Marcelletti v. GEICO General Insurance Company

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

JOHN MARCELLETTI, on behalf of himself

and all others similarly situated,

DECISION AND ORDER

Plaintiff,

v. 6:23-CV-06211 EAW CDH

GEICO GENERAL INSURANCE COMPANY,

Defendant.

INTRODUCTION

On April 17, 2023, plaintiff John Marcelletti (“Plaintiff”) commenced this

putative class action suit against defendant GEICO General Insurance Company

(“GEICO General”). (Dkt. 1). On July 17, 2024, Renata Shiloah (“Ms. Shiloah”)

commenced a similar putative class action in this Court against GEICO Indemnity

Company (“GEICO Indemnity”). See Shiloah v. GEICO Indemnity Company, Civil

Action No. 6:24-cv-6447 (W.D.N.Y.) (“Shiloah”). The two cases involve essentially

identical breach of contract claims and the named plaintiffs and the GEICO

defendants are, respectively, represented by the same attorneys.

Presently before the Court is Plaintiff’s motion (Dkt. 147) to modify the

Stipulated Protective Order and Confidentiality Agreement (“Protective Order”)

(Dkt. 37) entered in this case on June 18, 2024. The primary purpose of Plaintiff’s

motion is to allow for the sharing of discovery between the parties in this case and

Shiloah. (See Dkt. 148 at 6). GEICO General opposes the motion. (Dkt. 153).

Also before the Court are three motions to seal filed by GEICO General. (Dkt.

154; Dkt. 165; Dkt. 170). The motions to seal seek to redact information in Plaintiff’s

memorandum of law (Dkt. 148) and reply (Dkt. 157) in support of his motion to modify

the Protective Order, as well as information in Plaintiff’s memorandum opposing

GEICO General’s first motion seal (Dkt. 164). Plaintiff opposes all three motions to

seal. (Dkt. 164; Dkt. 169; Dkt. 173).

For the reasons set forth below, Plaintiff’s motion to modify the Protective

Order (Dkt. 147) is granted in part and denied in part, and GEICO General’s motions

to seal (Dkt. 154; Dkt. 165; Dkt. 170) are denied.

BACKGROUND

This case has been referred to the undersigned for all non-dispositive pretrial

matters. (Dkt. 28; Dkt. 74). Familiarity with the background of this case and Shiloah

is assumed for the purposes of this Decision and Order, and the procedural history of

these matters is discussed only in relevant part.

The Protective Order entered in this case provides that discovery material

designated as “Confidential Information” shall be used only for purposes of this

action. (Dkt. 37 at 4). A substantively identical protective order was entered in

Shiloah, and includes the same restriction on the use of discovery materials

designated as “Confidential Information” in that action. (Shiloah, Dkt. 32).

On May 8, 2025, the parties in Shiloah submitted a joint proposed discovery

plan in advance of their Rule 16 scheduling conference describing their “fundamental

disagreement on the sharing of discovery” between this case and Shiloah. (Shiloah,

Dkt. 52 at 1). Ms. Shiloah took the position that sharing discovery between the two

cases will save time and resources, allow her to expedite the filing of a motion for

class certification in Shiloah, and help avoid relitigating identical discovery disputes.

(See id. at 2). GEICO Indemnity took the position that Ms. Shiloah could have

obtained discovery from this case by consolidating the two actions but chose not to.

(Id. at 5). GEICO Indemnity also expressed concern about the sharing of confidential

information between the two actions given Plaintiff’s counsel’s purported “willingness

to violate Protective Orders.” (Id. at 6).

On May 20, 2025, the Court held oral argument in this case on Plaintiff’s then-

pending motion to compel production of unredacted internal GEICO documents and

documents filed in a separate class action, Lewis v. Gov’t Emps. Ins. Co., No. 18-CV-

05111 (D.N.J.), against a third GEICO entity, and in the appeal to the Third Circuit

of that case’s class certification motion, Lewis v. Gov’t Emps. Ins. Co., No. 22-3449 (3d

Cir.) (collectively, the “Lewis Documents”), as well as several related motions. (Dkt.

39; Dkt. 135). Following oral argument, the Court went on the record in Shiloah for

a continued scheduling conference to address the parties’ dispute over the sharing of

discovery between the two cases. (Shiloah, Dkt. 55). The Court encouraged the parties

to resolve the issue amongst themselves and advised Plaintiff to file a motion to

modify the Protective Order in this case if the parties could not reach an agreement.

