Opinion
Index No. 153945/2013
01-12-2023
Natixis Real Estate Capital Trust 2007-HE2, Plaintiff, v. Natixis Real Estate Capital, Inc., Defendant. NATIXIS REAL ESTATE CAPITAL, INC. Plaintiff, v. WELLS FARGO BANK, N.A. Defendant. NATIXIS REAL ESTATE CAPITAL, INC. Plaintiff, v. WELLS FARGO BANK, N.A. Defendant.
Unpublished Opinion
ROBERT R. REED, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 020) 950, 951, 952 were read on this motion to SEAL.
In this commercial action, Natixis, moves, by order to show cause, for an order pursuant to 22 NYCRR 216.1(a): (1) sealing for good cause the unredacted versions of NYCEF Doc Nos. 779-84, 788-92, 809-10, 817, 821, 838, 843, 848, 850-78, 880-92, 928, 931-38, 947-49; (2) restricting access to the sealed, unredacted version of materials to the parties; (3) restraining the Chief Deputy Clerk, Chief Clerk of Law and Equity, and/or the Chief Judgment Clerk from publicly publishing the unredacted materials;
For the reasons set forth below, the motions are granted.
Protective Order
Natixis seeks to redact and/or seal documents produced by nonparties and designated as confidential; documents containing certificate holder holdings information; and documents containing personal identifying information concerning third-party borrowers. The parties entered into a stipulation to seal documents, which was so ordered by the court on August 15, 2015 (protective order) (NYSCEF doc. no. 154).
Discussion
Under New York law, there is a presumption that the public is entitled to access to judicial proceedings and court records (Mancheski v Gabelli Group Capital Partners, 39 A.D.3d 499, 501 [2d Dept 2007]). The public's right to access, however, is not absolute, and a court is empowered to seal or redact court records pursuant to section 216.1 (a) of the Uniform Rules for Trial Courts upon a showing of "good cause" (Danco Labs v Chemical Works of Gedeon Richter, 274 A.D.2d 1, 8 [1st Dept 2000]).
Section 216.1(a) of the Uniform Rules for Trial Courts empowers courts to seal documents upon a written finding of good cause. It provides:
"(a) [e]xcept where otherwise provided by statute or rule, a court shall not enter an order in any action or proceeding sealing the court records, whether in whole or in part, except upon a written finding of good cause, which shall specify the grounds thereof. In determining whether good cause has been shown, the court shall consider the interests of the public as well as the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and an opportunity to be heard."
Thus, sealing has been found to be appropriate to preserve the confidentiality of materials which involve internal finances of a party which are of minimal public interest (see D'Amour v Ohrenstein & Brown, LLP, 17 Misc.3d 1130 [A], 2007 NY Slip Op 52207[U] [NY Sup Ct. NY County 2007]). In the business context, courts permit records to be sealed when trade secrets are involved or when disclosure of information contained in documents "could threaten a business's competitive advantage" (Mosallem v Berenson, 76 A.D.3d 345, 350-351 [1st Dept 2010]). Moreover, sealing has been allowed in the absence of "any legitimate public concern, as opposed to mere curiosity, to counterbalance the interest of [a business's] partners and clients in keeping their financial arrangement private" (Dawson v White & Case, 184 A.D.2d 246, 247 [1st Dept 1992] [internal quotation marks and citation omitted]).
Here, Natixis seeks to seal and or redact documents submitted in support of its motion for summary judgment. Natixis first maintains that information previously designated as confidential or highly confidential should be sealed. Given that the court previously found good cause to enter a protective order concerning these documents, case law suggests that such a prior finding supports sealing in this instance (Abe v New York Univ., 169 A.D.3d 445, 448-49 [1st Dept 2019]). While such a finding is not dispositive of the issue, deference should be granted to the prior finding. There is no compelling public interest in these documents, and they should be sealed.
Second, documents containing certificate holder information have no compelling public interest while exposing said holders to potential financial and privacy violations. These documents make reference to the amounts and tranches held by various certificate holders. They should accordingly be sealed (see, e.g., Offshore Brazil II Hotel Investors Fund, LP v GP Investments, Ltd, 2018 NY Slip Op 32004[U], *2 [Sup Ct, NY County 2018], citing Feffer v Goodkind, Wechsler, Labaton & Rudoff, 152 Misc.2d 812, 815-816 [Sup Ct, NY County 1991] ["'the internal finances' of a party are not a matter of public interest"], affd 183 A.D.2d 678 [1st Dept 1992]).
Finally, the documents containing personal identifying information of nonparty borrowers should be sealed. Nonparties, potentially unaware of the instant action, should have their private information protected - especially as it pertains to personal information, with its attendant privacy concerns in healthcare, finances, etc. (see id.; Mancheski v Gabelli Group Capital Partners, 39 A.D.3d at 502 [finding sealing is warranted where "disclosure could impinge on the privacy rights of third parties who clearly are not litigants herein"]).
There is no opposition to the motion and no indication that the public or press would have an interest in this matter. Absent an order from this court, highly sensitive transaction documents implicating both the confidentiality obligations of the parties and the privacy interests of nonparties will remain unrestricted on the docket. A party "ought not to be required to make their financial information public... where no substantial interest would be furthered by public access to that information," and "[s]ealing a court file may be appropriate to preserve the confidentiality of materials which involve the internal finances of a party and are of minimal public interest" (D'Amour, 17 Misc.3d 1130[A], 2007 NY Slip Op 52207[U] at *20). This court has an obligation, on a case-by-case basis, to determine if good cause exists (Macheski v Gabelli Group Capital Partners, 39 A.D.3d 499, 502 [2d Dept. 2007]).
Going forward, the parties are reminded that any such motions seeking a confidentiality order or sealing documents must comply with this Part's rules, effective July 2022, as set forth in paragraph nine, particularly subsections (d) and (e). Failure to comply with the Part rules may result in denial of the motion.
Conclusion
Accordingly, it is hereby
ORDERED that motion seq. no. 020 is granted. Plaintiff shall file a redacted copy of NYSCEF Doc. 779-84, 788-92, 809-10, 817, 821, 838, 843, 848, 850-78, 880-92, 928, 931-38, 947-49 by January 23, 2023; and it is further
ORDERED that the New York County Clerk, upon service to him of this order by movant, shall seal NYSCEF Doc. Nos. 779-84, 788-92, 809-10, 817, 821, 838, 843, 848, 850-78, 880-92, 928, 931-38, 947-49; and it is further
ORDERED that the New York County Clerk shall restrict access to the sealed documents with access to be granted only to authorized court personnel and designees, the parties and counsel of record in the above-captioned action, and any representative of a party or of counsel of record upon presentation to the County Clerk of written authorization from counsel; and it is further
ORDERED that this order does not authorize sealing or redacting for purposes of trial.