August By The Honorable Loretta A Preska United States District Judge Southern District of New York Pearl Street Room New York NY Re Giuffre Maxwell Civ LAP Dear Judge Preska On behalf of non-party John Doe we write in response to Plaintiff 2s letter of August see DE Our letter of August suggested severa proposals to help xpedite the continued implementation of the Protocol and the particularized review contemp5.2 ate4.5 for ch on-party It appears however that the non-parties received and presumably relied upon a protocol process that is diffe4.6 r4 ent than the pro cess now7.1 being implemented Specifically,5.8 the August letter noted the extent Plaintiff and Defendant suggest that they are entitled to file fu rth5 o5 pposition5.2 to the non-parties jections they are incorrect.5.4 DE at In support of this we cited Section of the Prot ocol 223Within days of service of any Non-Party Objection and acco5.3 mpanying memo randu5.6 if any the Original Parties may file an oppo5.4 sition statin5.4 the reason5.4 why any Seal ed Item hould be uns4.5 ealed DE at That same paragraph further provides the 223objecti ng Non-Party may file a re ply in support of its objections ithin days of service of the Orig5.5 inal Parties opp5.5 osition.5.9 This langu5.6 age is contained in the version of th Protocol which we understand was mailed to all Does See DEs Subsequent to the filing of our letter,5.7 we were directed to the Court 2s October Order issu5.7 in the con5.7 ext of the Court 2s onsideration of the Sealed ecords pertaining to Does No and See DE In that Order,5.5 the Court observed 223that severa5.4 oth5.4 Non Party Does have alread5.5 submitted Objection5.5 to unsealing and at Plaintiff 2s urging the Court ruled that 223any oppositions to those Non-Party Objections not due til ays ter the Court indicates it will review se ts of motions for those Does Id at emphasis added Thus as to the non-party objections submitted as of October the Court extended the original parties respons time and further stated that the Court would 223update the Protocol and file a revised version of the doc ument that states explicitly th at the clock does not start running on any opposition to a N7 on-Party jection til th Court tak5.8 es up the tion relevan5.8 t4 to the Defendant apparently consented to or did not oppose Plaintiff 2s request Case Document Filed Page KRIEGER KIM LEWIN LLP Fifi:h Avenue New York NY Telephone w.KKLllp.com August Page of Non-Party who objected Id at We are un5.4aware of any subsequent amendment to or filing of a revised Protocol or anythi ng that suggests that all of the non-parties had been informed of this ch5.8ange Yet it app5.8e4.7ars th5.8e origin5.8al parties thereafter have elected to defer filing responses to non-parties objections?even those subm itted after October amendment to the Protocol which appare ntly did not result in an actual amendment to the is an exa4.6m-2ple the origin5.7al pa rties actions delaying the Protocol process The original parties opposition to any objections should have be en submitted long ago under the Protocol delivered to the non-part Similarly the replies of the non-parties would have been submitted at least six mont hs ago and thus the issues would have been least fu5.4lly b5.4r-1.3iefed But because the modification reques4.4t-1.7ed by the orig inal parties after the Pro5.3t3.5ocol was already mailed to no5.7n-parties th5.7e brie4.6fing these issues will be co5.7mpleted at so5.7me fu5.7ture po5.7int When this ultimate4.2ly occurs th5.3e orig5.3inal pa4.2rties will have been affo5.1rded ne arly a year in certain instan5.7ces to submit their oppositio5.7ns while the no n-parties will be expected to submit their replies within seven days Ironically,5.4 in preparin the Protocol we had urged that non-parties be accorded ad5.6dition5.6a-.5l time to submit th5.6eir oppos4.9it io5.4n given the potential necessity to s4.7e4.3cure counsel and other practical limitation5.1s-.6 then ex5.1isting given the pandemic conditions.5.5 S6.1ee DE at 2755.2Plaintiff?s N6.8ovember correspondence to this Court proffere that efficiencies would be realized under the Protocol by provi ding notice to all non-parties simultaneously which we agree was reasonable which would provide greater clarity on exactly how many Non-Parties intend to participate in the unsealing process at But the efficiencies were never realized because the Protocol sche dule was not followed To our knowledge the Court has not been informed wh ether the original parties oppos any of the objections lodged by the non-parties implicated in the sealed filings yet to be addr essed Thus unknown is whether additional briefing from both the orig inal parties and the non-parties will be required Nor can a decision be made as to whether an evidentiary hearing might be required as contemplated under the Protocol.5.8 this po5.3int the for3.6e-.8going serves on5.3ly to fu5.9rthe4.8r the non5.9-par4.2ties are no5.9t the source of th5.5e claimed delay or inefficiencies Rather any ex5.3ecution issu5.3es are d5.3i-1.5rectly attributable to the original pa rties firs5t becaus5e-.4 of the volu5.7m and nature the materials contain5.3e-.8d the Sealed Materials and second b5.3ecause th5.3e de facto modification the Protocol Court should therefore reject the original parties proposals undermining the contemplated individual review and the other components of th Protocol the