The parties did not reach an agreement, and Plaintiff filed the instant motion

to modify the Protective Order on June 6, 2025, attaching a redlined copy of his

proposed amended protective order (“PAPO”). (Dkt. 147; Dkt. 148-1). The PAPO

would provide for the sharing of discovery between this case and Shiloah through the

following exceptions to the restriction on the use of discovery material designated as

confidential in this case:

(i) [T]he transcripts of the November 22, 2024 deposition of Kevin

Costigan (and all exhibits attached thereto), the December 6, 2024

deposition of David Antonacci (and all exhibits attached thereto) and the

December 9, 2024 deposition of Mindy West (and all exhibits attached

thereto) shall be available to Plaintiff Renata Shiloah for use in

[Shiloah], subject to the terms of the protective order in the Shiloah

action as if designated as “Confidential” in the Shiloah action[;] and

(ii) [T]he unredacted claims adjuster handbooks and [the Lewis

Documents] that Plaintiff Marcelletti seeks in his action . . . if ordered

by the Court to be produced here, shall be available to Plaintiff Shiloah

for use in the Shiloah action subject to the terms of the protective order

in the Shiloah action as if designated as “Confidential” in the Shiloah

action.

(Dkt. 148-1 at 5). The PAPO would also permit the parties to “cross-notice and take

depositions of corporate and corporate employee witnesses, individually or as a

corporate representative, in this [a]ction and the Shiloah action such that the

deposition transcripts and attached exhibits can be used in both cases, subject to the

protective order in each case.” (Id. at 13-14).

GEICO General opposes Plaintiff’s motion, first, on the grounds that the

proposed scope of shared discovery is overbroad. GEICO General argues that Plaintiff

and Ms. Shiloah will have “unqualified use” of information that is only relevant in

the other’s action. (Dkt. 153 at 2). In other words, each plaintiff will be obtaining

information that is outside the scope of relevant discovery pursuant to Federal Rule

of Civil Procedure 26. GEICO General represents that it would consider the sharing

of discovery on an ad hoc basis if Plaintiff or Ms. Shiloah specifically identify any

documents or testimony that is relevant to his or her particular case. (Id. at 2-4).

GEICO General opposes Plaintiff’s motion on the further grounds that “Plaintiff’s

Counsel’s continued refusal to acknowledge that they have on multiple occasions

violated various protective orders through their conduct in the Marcelletti case gives

GEICO General and GEICO Indemnity great concern about unnecessarily sharing

irrelevant, confidential information.” (Id. at 8).

On July 1, 2025, the Court entered a Decision and Order granting in part and

denying in part Plaintiff’s motion to compel the production of some of the documents

that he now seeks to share between the two cases. (Dkt. 159). Specifically, the Court

ordered GEICO General to produce unredacted copies of eight claims adjuster

handbooks but denied Plaintiff’s motion as to the production of the Lewis Documents,

finding that the documents were outside the scope of relevant discovery and not

proportional to the needs of this case. (Id. at 24).

DISCUSSION

I. Motion to Modify the Protective Order

A. Legal Standard on Motion to Modify Protective Order

The court may, for good cause, issue a protective order “to protect a party or

person from annoyance, embarrassment, oppression, or undue burden or expense.”

Fed. R. Civ. P. 26(c)(1). Once entered and relied upon, there is generally a strong

presumption against modification of a protective order. In re Teligent, Inc., 640 F.3d

53, 59 (2d Cir. 2011).

However, “the application of the strong presumption against modification is

dependent upon a protective order’s particular characteristics and whether it invites

reasonable reliance on the permanence of the order.” In re Ethylene Propylene Diene

Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 318 (D. Conn. 2009); cf. S.E.C. v.

TheStreet.Com, 273 F.3d 222, 230 (2d Cir. 2001) (“It is . . . presumptively unfair for

courts to modify protective orders which assure confidentiality and upon which the

parties have reasonably relied.”). Accordingly, a party opposing modification of a

protective order must show that they relied on the order, and that such reliance was

reasonable. See Best Payphones, Inc. v. City of N.Y., No. 01-CIV-03934-JG-VMS, 2014

WL 12811911, at *6 (E.D.N.Y. Mar. 11, 2014).

When a party has reasonably relied on a protective order, the court should not

modify the order “absent a showing of improvidence in the grant of [the] order or some

extraordinary circumstance or compelling need.” TheStreet.Com, 273 F.3d at 229

(alteration in original) (quoting Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296

(2d Cir. 1979)). Conversely, when the parties could not have reasonably relied on a

protective order, the presumption against modification does not apply, and the

decision whether to modify the protective order is committed to the court’s discretion.

