Preview
FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020
NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
Index No.: 156852/2020
JOAN GRAY,
Plaintiff,
-against-
SMBC CAPITAL MARKETS, INC.,
Defendants.
----------------------------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S
MOTION TO SEAL CONFIDENTIAL MATERIAL
SATTIRAJU & THARNEY, LLP
50 Millstone Road, Building 300, Suite 202
East Windsor, New Jersey 08520
609-469-2112
rsattiraju@s-tlawfirm.com
BLOCK O’TOOLE & MURPHY, LLP
One Penn Plaza – Suite 5315
New York, New York 10119
(212) 736-5300
dscher@blockotoole.com
SMITH MULLIN, P.C.
240 Claremont Avenue
Montclair, New Jersey 07042
(973) 783-7607
nsmith@smithmullin.com
Attorneys for Plaintiff
Of Counsel and on the Brief:
Ravi Sattiraju, Esq.
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NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023
PRELIMINARY STATEMENT
On May 3, 2023, SMBC Capital Markets, Inc. (hereinafter “Defendant”) filed a
discovery motion. See NYSCEF Doc. No. 78. On May 4, 2023, Joan Gray (hereinafter
“Plaintiff”) filed a letter requesting the Court issue preliminary relief in the form of an
order: (1) directing that Defendant withdraw its motion; and (2) scheduling a telephonic
conference call with the Part Clerk to discuss the parties’ discovery disputes. See
NYSCEF Doc. No. 79. Specifically, Plaintiff claimed Defendant’s motion was improper
because it failed to follow the Court’s Guidelines, which state: “Discovery motions are
strongly discouraged. If a discovery dispute arises, it may be directed to the Part Clerk
who will schedule a conference. Do not call or send letters to Chambers regarding
discovery disputes.” Ibid. To date, the Court has not issued a ruling.
Although the undersigned advised defense counsel of this Guideline and
requested they provide times for which they would be available for a call with the Court,
Defendant failed to respond and, instead, filed a discovery motion to compel the
production of, among other things, redacted information within Plaintiff’s medical
records that has no bearing on the facts of this case. Therein, Defendant acknowledges
Plaintiff’s right to file the instant motion to seal confidential material (the “Motion”)
pursuant to the terms of the parties’ October 8, 2021 Confidentiality Agreement and
Protective Order (the “Confidentiality Agreement”). See NYSCEF Doc. No. 78, Pgs. 5-7.
Plaintiff now moves this Court to seal her medical records on the grounds that her
privacy interests far outweigh the public’s interest in full access thereto.
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NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023
LEGAL ARGUMENT
PLAINTIFF’S PRIVACY INTERESTS FAR OUTWEIGH
THE PUBLIC’S INTEREST IN FULL ACCESS TO HER
MEDICAL RECORDS
Courts in this circuit regularly allow medical records to be filed under seal, finding
that parties have a strong privacy interest in their medical information. See, e.g., McGuirk
v. Swiss Re Fin. Servs. Corp., No. 14-cv-9516, 2015 WL 13661685, at *1 (S.D.N.Y. Mar. 30,
2015) (“Medical information is among the types of information often made subject to a
sealing order.”); Dilworth v. Goldberg, No. 10–CV–2224 JMF, 2014 WL 3798631, at *2
(S.D.N.Y. Aug. 1, 2014) (“Exhibits … were properly redacted, as they comprised
Plaintiff’s private medical records”); Hand v. New York City Transit Auth., No. 11–CV–
997 (RRM)(MDG), 2012 WL 3704826, at *5 (E.D.N.Y. Aug. 26, 2012) (“Federal law
generally treats medical records as confidential…. Thus, plaintiff’s motion to seal is
granted in part with respect to portions of dockets sheets that include the aforementioned
Employee Medical History & Physician's Certification Form”); Wheeler–Whichard v.
Doe, No. 10–CV–0358S, 2010 WL 3395288, at *7 (W.D.N.Y. Aug. 25, 2010) (“[T]his Court
and other district courts routinely file medical records under seal, without sealing the
action or having plaintiff proceed under a pseudonym, to protect plaintiff’s privacy
interests in his medical records and, therefore, plaintiff’s medical records only shall be
sealed”); Northrop v. Carucci, No. 304–CV–103 (RNC), 2007 WL 685173, at *3 n. 6 (D.
