Tremor Video, Inc. v. Alphonso, Inc.

Tremor Video, Inc. v Alphonso, Inc. 2024 NY Slip Op 30125(U) January 10, 2024 Supreme Court, New York County Docket Number: Index No. 653266/2021 Judge: Joel M. Cohen Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication. [FILED: NEW YORK COUNTY CLERK 01/10/2024 03:46 P~ INDEX NO. 653266/2021 NYSCEF DOC. NO. 1049 RECEIVED NYSCEF: 01/10/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 03M ----------------------------------------------------------------------------------- X TREMOR VIDEO, INC., INDEX NO. 653266/2021 Plaintiff, 09/01/2023, 09/01/2023, - V - MOTION DATE 09/01/2023 ALPHONSO, INC. N/K/A LG ADS, LG ELECTRONICS, INC., MOTION SEQ. NO. 025 026 027 Defendants. DECISION+ ORDER ON MOTION ----------------------------------------------------------------------------------- X HON. JOEL M. COHEN: The following e-filed documents, listed by NYSCEF document number (Motion 025) 707, 708, 709,710, 711,712,713,714,715,716,717,718,719,720,721,722,723,724,725,726,727,728,729,730, 731,732,733,734,735,736,737,738,739,740,741,742,743,744,977,979,994,995,996, 1025 were read on this motion to SEAL/REDACT The following e-filed documents, listed by NYSCEF document number (Motion 026) 745, 746, 747, 748, 749,750,751,752,753,754,755,756,757,758,759,760,761,762,763,764,765,766,767,768, 769,770,771,772,773,774,775,776,777,778,779,780,781,782,783,784,785,786,787,788, 789,790,791,792,793,794,795,796,797,798,799,800,801,802,803,804,805,806,807,808, 809,810,811,812,813,814,815,816,817,818,819,820,821,822,823,824,825,826,827,828, 829,830,831,832,833,834,835,836,837,838,839,840,841,842,843,844,845,846,847,848, 849,850,851,852,853,854,855,856,857,858,859,860,861,862,863,864,865,974,976,980, 982,983,984,985,986,987,997,998,999, 1023, 1026 were read on this motion to SEAL/REDACT The following e-filed documents, listed by NYSCEF document number (Motion 027) 866, 867, 868, 869, 870,871,872,873,874,875,876,877,878,879,880,881,882,883,884,885,886,887,888,889, 890,891,892,893,894,895,896,897,898,899,900,901,902,903,904,905,906,907,908,909, 910,911,912,913,914,915,916,917,918,919,920,921,922,923,924,925,926,927,928,929, 930,931,932,933,934,935,936,937,938,939,940,941,942,943,944,945,946,947,948,949, 950,951,952,953,954,955,956,957,958,959,960,961,962,963,964,965,966,967,968,969, 970,971,972,973,975,978,981,988,989,990,991,992,993, 1000, 1001, 1002, 1024, 1027 were read on this motion to SEAL/REDACT Plaintiff Tremor Video, Inc. ("Tremor"), seeks an order sealing and/or redacting exhibits from that were filed in connection with this proceeding as NYSCEF Document Numbers 712- (MS 025); 749-864 (MS 026); and 870-953 and 956-970 (MS 027), and redacting portions 653266/2021 TREMOR VIDEO, INC. vs. ALPHONSO, INC. Page 1 of 7 Motion No. 025 026 027

1 of 7 [* 1] [FILED: NEW YORK COUNTY CLERK 01/10/2024 03:46 P~ INDEX NO. 653266/2021 NYSCEF DOC. NO. 1049 RECEIVED NYSCEF: 01/10/2024 of documents filed as NYSCEF Document Numbers 711, 741, 742, and 743 (MS 025); 684, 685, 749, 753, 853, and 854 (MS 026); and 693, 694, and 972-973 (MS 027). For the following reasons, Tremor's motion is granted in part.

Pursuant to§ 216.1 (a) of the Uniform Rules for Trial Courts, this Court may seal a filing "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" (22 NYCRR § 216.1 [a]).

The Appellate Division has emphasized that "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 201 O]). "Since the right [of public access to court proceedings] is of constitutional dimension, any order denying access must be narrowly tailored to serve compelling objectives, such as a need for secrecy that outweighs the public's right to access" (Danco Labs., Ltd v Chemical Works of Gedeon Richter, Ltd, 274 AD2d 1, 6 [1st Dept 2000] [emphasis added]; see also, e.g. Gryphon Dom. VL LLC v APP Intern. Fin. Co., B. V, 28 AD3d 322, 324 [1st Dept 2006]). "Furthermore, because confidentiality is the exception and not the rule, 'the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access"' (Maxim, Inc. v Feifer, 145 AD3d 516,517 [1st Dept 2016] [citations omitted]).

