I post the following judicial decision without comment, except that footnote 1 doesn’t make the local media look very good. Also I have copied and pasted the conclusion at the top in bold for those who don’t want to read the entire decision.
III. CONCLUSION
For the reasons stated above, the protective order at issue in this action is hereby modified as follows: in the interest of justice, the Joslin Report is hereby unsealed, and Ottati may file certain portions of that report as a judicial document, should she choose to cite to it in her response to the defendants’ motions for summary judgment. All emails and attachments, both with and without non-party recipients, that do not relate to the operations of the APD, and which were transmitted between Ottati and Brownell at the workplace or between Ottati’s home computer and the APD are hereby unsealed, but only those that are referenced in the defendants’ motions for summary judgment, responses and replies shall be filed on the public docket. Non-party recipient names on those emails shall be redacted. All other documents, including deposition testimony, submitted for the court’s consideration by City defendants and Brownell in conjunction with their motions for summary judgment are hereby unsealed, along with the motion papers. Full transcripts of deposition testimony are discovery materials and shall not be filed on the public docket, although excerpts of same may be filed if they are submitted to be considered by the court in adjudicating the motions for summary judgment.
Relevant personnel records of current and former City employees will remain sealed pursuant to public policy concerns until such time, if any, as they are offered into evidence at trial. At that time, the court will hear motions in limine regarding admission of portions of those records as trial evidence.
The court hereby orders that the defendants’ motions for summary judgment and any documents filed therewith be evaluated and re-filed in conformance to this order. Ottati is instructed to file her response to the summary judgment motion in accordance with this order.
All defendants are hereby ordered to file their responses to Ottati’s motion for relief from the protective order on the public docket (Doc. No. 187), with minimal redaction. Brownell’s motion to file his motion for summary judgment under seal (filed under seal, Doc. No. 181) is hereby DENIED, and the motion for summary judgment shall be filed on the public docket pursuant to the guidelines set forth supra. Ottati is instructed to file her response to the defendants’ motions for summary judgment with 20 days of the filing of this order.
Ottati v. City of Amsterdam
U.S. DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Civil Rights
February 02, 2010
Judge Neal P. McCurn
Decided: Jan. 25, 2010
APPEARANCES: OF COUNSEL:
Attorney for Plaintiff: Law Offices of Elmer Robert Keach, III. Amsterdam, NY, Elmer R. Keach, Esq.
Attorneys for Defendants City of Amsterdam and Joseph Emanuele: Lemire Johnson LLC,, Malta, NY, Gregg T. Johnson, Esq., Danielle M. Barone, Esq.
Attorney for Defendant Thomas V. N. Brownell: Brennan & White, LLP, Queensbury, NY, Daniel J. Stewart, Esq.
MEMORANDUM – DECISION AND ORDER
Plaintiff Karen A. Otatti (“Ottati”) brings this civil rights action against the City of Amsterdam (“the City”) and Joseph Emanuele, III, individually and in his official capacity as Mayor of the City of Amsterdam (“Emanuele”) (heretofore referred to as “the City defendants”) and Thomas V. N. Brownell (“Brownell”), individually and in his official capacity as Chief of the Amsterdam Police Department (“APD”) (collectively, “defendants”). Ottati alleges sex-based employment discrimination pursuant to 42 U.S.C. §1983 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., as amended by the Civil Rights Act of 1991(“Title VII”), and state law claims pursuant to New York State Human Rights Law, codified at New York Executive Law §297 et seq.
Currently before the court are the defendants’ motions for summary judgment (Doc. Nos. 172 and 181), to be decided at a later date after the motions have been fully briefed pursuant to the guidelines set forth in this MDO. The City defendants filed portions of their moving papers under seal, allegedly pursuant to the protective order currently in place (Doc. No. 46), while Brownell filed his motion entirely under seal, stating that the filing was pursuant to the protective order. Also before the court is Ottati’s motion for relief from the protective order (Doc. No. 187) as it applies both to the sealing of defendants’ summary judgment motions and attachments and to Ottati’s reply to those motions. Ottati requests that the court immediately unseal the defendants’ motions for summary judgment, and allow Ottati to file her response to these motions on the public docket. For the reasons set forth below, Ottati’s motion for relief from the protective order will be granted in part and denied in part. Ottati will be allowed to file her response to the motions for summary judgment on the public docket, with certain restrictions to be set forth below.
