Fennell v. McCarthy
- Gregory Woods
- 1:20-cv-03764
- U.S. District Court · Southern District of New York
- 2
In Fennell v. McCarthy, Judge Fox struck an unredacted filing, allowed redacted replacements, and denied sealing the state-court record without prejudice.
The respondent must replace the unredacted memorandum and file properly redacted materials; the petitioner receives a copy of the order; and the victim’s identity is protected from public disclosure in the filed documents.
What happened
In Fennell v. McCarthy, the respondent said he had mailed the petitioner a copy of the answer and state-court record. The respondent had not filed those materials through the court’s electronic system, had not properly requested to seal the record, and had disclosed the victim’s name in a publicly filed memorandum.
The respondent asked to file the state-court record and transcripts under seal and to replace the memorandum with an identical version that omitted the victim’s name. He relied on a New York law making the identity of a victim of a sex offense confidential.
Judge Kevin Nathaniel Fox granted the request to strike the earlier memorandum and to file a properly redacted answer and amended memorandum by February 15, 2021. He denied the request to seal the state-court record and transcripts, but allowed the respondent to renew that request if it complied with the court’s electronic filing rules.
The detailed version
- Fennell v. McCarthy · No. 1:20-cv-03764
- Gregory Woods
- Feb. 11, 2021
Background
The respondent stated that he had mailed the petitioner a copy of the answer and the state-court record. The court noted that the respondent had not filed the answer or record through the court’s electronic filing system, had not asked for an order sealing the state-court record, and had disclosed the victim’s name in an unsealed memorandum of law filed as Docket Entry No. 14. The court also noted that the victim’s name appeared repeatedly in the state-court documents.
The respondent asked the court for permission to file the state-court record and state-court transcripts under seal on February 15, 2021. He also asked the court to strike Docket Entry No. 14 and permit him to file an amended memorandum that was identical except for omitting the victim’s name. The respondent relied on New York Civil Rights Law § 50-b, which provides that the identity of a victim of a sex offense is confidential. The respondent represented that the answer and memorandum would omit the victim’s name, so those documents would not need to be sealed.
Court’s Rulings
The court stated that it did not condone the respondent’s lack of diligence or failure to comply with a May 19, 2020 order. It nevertheless relied on the preference for resolving disputes on their merits. The court granted the respondent’s request to strike entirely from the record the memorandum filed on September 21, 2020, Docket Entry No. 14. It also granted the request to serve and file, by February 15, 2021, a properly redacted answer and amended memorandum identical in content to the earlier memorandum, with appropriate redactions.
The court denied the respondent’s request to file the state-court record and transcripts under seal, without prejudice to renewal. Any renewed request had to comply with Section 6 of the court’s Electronic Case Filing Rules and Instructions, including the requirement to identify the viewing level for each proposed sealed document. The Clerk was directed to strike Docket Entry No. 14 entirely and mail a copy of the order to the petitioner.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.