Thales Avionics, Inc. v. L3 Technologies, Inc.

CRAIG &. BROD ROGER A. COOPER □□□□ □□ ZUCKERMAN CLEARY GOTTLIEB STEEN & HAMILTON LLP OMe. PROD root ao ZUCKERMAN, JEFFREY S. LEWIS AMY R. SHAPIRO MARK E. □□□□□□□□ PAUL J. SHIM JENNIFER KENNEDY PARK □□ JAMAL FULTON STEVEN L. WILNER ELIZABETH LENAS PAUL □□□ IMPERATORE . aD OR et nzawe CURE 6 baReFoor 4 □□□□□□□ SIMMONS One Liberty Plaza tev, bas in ROTENZANS DANIELILAN enopNen □□□□□ pert □□□ New York, NY 10006-1470 JORGE U, JUANTORENA ADRIAN R-LEIPSIC □□□□□□□□□ PARKER . JEFFAEY A ROSENTHA ADAM BRENNEMAN JONATHAN MENDES DEOL T: +1 212 225 2000 MICHAEL o DAA ARID. MACKIMNON BRANDON M. HAMMER F: +1212 2253999 SEFFAEY D-MARPF JARED GERBER □□□□□□□□ □□□□□□□□□□ FRANCISCO L CESTERO RISHIZUTSHI MATTHEW G. BRIGHAM * FRANCESGA L. ODELL JANE VANLARE □□□□□□□□ PARTNERS clearygottlieb.com JASONFACTOR ELIZABETH OVER □□□□□□ KASSEL JOON H. KIM DAVID H. HERRINGTON □□□□□□ MORAG ALAN M. LEVINE KIMBERLY FR. SPOERRI HEIDE H. ILGENFRITZ MARGARET 5, PEPONIS AARON J MEYERS ANDREW WEAVER, AMERICAS _—_ASIA_—_SUROPE 8 MIDDLE EAST _ means: □□ □□□□□□ NEW YORK BENING ABUDHABI LONDON Buaneseaesus. Sage BER" □□□□□ □□□□□□□ SAN FRANCISCO HONG KONG BRUSSELS MILAN BENET J O'REILLY JOSEPH LANZKROW DAVIE) W.S_ YUDIN SAO PAULO SEOUL COLOGNE PARIS Seana OneaL UMicanes seaves □□□□ □□□ SILIGON VALLEY FRANKFURT ROME SEESRAHNORTA ELAWA S BRONSON □□□□□□ □ WALLANCE WASHINGTON, bc. MATTHEW P, SALERNO. MANUEL SILVA ALEXANDER □□□□□□□□□□ MIGHAEL J. ALBANG KYLE A. HARRIS JOSHUA PANAS VICTORL. HOU LINA BENSMAN CHARITY E. LEE □ D: +1 212 225 2333 February 2, 2024 Plaintiff's application is GRANTED. The confidential docu VIA ECF (ECF Nos. 48 and 50) shall remain under seal.

The Court of the Clerk is respectfully directed to termina Hon. Robyn F. Tarnofsky, ECE 47 P y Daniel Patrick Moynihan United States Courthouse, United States Courthouse, Dated: February 5, 2024 Pearl St New York, NY “5 ; lew owe New York, NY 10007-1312. [Akane UNITED STATES MAGISTRATE Re: Thales Avionics, Inc. v. L3 Technologies, Inc., No. 24-cv-112 (JGK) (RFT) Dear Magistrate Judge Tarnofsky: I write on behalf of Plaintiff Thales Avionics, Inc. (“Plaintiff”) pursuant to Rule of Your Honor’s Individual Practices to respectfully request leave to: (1) file under seal Exhibit 1, Exhibit 2, and Exhibit 3 attached to the Declaration of Mark E. McDonald, dated February 2, 2024; and (2) file in redacted form Plaintiff's reply in support of its motion for preliminary imyunction in aid of arbitration (“Reply”) (collectively, “Confidential Documents”).

Exhibit 1 and Exhibit 2 are documents that Your Honor ordered to be “treated as highly confidential with disclosure limited to outside counsel’s eyes only” once produced by Defendant. ECF No. 41 at 1. Moreover, Defendant has previously moved for its letter referring to and describing some of the contents of Exhibit 1 and Exhibit 2 (ECF No. 38) to be filed under seal because it “contains confidential and competitively sensitive information” and because the communications described therein, including Exhibit 1 and Exhibit 2, were “made in connection with a competitive bidding process that has not yet resulted in a final sale.” ECF No. 37.

Exhibit 3 is also a non-public document that relates to Defendant’s efforts to sell its entire avionics business and contains financial information about Defendant’s avionics business. Furthermore, in its communications with Plaintiff before this action was filed, Defendant maintained that that all such documents are covered by a Confidential Agreement as Hon. Robyn F. Tarnofsky, p. 2 of May 24, 2023 between Plaintiff's and Defendant’s parent companies, which in turn provides that all documents subject to it should be kept “strictly confidential.” ECF No. 12-1 at 1-2.

Finally, the portions of its Reply that Plaintiff moves to redact either describe the content of Exhibits 1-3, or contain information that Defendant considers confidential and commercially sensitive (ECF No. 32). Your Honor previously granted Defendant’s application to redact portions of Defendant’s Opposition that contained similar types of information. ECF No. 36.

“Established factors and values that can outweigh the presumption of public access include . . . business secrecy . . . and privacy interests.” Valassis Commce’ns, Inc. v. News Corp., No. 17-CV-7378 (PKC), 2020 WL 2190708, at *1 (S.D.N.Y. May 5, 2020). Courts have granted motions to seal commercially sensitive information, which, if disclosed, could cause competitive harm. See, e.g., Rubik’s Brand Ltd. v. Flambeau, Inc., No. 17-CV-6559 (PGG) (KHP), 2021 WL 1085338, at *1 (S.D.N.Y. Mar. 22, 2021) (granting motion to seal license agreements, invoices, and documents relating to marketing strategy); Tropical Sails Corp. v. Yext, Inc., No. 14 CIV. 7582, 2016 WL 1451548, at *4 (S.D.N.Y. Apr. 12, 2016) (sealing exhibits that would cause defendant “competitive injury” if disclosed). Cf United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995) (“Commercial competitors seeking an advantage over rivals need not be indulged in the name of monitoring the courts.”).

Plaintiff has no objection to filing any of these documents publicly. However, given that Exhibit 1 and Exhibit 2 were produced as highly confidential, Exhibit 3 contains non- public financial information about Defendant’s business and is of a type that Defendant previously maintained to be confidential, and portions of Plaintiff's Reply refer to those or other documents that have been filed under seal and information that has been redacted in previous filings in this action, Plaintiff respectfully asks that Your Honor provisionally grant this Motion until Defendant has an opportunity to be heard on whether any or all of the Confidential Documents should be kept under seal.

CONCLUSION Based on the foregoing, Plaintiff respectfully requests that Your Honor enter an Order allowing Plaintiff to file the Confidential Documents under seal.

Dated: New York, New York February 2, 2024 Respectfully submitted, Mark E. McDonald cc: All Counsel of Record (via ECF)