I. Facts and procedural history regarding theprotective order
The court assumes familiarity with the facts of this case, and now sets forth procedural history from the record as it deems relevant to the issue before the court. On February 29, 2008, a protective order was issued from this court by United States Magistrate Judge David E. Peebles (“M. J. Peebles”), pursuant to Fed.R.Civ.P. Rule 26(c). Said order was issued for the stated purpose of, inter alia, preserving the privacy and expectation of confidentiality of those persons involved in the City of Amsterdam’s internal sexual harassment investigation and to preserve the integrity and viability of subsequent investigations, to “preserve the identity of non-party recipients of electronic correspondence between Plaintiff and Defendant Brownell,” and to “prevent the public humiliation and/or embarrassment of such persons while enabling all parties to fully and fairly litigate all claims and defenses” in the instant lawsuit. Included under the protective order were (a) relevant personnel records of current and former City employees; (b) emails and attachments with non-party recipients that do not relate to the operations of the APD, which were transmitted between Ottati and Brownell at the workplace or between Ottati’s home computer and the APD; (c) the investigative report of Attorney Lisa Joslin, heretofore known as the “Joslin Report;” and (d) transcripts, including testimony or statements made during depositions, summaries, and interrogatory responses which contain information that falls within the categories described in (a), (b), and (c), supra. Doc. No. 46.
On November 12, 2008, oral argument was held before M. J. Peebles on a motion to amend the complaint, and a companion motion for relief from the protective order, specifically, for release of the Joslin Report. Doc. Nos. 72; 187- 12. On November 20, 2008, the magistrate issued a written denial of the motion to modify the protective order. However, M. J. Peebles stated that the ruling was without prejudice to the right of Ottati to reapply to the court for relief from the protective order regarding the Joslin Report or other documents based upon changed circumstances which could include, e.g., allegations that defendants have prospectively made public statements regarding the contents of the Joslin Report which can only fairly be rebutted by allowing Ottati to similarly comment concerning the contents of the report. In addition, the court noted the possibility that the document in question might become a judicial document which may not be sealed absent consideration of the controlling competing concerns pursuant to, among other cases, Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006) (to be discussed below).
On August 5, 2009, during a telephone conference conducted by the magistrate, Ottati once again made a motion to lift the protective order. M. J. Peebles gave Ottati permission to make a motion to lift the protective order, said motion to be made returnable before the undersigned. On November 30, 2009, a motion for summary judgment (Doc. No. 172) was filed by the City defendants, with certain documents filed under seal, but select portions of documents, including portions of deposition transcripts that were conceivably covered by the protective order, were electronically filed on the public docket. Doc. No. 172.
On December 1, 2009, in response to the motion for summary judgment filed by the City defendants, Ottati filed a letter motion asserting, inter alia, that instead of filing their entire motion under seal, those defendants selectively picked documents to file on the public docket, including one document allegedly filed to embarrass Ottati. Ottati requested that the court unseal the defendants’ motion filing as soon as practicable, asserting that the filed documents were judicial documents under the Second Circuit’s Lugosch decision. On December 1, 2009, the court responded to Ottati’s letter motion with an order directing Ottati to file a formal motion addressing the issue of lifting the protective order, and addressing Ottati’s concerns regarding the sealed documents filed with the defendants’ summary judgment motions. The court set forth an expedited briefing schedule (Doc. No. 178) which was revised pursuant to the request of the parties. Doc. No. 186. On December 2, 2009, a sealed motion for summary judgment (Doc. No. 181) was filed by Brownell.
Ottati comes now before the court requesting that the protective order be modified to immediately unseal the defendants’ motions for summary judgment, and to allow Ottati to file her response to these motions on the public docket. City defendants argue, inter alia, that the Joslin Report is not a judicial document, and even if the court deems it to be, there are compelling interests and privacy implications which mandate that the report remain under seal.