Id. at 231.

“[T]he following factors are relevant when determining whether a party has

reasonably relied on the protective order: (1) the scope of the protective order; (2) the

language of the order itself; (3) the level of inquiry the court undertook before

granting the order; and (4) the nature of reliance on the order.” In re EPDM, 255

F.R.D. at 318 (D. Conn. 2009); see also Arcesium LLC v. Advent Software, Inc., No.

1:20-CV-04389 (MKV), 2022 WL 621973, at *3 (S.D.N.Y. Mar. 3, 2022) (“Most Courts

in this Circuit evaluate a motion to modify a protective order by weighing the factors

laid out in In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255

F.R.D. 308 (D. Conn. 2009).”).

B. GEICO General Could Not Have Reasonably Relied on the

Protective Order

The Court first considers, based on the relevant factors, whether GEICO

General could have reasonably relied on the Protective Order in producing the

documents or submitting to the depositions at issue.1

1. Scope

“When considering a motion to modify [a protective order], it is relevant

whether the order is a blanket protective order . . . or whether it is specifically focused

on protecting certain documents or certain deponents for a particular reason.” In re

EPDM, 255 F.R.D at 319. “An order is considered to be a blanket order when, for

example, it covers all documents produced during the litigation; when a producing

party need only stamp a document ‘CONFIDENTIAL’ to apply the order; or when a

producing party may designate confidential any material within broadly defined

categories.” Trooper 1 v. New York State Police, No. 22-CV-893-LDH-TAM, 2024 WL

1 Despite opposing modification, GEICO General does not address the legal

standard to modify a protective order at all. GEICO General’s legal argument is,

instead, that the PAPO will permit the sharing of discovery that is outside the scope

of relevant discovery under Rule 26. While GEICO General has failed to address the

primary legal issue before the Court, the Court acknowledges that granting Plaintiff’s

motion would, in a sense, be compelling the “production” of discovery from this case

for use in Shiloah. Therefore, GEICO General’s arguments regarding relevance are

not entirely inapposite. However, as discussed below, those arguments do not alter

the Court’s conclusion that modification of the Protective Order is warranted.

1349122, at *10 (E.D.N.Y. Mar. 29, 2024) (cleaned up). “A blanket protective order is

more likely to be subject to modification than a more specific, targeted order because

it is more difficult show a party reasonably relied on a blanket order in producing

documents or submitting to a deposition.” In re EPDM., 255 F.R.D at 319. “Stipulated

blanket orders are even less resistant to a reasonable request for modification.” Id.

(emphasis in original).

Here, Plaintiff correctly notes that the Protective Order constitutes a blanket

protective order. (Dkt. 148 at 20). For the Protective Order to apply, a party need only

mark a document “CONFIDENTIAL.” (See Dkt. 37 at 2). And to mark a document

“CONFIDENTIAL,” a party need only “reasonably believe[]” that the document

contains “non-public, confidential or proprietary financial, technical, commercial, or

personal information,” or is “restricted or prohibited from disclosure by statute.

(See id. at 1, 2). The Protective Order thus affords the parties substantial latitude to

self-designate materials as confidential pursuant to several broadly defined

categories. This degree of expansive protection diminishes any claim of reasonable

reliance.

2. Express Language

“Where a protective order contains express language that . . . anticipates the

potential for modification, . . . it is not reasonable for a party to rely on an assumption

that it will never be modified.” In re EPDM, 255 F.R.D. at 320 (citing TheStreet.Com,

273 F.3d at 231 (“For instance, protective orders that are on their face temporary or

limited may not justify reliance by the parties.”)).

Here, the Protective Order expressly provides for modification: “This

Protective Order is entered without prejudice to the right of any party to ask the court

to order additional protective provisions, or to modify, relax or rescind any

restrictions imposed by this Protective Order.” (Dkt. 37 at 7-8). Because the parties

expressly agreed that the Protective Order would be subject to modification by the

Court, any expectation otherwise would not have been reasonable.

3. Level of Inquiry by Court Prior to Granting Order

“Whether a protective order is entitled to [the] strong presumption against

modification is also dependent upon . . . how much consideration the court gave to the

request for a protective order before granting it.” In re EPDM, 255 F.R.D. at 321. The

strong presumption against modification “applies where a court has already

considered each document in the first instance according to a ‘good cause’ standard

[but] is not appropriate in cases with stipulated protective orders that grant parties

open-ended and unilateral deference to protect whichever discovery materials they

choose.” Id. (quotation omitted). “In the absence of the requisite good cause showing,

it cannot be presumed that every piece of discovery filed under [a protective order] is

actually worthy of such a high level of protection.” Id. at 322 (citing Lugosch v.

Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (“[T]he mere existence of a

confidentiality order says nothing about whether complete reliance on the order to

avoid disclosure was reasonable.”)). Accordingly, “[w]here an order is granted upon

the parties’ stipulation and agreement absent a showing of good cause, this factor

generally weighs in favor of modification and against a finding of reliance.” Trooper

1, 2024 WL 1349122, at *10 (quotation omitted); see also Arcesium LLC, 2022 WL

621973, at *5 (“Courts have found that where the Court ‘so orders’ a stipulated

protective order, modification is favored if warranted.”).

In this case, the parties stipulated to and the Court “So Ordered” the Protective

Order, which as discussed above, affords the parties substantial latitude to designate

materials as confidential. The discovery materials at issue have never been presented

to the Court for a particularized determination that there is good cause for

nondisclosure. The Court’s prior level of inquiry therefore weighs against any claim

of reasonable reliance.

4. Nature of the Reliance

“The extent to which a party can rely on a protective order should depend on

the extent to which the order induced the party to allow discovery[.]” In re EPDM,

255 F.R.D. at 322 (quotation omitted). “[W]here the parties have not given up any

rights and indeed would have been compelled to produce the discovery materials even

in the absence of a protective order, the presumption against modification is not as

strong.” Id. at 323 (emphasis in original).

Here, GEICO General was in fact compelled to produce the unredacted claims

adjuster handbooks. (See Dkt. 159). The Court compelled GEICO General to produce

the handbooks because Plaintiff is entitled to relevant discovery under the Federal

Rules of Civil Procedure. Thus, GEICO General could not argue that the Protective

Order induced it to produce these documents. However, the Court must acknowledge

some degree of reliance with respect to the handbooks. One basis cited for the Court

in disallowing redactions of otherwise relevant documents is that the supposedly

irrelevant information will still be protected where a protective order has been

entered. (See id. at 13). Nevertheless, in this instance, this issue is of minor

consequence. The unredacted handbooks will not be subject to meaningfully less

protection as a result of their use in Shiloah, as they will be subject to an identical

protective order and as Ms. Shiloah is represented by the same counsel as Plaintiff,

to whom the handbooks have already been produced.

The same reasoning applies to the deposition transcripts of GEICO General’s

Rule 30(b)(6) representatives. GEICO General does not dispute that Plaintiff would

have been entitled to conduct these depositions even in the absence of the Protective

Order. The use of the transcripts and exhibits in Shiloah will also be subject to an

identical protective order and access to the documents will be limited to the same

counsel as this case.

On balance, the Court concludes that even if GEICO General had argued that

it relied on the permanence of the Protective Order (which it has not), any reliance

would not have been reasonable with respect to the discovery materials at issue. The

strong presumption against modification is therefore inapplicable and the Court, in

its discretion, finds that modification of the Protective Order is warranted for the

efficiency reasons set forth by Plaintiff. In particular, allowing modification of the

Protective Order will promote the efficient disposition of both matters, conserve the

resources of the parties, and allow for the streamlined consideration of discovery-

related legal issues.

Further, even assuming arguendo that the strong presumption against

modification did apply, courts have found that sharing discovery between related

cases constitutes a compelling need for modification. See, e.g., Tradewinds Airlines,

Inc. v. Soros, No. 08 CIV. 5901 (JFK), 2016 WL 3951181, at *2 (S.D.N.Y. July 20,

2016) (finding a compelling need where, without modification of the protective order,

“the same discovery materials will likely have to be reviewed and re-produced,

needlessly causing duplication of effort and extra expense”); Charter Oak Fire Ins.

Co. v. Electrolux Home Prods., Inc., 287 F.R.D. 130, 134 (E.D.N.Y. 2012) (“In this case,

there is a compelling and extraordinary need to share these common discovery

materials with counsel for the same plaintiff in other related litigations against

Electrolux, especially in the absence of any discernible prejudice to Electrolux. If the

Protective Order is not modified, plaintiff will be forced to litigate the exact same

issue in each and every case.”). Modification would therefore still be warranted.

