Valelly v. Merrill Lynch, Pierce, Fenner & Smith Incorporated

Background

Merrill Lynch filed a letter application asking for permission to file under seal or in redacted form materials submitted by both sides in support of their motions to exclude the opposing side’s expert opinions and testimony. The materials included legal memoranda, expert reports, rebuttal reports, deposition excerpts, an email submission, and a chart concerning rates.

Merrill Lynch and non-party Bank of America, N.A. asked to protect two general categories of information. The first concerned interest-rate-setting methods, the factors used to set rates, proposed rate changes, and inputs to Bank of America’s proprietary forecasting and financial-modeling methods. The second concerned financial information about Merrill Lynch investment accounts, including account balances, cash swept, and the number and type of accounts. They said the information was confidential, not publicly shared, and potentially harmful to their competitive interests if disclosed.

The Parties’ Positions

Merrill Lynch and Bank of America proposed targeted redactions or sealing for portions of the listed materials that referred to rate-setting factors, competitive analyses, methodologies, models, proposed rate changes, account balances, or cash swept.

Valelly took no position on the application and left the decision to the Court. She noted that courts apply a high standard when restricting public access to court documents and expressed skepticism about some proposed redactions, including redactions to a footnote that she believed concerned general profit-making considerations rather than proprietary methodology.

Ruling

Judge Valerie Caproni granted the application. The order did not provide a separate explanation or list additional conditions in the text supplied. The ruling allowed the requested materials to be filed under seal or in redacted form; it did not decide the parties’ underlying dispute or the expert motions themselves.