II. Discussion
Currently at issue before the court is whether the documents in question in the instant case are judicial documents. As a threshold issue, the court notes that there are no media requests for the information at issue in the case at bar, so any arguments made by the parties relevant to media requests will be disregarded by the court.1
There is a presumption of public access to materials filed with a summary judgment motion. “The common law right of public access to judicial documents is said to predate the Constitution … Faced with the issue of whether a document may be classified as a ‘judicial document,’ and therefore accessible to the public, courts have applied varying standards.” U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (Amodeo I). Citing the Supreme Court case of Nixon v. Warner Comm. Inc., 435 U.S. 589, 597-98 (1978), the Amodeo I court stated that “[t]he interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen’s desire to keep a watchful eye on the workings of public agencies ….” Id. In U.S. v. Amodeo, 71 F.3d 1044, (2d Cir. 1995) (Amodeo II) the court further stated that “[t]he presumption of access is based on the need for federal courts, although independent – indeed, particularly because they are independent – to have a measure of accountability and for the public to have confidence in the administration of justice.” Id. However, in Nixon, supra, the Court stated that “the common-law right of inspection has bowed before the power of a court to insure that its records are not used to gratify private spite or promote public scandal … Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption.” 435 U.S. at 598.
In addition to the common law presumption of public access, “courts have identified a similar, though more demanding presumption stemming from the First Amendment.” In re Parmalat Securities Litigation, 258 F.R.D. 236, 244 (S.D.N.Y. 2009). In Lugosch v. Pyramid Co. of Onondaga, the Second Circuit held that “[o]ur precedents indicate that documents submitted to a court for its consideration in a summary judgment motion are – as a matter of law – judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” 435 F.3d at 121. “[S]ummary judgment is an adjudication, and an adjudication is a formal act of government, the basis of which should, absent exceptional circumstances, be subject to public scrutiny.” Id. (internal quotations omitted). “Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.” Id.
Protective orders perform the important function of “preserving the confidentiality of materials which are revealed in discovery but not made public at trial … Protective orders are useful to prevent discovery from being used as a club by threatening disclosure of matters which will never be used at trial. Discovery involves the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public.” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). “Private matters which are discoverable may, upon a showing of cause, be put under seal under Rule 26(c), in the first instance … At the adjudication stage, however, very different considerations apply.” Id.
“In determining the weight to be accorded an assertion of a right of privacy, courts should first consider the degree to which the subject matter is traditionally considered private rather than public. Financial records of a wholly owned business, family affairs, illnesses, embarrassing conduct with no public ramifications, and similar matters will weigh more heavily against access than conduct affecting a substantial portion of the public.” Amodeo II, 71 F.3d at 1051.
Regarding deposition testimony, in S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001), the Second Circuit held that the argument that a district court’s exercise of its power to enter a protective order and to seal the deposition testimony transformed the deposition testimony into a “judicial document presumptively open to the public” was without merit. Id. at 229 (emphasis added). The S.E.C. court held that “the rule [defendant] urges us to adopt would transform every document that a court reviews into a ‘judicial document’ presumptively open to the public, despite well-settled law to the contrary.” Id.
The Lugosch court set forth a three-part analysis for determining whether documents relating to a lawsuit are judicial documents to which the public has a presumptive right of access. District courts in this circuit have since interpreted and applied this balancing test to determine the public’s appropriate right of access.
First, the court must determine whether the documents are indeed “judicial documents,” to which the public has a presumptive right of access. Second, if the documents are judicial documents, the court must determine the weight of the presumption, that is, whether the presumption is an especially strong one that can be overcome only by extraordinary circumstances or whether the presumption is a low one that amounts to little more than a prediction of public access absent a countervailing reason or whether the presumption is somewhere in between. Third, once the weight of the presumption is determined, a court must balance competing considerations against it. Countervailing factors include, among others, the danger of impairing judicial efficiency and the privacy interests of those resisting disclosure.
