In re Foreign Exchange Benchmark Rates Antitrust Litigation, No. 1:2013cv07789 - Document 2018 (S.D.N.Y. 2022)

Court Description: ORDER granting in part and denying in part 1709 Letter Motion to Seal; granting in part and denying in part 1762 Letter Motion to Seal; granting in part and denying in part 1791 Letter Motion to Seal; granting in part and denying in part [1844 ] Letter Motion to Seal; granting in part and denying in part 1854 Letter Motion to Seal; granting in part and denying in part 1874 Letter Motion to Seal; granting in part and denying in part 1895 Letter Motion to Seal; granting in part and den ying in part 1904 Letter Motion to Seal; granting in part and denying in part 1921 Letter Motion to Seal; granting in part and denying in part 1941 Letter Motion to Seal. ORDERED that the motions to seal are GRANTED in part. With the exceptions listed below, the documents listed in Appendices A to the parties' letters (Dkt. Nos. 1709-1, 1762, 1791-1, 1844-1, 1854-1, 1874-1, 1895-1, 1904-1, 1921-1, 1941-1) shall remain sealed, and only the parties and individuals identified in Appendi ces B to the parties' letters (Dkt. Nos. 1709-2, 1762, 1791-2, 1844-2, 1854-2, 1874-2, 1895-2, 1904-2, 1921-2, 1941-2) may have access. Although "[t]he common law right of public access to judicial documents is firmly rooted in our nations 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, 11920 (2d Cir. 2006) (internal quotation marks omitted); see also Nixon v. Warner Commc'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 t he particular case."). Filing the documents with redactions is necessary to prevent unauthorized dissemination of personal information, including personal information pertaining to individuals subject to foreign data privacy regimes. Filing th e deposition transcripts under seal is necessary to prevent the disclosure of confidential business information that was not relied upon by any party or the Court and thus is subject to a weaker presumption of public access, but is included in the exhibits only because it is adjacent to the relevant portions. The relevant portions are, at a minimum, described in the publicly-filed letters and memoranda of law, and the transcripts of all portions of depositions that were presented to the jury h ave been filed on ECF as Court Exhibits 6A through 6O (Dkt. No. 1998-6). Filing the excerpts under seal rather than in redacted form is necessary to avoid speculation and misleading inferences about what might be redacted, particularly because the p ublic will have access to descriptions of any relevant material in the parties' memoranda of law and the Court's Opinion and Order. It is further ORDERED that the motions to seal are DENIED in part without prejudice as follows. Plaintiff s' motion to seal at Dkt. No. 1844 seeks to maintain under seal redacted excerpts of deposition testimony and documentary evidence quoted in the memorandum of law at Dkt. No. 1849 solely on the grounds that they were marked Confidential or Hig hly Confidential, which is not controlling or sufficient to maintain documents under seal. Those excerpts are directly relevant to the parties' arguments on Plaintiffs' Daubert motion, and the presumption of public access to such judicia l documents is strong. Plaintiffs' motion offers a similar rationale for redaction of quoted material in the expert reports at Dkt. Nos. 1850-1, 1850-2, 1850-5, 1850-6, 1850-7, 1850-12 and 1850-13, as well as the entirety of the exhibits at Dk t. Nos. 1850-8, 1850-10, which is similarly inadequate on its face to overcome the presumption of public access. Credit Suisse's motion to seal at Dkt. No. 1895 asserts that the expert reports at Dkt. Nos. 1899-3, 1899-5 and 1900-1 contain analy ses based on non-party data designated Highly Confidential. Confidentiality designations do not control whether information may be filed under seal, and absent further support via an affidavit, the information underlying these analyses appears to be sufficiently stale that it is no longer competitively sensitive, even if it once was. The parties' joint motion to seal at Dkt. No. 1941 asserts that the internal bank policies at Dkt. Nos. 1942-8, 1942-9 and 1942-10 constitute highly sensit ive business information, but those policies all appear to be almost a decade old or more. Credit Suisse's motion to seal at Dkt. No. 1854 asserts the same about excerpts contained within the expert reports at Dkt. Nos. 1861-1 and 1861-5, and Credit Suisse's motion to seal at Dkt. No. 1709 asserts the same about the policies and discussions about policies at Dkt. Nos. 1763-1, 1763-2, 1763-3, 1763-3, 1763-4, 1763-5, 1763-6, and one additional document at Dkt. No. 1769-6. Absent fu rther support in the form of an affidavit, those policies appear to be too stale to be competitively sensitive and warrant sealing. It is further ORDERED that the parties' motions to seal are DENIED in part to the extent that any of the ins tant ten motions seeks to seal documents that ultimately were admitted into evidence at trial. No trial exhibits shall be redacted to any greater extent than they were at trial. By November 8, 2022, the parties shall file a letter either consentin g to file the above documents publicly and attaching unredacted copies (or more lightly redacted copies), or renewing their motions to seal with additional evidentiary support. The parties' letter shall identify all trial exhibits implicated by the ten sealing motions addressed in this order and shall attach them in the same form in which they were submitted to the jury. The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 1709, 1762, 1791, 1844, 1854, 1874, 1895, 1904, 1921 and 1941. (Signed by Judge Lorna G. Schofield on 10/25/2022) (mml)