overcome by extraordinary circumstances” as Plaintiff concurrently sought to enforce this

agreement, thereby making it “integral to the performance of judicial power in this action”); see

Gambale v. Deutsche Bank AG, 377 F.3d 133, 143 (2d Cir. 2004) (collecting cases where

settlement agreements submitted to the court for enforcement were subject to the high

presumption in favor of the public’s common law right of access).

Here, the parties jointly seek to seal the entirety of the Settlement Agreement. This,

however, is in conjunction with Defendants’ Motion to Enforce the Agreement. Specifically,

“[a]s part of its motion [to enforce the settlement agreement], Defendants wish to file a copy of

to the executed settlement agreement with the Court”. (ECF No. 60.) Accordingly, the

presumption of access to the Settlement Agreement is “at its zenith” and the Court must now

analyze whether any countervailing concerns overcome such a high presumption of accessibility

to justify the Settlement Agreement being filed under seal. See Selig, 955 F. Supp. at 39 (“Only

where countervailing considerations of privacy are sufficient to overcome the presumption may

the [parties] be denied access to such documents.”).

Is the Presumption Overcome by Countervailing Concerns?

To overcome the presumption of public access, the party seeking to seal bears the burden

of showing that countervailing, “substantial interests” outweigh the presumption. See Under

Seal v. Under Seal, 273 F. Supp. 3d 460, 469 (S.D.N.Y. 2017). Substantial interests generally

include “a third party’s personal privacy interests, the public’s safety, or preservation of attorney-

client privilege.” Id. at 647; see Amodeo, 71 F.3d at 1050 (finding that privacy interests coupled

with law enforcement interests were factors that weighed in favor of public access to the judicial

document). When analyzing whether countervailing concerns, like privacy interests, outweigh

the presumption of access, courts should consider the degree to which the subject matter is

traditionally considered private rather than public, the nature and degree of injury that may result

from disclosure, and the reliability of such information. See id. When these factors “outweigh the

value to the public of accessing the document at issue, then that document should be sealed.”

Forbes IP (HK) Limited v. Media Business Generators, S.A. de C.V., No. 23-CV-11168 (JGLC),

2024 WL 1743109, at *8 (S.D.N.Y. Apr. 23, 2024) (citation omitted).

Here, Defendants assert that “the [Settlement] [A]greement, signed by the parties,

contains a confidentiality clause” and “[i]n order to preserve the confidentiality of the agreement

and its terms” the Settlement Agreement ought to be sealed. (ECF No. 60.) As indicated infra,

the Court does not possess the specific content or subject matter of the Agreement itself as the

parties are waiting to file the Agreement under seal. (See ECF No. 61, Ex. 1.) Broadly speaking,

however, the mere presence of a confidentiality clause within a settlement agreement does not in

and of itself constitute a countervailing consideration sufficient to overcome the presumption of

public access to such judicial document. See, e.g., Bernsten, 307 F. Supp. 3d at 168 (determining,

in the context of enforcing a settlement agreement, that “Courts in this District have long held

that bargained-for confidentiality does not overcome the presumption of access to judicial

documents”); Beverly Hills Teddy Bear Co. v. Best Brands Consumer Prods., Inc., No. 1:19-cv-

3766 (GHW), 2020 WL 7706741, at *4 (S.D.N.Y. Dec. 29, 2020) (denying the motion to seal the

settlement agreement after concluding that “while the [settlement] agreement might prohibit the

parties from disclosing its terms, contrary legal obligations, including the presumption of public

access, can qualify that prohibition”).

Moreover, like here, the litigants desire that the terms of a settlement agreement remain

confidential, and their subsequent consent that the Agreement be filed under seal, does not alter

the Court’s decision. See Cont’l Indem. Co. v. Timothy Coffey Nursery/landscape, Inc., No. 2:21-

cv-0853 (JS) (JMW), 2022 WL 445533, at *2, *4 (E.D.N.Y. Feb. 14, 2022) (holding that

“[s]imply because parties to a litigation agree the file should be sealed does not make it so” as

“[s]ealing is not deemed necessary by virtue of the litigants entering into a confidentiality

agreement”). In Timothy Coffee, this Court denied Defendants’ unopposed motion to seal the

case record, which included a settlement agreement. Id. at *1, *4. Specifically, the fact that the

parties “anticipated or contemplated” that the settlement agreement would be sealed did not alter

this Court’s conclusion that absent considerations other than the existence of a bargained-for

confidentiality agreement the presumption of access was not overcome. Id. at *4.

