Opinion
155577/2020
12-10-2020
Mischa SHUMAN and Maria-Pia Shuman, Plaintiffs, v. NEW YORK MAGAZINE, New York Media, Vox Media, and Kera Bolonik, Defendants.
I. BACKGROUND
In this action for libel, plaintiffs Mischa Shuman and Maria-Pia Shuman sue defendants New York Magazine, New York Media, Vox Media, and Kera Bolonik, the author of the allegedly defamatory article. Before filing their motion to dismiss the complaint on September 28, 2020, defendants notified plaintiffs of their intention to file specified documents. Pursuant to requests from plaintiffs and nonparty Harvard Law School, defendants move to seal portions of the Memorandum of Law and two exhibits filed in support of their motion to dismiss the complaint. 22 N.Y.C.R.R. § 216.1. Plaintiffs separately move to seal the same three documents and an additional exhibit submitted by defendants in support of their motion to dismiss the complaint. Id.
II. MOTIONS TO SEAL
The court may seal documents only upon a finding of good cause. 22 N.Y.C.R.R. § 216.1(a) ; Matter of James Q. , 32 NY3d 671, 680 (2019) ; Wilder v. Fresenius Med. Care Holdings, Inc. , 175 AD3d 406, 410 (1st Dep't 2019) ; Maxim Inc. v. Feifer , 145 AD3d 516, 517 (1st Dep't 2016) ; Matter of East 51st St. Crane Collapse Litig. , 106 AD3d 473, 474 (1st Dep't 2013). The party seeking to seal a court record bears the burden to demonstrate good cause. Maxim Inc. v. Feifer , 145 AD3d at 517 ; Davis v. Nyack Hosp. , 130 AD3d 455, 456 (1st Dep't 2015) ; Mosallem v. Berenson , 76 AD3d 345, 349 (1st Dep't 2010). Restrictions on access to court records must be narrowly tailored, 22 N.Y.C.R.R. § 216.1(a) ; Maxim Inc. v. Feifer , 145 AD3d at 518 ; Applehead Pictures LLC v. Perelman , 80 AD3d 181, 191 (1st Dep't 2013) ; Mosallem v. Berenson , 76 AD3d at 349-50, because New York law broadly presumes that the public is entitled to access court records. Matter of James Q. , 32 NY3d at 680 ; Wilder v. Fresenius Med. Care Holdings, Inc. , 175 AD3d at 410 ; Maxim Inc. v. Feifer , 145 AD3d at 517 ; Mosallem v. Berenson , 76 AD3d at 348. Therefore, the court will limit the public nature of judicial proceedings only when compelling circumstances require such a limitation. Wilder v. Fresenius Med. Care Holdings, Inc. , 175 AD3d at 410 ; Maxim Inc. v. Feifer , 145 AD3d at 517 ; Davis v. Nyack Hosp. , 130 AD3d at 456 ; Matter of East 51st St. Crane Collapse Litig. , 106 AD3d at 474.
A. The Parties' Motions to Seal the Same Three Documents
Plaintiffs and defendants separately move to file under seal portions of the Memorandum of Law filed in support of defendants' motion to dismiss the complaint, the Final Confidential Report from the Title IX Investigation of Mischa Shuman's complaint against nonparty Bruce Hay, and the final determination from Harvard Law School of that Title IX complaint. Defendants claim that the disclosure of the documents related to the Title IX investigation, including the Memorandum's discussion of the investigation, will impinge on the privacy rights of Mischa Shuman and various nonparty student witnesses who participated in the investigation. Plaintiffs do not oppose defendants' motion.