The Court has reviewed Tremor's proposed sealing of the documents filed as NYSCEF Document Numbers 712, 713, 717, 721, 724, 725, 730, 731, 732, 736, 737, 740 (MS 025); 752, 755,756,758,759,760,761,763,764,765,766,767,768,769,771,774,775,777,784,785, 786,788,790,791,793,794,795,797,799,800,801,805,810,812,832,833,834,836,840, 849, 852, 857, 861, 983, 984, 985, and 986 (MS 026); and 870, 872, 878, 881, 882, 883, 884,

653266/2021 TREMOR VIDEO, INC. vs. ALPHONSO, INC. Page 2 of 7 Motion No. 025 026 027

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885,887,888,889,891,892,893,894,895,896,902,904,906,908,911,912,914,916,922, 926,927,928,930,934,935,936,938,939,949,956,962,964,965,967,989,990,991,and (MS 027), as well as the targeted redactions the proposed in the documents filed as NYSCEF Document Numbers 711, 741, 742, 743 (MS 025); 684, 685, 749, 753, 1 853, 854 (MS 026); and 693, 694, 875, 876, 2 972, and 973 (MS 027), and finds that they comport with the applicable sealing standard as laid out in Mosallem, 76 AD3d at 348-350, and its progeny, in that they contain sensitive and confidential business and financial information. Further, these Exhibits are properly sealed and/or redacted to the extent they contain nonpublic information about confidential contracts or agreements with non-parties to this instant case (Mancheski v Gabelli Grp. Capital Partners, 39 AD3d 499, 502 [2d Dept 2007] ["[D]isclosure could impinge on the privacy rights of third parties who clearly are not litigants herein[.]"]).

However, the parties' generalized assertions of good cause for the remaining Exhibits filed as NYSCEF Document Numbers 714, 715, 716, 718, 719, 720, 722, 723, 726, 727, 728, 729, 733, 734, 735, 738, and 739 (MS 025); 750, 751, 754, 757, 762, 770, 772, 773, 776, 778, 779,780,781,782,783,787,789,792,796,798,802,803,804,806,807,808,809,811,813, 814,815,816,817,818,819,820,821,822,823,824,825,826,827,828,829,830,831,835, 837,838,839,841,842,843,844,845,846,847,848,850,851,855,856,858,859,860,862, 863, and 864 (MS 026); and 871, 873, 874, 877, 879, 880, 886, 890, 897, 898, 899, 900, 901, 903,905,907,909,910,913,915,917,918,919,920,921,923,924,925,929,931,932,933,

[FILED: NEW YORK COUNTY CLERK 01/10/2024 03:46 P~ INDEX NO. 653266/2021 NYSCEF DOC. NO. 1049 RECEIVED NYSCEF: 01/10/2024

937,940,941,942,943,944,945,946,947,948,950,951,952,953,957,958,959,960,961, 963, 966, 968, 969, and 970 (MS 027), do not establish a compelling justification for the complete sealing that is proposed. While portions of these documents may include confidential business and financial information, the proposed sealing is not adequately explained or justified.

Thus, the parties should propose and justify targeted redactions that satisfy the requirements of NYCRR § 216 [a] and applicable case law.

Any subsequent motion seeking to address the above concerns should adhere to this Part's Sealing Practices and Procedures (see https ://www.nycourts.gov/LegacyPD FS/courts/comdiv/NY/PDF s/part3-sealing-practices. pdf), including the requirement to submit an affidavit based on personal knowledge attesting to the factual bases for redaction and a spreadsheet setting forth a non-conclusory good faith basis for each proposed redaction.

