`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 1 of 7 PageID: 3647
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`MONIB ZIRVI,
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`Plaintiff,
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`v.
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`ILLUMINA, INC., et al.,
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`Defendants.
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`Civil Action No. 23-1997 (MCA) (JSA)
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`FINDINGS OF FACT,
`CONCLUSIONS OF LAW AND
`ORDER ON MOTION TO SEAL
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`THIS MATTER having come before the Court by way of Defendants Latham & Watkins LLP,
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`Roger Chin, and Doug Lumish’s (“the Latham Defendants”) motion, (ECF No. 85), for an order to
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`seal Exhibits A and B attached to the Declaration of William Trousdale, Esq. in support of the Latham
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`Defendants’ motion to dismiss (sometimes the “Materials”); and the Court having carefully
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`considered the parties’ respective submissions in support of and in opposition thereto (ECF Nos. 85
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`& 85-2)1; and no oral argument having been heard pursuant to Fed. R. Civ. P. 78(b); and for the
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`reasons set forth below; and for good cause shown; the following shall constitute the findings of fact
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`and conclusions of law and Order of the Court:
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`FINDINGS OF FACT
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`1.
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`On April 8, 2023, Plaintiff filed the instant misappropriation of trade secrets and
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`legal malpractice action against the Latham Defendants and several other defendants. (ECF No. 1).
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`2.
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`On September 19, 2023, the Latham Defendants moved to dismiss Plaintiff’s
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`Complaint. (ECF No. 84). In support of their motion to dismiss, the Latham Defendants submitted
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`the Declaration of William Trousdale, Esq. and attached completely redacted versions of the
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`1 Plaintiff did not file separate opposition papers to the Latham Defendants’ motion to seal, but instead noted his
`objections in the Rule 5.3(c) index included within the Latham Defendants’ motion to seal. (ECF 85-2 at 2-3).
`1
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 2 of 7 PageID: 3648
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`Materials thereto. (Id.)
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`3.
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`On the same date, the Latham Defendants filed their motion to seal the Materials,
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`(ECF No. 85), and subsequently provided the Court and Plaintiff with unredacted versions of them.
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`(ECF No. 116).
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`4.
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`Exhibit A is Latham & Watkins LLP’s engagement letter with Cornell University
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`and Thermo Fisher Life Sciences Solutions, executed on January 24, 2017 (sometimes “Exhibit A”
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`or “engagement letter”). (ECF No. 85-1 at ¶ 5). The Latham Defendants contend that Exhibit A
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`contains confidential information relating to an attorney-client relationship, not otherwise made
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`public, and that sealing this information would protect the Latham firm’s former clients’
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`confidentiality. (ECF No. 85-1 at ¶ 5). They also claim, in cursory fashion, that disclosure would
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`damage the Latham Defendants’ and their former clients’ business relationships. (ECF No. 85-2 at
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`2). Plaintiff counters that there are no unusual circumstances regarding the retainer agreement that
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`warrant sealing. (ECF No. 85-2 at 2-3).
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`5.
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`Exhibit B consists of three email communications between Plaintiff and Valerie
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`Cross Dorn, then-Associate University Counsel for Cornell University. The Latham Defendants
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`contend that the emails are between Plaintiff and Ms. Dorn as well as “outside counsel.” (See ECF
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`No. 85-1 at ¶ 6). Yet, in their Rule 5.3(c) index, they state that the email correspondence is between
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`“Plaintiff and the Latham Defendants’ former client (Cornell University) . . . .” (ECF No. 85-2 at
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`3). Indeed, this Court’s review of the email communications confirms that the first email is dated
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`March 26, 2017, from Plaintiff to Ms. Dorn. The second email is dated March 31, 2017, wherein
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`Ms. Dorn responds to Plaintiff’s March 26th email. The third email is dated March 31, 2017,
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`wherein Plaintiff responds to Ms. Dorn’s March 31st email and copies several individuals, including
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`Defendants Roger Chin and Douglas Lumish, among others (“Exhibit B” or “March 2017 emails”).
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`(See ECF No. 85-1 at ¶ 6).
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 3 of 7 PageID: 3649
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`6.
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`As to Exhibit B, the Latham Defendants assert that while “Plaintiff alleges he was a
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`client of the Latham Defendants in the above-captioned matter[,] [t]he Latham Defendants do not
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`assert that Exhibit B contain[s] their confidential information.” (ECF NO. 85-1 at ¶ 6). Rather, in
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`the index, they claim that the email correspondence is “confidential correspondence between
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`Plaintiff and the Latham Defendants’ former client (Cornell University) to protect allegedly
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`privileged communications.” (ECF No. 85-2 at 3). Accordingly, it appears that the Latham
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`Defendants are seeking to seal Exhibit B out of an abundance of caution given Plaintiff’s allegation
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`that he was a client of the Latham firm. In opposition to sealing Exhibit B, Plaintiff does not clarify
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`whether he was a client of the Latham firm. Instead, he argues that the email correspondence is
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`between him and a third-party, presumably Cornell University’s in-house counsel Ms. Dorn, and
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`therefore should not be sealed. (ECF No. 85-2 at 2-3).