Additionally, Defendants do not assert any alleged injury that may result from this Court

refusing to seal the Settlement Agreement. Courts within the Second Circuit routinely deny

requests to seal settlement agreements where the parties fail to sufficiently justify such an

extreme procedural mechanism. See, e.g., Welch v. Bio-Reference Laboratories Inc., No. 1:19-

cv-0846 (BKS/DJS), 2021 WL 1850930, at *3 (N.D.N.Y. May 10, 2021) (concluding the motion

to seal should be denied where “[o]ther than referring to the parties’ agreement that the

settlement remain confidential, Defendant provide[d] no reason that would provide a basis on

which sealing . . . was justified”); Wells Fargo Bank, N.A. v. Wales LLC, 993 F. Supp. 2d 409,

413–14 (S.D.N.Y. 2014) (denying the motion to seal where the moving party provided “almost

no factual basis” for the Court to determine whether sealing was appropriate, but rather

submitted “boilerplate statements” that the agreement contained sensitive information and a

confidentiality provision which justified sealing the document); Mercer Health & Benefits LLC

v. DiGregorio, No. 18-cv-1805 (JGK), 2018 WL 3559165, at *1 (S.D.N.Y. July 13, 2018)

(holding that the parties, in failing to identify “countervailing factors beyond their intention and

understanding that the [settlement] agreement would remain confidential,” did not overcome the

presumption of access).

Similarly, here, Defendants offer only conclusory assertions that courts should honor the

parties’ wish for confidentiality and subsequently encourage both settlement agreements and

confidential, private resolutions of disputes. (ECF No. 60.) Such assertions simply do not justify

sealing. See Bernsten, 307 F. Supp. 3d at 168 (determining that defendant’s position that “failing

to seal Confidential Agreements will discourage confidential private resolutions of disputes and

that confidentiality provisions would become meaningless” was inadequate to support a sealing

of the settlement agreement) (internal quotations omitted).

Another case in this District, Woodway USA, Inc. v. Speedfit LLC, is strikingly similar to

this situation. There, the court denied a motion to seal a settlement agreement made in

connection with an allegation of breach of that agreement. No. 22-CV-2455 (EK)(RER), 2022

WL 17820122, at *1–2 (E.D.N.Y. July 26, 2022). Plaintiff, in support of its motion to seal,

contended that the settlement agreement itself called for the terms to remain confidential. Id. at

*2. The court found this argument unavailing. In denying the application, the court first

determined that the settlement agreement was a judicial document as the disposition of the action

for breach could not be adjudicated without reference to the explicit agreement itself. Id.

Furthermore, the court noted that plaintiff failed to overcome the general presumption of public

access associated with this agreement because plaintiff failed to identify “with specificity” the

specific harm that would result if the agreement remained unsealed. Id.

Here, the parties seek to enforce the Settlement Agreement after Plaintiff allegedly failed

to sign the Acknowledgement. (ECF No. 61, Giordano Aff. at ¶¶ 14, 16-20.) Like in Woodway,

the Settlement Agreement is directly relevant to the adjudication of Defendants’ Motion to

Enforce the Agreement (ECF No. 61), thus constituting a judicial document. Moreover, the

parties here fail to allege any harm that might arise from denying the motion to seal, let alone

asserting any justifications “with specificity”. Just as the court in Woodway found plaintiff’s

conclusory justifications to be insufficient to overcome the presumption of access, this Court

concurs and finds that the mere existence of a confidentiality clause mandating that the

Agreement’s terms remain private fails to qualify as a “countervailing concern” warranting

sealing the document from public access.

CONCLUSION

Based upon the foregoing, Defendants’ Motion to Seal (ECF No. 60) is DENIED. Based

upon the foregoing ruling, the parties are directed to file a joint letter by November 14, 2024

advising the Court whether they will be filing the Settlement Agreement on ECF or withdrawing

the pending motion to enforce filed at ECF No. 61.

Dated: Central Islip, New York

November 8, 2024

S O O R D E R E D:

James M. Wicks

/s/

JAMES M. WICKS

United States Magistrate Judge