OPINION & ORDER By letter motion, Plaintiff requests that the Court unseal two documents it had previously agreed should remain under seal. (ECF No. 163). The County opposes and separately requests that the deposition of ADA Rydlun also be sealed. (ECF No. 164). Plaintiff opposes the County’s request to seal Rydlun’s deposition. (ECF No. 165). For the reasons below, Plaintiff’s request is DENIED, and the County’s request is GRANTED. BACKGROUND On June 16, 2023, the parties entered into a Confidentiality Order (ECF No. 87), which provides, among other things, the process by which parties can seek to challenge a document’s confidentiality designation. (ECF No. 87, at 7). The order also states that “[a]ny party may move to unseal a sealed filing at any time.” (Id. at 8). On March 8, 2024, the County filed a letter-motion seeking to claw back certain inadvertently disclosed documents. (ECF No. 123). Among those documents were a grand jury memorandum prepared by ADA Rydlun that summarizes Plaintiff’s grand jury proceedings (ECF No. 130-21), and the criminal history of a non-party witness (ECF No. 130-14). As relevant here, the Court found that the County waived any privilege that may have been applicable to the grand jury memorandum when it failed to object when the document was marked and discussed at length during a deposition. (ECF No. 144). The Court also found that the criminal history and criminal justice database search documents neither contained opinion work product nor benefited from the deliberative process privilege. (Id.) As a result, the Court denied the County’s request to clawback these documents. Subsequently, the Court entered a sealing order on April 22, 2024, that sealed the grand jury memorandum and criminal history record. (ECF No. 152). As explained in that order, the Court found that both documents should remain under seal, as doing so preserved higher values. (Id.) For the grand jury memorandum, in particular, the Court found that “[a]lthough the Court noted…that Plaintiff was entitled to receive this document in discovery, because this document summarizes confidential grand jury proceedings, the Court finds that it would preserve higher values for it to remain under seal.” (Id.) Plaintiff now requests that the Court unseal the grand jury memorandum and criminal history record, discussed above (ECF No. 163), which the County opposes. (ECF No. 164). Separately, the County also requests that ADA Rydlun’s deposition testimony be marked confidential and sealed (id. at 1), which Plaintiff opposes. (ECF No. 165). DISCUSSION The common law and the First Amendment accord a presumption of public access to judicial documents. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 124 (2d Cir. 2006). A “judicial document” is “a filed item that is ‘relevant to the performance of the judicial function and useful in the judicial process.’” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016) (quoting Lugosch, 435 F.3d at 119). To overcome the presumption of public access, the court must make specific, on the record findings for each individual document that sealing (1) is necessary “to preserve higher values,” and (2) “is narrowly tailored to serve that interest.” Lugosch, 435 F.3d at 120 (citation omitted); Brown v. Maxwell, 929 F.3d 41, 48 (2d Cir. 2019). The Court addresses plaintiff’s request to unseal the grand jury memorandum and criminal history — as well as the County’s request to seal ADA Rydlun’s deposition — below. ECF No. 130-14 (Criminal History Record) This document is an individual’s criminal history record. Plaintiff argues that this document should be unsealed because Plaintiff is “the producing party” and Plaintiff would be willing to “waive confidentiality with regard to” the document. (ECF No. 163). The County responds that this document should remain sealed because the Court already sealed it. (ECF No. 164). Plaintiff’s request to unseal the individual’s criminal history record is denied. As the Court previously explained, the sealing of this document “preserves higher values to keep an individual’s criminal history records sealed,” and “sealing it in its entirety would be the most narrowly tailored means of sealing” it. (ECF No. 152 at 3). Plaintiff provides no reason for the Court to revisit this ruling. Unsealing this individual’s criminal history record risks exposing sensitive information about both the individual and law enforcement matters to the public. By contrast, the sealing of this document does not prevent Plaintiff from using it in their anticipated summary judgment motion. It only requires that Plaintiff redact any references to this individual’s criminal history, and that any filing of the criminal history itself be filed under seal. The burden of doing so does not outweigh the privacy interests in keeping a person’s criminal history record private. ECF No. 130-21 (Grand Jury Memorandum) This document is a memorandum prepared by a prosecutor that summarizes Plaintiff’s grand jury proceedings. (ECF No. 130-21). Plaintiff argues that this exhibit should be unsealed because the County did not timely seek a protective order from the Court, as required by the Confidentiality Order. (ECF No. 163). The County responds that this document should remain sealed because the Court already sealed it. (ECF No. 164). Plaintiff’s request to unseal the memorandum is denied. As the Court previously explained, “because this document summarizes confidential grand jury proceedings, the Court finds that it would preserve higher values for it to remain under seal,” and “based on the Court’s review of this document, sealing it in its entirety would be the most narrowly tailored means of sealing.” (ECF No. 152 at 4). Plaintiff provides no good reason for the Court to revisit this ruling. Plaintiff’s argument that the County failed to timely seek a protective order is inapposite. First, the dispute resolution process in the Confidentiality Order governs disputes arising from confidentiality designations, not sealing matters already addressed by the Court. (ECF No. 87 at 7). Indeed, the Confidentiality Order contains a separate paragraph that addresses requests to unseal materials: “any party may move to unseal a sealed filing at any time.” (ECF No. 87 at 8). As such, the County’s failure to seek a protective order in