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

Background

Merrill Lynch moved for permission to file certain materials under seal or in redacted form. The materials were submitted by Merrill Lynch and Plaintiff in support of their oppositions to the opposing party’s motions under the expert-evidence rule, known as a Daubert motion, to exclude proposed expert opinions and testimony.

The requested restrictions covered portions of the parties’ legal memoranda and deposition transcripts, as well as two documents produced by non-party Bank of America, N.A. The proposed redactions or sealing concerned information about rate-setting and financial analysis, including specific factors, competitor benchmarks, competitive analysis, models, and methodologies. Merrill Lynch and Bank of America said the information was confidential, proprietary, and competitively sensitive.

The Parties’ Positions

Merrill Lynch and Bank of America argued that disclosure could reveal current business practices, rate-setting methods, and forecasting methods to competitors. They also stated that the information was not shared publicly or with competitors and that current and former employees were subject to policies and agreements restricting disclosure.

Plaintiff noted that courts apply a high standard before restricting access to court documents, particularly in a class action. Plaintiff nevertheless took no position on Merrill Lynch’s and Bank of America’s requests, while reserving all rights.

Ruling

Judge Valerie Caproni’s order states: “Application GRANTED” and “SO ORDERED.” The order therefore granted Merrill Lynch’s application to file the identified materials under seal or in redacted form. The text does not separately state the treatment of each individual document or passage beyond the proposals described in the application.