Stern v. Cosby, 529 F.Supp2d 417, 420 (S.D.N.Y. 2007) (internal citations and quotations omitted).
Finally, an application for protective order, as well as a motion to lift same, “brings into focus the inherent tension resulting from two strong competing considerations. On the one hand, the court must be cognizant of its function to provide a means of efficiently and justly resolving private disputes through the litigation process, and vigilant to guard against any misuse of the system which would detract from this purpose.” Flaherty v. Seroussi, 209 F.R.D. 295, 300 (N.D.N.Y. 2001) (Peebles, M. J.). “There is, however, a strong, legitimate public interest on the part of the citizenry to have unfettered access to court proceedings, particularly when they involve elected officials and the performance of their governmental responsibilities.” Id.
The court must also weigh the consideration that “[w]here there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) ‘absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need … Without an ability to restrict public dissemination of certain discovery materials that are never introduced at trial, litigants would be subject to needless ‘annoyance, embarrassment, oppression, or undue burden or expense.’” S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 (2d Cir. 2001). “It is, moreover, presumptively unfair for courts to modify protective orders which assure confidentiality and upon which the parties have reasonably relied … On the other hand, some protective orders may not merit a strong presumption against modification. For instance, protective orders that are on their face temporary or limited may not justify reliance by the parties. Indeed, in such circumstances reliance may be unreasonable.” Id. at 230-31. Accordingly, “[w]here a litigant or deponent could not reasonably have relied on the continuation of a protective order a court may properly permit modification of the order. In such a case, whether to lift or modify a protective order is a decision committed to the sound discretion of the trial court.” Id. at 231 (internal quotations omitted) (emphasis added).
In the case at bar, the defendants have submitted a significant number of supporting documents under seal, ostensibly with the presumption that this court will consider said documents in adjudicating the motions for summary judgment. However, Ottati alleges and the court concurs that the City defendants have selectively chosen to publicly file certain documents heretofore covered by the protective order, documents that might have the effect of embarrassing Ottati, yet have filed other documents under seal which might have the same detrimental effect toward some or all of the defendants, with City defendants claiming they are required to do so pursuant to the magistrate’s order. The court finds this selective conformity to the protective order disingenuous at best.
Further, following a protracted, contentious, and disharmonious discovery period, all defendants now contend that Ottati too must be protected pursuant to the protective order. Specifically, defendants request that, inter alia, Ottati’s medical records, and/or any comments and testimony regarding prior settlement of an unrelated personal injury action, or amount of that settlement, should remain under seal. However, Ottati has unequivocally stated that she is not looking to the protective order to shield her from any disclosure in the matter. Doc. Nos. 194, 195. The court gives considerable weight to Ottati’s decision in this regard.
The City defendants argue that the issue surrounding modification of the protective order has already been litigated, citing M. J. Peebles’ previous orders denying such modification. However, at best, the defendants misinterpret, or at worst, blatantly disregard the magistrate’s position. M. J. Peebles was very clear on this issue:
The Second Circuit has made it clear that notwithstanding Lugosch, materials that are obtained through pretrial discovery but not necessarily used for any purpose are not public documents. The public has no First Amendment right of access to those documents and a litigant has no right to disseminate those documents if they are subject to a protective order. Where Lugosch comes into play is that it [indicates] the public’s right, not a litigant’s right, the public’s right of access to documents that are judicial documents meaning that they have played a role in a court determination and there is no question that I think there will come a time when the Joslin Report will fall into that category and I or Judge McCurn will take a different view and it may ultimately become a public document available for the media. But it isn’t there yet, it isn’t a judicial document. And attaching it to your complaint doesn’t make it a judicial document until the court says, “I’ve reviewed that and based on the Joslin Report, I think that the plaintiff’s case lacks merit or I think the plaintiff’s case is meritorious,” then it becomes a judicial document.
Transcript of Discovery Conference held November 12, 2008, M. J. David E. Peebles presiding. Doc. No. 187-12 at p. 23.