5. Other Considerations

The concerns expressed by GEICO General do not alter the Court’s conclusion

that modification of the Protective Order is warranted. First, GEICO General argues

that sharing the entirety of the three GEICO General Corporate Representatives’

deposition transcripts and all exhibits is beyond the scope of relevant discovery in

Shiloah. According to GEICO General, “some of the deposition testimony and certain

of the deposition exhibits concerned Plaintiff Marcelletti’s total loss claim and the

data GEICO General produced related to GEICO General insureds,” which “has no

relevance in the Shiloah action [against GEICO Indemnity], and thus there is no

basis to request that Plaintiff Shiloah have access to that discovery.” (Dkt. 153 at 3;

Dkt. 153-1 at ¶ 4).

However, as Plaintiff notes, GEICO General “cites no authority holding that

sharing discovery between cases is only appropriate if there is a complete overlap

with respect to relevance.” (Dkt. 157 at 4) (emphasis omitted). As a general principle,

“[u]se of the discovery fruits disclosed in one lawsuit in connection with other

litigation, and even in collaboration among plaintiffs’ attorneys, comes squarely

within the purposes of the Federal Rules of Civil Procedure.” United States v. Hooker

Chemicals & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y. 1981). Parties cannot

circumvent this principle for purely tactical reasons by stipulating in a blanket

protective order that any discovery material they designate as confidential can only

be used for purposes of the underlying action. See Royal Park Invs. SA/NV v.

Deutsche Bank Nat’l Tr. Co., 192 F. Supp. 3d 400, 406 (S.D.N.Y. 2016) (ordering

parties to remove a similar clause from their protective order on the basis that “where

. . . two lawsuits have been filed by the same plaintiff, in the same court, on the same

legal theories, against two defendants who already share the same counsel, it is

difficult to imagine what non-tactical objection [the plaintiff] could have to the

prospect of those defendants sharing discovery as well.”).

Courts generally grant blanket protective orders such as the one here to

facilitate large-scale discovery and to accommodate the parties’ “legitimate interest

in keeping the discovery materials out of the public hands for commercial reasons.”

In re EPDM, 255 F.R.D. at 319. Modifying the Protective Order as proposed will not

frustrate GEICO’s commercial interests. The PAPO does not make any confidential

material more accessible to the public or to any of GEICO’s competitors. To the extent

that Ms. Shiloah will have access to some limited discovery that is specific to

Plaintiff’s claim, her counsel will be bound by the protective order in Shiloah.

Moreover, modification does not impose any discernable burden on GEICO General,

as Ms. Shiloah’s counsel is already in possession of all these materials through this

case.

GEICO General further argues that the protective orders in this case and

Shiloah are not sufficient recourse because of Plaintiff’s counsel’s purported

violations of various protective orders. (Dkt. 153 at 8). However, the Court agrees

with Plaintiff that this argument is a red herring. Plaintiff’s counsel already has

access to the confidential information at issue. GEICO General does not explain how

preventing the sharing of discovery between the two cases would afford its

confidential information any greater degree of protection than currently exists. The

Court, of course, does not condone the violation of protective orders, but even

accepting GEICO General’s characterizations (which Plaintiff’s counsel has strongly

disputed), this issue is ultimately immaterial to resolution of the instant motion.

In sum, GEICO General has not shown any prejudice or burden that would

result from modifying the Protective Order, much less some prejudice or burden that

would outweigh the clear efficiencies that would result from the sharing of discovery

between this case and Shiloah. Plaintiff’s motion to modify the Protective Order (Dkt.

147) is therefore granted in part and denied in part. Specifically, the Court denies the

motion only to the extent that the PAPO proposes the sharing of the Lewis

Documents, because the Court did not order that GEICO General produce the Lewis

Documents in this action. The Court otherwise grants the motion, and Plaintiff shall

submit a revised proposed modified protective order with references to the Lewis

Documents omitted.

II. Motions to Seal

A. Legal Standard on Motion to Seal

“Both the common law and the First Amendment accord a presumption of

public access to judicial documents.” United Pool Distribution, Inc. v. Custom Courier

Sols., Inc., No. 22-CV-06314-FPG, 2024 WL 2979365, at *1 (W.D.N.Y. June 13, 2024).

“Therefore, when a party moves to seal a document, courts must engage in a three-

step analysis to determine whether the document should be sealed.” Id.

At the first step, “the court determines whether the record at issue is a judicial

document—a document to which the presumption of public access attaches.” Olson v.

Major League Baseball, 29 F.4th 59, 87 (2d Cir. 2022) (quotation omitted). “A

document is ‘judicial’ when it is ‘relevant to the performance of the judicial function

and useful in the judicial process.’” In re New York City Policing During Summer 2020

Demonstrations, 635 F. Supp. 3d 247, 251 (S.D.N.Y. 2022) (quoting United States v.

Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). “A document is . . . relevant to the

performance of the judicial function 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, without regard to which way the court ultimately rules or whether the

document ultimately in fact influences the court's decision.” Id. (quoting Brown v.

Maxwell, 929 F.3d 41, 49 (2d Cir. 2019)).

At the second step, “[i]f a court determines the record at issue is a ‘judicial

document,’ a determination that thereby attaches the common law presumption of

public access to that record, it must next determine the particular weight of that

presumption of access for the record at issue.” Olson, 29 F.4th at 87. “’[T]he weight to

be given the presumption of access must be governed by the role of the material at

issue in the exercise of Article III judicial power and the resultant value of such

information to those monitoring the federal courts.’” Id. at 87-88 (quoting United

States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995)).

“Courts determine the weight of the presumption of access . . . on a ‘continuum’

of importance.” In re New York City Policing, 635 F. Supp. 3d at 252 (citing Amodeo,

71 F.3d at 1049 (“information will fall somewhere on a continuum from matters that

directly affect an adjudication to matters that come within a court’s purview solely to

insure their irrelevance”)). Documents filed in connection with a discovery motion

generally fall in the middle of the continuum and are entitled only to a modest

presumption of access. CRC Ins. Servs., Inc. v. Suh, No. 22-CV-9528 (AT) (JW), 2025

WL 560749, at *2 (S.D.N.Y. Feb. 19, 2025); see also Brown, 929 F.3d at 50 (“Although

a court’s authority to oversee discovery . . . constitutes an exercise of judicial power,

we note that this authority is ancillary to the court’s core role in adjudicating a case.

Accordingly, the presumption of public access in filings submitted in connection with

discovery disputes . . . is generally somewhat lower than the presumption applied to

material introduced at trial, or in connection with dispositive motions[.]”). But even

where a motion to seal concerns a discovery document for which the presumption of

public access is modest, “a court must still articulate specific and substantial reasons

for sealing such material, [though] the reasons usually need not be as compelling as

those required to seal summary judgment filings.” Brown, 929 F.3d at 50.

At the third step, “once the weight of the presumption has been assessed, the

court is required to ‘balance competing considerations against it.’” Olson, 29 F.4th at

88 (quoting Amodeo, 71 F.3d at 1050). One such consideration is “the possibility of

competitive harm to an enterprise if confidential business information is disclosed.”

In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 14-MC-2542

(VSB), 2023 WL 196134, at *3 (S.D.N.Y. Jan. 17, 2023), reconsideration denied, WL

3966703 (S.D.N.Y. June 13, 2023); see also United Pool Distribution, Inc., 2024 WL

2979365, at *1 (noting that courts in this Circuit routinely seal documents that

contain confidential and proprietary technical, financial, business, third party and/or

trade secret information). “Although the protection of sensitive, confidential, or

proprietary business information is a countervailing interest that can militate in

favor of sealing, conclusory statements that documents contain confidential business

information are insufficient to justify sealing.” TileBar v. Glazzio Tiles, 723 F. Supp.

3d 164, 209 (E.D.N.Y. 2024) (quotation and alteration omitted). “Rather, the moving

party must make a particular and specific demonstration of fact showing that

disclosure would result in an injury sufficiently serious to warrant protection.” Id.

(quotation and alteration omitted).

“The 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). “Deciding whether to accept judicial documents

under seal is a wholly separate inquiry from deciding whether to maintain the

confidentiality of documents disclosed between the parties in discovery.” In re

Zimmer M/L Taper Hip Prosthesis or M/L Taper Hip Prosthesis With Kinectiv Tech.

& VerSys Femoral Head Prods. Liab. Litig., No. 18-MC-2859 (PAC), 2021 WL

1625390, at *1 (S.D.N.Y. Apr. 27, 2021). “[I]t is well-established that confidentiality

agreements alone are not an adequate basis for sealing and material designated as

Confidential by a protective order might not come overcome the presumption of public

access once it becomes a judicial document.” Thomas v. ConAgra Foods, Inc., No. 6:20-

CV-06239-EAW-MJP, 2023 WL 11984926, at *1 (W.D.N.Y. May 3, 2023) (quotations

and alterations omitted). “That a document was produced in discovery pursuant to a

protective order has no bearing on the presumption of access that attaches when it

becomes a judicial document.” In re Keurig, 2023 WL 196134, at *5 (quotation and

alteration omitted).

