Suber v. VVP Services, LLC
- Alison Nathan
- 1:20-cv-08177
- U.S. District Court · Southern District of New York
- 14
In Suber v. VVP Services, LLC, Judge Nathan ordered some exhibits unsealed, others redacted, and Exhibits 15 and 32 kept sealed.
The order primarily affected Karen M. Suber and the Defendants by determining which exhibits would become public, which would be redacted, and which would remain sealed. It also addressed privacy interests of third parties identified in Exhibit 26.
What happened
In Karen M. Suber v. VVP Services, LLC, et al., the court reconsidered which documents from the lawsuit should remain sealed after the Second Circuit sent the sealing issue back for further review. The underlying claims had already been dismissed without prejudice for lack of personal jurisdiction.
The court ordered Exhibits 13(A), 13(C), and 23 filed publicly without redactions; required redactions to Exhibits 13(B), 10, and 22; and allowed Defendants to propose redactions to Exhibits 24 and 26. Exhibits 15 and 32 were allowed to remain sealed because they were not judicial documents subject to a presumption of public access.
Judge Nathan rejected Plaintiff’s argument that the crime-fraud exception required disclosure of privileged communications. The court found that some portions were not privileged attorney-client communications and had to be unsealed, while the remaining protected portions could stay redacted.
The detailed version
- Suber v. VVP Services, LLC · No. 1:20-cv-08177
- Alison Nathan
- July 27, 2023
Background
Karen M. Suber, a transactional attorney, brought state and federal claims concerning her former employment. The court had previously dismissed those claims without prejudice for lack of personal jurisdiction. The Second Circuit affirmed that dismissal but vacated the earlier sealing determinations and returned the case for an exhibit-by-exhibit review.
The dispute concerned Exhibits 10, 13(A), 13(B), 13(C), 15, 22, 23, 24, 26, and 32. The Second Circuit instructed the court to determine which exhibits were judicial documents, which implicated attorney-client privilege, whether the crime-fraud exception applied, and whether privileged material could be redacted so that the exhibits could be made public.
Legal standards
Documents filed with a court are judicial documents subject to a presumption of public access only when they are relevant to the court’s work and useful to the judicial process. That presumption can be overcome when a countervailing interest, such as attorney-client privilege, justifies sealing. Attorney-client privilege protects confidential communications between a client and counsel made primarily to obtain or provide legal advice, but it does not protect the underlying facts.
The crime-fraud exception removes privilege only when there is probable cause to believe a crime or fraud was attempted or committed and the particular communication was made to further or conceal that crime or fraud. The court concluded that Plaintiff had not shown the required connection between the specific communications and the alleged fraud.
Rulings on the exhibits
The court ordered the following:
- Exhibit 23 had to be unsealed as required by the Second Circuit. - Exhibit 13(A) had to be filed publicly without redactions because Defendants no longer identified confidential information in it. - Exhibit 13(C) had to be filed publicly without redactions because the identified material was not protected by attorney-client privilege. - Exhibit 13(B) had to be filed publicly with the redactions described in Defendants’ May 1, 2023 letter. - Exhibit 10 had to be filed publicly with redactions to all material except the December 5, 2017, 10:50 a.m. email. The court found that email was not a privileged attorney-client communication. - Exhibit 22 had to be filed publicly with redactions to all of page 2 except the November 29, 2017 email. The court found that email excerpt was not privileged. - Exhibit 24 could remain redacted only to the extent particular redactions were justified by attorney-client privilege. The court rejected reliance on Plaintiff’s broader ethical duty to preserve client confidences without a specific showing that disclosure would be detrimental. - Defendants could propose redactions to Exhibit 26 to protect third parties’ privacy interests. - Exhibits 15 and 32 could remain sealed because they were not judicial documents. The court found that neither exhibit had been relied on in deciding the earlier motions, had a tendency to influence the court’s rulings, or would materially help the public understand the issues before the court.
Defendants were required to file the specified public versions and proposed redactions within one week. Plaintiff could file a letter opposing the proposed redactions to Exhibits 24 and 26 within two weeks. The opinion does not state the final disposition of any later dispute over those proposed redactions.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.