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`7.
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`In further support of their motion, the Latham Defendants submit that there is a
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`substantial public interest in sealing the non-public information contained in Exhibits A and B in
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`that Defendants would suffer a clearly defined, substantial and specific harm, including damage to
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`business relationships if Exhibit A were disclosed. (Id. at ¶ 7; ECF No. 85-2 at 2). However, the
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`Latham Defendants do not articulate, with sufficient specificity, the clearly defined and serious
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`harm. As to Exhibit B, they expressly state that they are not contending any harm will be suffered
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`if Exhibit B is publicly disclosed. (See ECF Nos. 85-1 at 3 & 85-2 at 2-3).
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`8.
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`Lastly, the Latham Defendants claim there is no less restrictive alternative to sealing
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`the Materials in their entirety. (Id.).
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`CONCLUSIONS OF LAW
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`9.
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`The common law right of public access to judicial proceedings and records is well
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`settled. In re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001) (citing Littlejohn v. BIC Corporation,
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`851 F.2d 673, 677-78 (3d Cir. 1988)); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 4 of 7 PageID: 3650
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`F.2d 157, 161 (3d Cir. 1993). The presumption of public access has been applied “to a wide variety
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`of civil records and documents,” including “pleadings, orders, notices, exhibits and transcripts filed.”
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`Leucadia, Inc., 998 F.2d at 162 (citations and internal quotation marks omitted). A narrow exception
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`has been carved out for discovery materials as well as “discovery motions and their supporting
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`documents.” Id. at 165.
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`10.
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`“[W]hen a moving party seeks an order sealing court records, it must demonstrate that
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`‘good cause’ exists to overcome the presumption in favor of public access.” China Falcon Flying
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`Ltd. v. Dassault Falcon Jet Corp., Civ. No. 15-6210, 2017 U.S. Dist. LEXIS 138651, at *4 (D.N.J.
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`Aug. 29, 2017) (citing Securimetrics, Inc. v. Iridian Techs., Inc., Civ. No. 03-4394, 2006 U.S. Dist.
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`LEXIS 22297 (D.N.J. Mar. 30, 2006)). The “good cause” standard requires a “particularized showing
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`that disclosure will cause a ‘clearly defined and serious injury to the party seeking closure.’”
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`Securimetrics, Inc., U.S. Dist. LEXIS 22297, at *7 (quoting Pansy v. Borough of Stroudsburg, 23
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`F.3d 772, 786 (3d Cir. 1994)). “This standard was incorporated into this District’s Local Civil Rule
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`5.3, which sets forth the requirements for a motion to seal.” City of Sterling Heights Gen. Employees’
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`Ret. Sys. v. Prudential Fin., Inc., Civ. No. 12-5275, 2016 U.S. Dist. LEXIS 5856, at *4 (D.N.J. Jan.
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`15, 2016).
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`11.
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`Local Civil Rule 5.3(c) requires the reviewing Court to consider the following factors:
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`(a) “the nature of the materials or proceedings at issue”; (b) “the legitimate private or public interest
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`which warrants the relief sought”; (c) “the clearly defined and serious injury that would result if the
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`relief sought is not granted”; and (d) “why a less restrictive alternative to the relief sought is not
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`available.” L. Civ. R. 5.3(c)(3).
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`12.
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`In addition to sealing communications protected by the attorney-client privilege, this
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`Court has the power to seal where confidential information may be disclosed to the public and harm
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`a party’s competitive standing in the marketplace, including “trade secret[s] or other confidential
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 5 of 7 PageID: 3651
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`research, development, or commercial information.” See Zenith RadioCorp. v. Matsushita Elec.
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`Indus. Co., Ltd., 529 F. Supp. 866, 889-91 (E.D. Pa. 1981); Fed. R. Civ. P. 26(c)(1)(G); see, e.g.,
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`Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988); Goldenberg v. Indel, Inc., No. 09-5202,
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`2012 U.S. Dist. LEXIS 479, at *8-12 (D.N.J. Jan. 3, 2012).
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`13.
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`This Court has discretion to balance the factors for and against access to court
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`documents. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 781 (3d Cir. 1994). The Latham
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`Defendants’ request to seal the engagement letter, (Exhibit A), is not narrowly tailored to any specific
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`confidential information. Attorney engagement letters are often not sealed because the type of
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`information they contain (e.g., client identities, the general scope of retention, attorney rates, the fact
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`of consultation) is usually not privileged or sufficiently sensitive to warrant sealing. See, e.g., In re
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`Semel, 411 F.2d 195, 197 (3d Cir. 1969) (retainer agreements generally are not privileged); Jonna v.
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`GIBF GP, Inc., No. 22-10208, 2023 WL 3244832, at *2-3 (E.D. Mich. May 4, 2023) (refusing to
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`seal engagement letter that merely “outlines the nature of the relationship, the general scope of the
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`work to be performed, and the rates [counsel] charged for the work”); Richards v. Cordis Corp., No.