B. Sealing is Not Warranted as to Any of the Three Briefs

GEICO General seeks to have redacted versions of Plaintiff’s memorandum of

law (Dkt. 148) and reply (Dkt. 157) in support of his motion to amend the Protective

Order, and Plaintiff’s response in opposition to GEICO General’s first motion to seal

(Dkt. 164) be filed on the public docket. (Dkt. 155). Plaintiff has filed redacted

versions of these briefs, but GEICO General proposes that its own versions with fewer

redactions be filed instead. (See Dkt. 155 at 4 n.1; Dkt. 166 at 4 n.1; Dkt. 171 at 4

n.1). Plaintiff opposes the three motions to seal.2 (Dkt. 164; Dkt. 169; Dkt. 173).

Because the categories of information that GEICO General seeks to redact

across the three briefs is virtually identical, and because GEICO General’s arguments

in support of sealing are also identical, the Court finds it appropriate to analyze all

three motions to seal together. The crux of GEICO General’s argument for sealing is

repeated verbatim in each motion: “The limited portions of Plaintiff’s [brief] referring

to and purporting to summarize GEICO’s Confidential Information warrant

protection from public disclosure because they concern GEICO’s confidential and

proprietary claim-handling practices and its internal processes and procedures

regarding the adjustment and settlement of total loss vehicle claims.” (Dkt. 155 at 7;

Dkt. 166 at 7; Dkt. 171 at 7). The Court, however, does not find that this rationale

warrants sealing of the information at issue here.

At the first step of the analysis, the Court finds that Plaintiff’s briefs are

judicial documents. As this Court has previously noted, documents submitted in

2 One of Plaintiff’s arguments is that the Court should deny GEICO General’s

motions to seal because they “do[] not set forth the ‘rational[e] for the proposed

duration of the requested order’” pursuant to Local Rule of Civil Procedure

5.3(c)(2)(C). (See, e.g., Dkt. 164 at 18). While GEICO General does not specifically

identify the proposed duration of the requested sealing order, its rationale for sealing,

however flawed, clearly contemplates an indefinite order. In the case that Plaintiff

relies on for this argument, Savage v. Sutherland Glob. Servs., Inc., No. 6:19-CV-

06840 EAW, 2025 WL 1224346 (W.D.N.Y. Apr. 28, 2025), the movant did not even

file a memorandum of law and “provided no discussion of the applicable legal

standards or proffered any legal authority to support its motion.” Savage, 2025 WL

1224346, at *2. The Court finds those circumstances to be distinguishable, and

therefore does not find that any of the three motions to seal should be denied for

failing to comply with Local Rule 5.3(c)(2)(C).

connection with discovery disputes have a “generally somewhat lower” presumption

of public access, but not zero presumption of public access.3 (See Dkt. 159 at 28)

(quoting Brown, 929 F.3d at 50). Moreover, Plaintiff’s briefs are plainly relevant to

the performance of the judicial function and useful in the judicial process because

they were created specifically to influence the Court’s determination of whether to

modify the Protective Order and whether to seal information in Plaintiff’s briefs.4 See

Schiller v. City of N.Y., No. 04 CIV. 7921(KMK)(JC), 2006 WL 2788256, at *5

(S.D.N.Y. Sept. 27, 2006) (“Documents created by or at the behest of counsel and

presented to a court in order to sway a judicial decision are judicial documents that

trigger the presumption of public access.”). Courts have also held that briefs

submitted on a motion to modify a protective order constitute judicial documents. See,

e.g., Giuffre v. Dershowitz, No. 19 CIV. 3377 (LAP), 2021 WL 5233551, at *5 (S.D.N.Y.

Nov. 10, 2021).

At the second step, the Court finds that Plaintiff’s briefs are entitled to only a

3 GEICO General argues in its first motion to seal that the information it seeks

to redact has no presumption of public access. (See Dkt. 155 at 5). However, it appears

to have abandoned that argument in its subsequent two motions, which were filed

after this Court issued its July 1, 2025 Decision and Order, noting that documents

submitted in connection with discovery disputes can be judicial documents. (See Dkt.

159).

4 This case is distinguishable from Nichols v. Noom Inc., No. 20-CV-3677-LGS-

KHP, 2021 WL 857352 (S.D.N.Y. Mar. 8, 2021), which GEICO General relies on in

its first motion to seal. (See Dkt. 168 at 5). There, the subject documents were filed in

connection with a case management conference. Here, the Court determined at this

case’s scheduling conference that formal motion practice was necessary to resolve the

dispute over modifying the Protective Order, and the information at issue was

accordingly presented to the Court in the context of a motion. At that point, the

information could not be characterized as merely “teeing up” a discovery dispute.

modest presumption of access because they were submitted in connection with a

discovery dispute that is ancillary to the Court’s core role in adjudicating the

underlying claims in this case. Accordingly, while the Court must still articulate

specific and substantial reasons for sealing the information at issue, such reasons

need not be as compelling as those required to seal information with a stronger

presumption of public access.