latter of which was largely adopted for the benef it of the non-parties In partic ular P6.2l-1.6aintiff originally opposed certain aspects of the Protocol and some of the protections it afforded the non-parties See e.g DE Her group-based review proposal effectivel reverses course in th is matter and aligns it with but positio5.9n.6.3 What matters now of course is how the ourt elects to proceed moving forward We submit there are means for expediting matters wi thout diminishing the required individualized review and the Protocol The following suggestions are inclusive of those in our August letter Case Document Filed Page of August Page of but account for the modification of the Protocol set out in DE and briefly respond to Plaintiff?s comments in he August letter The parties respective submissions to stre amline the Protocol discuss the subjects of notice to and/or lack of objections from non5.4-parties Pro5.4v.4ided the p5.4a4.3rties complied with their notice obligations unde the Protocol the time for non-parties to submit objections has expired Wh ile the parties should be permitted to continue any ongoing efforts to provide alternative no tice to the non-parties absent a sho5.4w2.1ing of good cause no out-of rule o5.4pposition sh5.4ould be cons4.7idered and the lack of any objecti on is not a basis for delayi ng the next phase under the Protocol.6.1 The legal briefing before the Court should be brought to a conclusion The Court should establish a cutoff for the original parties a to submit any further legal briefing if any pertaining to the le gal issues affecti ng the non-objecting non parties and to offer a ny response to the objections previously submitted by the non-parties The Court should continue its process of re viewing items in the order they appear on the docket as to a Doe Considering documents in sequence aids the Court in evaluating the weight of pr esumption public access that should be afford5.6ed to the documen5.6t This ocess can be improved by increasing the number of docket items taken under onsideration at a given time We proposed that if the orig inal parties do not object to a non-party?s objections the Court should summarily sustain the objections assuming the Court does not wish to have the matter otherwise he ard DE Plaintiff responds by insis5ting a presu5.7m-2pti on of access has attached the objecting party bears the burden of advancing the obj ection and the Court must nevertheless conduct a particularized review S6.1ee DE at Although not expressly stated presumably Plaintiff?s position is ba sed on the C6.9ourt?s prior rejection of Plaintiff?s p5.5o.5sition that if a non-party fails to ob ject the materials pertaining to that non-party should be automatically unsealed See DE at In rejecting Plaintiff?s position the Court noted th at the Protocol expressly advised non parties they were under no a ffirmative duty to object and the Court was obligated to conduct a particularized review See id But our position and Plaintiff?s Plaintiff?s criticism is mi splaced and misunderstands our reco5.7mmendation5.7.1.1 We appreciate that the current rev5.4i ew process is employed in the context of individual Does and such reco5.6rds4.9 are effectiv5.6ely pulled the order th ey appear the Docket That is the Court examin5.6es a of record5.6s4.9 pertaining to a part icular Doe The process can be improved by increasing the total number of reco rds examined5.4 at a time Case Document Filed Page of August Page of position are not two sides of the same coin As to the non-parties who have objected they have affirmatively th eir grounds for continuing the seal If the one party who has posited throu5.3ghout these proceed5.5ings that no5.5thing should be sealed namely P6.3l-1.5aintiff does not oppose the objections we submit that the Court can make quick of that part icular record One would reasonably conclude if Plaintiff has no objection there is nothing to resolve but we nevertheless of course s4.5p.2ecifically p5.2r-1.5efaced our recommendation Assu5.2ming the Court does not wish to have the ma tter otherwise heard.5.2 DE at Finally as the Sealed R6.9ecords are released the original parties should be directed to make the appropriate comprehensive re This is ha4.4rdly th5.5e bur3.8den Plaintiff suggests One does not need to assimilate an en tire case file although surely the original parties ha ve to know for example th at if you redact a name at page of a deposition transcript you must make a corresponding redaction to the acco5.4mpanying index,5.8 and that bo5.4th su ch redactions shou5ld be made in a manner to prevent a read5.8er fro5.8m easily infe the identity the individ5.5u.5al in question based on the name?s location in the index and the co ntext surrounding the name in the transc4.4rip5.5t-1.3 As always we appreciate the Court?s attenti on and stand ready to answer any questions the Court may have Respectfu5.7lly5.7 Submitted,6.1 KRIEGE-4.5R KIM LEWIN LLP By Nicholas Lewin Paul Krieger cc by ECF Maxwell Counsel of Record Civ LAP Plaintif3.9f oversta4.5tes matters No5.6t all ealed Records are equal fo5.5r th5.5is analys4.8is and there are many documen5.9ts where th5.9e presump5.9tio of access amounts little more than a prediction public access absent a countervailin5.2g reason as the Second5.4 Circuit has observed Brown Maxwell F.3d 2d Cir cit ation and internal quotation marks omitted Case Document Filed Page of