Despite the City defendants’ insistence that the Joslin Report is not a judicial document, the court recognizes that it must consider the Joslin Report in making a determination on the defendants’ motions for summary judgment.2 Despite the City defendants’ assertion that the full 64-page report summary need not come in as evidence, and that Attorney Joslin’s “recommendations and advice” will suffice,3 the court finds that it cannot simply rely on Joslin’s recommendations and advice, but must consider the report in its entirety. The court also finds that M. J. Peebles made it abundantly clear that the protective order was in place only for the duration of discovery, at which point the court would be called on to decide anew if the discovery materials would remain sealed. The next part of the analysis requires the court to determine whether the presumption of public access is an especially strong one that can be overcome only by extraordinary circumstances or whether the presumption is a low one. The City defendants cite the public policy objectives of Faragher v. City of Boca Raton, 524 U.S. 775 (1998) in arguing that the individuals who participated in the Joslin investigation had an expectation of privacy, and those individuals received assurances from Attorney Joslin that their statements would remain confidential. However, most of those individuals whom the City defendants now seek to protect, including those who bolstered Ottati’s allegations, found themselves being deposed with Chief Brownell sitting in the room, thereby defeating the privacy concerns the individuals might have had, and despite Attorney Joslin’s assurances of privacy. The City defendants also request that the Joslin Report remain under seal to protect the integrity of the city’s investigation into complaints about Brownell, and to encourage participation by City employees in any future investigations. They fear that henceforth, an employee will not be as forthcoming with information to an investigator if they know their words will be made public. In addition, in their response to the motion for relief from the protective order, the City defendants cite a “genuine and unique concern about retaliation by Plaintiff and her husband,” demonstrating, they say, a confirmation of the “critical need for the confidentiality regarding what was said to Attorney Joslin back in 2005,” yet they disregard the body of allegations from many sources about fear of retaliation by defendant Brownell. Defendants cite retaliation by Ottati as a compelling reason to keep the Joslin Report sealed, yet, ironically, it is a city employee and named defendant who generated the fear of retaliation in most deponents. For example, a former employee of the APD made critical “off the record” comments to Attorney Joslin about Brownell, allegedly to avoid retaliation by the chief, only to be confronted with his “off the record” testimony at deposition, with Brownell seated nearby. The court finds the City defendants’ argument regarding the privacy concerns of the investigation participants as well of the fear of retaliation by the Ottati and her husband to be unavailing. The City made no attempt to shield the identity of those participants in its internal investigation during the litigation of this case, thereby negating any public policy/privacy concerns set forth in relevant Title VII case law. The court also finds that the attempt by the City defendants to attach the fear of retaliation held by participants in the internal investigation only to the plaintiff and/or her husband is disingenuous.
Applying the law to the case at bar, the court finds that, first and foremost, there is a strong predisposition against trying this case in secrecy, and it is simply a matter of time before many of the documents previously sealed in this case will see the light of day should the case go to trial. In addition, defendants in the case selectively adhere to the order of protection, breaching the order when it benefits them to do so. As stated above, in its motion for summary judgment, the City defendants cited from select deposition testimony in their motion papers, and filed portions of the transcripts on the public docket.
In their argument that the protective order remain in place despite the transition of this action from discovery to adjudication, the City defendants cite compelling interests and privacy concerns. Brownell agrees with the City defendants’ argument regarding the Joslin Report and offers additional reasons why the protective order should remain in place, including the assertion that the information revealed in discovery has the potential to ruin family relationships. Ottati, however, notes that any privacy concerns are negated in large part because the City defendants, specifically Chief Brownell, sat in on the majority of the depositions. In addition, Ottati states and the court concurs that most or all parties that have been deposed will be called as witnesses at trial, at which time any or all of the deposition testimony may be used for refreshing of recollection and for impeachment purposes.
Here, the court finds that the weight of the competing factors mandates this court to allow public access to the judicial documents in this case, both to accommodate a “citizen’s desire to keep a watchful eye on the workings of public agencies” (Amodeo I) and to allow access “based on the need for federal courts … to have a measure of accountability and for the public to have confidence in the administration of justice” (Amodeo II). The possibility that embarrassing personal information might be released about a defendant or defendants in this case cannot outweigh the public policy benefit of holding public agencies accountable.