Conn. Mar. 5, 2007) (sealing sua sponte 800 pages of plaintiff's medical records because
“federal law treats medical records as confidential”).
Here, the parties’ Confidentiality Agreement states, in pertinent part, as follows:
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Any party may object to the designation of any documents as Confidential
Material and the parties shall confer in good faith to attempt to resolve the
objection. If the parties are unable to resolve the objection, the dispute may
be submitted to the Court by the designating party. Notwithstanding such
objection, the document(s) marked as Confidential Material and the
contents thereof shall be treated as Confidential Material pursuant to the
terms of this order until a contrary determination is made by written
agreement of the parties or by order of the Court.
6. Use of Confidential Material. Confidential Material and the
contents thereof may be used by the parties and the parties’ counsel solely
for purposes of prosecuting or defending the Action. Documents and
information designated as Confidential shall not be disclosed or made
known by the parties and/or their counsel to any other person, except as
follows:
…
d. to the judges and employees of the Supreme Court of the State of
New York, New York County, or appropriate appellate court pursuant to
the filing of a court paper or in connection with a hearing, trial, motion, or
request for court intervention in the Action, or as otherwise agreed to by
the parties or as ordered by the Court, provided that if any Confidential
Material is disclosed in a court paper or at a hearing or trial, the filing party,
if different than the designating party, shall give advance notice to the
designating party so that the designating party can file a motion to seal the
Confidential Material, unless the parties agree otherwise in writing or the
Court so orders.
See DiNapoli Aff., Ex. C at Pg. 4.
Plaintiff’s instant Motion is brought pursuant to the parties’ Confidentiality
Agreement. Put simply, Plaintiff’s medical records should not be made public. In Spring
v. Allegany-Limestone Cent. Sch. Dist., No. 14-CV-476S, 2021 WL 4166628, at *1
(W.D.N.Y. Sept. 14, 2021), the court held that a deceased plaintiff’s “privacy interest in
his medical records outweighs the public’s interest in full access to these documents.”
The court also found: “the public’s interest in access will be protected by this Court’s
decisions not being filed under seal, and by all references to the relevant records being
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unredacted.” Ibid. The result in this case should be no different. In fact, Plaintiff
deserves more protection of her medical records than the deceased plaintiff in Spring
because she is still alive. Accordingly, the Court should grant Plaintiff’s Motion because
her privacy interests far outweigh the public’s interest in full access to her medical
records.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court grant her
Motion and issue a protective order sealing her medical records from public disclosure.
Dated: East Windsor, New Jersey
May 15, 2023
Respectfully submitted,
/s/ Ravi Sattiraju
RAVI SATTIRAJU
SATTIRAJU & THARNEY, LLP
50 Millstone Road, Building 300, Suite 202
East Windsor, New Jersey 08520
DAVID L. SCHER
BLOCK O’TOOLE & MURPHY, LLP
One Penn Plaza – Suite 5315
New York, New York 10119
(212) 736-5300
NEIL MULLIN
SMITH MULLIN, P.C.
240 Claremont Avenue
Montclair, New Jersey 07042
(973) 783-7607
Attorneys for Plaintiff
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NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023
CERTIFICATION OF WORD COUNT
I hereby certify that the word count of this Memorandum of Law complies with the word
limits of 22 New York Codes, Rules and Regulations § 202.8-b. According to the word-processing
system used to prepare this Memorandum of Law, the total word count for all printed text exclusive
of the material omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 1,281 words.
DATED: East Windsor, New Jersey
May 15, 2022
Respectfully submitted,
s/Ravi Sattiraju
RAVI SATTIRAJU
SATTIRAJU & THARNEY, LLP
50 Millstone Road, Building 300, Suite 202
East Windsor, New Jersey 08520
609-469-2112
DAVID L. SCHER
BLOCK O’TOOLE & MURPHY, LLP
One Penn Plaza – Suite 5315
New York, New York 10119
(212) 736-5300
NEIL MULLIN
SMITH MULLIN, P.C.
