Pacific Life Insurance Company v. The Bank of New York Mellon ( 2021 )

Mayer Brown LLP M AY F | B R O\W N 1221 Avenue of the Americas New York, NY 10020-1001 United States of America T: +1212 506 2500 F: +4 212 262 1910 October 14, 2021 mayerbrown.com Matthew D. Ingber BY ECF Partner T: +1212 506 2373 The Honorable Robert W. Lehrburger Mngber@nayervown United States Magistrate Judge United States District Court Southern District of New York ———a Daniel Patrick Moynihan United States Courthouse USDC SDNY 500 Pearl St. DOCUMENT New York, NY 10007-1312 ELECTRONICALLY FILED Re: Pacific Life Insurance Company, et al., v. The ae Bank of New York Mellon, No. 17-cv-1388 DATE FILED:_10/15/2021 □ (S.D.N.Y.) Dear Judge Lehrburger: On behalf of The Bank of New York Mellon (“BNYM7”), and pursuant to Your Honor’s Individual Practices in Civil Cases, we write to request that the Court maintain sealing over portions of BNYM’s Reply to Plaintiffs’ Counter-Statement of Undisputed Facts (“Reply 56.1”) (Dkt. 266) (attached as Exhibit A). BNYM does not wish to maintain sealing over any documents not specifically referenced herein. BNYM has conferred with Plaintiffs, and Plaintiffs have indicated that they do not object to the redactions applied to BNYM’s Reply 56.1. BNYM has analyzed the relevant material, and as set forth below, requests that portions of its Reply 56.1 be sealed in accordance with the three-part test articulated in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) and Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir. 2016). “Under this test, the Court must: (i) determine whether the documents in question are ‘judicial documents’; (11) assess the weight of the common law presumption of access to the materials; and (111) balance competing considerations against the presumption of access.” Doe v. City of New York, 2019 WL 4392533, at *1 (S.D.N.Y. Sept. 13, 2019) (citing Lugosch, 435 F.3d at 119-20). The documents for which BNYM seeks to maintain sealing are not “judicial documents.” See, e.g., Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017) (“‘[D]ocuments that play no role in the performance of Article II] functions, such as those passed between the parties in discovery’” are not “judicial documents” (quoting SEC v. TheStreet.com, 273 F.3d 222, 232 (2d Cir. 2001)). On August 19, 2021, the Court ordered sealed six exhibits from the Kane Declaration (Kane Exhibits 13, 17, 219, 227, 229, and 240) and ordered redacted the corresponding portions of Plaintiffs’ Counter-Statement of Undisputed Fact. See Order Granting Letter Motion to Seal (Dkt. 258). BNYM now moves to seal portions of its Reply 56.1 that correspond either to (1) previously redacted portions of Plaintiffs’ Counter-Statement of Undisputed Fact (see 4¥ U-11, Mayer Brown is a global services provider comprising an association of legal practices that are separate entities including Mayer Brown LLP (Illinois, USA), Mayer Brown International LLP (England), Mayer Brown (a Hong Kong partnership) The Honorable Robert W. Lehrburger October 14, 2021 Page 2 TI-517—19, U-523—26, I-557) or (11) citations to the six exhibits previously ordered sealed (see BNYM’s Responses to 4 H-11, H-517—19, I-523—26, II-557). For the same reasons adopted by the Court in its Order Granting Letter Motion to Seal, and incorporated herein, BNYM respectfully requests that these references be ordered redacted to maintain the sealing designations previously granted. We appreciate the Court’s attention to this matter. Respectfully, /s/ Matthew D. Ingber Matthew D. Ingber Motion granted. SO ORDERED: Je-— 10/15/2021 HON. ROBERT W. LEHRBURGER UNITED STATES MAGISTRATE JUDGE