Although defendants merely are adhering to plaintiffs' request, defendants still must show good cause, as agreement between parties does not automatically warrant the sealing of documents. Applehead Pictures LLC v. Perelman , 80 AD3d at 192. Defendants' showing rests solely on the potential invasion of privacy rights of Mischa Shuman and various unidentified student witnesses. Mischa Shuman, however, accepted any attendant public scrutiny when she commenced this action. Ava v. NYP Holdings, Inc. , 64 AD3d 407, 416 (1st Dep't 2009). At this early stage in the action, the potential for intrusion into unidentified student witnesses' privacy rights does not amount to good cause sufficient to outweigh the presumption of open judicial proceedings, especially in this action where the public interest is substantial. Maxim Inc. v. Feifer , 145 AD3d at 517-18 ; Matter of East 51st St. Crane Collapse Litig. , 106 AD3d at 474 ; Mosallem v. Berenson , 76 AD3d at 350. Defendants do not allege that the documents to be sealed are confidential, secretive, trade secrets, confidential business information, or proprietary information. Maxim Inc. v. Feifer , 145 AD3d at 517 ; Matter of East 51st St. Crane Collapse Litig. , 106 AD3d at 474 ; Applehead Pictures LLC v. Perelman , 80 AD3d at 192 ; Mosallem v. Berenson , 76 AD3d at 350-51. In sum, the parties fail to present good cause to warrant sealing.
B. Plaintiffs' Motion to Seal an Additional Document
Plaintiffs' motion also seeks to seal a hearing transcript from the Cambridge District Court on March 31, 2014, to determine whether to extend an emergency restraining order served on pseudonymous nonparty John Poe. Defendants oppose sealing the transcript in its entirety, but consent to redacting the identities and personal information of the student witnesses. An affidavit by the attorney for John Poe, in support of plaintiffs' motion, requests that the court seal the transcript to avoid further litigation and unwanted publicity involving John Poe. Although John Poe's desire to avoid such consequences is understandable, they are not a basis for restricting public access to court documents. Maxim Inc. v. Feifer , 145 AD3d at 518 ; Mosallem v. Berenson , 76 AD3d at 351.
Plaintiffs also support their sealing motion with only an affirmation by their attorney, who lacks personal knowledge of the material facts, without an affidavit from either plaintiff. Mosallem v. Berenson , 76 AD3d at 350. Plaintiffs thus fail to meet their burden to demonstrate that the hearing transcript contains any confidential information. Wilder v. Fresenius Med. Care Holdings, Inc. , 175 AD3d at 410 ; Maxim Inc. v. Feifer , 145 AD3d at 517 ; Davis v. Nyack Hosp. , 130 AD3d at 456 ; Balestriere PLLC v. BanxCorp , 96 AD3d 497, 498-99 (1st Dep't 2012).
Even if the court considers the attorneys' claims, they do not show the good cause required to rebut the presumption of open judicial proceedings. Wilder v. Fresenius Med. Care Holdings, Inc. , 175 AD3d at 410 ; Maxim Inc. v. Feifer , 145 AD3d at 517-18. While plaintiffs claim that the Cambridge District Court allowed only interested parties and potential witnesses to remain in the courtroom, defendants maintain that the hearing was open to the public. While plaintiffs also claim that defendants impermissibly obtained the hearing transcript to submit as evidence, defendants maintain that the transcript was provided to both the Title IX investigator to produce the final report and defendant Bolonik, who relied on the transcript to write her article. Even defendants' wrongful acquisition of the transcript, however, would not automatically require sealing. Mosallem v. Berenson , 76 AD3d at 353. Significantly, defendants demonstrate that the hearing transcript was publicly available for approximately two years, until Maria-Pia Shuman successfully moved to impound the transcript on April 7, 2016. See Abe v. New York Univ. , 169 AD3d 445, 448-49 (1st Dep't 2019) ; Mosallem v. Berenson , 76 AD3d at 352. Plaintiffs offer no reason why a document publicly available previously must be shielded from the public now.
To the extent that any personal details about nonparty John Poe or the student witnesses resurface in this action, such details may be subject to redaction or a confidentiality order. See Anonymous v. New York State Dept. of Health, State Bd. for Professional Med. Conduct , 65 AD3d 491, 494 (1st Dep't 2009).
III. CONCLUSION
Since the grounds for both sides motions to file documents under seal are unfounded, the court denies both motions and vacates both orders temporarily allowing both sides to file under seal.