The following e-filed documents, listed by NYSCEF document number (Motion 010) 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER. DECISION+ ORDER ON MOTION In motion sequence number 010, plaintiff BDO USA, LLP (BDO) moves, pursuant to Section 216.1 of the Uniform Rules of the New York State Trial Courts to permanently seal NYSCEF Doc. No. (NYSCEF) 207. This motion is a renewal of plaintiff’s prior motion to seal (motion sequence number 007), which was denied without prejudice. (NYSCEF 240, Decision and Order [mot. seq. no. 007].) There is no indication that the press or public have an interest in this matter; however, the motion is opposed by defendants Matthew Franz and Donald Sowell on several grounds. Plaintiff brought this action against Franz and Sowell, BDO’s former employees, for allegedly breaching their employment contracts. Prior to the initiation of this action, BDO interviewed defendants, who were then still employees, and inquired about the development of the proprietary tools that defendants worked on including “bioTRAK” and data from “USA Spend”.1 NYSCEF 207 is the transcript of defendants’ interviews but only contains defendants’ answers. (See NYSCEF 184, So Ordered Transcript at 4:13-5:4 [mot. seq. nos. 002, 003, 004].) Certain responses were highlighted yellow by defendants’ counsel but were not made for purposes of this sealing motion. (See NYSCEF 207, Transcript of Defendants’ Interviews at 22.) Legal Standard “Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records.” (Mosallem v. Berenson, 76 AD3d 345, 348 [1st Dept 2010] [citations omitted].) The public’s right to access is, however, not absolute, and under certain circumstances, “public inspection of court records has been limited but numerus statutes.” (Id. at 349.) One of those statutes is Section 216.1(a) of the Uniform Rules for Trial Courts, which empowers courts to seal documents upon a written finding of good cause. It provides: “(a) Except 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 of the parties. Where it appears necessary or desirable, the court may prescribe appropriate notice and opportunity to be heard.” The “party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access” to the documents. (Id. at 349 [citations omitted].) Good cause must “rest on a sound basis or legitimate need to take judicial action.” (Danco Lab Ltd. v. Chemical Works of Gedeon Richter, Ltd., 274 AD2d 1, 8 [1st Dept 2000] [internal quotations omitted].) Further, in the business context, courts have sealed records where the disclosure of documents “could threaten a business’s competitive advantage.” (Mosallem, 76 AD3d at 350 [citations omitted].) Records concerning financial information may be sealed where there has not been a showing of relevant public interest in the disclosure of that information. (See Dawson v. White & Case, 184 AD2d 246, 247 [1st Dept 1992].) A party “ought not to be required to make their private financial information public…where no substantial public interest would be furthered by public access to that information.” (D’Amour v. Ohrenstein & Brown, 17 Misc3d 1130[A], 2007 NY Slip Op 52207[U], *20 [Sup Ct, NY County 2007] [citations omitted].) Discussion BDO contends that defendants’ answers in the interviews reveal, inter alia, confidential and proprietary information related to the bioTRAK and USA Spend projects, defendants’ methodologies for developing the tools they were tasked with creating, and BDO’s internal development processes and business strategy. It is BDO’s contention that the underlying data is proprietary and confidential. Defendants assert that their work performed in relation to bioTRAK and the business strategy and development processes with respect to data from USA Spend cannot be considered competitively sensitive information because (i) defendants were never given access to the software code for the bioTRAK product, instead they were given access to stale, publicly available information for the bioTRAK and USA Spend projects, and (ii) BDO waived any confidentiality concerns, for example, when it gave an interview, which is posted on YouTube, discussing the bioTRAK project. Here, the court agrees with defendants to the extent that some of defendants’ answers do not implicate competitively sensitive information that requires wholesale sealing of the document. Good cause does not exist to seal non-proprietary information that does not reveal, inter alia, trade secrets, business strategy, and/or internal finances that could harm BDO’s competitive standing in the industry. For example, good cause does not exist to seal the entire transcript where many responses merely say “I’m not sure,” “Sorry?”, “Okay,” or responses to this effect. (See, e.g., NYSCEF 207, Transcript of Defendants’ Interviews at 24; id. at 100 ["I would have to go back and look at my records and see exactly when I did that."]; id. at 177-78 ["I do not ever want to deal with lawyers again because that was horrible."].) These types of answers from the defendants do not reveal any confidential information under any standard, and thus, BDO shall refile a narrowly-tailored redacted version of NYSCEF 207 with redactions that only implicate proprietary information that could cause harm should this information be disclosed to the public. In doing so, BDO should also take into consideration that this transcript does not contain the questions asked to defendants, which may mitigate the risk of adverse harm the disclosure of this transcript could pose. However, defendants’ contention that the information is publicly available or has been released to the public in prior instances, and therefore, should not be sealed is unavailing. Defendants’ answers within the transcript facially contain confidential discussions of, inter alia, business strategy and internal processes as they relate to the software, projects, or business management. (See, e.g., NYSCEF 207, Transcript of Defendants’ Answers at 143.) The case defendants cite to, Matter of Wegmans Food Markets, Inc. v. Tax Appeals Trib. of NY, is entirely irrelevant to this seal motion. (33 NY3d 587, 595 [2019] [reviewing the statutory construction of Tax Law §1105 [c] [1].) Therefore, the court disagrees with defendants to the extent that they argue that there is no confidential information or proprietary information. It is apparent from transcript that defendants’ responses do reveal business strategy and discussions concerning the development and work on these projects. (See, e.g., NYSCEF 207, Transcript of Defendants’ Interviews at 102.) Therefore, and as discussed in more detail above, good cause exists to narrowly redact portions of defendants’ answers that reveal confidential and proprietary information. The court has considered defendants’ other arguments, i.e., BDO’s failure to follow the requirements under CPLR 2221 (e)(3) and that the relief is barred by CPLR 3101(i), and too, finds them unavailing. Accordingly, it is ORDERED that the motion is granted in part on condition that plaintiff timely file a properly redacted transcript; and it is further ORDERED that plaintiff shall file a proposed redacted copy using yellow highlights (under temporary seal) and a redacted copy of NYSCEF Doc. No. 207, pursuant to Part 48 Procedures on sealing and/or redacting, in accordance with this decision within 10 days from the date of this order; and it is further ORDERED that plaintiff shall email Part 48 ([email protected]) upon the filing the proposed and redacted copies of NYSCEF Doc. No. 207; and it is further ORDERED that this court will direct the County Clerk to unseal NYSCEF Doc. No. 207 unless plaintiff files, within the prescribed period of time, a proposed redacted copy and redacted copy of NYSCEF Doc. No. 207 pursuant to Part 48 Procedures. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED DENIED X GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: September 5, 2022