Pursuant to the body of case law relevant to the issue, the court first finds that it must consider the Joslin Report in adjudicating the summary judgment motions before it, and accordingly, the Joslin Report is in fact a judicial document and is subject to the right of public access. In addition, certain City employees, both party and non-party to the case at bar, have discussed the Joslin Report with the media prior to its sealed status. Accordingly, the court finds that for purposes of deciding the motions for summary judgment currently before it, the Joslin Report satisfies the requirements of a judicial document and will be unsealed. Ottati will be allowed to cite to portions of the report in her response to the defendants’ motions for summary judgment. However, the court notes that the Joslin report is repetitive and often redundant, and foresees no reason for Ottati to file the report in its entirety on the public docket.
The court finds that the defendants’ assertions that they now seek to protect Ottati from having her own records unsealed, including deposition testimony regarding her medical records, is disingenuous at best. In her reply to defendants’ response to the motion for relief from the protective order, Ottati’s counsel was adamant that “Mrs. Ottati does not seek to have any portion of the Defendants’ motion filing relevant to her situation sealed, including the discussions of her medical history and a prior settlement before this Court.” (Doc. No. 195). In the interest of justice, the court finds that the full deposition testimony of all deponents in this case will be unsealed, but as the transcripts of same are discovery materials and not judicial documents, they will not be filed on the public docket. The court will address the issue of deposition transcripts as needed in the future subsequent to a request for same to be submitted into evidence at trial. However, any deposition testimony referenced in the defendants’ motions for summary judgment shall be filed on the public docket as a judicial document, and Ottati is afforded the opportunity to respond to any references made by the defendants to said depositions in her response to the motions for summary judgment. In turn, Ottati may cite to the deposition testimony pursuant to the guidelines of this order.
Brownell filed his entire motion for summary judgment under seal. In his response to the motion for relief from the protective order, Brownell also purports to seek to protect Ottati by requesting that, along with a litany of documents to protect his own privacy, Ottati’s medical records remain sealed, as well as any comments or testimony regarding Ottati’s settlement of a personal injury lawsuit, and the amount of that settlement. In an affidavit in opposition to Ottati’s motion for relief from the protective order, Brownell reminds the court that it must balance the competing interests in disclosure, and to keep in mind that the information which [Ottati] seeks to file publicly is, as stated above, deeply personal information, some of which has the potential to ruin family relationships. The court must balance, inter alia, the danger of impairing judicial efficiency and the privacy interests of those resisting disclosure. Here, the court must weigh Ottati’s position that the litigation of her case is being hamstrung as her counsel is unable to cite to the majority of the discovery materials (and arguably, not knowing precisely what can or can’t be cited) against Brownell’s fear that dissemination of personal information has the potential to ruin unnamed family relationships. The court finds that Ottati’s interest in obtaining a fair adjudication of her claims outweighs the privacy interests of Brownell. In addition, pursuant to M. J. Peebles’ decision in Flaherty, supra, the court acknowledges that there is a strong legitimate public purpose to allow the citizenry of the City of Amsterdam unfettered access involving their elected officials and into the performance of their Chief of Police.
Accordingly, the guidelines set forth supra are for the purpose of motion practice, and the court will unseal any documents submitted to the court that the court has heretofore designated as judicial documents. In filing her response to the motions for summary judgment, Ottati is instructed to adhere to the guidelines set forth in this order. As previously stated, if and when this case goes to trial, Ottati will, pursuant to evidentiary rules of the court, be allowed to use the deposition testimony to argue her case. The court strongly suggests that the defendants, in claiming irreparable harm if the remaining documents are unsealed, enter forthwith into settlement discussions which entertain a confidentiality agreement, as there remains a strong likelihood that these documents, all or in part, will be unsealed at trial.