240 Claremont Avenue
Montclair, New Jersey 07042
(973) 783-7607
Attorneys for Plaintiff
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Preview
FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X Index No.: 156852/2020 JOAN GRAY, Plaintiff, -against- SMBC CAPITAL MARKETS, INC., Defendants. ----------------------------------------------------------------------X MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S MOTION TO SEAL CONFIDENTIAL MATERIAL SATTIRAJU & THARNEY, LLP 50 Millstone Road, Building 300, Suite 202 East Windsor, New Jersey 08520 609-469-2112 rsattiraju@s-tlawfirm.com BLOCK O’TOOLE & MURPHY, LLP One Penn Plaza – Suite 5315 New York, New York 10119 (212) 736-5300 dscher@blockotoole.com SMITH MULLIN, P.C. 240 Claremont Avenue Montclair, New Jersey 07042 (973) 783-7607 nsmith@smithmullin.com Attorneys for Plaintiff Of Counsel and on the Brief: Ravi Sattiraju, Esq. 1 1 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 PRELIMINARY STATEMENT On May 3, 2023, SMBC Capital Markets, Inc. (hereinafter “Defendant”) filed a discovery motion. See NYSCEF Doc. No. 78. On May 4, 2023, Joan Gray (hereinafter “Plaintiff”) filed a letter requesting the Court issue preliminary relief in the form of an order: (1) directing that Defendant withdraw its motion; and (2) scheduling a telephonic conference call with the Part Clerk to discuss the parties’ discovery disputes. See NYSCEF Doc. No. 79. Specifically, Plaintiff claimed Defendant’s motion was improper because it failed to follow the Court’s Guidelines, which state: “Discovery motions are strongly discouraged. If a discovery dispute arises, it may be directed to the Part Clerk who will schedule a conference. Do not call or send letters to Chambers regarding discovery disputes.” Ibid. To date, the Court has not issued a ruling. Although the undersigned advised defense counsel of this Guideline and requested they provide times for which they would be available for a call with the Court, Defendant failed to respond and, instead, filed a discovery motion to compel the production of, among other things, redacted information within Plaintiff’s medical records that has no bearing on the facts of this case. Therein, Defendant acknowledges Plaintiff’s right to file the instant motion to seal confidential material (the “Motion”) pursuant to the terms of the parties’ October 8, 2021 Confidentiality Agreement and Protective Order (the “Confidentiality Agreement”). See NYSCEF Doc. No. 78, Pgs. 5-7. Plaintiff now moves this Court to seal her medical records on the grounds that her privacy interests far outweigh the public’s interest in full access thereto. 2 2 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 LEGAL ARGUMENT PLAINTIFF’S PRIVACY INTERESTS FAR OUTWEIGH THE PUBLIC’S INTEREST IN FULL ACCESS TO HER MEDICAL RECORDS Courts in this circuit regularly allow medical records to be filed under seal, finding that parties have a strong privacy interest in their medical information. See, e.g., McGuirk v. Swiss Re Fin. Servs. Corp., No. 14-cv-9516, 2015 WL 13661685, at *1 (S.D.N.Y. Mar. 30, 2015) (“Medical information is among the types of information often made subject to a sealing order.”); Dilworth v. Goldberg, No. 10–CV–2224 JMF, 2014 WL 3798631, at *2 (S.D.N.Y. Aug. 1, 2014) (“Exhibits … were properly redacted, as they comprised Plaintiff’s private medical records”); Hand v. New York City Transit Auth., No. 11–CV– 997 (RRM)(MDG), 2012 WL 3704826, at *5 (E.D.N.Y. Aug. 26, 2012) (“Federal law generally treats medical records as confidential…. Thus, plaintiff’s motion to seal is granted in part with respect to portions of dockets sheets that include the aforementioned Employee Medical History & Physician's Certification Form”); Wheeler–Whichard v. Doe, No. 10–CV–0358S, 2010 WL 3395288, at *7 (W.D.N.Y. Aug. 25, 2010) (“[T]his Court and other district courts routinely file medical records under seal, without sealing the action or having plaintiff proceed under a pseudonym, to protect plaintiff’s privacy interests in his medical records and, therefore, plaintiff’s medical records only shall be sealed”); Northrop v. Carucci, No. 304–CV–103 (RNC), 2007 WL 685173, at *3 n. 6 (D. Conn. Mar. 5, 2007) (sealing sua sponte 800 pages of plaintiff's medical records because “federal law treats medical records as confidential”). Here, the