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`17-178, 2022 WL 602563, at *4 (N.D.N.Y. Mar. 1, 2022) (denying motion to seal retainer agreement
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`because client identity and fee information are not privileged); Newmarkets Partners, LLC v. Sal.
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`Oppenheim Jr. & Cie. S.C.A., 258 F.R.D. 95, 101 (S.D.N.Y. 2009) (“In general, the fact of retainer
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`[and] identity of the client are not privileged, because they do not qualify as confidential
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`communications made for the purpose of securing legal advice.”) (internal quotation marks omitted).
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`These cases are instructive.
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`14.
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`Exhibit A is largely limited to setting forth the scope of retention, general descriptions
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`of legal services, the identity of the clients, roles and expectations of the attorney and clients,
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`retention policies, conflicts of interests, rates, and fee dispute procedures. Despite the Latham
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`Defendants’ assertions to the contrary, such information, with the exception of the scope of retention
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 6 of 7 PageID: 3652
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`description, is neither confidential nor reveals privileged communications. See In re Semel, 411 F.2d
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`at 197; see also Spiniello Companies v. Hartford, 2008 WL 2775643, at *3 (D.N.J. July 14, 2018).
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`Indeed, the Latham Defendants’ concerns about client confidentiality are questionable since they
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`directly quote from the client description provision of the engagement letter in their publicly filed
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`motion to dismiss. See ECF No. 84-1 at 1 (“Latham’s engagement letter expressly stated that its
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`clients were ‘solely’ Cornell and Thermo Fisher.”).
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`15.
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`Further, generalized assertions that disclosure would damage the Latham Defendants’
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`and their former clients’ business relationships do not sufficiently show the clearly defined and
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`serious injury that would result by the mere disclosure of the engagement letter. Accordingly,
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`wholesale sealing of Exhibit A is not warranted. See Richards, 2022 WL 602563, at *4; Jonna, 2023
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`WL 3244832, at *2.
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`16.
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`However, the Court finds that the engagement letter’s description of the scope of
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`retention states the purpose for which the clients sought the Latham Defendants’ legal services, and
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`thus touch upon privileged communications. See Stanziale v. Vanguard Info. Solutions Grp., 2008
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`WL 1808318, at *2 (D.N.J. Bankr. Apr. 21, 2008) (“The Court has reviewed the draft engagement
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`letter and determined that a portion of the document[] discloses more than merely the general purpose
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`of the retention, and in fact reveals specific areas of concern and anticipated issues for further
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`research and/or action. Accordingly, the Court has redacted, sua sponte, the document in order to
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`ensure that disclosure does not impair . . . rights with regard to the attorney-client privilege.”); see
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`also In re Grand Jury Investigation, 599 F.2d 1224, 1233 (3d Cir. 1979). Accordingly, the Court
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`finds redacting paragraph two of Section “1. Legal Services” in Exhibit A will protect any such
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`attorney-client privileged communications, and thus redaction is an appropriate less restrictive
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`alternative to sealing.
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`17.
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`The Court further concludes that the Latham Defendants have not shown good cause
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`Case 2:23-cv-01997-MCA-JSA Document 117 Filed 01/11/24 Page 7 of 7 PageID: 3653
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`to warrant sealing the March 2017 emails (Exhibit B). They do not assert that Exhibit B contains
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`their confidential information. Nor do they contend that Plaintiff was a client of the Latham firm.
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`Rather, since Plaintiff has alleged in the Complaint that he was a client of the Latham firm, (Compl.,
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`¶¶ 17-18), the Latham Defendants appear to seek sealing out of an abundance of caution. (See ECF
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`No. 85-2 at 3). However, Plaintiff affirmatively states that the March 2017 emails were between him
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`and third-party, in-house counsel for Cornell University. (Id. at 2-3). He does not claim the emails
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`contain any privileged or confidential information. As a result, the Court finds that there is no
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`claimed legitimate public or private interest that warrants sealing. Further, the Latham Defendants
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`expressly disavow any harm will be caused to them if Exhibit B is disclosed. (See ECF No. 85-2 at
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`2-3). In any event, Plaintiff opposes its sealing.
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`18.
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`In sum, the Court finds there is no good cause to seal Exhibit B.
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`THEREFORE, for the reasons stated above and for good cause shown,
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`IT IS on this 11th day of January 2024,
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`ORDERED that the Motion to Seal, (ECF No. 85), is hereby GRANTED IN PART and
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`DENIED IN PART; and it is further
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`ORDERED that the Latham Defendants shall file a redacted version of Exhibit A, consistent
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`with the rulings set forth herein, within fourteen (14) days from the date of this Order; and it is
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`further
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`ORDERED that the Latham Defendants shall file an unredacted version of Exhibit B, within
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`fourteen (14) days from the date of this Order; and it is further
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`ORDERED that the Clerk of Court shall terminate the motion at ECF No. 85.
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`cc: Hon. Madeline Cox Arleo, U.S.D.J.
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`s/Jessica S. Allen
`HON. JESSICA S. ALLEN
`United States Magistrate Judge
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