Liu v. The Nielsen Company LLC

What the order addressed

This order addressed the parties’ communications with the court and the handling of redactions to Plaintiff Frank Liu’s sur-reply. The opinion states that Liu was proceeding without a lawyer and that the court had received more than seven emails from Liu and defense counsel during the preceding week. The emails primarily concerned proposed redactions, sealing, or striking of the sur-reply.

The court stated that Defendants’ motion to seal appeared to have been filed in error. At the time of the order, both that motion and Liu’s sur-reply were under provisional seal. The order did not make a final decision on whether the filings should remain sealed.

Court’s directions

The court reminded represented parties that emails to chambers were allowed only in limited circumstances under Judge Wang’s individual practices. It stated that parties without lawyers were subject to even greater restrictions and were required to communicate with the court by filing documents on the docket.

The court directed all parties to stop copying the court on email correspondence. It warned that future emails would be discarded without review and that future failures to follow the directive could result in sanctions.

The court directed Liu to file, under seal and visible only to the parties, a proposed redacted version of the sur-reply by June 14, 2024. It instructed Liu to consider the privacy protections for court filings in Federal Rule of Civil Procedure 5.2 and to strongly consider using initials instead of the full name of a former Nielsen employee.

The court directed Defendants to file, under seal but visible to the court and the parties, a response by June 21, 2024. Defendants could propose additional or different redactions or agree to Liu’s proposals. The court said that no further discussions between the parties about this issue were necessary, particularly by email, because those discussions had been unproductive.

What remained undecided

After both sides had an opportunity to propose redactions, the court would decide Defendants’ motion to seal by accepting or rejecting the proposed redactions and possibly making its own. The court also said it might impose sanctions if either party’s proposed redactions were too broad, too limited, or not made in good faith.

The court expressly stated that it would consider the substance of arguments in Liu’s sur-reply as part of its report and recommendation on Defendants’ motion to dismiss only after a properly redacted sur-reply was filed. Thus, this order did not decide the motion to seal, the motion to dismiss, or the merits of the arguments in the sur-reply.

Appeal-fee ruling

The court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith. It therefore denied in forma pauperis status—that is, permission to appeal without paying the filing fee—for an appeal from this order.

Disposition

Judge Wang entered procedural directions concerning email communications, redactions, and sealed filings; deferred consideration of the sur-reply’s arguments; and denied fee-free appeal status for an appeal from the order. The order did not grant or deny the motion to seal or the pending motion to dismiss.