parties’ Confidentiality Agreement states, in pertinent part, as follows: 3 3 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 Any party may object to the designation of any documents as Confidential Material and the parties shall confer in good faith to attempt to resolve the objection. If the parties are unable to resolve the objection, the dispute may be submitted to the Court by the designating party. Notwithstanding such objection, the document(s) marked as Confidential Material and the contents thereof shall be treated as Confidential Material pursuant to the terms of this order until a contrary determination is made by written agreement of the parties or by order of the Court. 6. Use of Confidential Material. Confidential Material and the contents thereof may be used by the parties and the parties’ counsel solely for purposes of prosecuting or defending the Action. Documents and information designated as Confidential shall not be disclosed or made known by the parties and/or their counsel to any other person, except as follows: … d. to the judges and employees of the Supreme Court of the State of New York, New York County, or appropriate appellate court pursuant to the filing of a court paper or in connection with a hearing, trial, motion, or request for court intervention in the Action, or as otherwise agreed to by the parties or as ordered by the Court, provided that if any Confidential Material is disclosed in a court paper or at a hearing or trial, the filing party, if different than the designating party, shall give advance notice to the designating party so that the designating party can file a motion to seal the Confidential Material, unless the parties agree otherwise in writing or the Court so orders. See DiNapoli Aff., Ex. C at Pg. 4. Plaintiff’s instant Motion is brought pursuant to the parties’ Confidentiality Agreement. Put simply, Plaintiff’s medical records should not be made public. In Spring v. Allegany-Limestone Cent. Sch. Dist., No. 14-CV-476S, 2021 WL 4166628, at *1 (W.D.N.Y. Sept. 14, 2021), the court held that a deceased plaintiff’s “privacy interest in his medical records outweighs the public’s interest in full access to these documents.” The court also found: “the public’s interest in access will be protected by this Court’s decisions not being filed under seal, and by all references to the relevant records being 4 4 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 unredacted.” Ibid. The result in this case should be no different. In fact, Plaintiff deserves more protection of her medical records than the deceased plaintiff in Spring because she is still alive. Accordingly, the Court should grant Plaintiff’s Motion because her privacy interests far outweigh the public’s interest in full access to her medical records. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court grant her Motion and issue a protective order sealing her medical records from public disclosure. Dated: East Windsor, New Jersey May 15, 2023 Respectfully submitted, /s/ Ravi Sattiraju RAVI SATTIRAJU SATTIRAJU & THARNEY, LLP 50 Millstone Road, Building 300, Suite 202 East Windsor, New Jersey 08520 DAVID L. SCHER BLOCK O’TOOLE & MURPHY, LLP One Penn Plaza – Suite 5315 New York, New York 10119 (212) 736-5300 NEIL MULLIN SMITH MULLIN, P.C. 240 Claremont Avenue Montclair, New Jersey 07042 (973) 783-7607 Attorneys for Plaintiff 5 5 of 6 FILED: NEW YORK COUNTY CLERK 05/15/2023 06:35 PM INDEX NO. 156852/2020 NYSCEF DOC. NO. 111 RECEIVED NYSCEF: 05/15/2023 CERTIFICATION OF WORD COUNT I hereby certify that the word count of this Memorandum of Law complies with the word limits of 22 New York Codes, Rules and Regulations § 202.8-b. According to the word-processing system used to prepare this Memorandum of Law, the total word count for all printed text exclusive of the material omitted under 22 N.Y.C.R.R. § 202.8-b(b) is 1,281 words. DATED: East Windsor, New Jersey May 15, 2022 Respectfully submitted, s/Ravi Sattiraju RAVI SATTIRAJU SATTIRAJU & THARNEY, LLP 50 Millstone Road, Building 300, Suite 202 East Windsor, New Jersey 08520 609-469-2112 DAVID L. SCHER BLOCK O’TOOLE & MURPHY, LLP One Penn Plaza – Suite 5315 New York, New York 10119 (212) 736-5300 NEIL MULLIN SMITH MULLIN, P.C. 240 Claremont Avenue Montclair, New Jersey 07042 (973) 783-7607 Attorneys for Plaintiff 6 6 of 6