Witchko v. Schorsch

Document and posture

The provided document is styled as American Realty Capital Properties, Inc.’s notice and motion for leave to file under seal a January 17, 2020 letter concerning derivative counsel’s billing records. The case was consolidated with No. 1:15-cv-08563-AKH. The document identifies American Realty Capital Properties, Inc., now known as VEREIT, Inc., as the nominal defendant.

The filing’s text is internally unusual: although its title describes a motion to file material under seal, the body states that the company does not believe sealing is appropriate and requests that the motion to seal be denied. The text therefore appears to present the company’s position opposing continued sealing of the letter and billing records.

Arguments in the filing

The company argues that judicial documents are presumed to be publicly accessible and that sealing requires a showing that disclosure is essential to protect a higher value and that the requested restriction is narrowly tailored.

The filing states that derivative counsel’s 474 pages of billing records do not satisfy that standard. It argues that many billing entries merely describe tasks performed by counsel and do not disclose attorney work product or confidential communications. It also argues that derivative counsel did not justify sealing all 474 pages, even if some entries were privileged.

The filing further argues that any attorney-client privilege was waived because derivative counsel provided the billing records to defendants in the action, whom the filing describes as adversaries.

What the provided text decides

The provided text contains no signed judicial opinion or order and does not state that Judge Alvin Hellerstein granted, denied, or otherwise decided the motion. Accordingly, it records arguments made in a party filing rather than a court holding or disposition.