a timely manner is irrelevant to Plaintiff’s request to unseal the memorandum. Second, before Rydlun’s deposition, the Court ordered that the grand jury memorandum be produced in discovery but remain under seal because it summarizes confidential grand jury proceedings. (ECF No. 152) Thus, it was fair for the County to assume that no separate protective order was required to maintain the memorandum under seal, unless and until Plaintiff sought to unseal it. As noted above, the confidentiality order separately addresses requests to unseal materials. Finally, even if the County had waived the confidentiality of the memorandum by failing to seek a protective order under the parties’ Confidentiality Order, that would not be dispositive to the Court’s sealing decision. Courts in this Circuit have recognized that a Court’s decision to seal documents does not depend solely on their designation under the parties’ protective order, but also on the Court’s independent assessment of competing interests. Brandon v. NPG Recs., Inc., No. 1:19-CV-01923-GHW, 2020 WL 2086008, at *10 (S.D.N.Y. Apr. 30, 2020), aff’d, 840 F. App’x 605 (2d Cir. 2020) (finding that even if material is properly designated as confidential by a protective order, the court retains full discretion to determine whether to afford confidential treatment to any discovery material designated confidential); Dandong v. Pinnacle Performance Ltd., No. 10 CIV. 8086 JMF, 2012 WL 6217646, at *2 (S.D.N.Y. Dec. 3, 2012) (ruling that the “consent of the parties is not a valid basis” to make a sealing determination, as the rights involved are those of “the public.”). Here, the Court has made such an independent finding and has determined that keeping these documents under seal would continue to serve higher values, namely maintaining the secrecy of grand jury proceedings. Although the Court recognizes that portions of deposition testimony discussing this document are publicly on the docket, that is not the same as allowing the document itself to be publicly filed. Allowing this document to be publicly filed risks exposing sensitive information about grand jury proceedings to the public, which is otherwise accorded confidentiality and might not have been covered during deposition testimony. Again, the sealing of this document does not prevent Plaintiff from using the document in this litigation. Plaintiff may use this memorandum in summary judgment proceedings. But Plaintiff must redact any references to the content of the memorandum and any filing of the memorandum must be done under seal. Rydlun Deposition This document is a transcript of the deposition testimony of ADA Rydlun, which the Court ordered to be taken in connection with the production of the grand jury memorandum discussed above. (ECF No. 144). Plaintiff argues that this deposition transcript should be both non-confidential and remain unsealed. (ECF No. 163). In support, Plaintiff argues that the Confidentiality Order provides that any party may “object to a confidentiality designation…at any time by notifying the producing party in writing, including by email.” (Id.). Plaintiff also submits a copy of an email exchange between Plaintiff and the County, in which Plaintiff objected to the County’s designation of Rydlun’s deposition as confidential.1 Plaintiff argues that because the County did not seek the Court’s intervention in response to his objection, the County waived its ability to have the deposition marked as confidential. (Id.). The County argues that Rydlun’s deposition transcript should be marked confidential and be sealed. (ECF No. 164). In support, the County argues that because Plaintiff did not object to the confidentiality designation at the deposition, Plaintiff waived his ability to contest this designation. (Id.). Further, the County argues that the parties’ confidentiality order does not even cover deposition transcripts. (Id.). Thus, the County requests that the deposition transcript be marked confidential and be sealed. (Id.). In keeping with the Court’s ruling on the grand jury memorandum, the Court finds that the portions of ADA Rydlun’s deposition that discuss the contents of the grand jury memorandum should be sealed. This is true even if the County arguably waived its ability to have Rydlun’s deposition marked as confidential under the parties’ Confidentiality Order.2 As with the grand jury memorandum itself, limited sealing of Rydlun’s deposition would preserve higher values to the extent it discusses otherwise secret grand jury proceedings. United States v. Haller, 837 F.2d 84, 87 (2d Cir. 1988) (finding that “the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings”); In re Grand Jury Subpoenas Dated Mar. 2, 2015, No. 15-MC-71 (VEC), 2016 WL 6126392, at *3 (S.D.N.Y. Oct. 19, 2016) (finding that in an action seeking to unseal grand jury subpoenas in a closed case, that “the traditional presumption in favor of public access to judicial proceedings does not extend to grand jury proceedings”); Banyan v. Police Officer Craig Sikorski, No. 1:17-cv-04942 (JLR), 2024 U.S. Dist. LEXIS 86081, at *2 (S.D.N.Y. May 13, 2024) (holding that in the context of summary judgment proceedings, “the interests in grand jury secrecy, although reduced, are not eliminated merely because the grand jury has ended its activities.”) (internal citation omitted). Also, sealing only those portions of Rydlun’s deposition that discuss the contents of the grand jury memorandum would be the most narrowly tailored means of sealing. CONCLUSION For the above reasons, Plaintiff’s request is DENIED, and the County’s request is GRANTED. The Clerk of Court is respectfully directed to maintain ECF Nos. 130-14 and 130-21 under seal and only viewable to “selected parties.” Because Plaintiff included an excerpt of Rydlun’s deposition transcript — which discusses the grand jury memorandum — in his letter at ECF No. 163, the Court finds that the letter must be sealed. Thus, the Clerk of Court is respectfully directed to modify the viewing level of ECF No. 163 from “public” to “selected parties,” pending submission of a version of ECF No. 163 that redacts the Rydlun deposition transcript discussing the grand jury memorandum. Finally, the Clerk of Court is directed to terminate the pending letter motion at ECF No. 163. SO ORDERED. Dated: July 30, 2024