At the third step, the Court finds that GEICO General has not put forth any

non-conclusory assertions of economic harm sufficient to overcome even the modest

presumption of access afforded to Plaintiff’s briefs.5 The Court cannot make the

requisite specific, on-the-record findings necessary for sealing when, as here, the

moving party does not show why the information at issue is sensitive or how it will

be harmed if the information is disclosed. See Wells Fargo Bank, N.A. v. Wales LLC,

993 F. Supp. 2d 409, 414 (S.D.N.Y. 2014) (denying motion to seal where movant

“provide[d] no insight into, inter alia, how disclosure . . . would cause competitive

harm”). A specific showing of harm is necessary even when the information at issue

is purportedly non-public. See Coventry Cap. US LLC v. EEA Life Settlements, Inc.,

No. 17-CIV-7417-VM-HBP, 2017 WL 5125544, at *3 (S.D.N.Y. Nov. 2, 2017) (“Implicit

in the notion of ‘confidential business information’ is something beyond the mere fact

that the particular datum has not previously been made available to the public.”)

5 The Court acknowledges that GEICO General’s proposed redactions are

limited in relation to Plaintiff’s briefs as a whole. Nevertheless, its assertions of harm

are too conclusory to overcome the presumption of public access. See GSC Logistics,

Inc. v. Amazon.com Servs. LLC, No. 23-CV-5368 (JGLC), 2023 WL 4993644, at *6

(S.D.N.Y. Aug. 4, 2023) (“[S]imply because the proposed redactions are narrow . . .

does not mean that the redactions must be granted.”).

(quotation and alteration omitted).

Even accepting that the information at issue is non-public—an assertion that

the Court finds dubious (see Dkt. 164 at 15-16 (Plaintiff’s showing that the

information is publicly available))—the information does not disclose any specific

claim-handling practices other than one GEICO General says it has ceased and which

it does not propose redacting—namely, its practice of not paying sales tax for total

loss leased vehicles. (See Dkt. 171-1 at 16). The information at issue only implicates

GEICO General’s claim-handling practices to the extent that it discloses, in a highly

broad fashion, how those practices are coordinated between the various GEICO

entities. GEICO General does not explain how it derives value from this particular

information, or how, despite asserting as much, such information could be utilized by

competitors to “gain a competitive advantage over GEICO and cause GEICO

substantial economic harm.” (See, e.g., Dkt. 155 at 7). In other words, GEICO General

fails to show—and it is facially unclear—how the information at issue has any specific

connection to the theory of harm it sets forth as the basis for sealing. This is further

underscored by the fact that GEICO General’s papers in support of its motions are

virtually identical to those filed in support of its previous motion to seal, which

involved entirely different documents and categories of information, and which the

Court denied on similar grounds.

C. Future Motions to Seal

The Court has now denied four motions to seal filed by GEICO General due to

its failure to show how disclosure of the information at issue could cause it harm. The

Court has explained the standard for granting a motion to seal and emphasized that

conclusory assertions of competitive harm are insufficient to seal documents with a

presumption of public access. Accordingly, going forward, any future motion to seal

in this action that relies on conclusory assertions of competitive harm and/or

boilerplate affidavits that only address a broad category of information with no

obvious relevance to the specific information that the party seeks to seal will be

summarily denied, with leave to refile with a more substantial showing.

CONCLUSION

For the foregoing reasons, Plaintiff's motion to modify the Protective Order

(Dkt. 147) is granted in part and denied in part. Within 14 days of entry of this

Decision and Order, Plaintiff shall file a proposed modified protective order consistent

with the PAPO filed by Plaintiff (Dkt. 148-1) but without any reference to use of the

Lewis Documents.

GEICO General’s motions to seal (Dkt. 154; Dkt. 165; Dkt. 170) are denied.

Within 14 days of entry of this Decision and Order, Plaintiff shall file on the public

docket unredacted copies of his briefs filed under Docket Nos. 148, 157, and 164.

SO ORDERED.

(Lue tabla all

COLLEEN D. HOLLAND

United States Magistrate Judge

Dated: Rochester, New York

August 12, 2025

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