Finally, in arguing for the right of public access to the instant case, Ottati asserts that both she and her counsel “have been questioned about pursuing this lawsuit, given [media reports] that the City’s investigation ‘cleared’ Brownell” (Doc. No. 187-1, p. 5), referring to comments made to the local media by named defendants and other City employees, with said newspaper articles attached to plaintiff’s motion. Doc. No. 187, Exhs. 3-9. Ottati asserts that the public needs to know the truth regarding her claims sooner rather than later, and that defendants are attempting to delay trial in this case, as they have allegedly done in the companion case,4 by filing specious interlocutory appeals. The court looks to Second Circuit precedent regarding interlocutory appeals.
“As a general rule, interlocutory orders are not appealable as a matter of right. The collateral order doctrine is an exception to this rule and provides that an appellate court has jurisdiction over an interlocutory order if such order (1) conclusively determined the disputed question; (2) resolved an important issue completely separate from the merits of the action; and (3) was effectively unreviewable on appeal from a final judgment.” S.E.C. v. TheStreet.Com, 273 F.3d at 228 (internal citations and quotations omitted).
The court posits that because it will make a final determination on this interlocutory issue of the protective order when this action goes to trial, this order is not final and the collateral order doctrine does not apply. The court cannot dictate how counsel for the parties represent their clients, but can only request that counsel abide by the rules as officers of the court and that they seek to avoid any artificial delays which deny Ottati the right to have her case adjudicated. Due to time constraints of the expedited scheduling order in the instant motion, the defendants were allowed to submit their responses to the court under seal. The defendants are now instructed to file their responses to Ottati’s motion for relief from the protective order on the public docket, pursuant to the guidelines of this order and with minimal redaction.
III. CONCLUSION
For the reasons stated above, the protective order at issue in this action is hereby modified as follows: in the interest of justice, the Joslin Report is hereby unsealed, and Ottati may file certain portions of that report as a judicial document, should she choose to cite to it in her response to the defendants’ motions for summary judgment. All emails and attachments, both with and without non-party recipients, that do not relate to the operations of the APD, and which were transmitted between Ottati and Brownell at the workplace or between Ottati’s home computer and the APD are hereby unsealed, but only those that are referenced in the defendants’ motions for summary judgment, responses and replies shall be filed on the public docket. Non-party recipient names on those emails shall be redacted. All other documents, including deposition testimony, submitted for the court’s consideration by City defendants and Brownell in conjunction with their motions for summary judgment are hereby unsealed, along with the motion papers. Full transcripts of deposition testimony are discovery materials and shall not be filed on the public docket, although excerpts of same may be filed if they are submitted to be considered by the court in adjudicating the motions for summary judgment.
Relevant personnel records of current and former City employees will remain sealed pursuant to public policy concerns until such time, if any, as they are offered into evidence at trial. At that time, the court will hear motions in limine regarding admission of portions of those records as trial evidence.
The court hereby orders that the defendants’ motions for summary judgment and any documents filed therewith be evaluated and re-filed in conformance to this order. Ottati is instructed to file her response to the summary judgment motion in accordance with this order.
All defendants are hereby ordered to file their responses to Ottati’s motion for relief from the protective order on the public docket (Doc. No. 187), with minimal redaction. Brownell’s motion to file his motion for summary judgment under seal (filed under seal, Doc. No. 181) is hereby DENIED, and the motion for summary judgment shall be filed on the public docket pursuant to the guidelines set forth supra. Ottati is instructed to file her response to the defendants’ motions for summary judgment with 20 days of the filing of this order.
SO ORDERED.
1. The court notes that from the outset of this action, certain media outlets covering this case prior to the imposition of the protective order were purportedly content to report the facts at issue as relayed by the parties, without attempt to check the veracity of same.
2. In his sealed response to Ottati’s motion for relief from the protective order, Brownell defers to the City defendants’ argument regarding the Joslin Report.
3. From City defendants’ sealed response to Ottati’s motion for relief from the protective order.
4. See Kercado-Clymer v. City of Amsterdam et al, 6:07-cv-00086 (NPM-DEP).