Accordingly, it is ORDERED that Tremor's motion to seal the Exhibits is granted insofar as it seeks to seal the documents filed as NYSCEF Document Numbers 712, 713, 717, 721, 724, 725, 730, 731, 732, 736, 737, and 740 (MS 025); 752, 755, 756, 758, 759, 760, 761, 763, 764, 765, 766, 767,768,769,771,774,775,777,784,785,786,788,790,791,793,794,795,797,799,800, 801,805,810,812,832,833,834,836,840,849,852,857,861,983,984,985,and986(MS 026);and870,872,878,881,882,883,884,885,887,888,889,891,892,893,894,895,896, 902,904,906,908,911,912,914,916,922,926,927,928,930,934,935,936,938,939,949, 956, 962, 964, 965, 967, 989, 990, 991, and 992 (MS 027), and insofar as it seeks to redact the documents filed as NYSCEF Document Numbers 711, 741, 742, and 743 (MS 025); 684, 685,

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749, 753, 3 853, and 854 (MS 026); and 693, 694, 875, 876, 4 972 and 973 (MS 026); and is otherwise denied, without prejudice to filing a new motion within 21 days to redact confidential portions of the remaining Exhibits consistent with this Decision and Order and applicable case law; it is further ORDERED that the County Clerk shall maintain the documents filed as NYSCEF Document Numbers 711, 712, 713, 717, 721, 724, 725, 730, 731, 732, 736, 737, 740, 741, 742, and 743 (MS 025); 684, 685, 749, 752, 753, 755, 756, 758, 759, 760, 761, 763, 764, 765, 766, 767,768,769,771,774,775,777,784,785,786,788,790,791,793,794,795,797,799,800, 801,805,810,812,832,833,834,836,840,849,852,853,854,857,861,983,984,985,and (MS 026); and 693, 694, 870, 872, 875, 876, 878, 881, 882, 883, 884, 885, 887, 888, 889, 891,892,893,894,895,896,902,904,906,908,911,912,914,916,922,926,927,928,930, 934,935,936,938,939,949,956,962,964,965,967,972,973,983,984,985,986,989,990, 991, and 992 (MS 027) under seal, so that the documents may be accessible by the parties, their counsel, and authorized court personnel; it is further ORDERED that the documents filed as NYSCEF Document Numbers 714, 715, 716, 718, 719, 720, 722, 723, 726, 727, 728, 729, 733, 734, 735, 738, and 739 (MS 025); 750, 751, 754,757,762,770,772,773,776,778,779,780,781,782,783,787,789,792,796,798,802, 803,804,806,807,808,809,811,813,814,815,816,817,818,819,820,821,822,823,824, 825,826,827,828,829,830,831,835,837,838,839,841,842,843,844,845,846,847,848,

[FILED: NEW YORK COUNTY CLERK 01/10/2024 03:46 P~ INDEX NO. 653266/2021 NYSCEF DOC. NO. 1049 RECEIVED NYSCEF: 01/10/2024

850, 851, 855, 856, 858, 859, 860, 862, 863, and 864 (MS 026); and 871, 873, 874, 877, 879, 880,886,890,897,898,899,900,901,903,905,907,909,910,913,915,917,918,919,920, 921,923,924,925,929,931,932,933,937,940,941,942,943,944,945,946,947,948,950, 951, 952, 953, 957, 958, 959, 960, 961, 963, 966, 968, 969, and 970 (MS 027) shall remain provisionally sealed for 21 days from the date of the Court's entry of this Decision and Order on NYSCEF. If any party files a new motion to seal or redact confidential portions of the documents consistent with this Decision and Order within that 21-day period, the documents shall remain provisionally sealed pending resolution of that motion. If no such motion is filed within 21 days from the entry of this Decision and Order, the parties shall alert the County Clerk that the motion to seal the above-referenced documents has been denied by the Court and that the documents should be unsealed on NYSCEF; it is further ORDERED that the parties upload redacted copies to NYSCEF of the documents filed at NYSCEF Document Numbers 711, 741, 742, and 743 (MS 025); 684, 685, 749, 753, 5 853, and (MS 026); and 693, 694, 875, 876, 6 972 and 973 (MS 027) within 21 days of this Decision and Order; it is further ORDERED that, as it relates to future submissions that contain subject matter that the court has authorized to be sealed by this Decision and Order which are made by any party, the parties may file a joint stipulation, to be So Ordered, which will authorize the filing of such

!FILED: NEW YORK COUNTY CLERK 01/10/2024 03 :46 PM! INDEX NO. 653266/2021 NYSCEF DOC. NO. 1049 RECEIVED NYSCEF: 01/10/2024 future submissions to be filed in sealed and/or redacted form on NYSCEF, provided that an unredacted copy of any document is contemporaneously filed with a request to seal.

This constitutes the Decision and Order of the Court.

1/10/2024 DATE JOEL M. COHEN, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

653266/2021 TREMOR VIDEO, INC. vs. ALPHONSO, INC. Page 7 of 7 Motion No. 025 026 027