FILED: NEW YORK COUNTY CLERK 07/14/2016 09:43 AM INDEX NO. 651587/2016 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 07/14/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PERSEUS TELECOM LTD., v. Plaintiff, Index No. 651587/2016 INDY RESEARCH LABS LLC Motion Seq. No. 2 Defendant. MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF PERSEUS TELECOM LTD. S APPLICATION FOR AN ORDER REQUESTING REDACTION, SEALING, AND NON-DISCLOSURE CLARICK GUERON REISBAUM LLP Emily Reisbaum Sarah Louise Bishop 220 Fifth Avenue, 14th Floor New York, New York 10001 (212) 633-4310 Attorneys for Defendant Indy Research Labs LLC 1 of 8
Table of Contents Table of Authorities...ii Preliminary Statement...1 Statement of Facts...2 I. The Information Is Not Sensitive...2 II. Perseus Has Not Guarded The Information...2 Argument...4 I. This Court Should Not Restrict Access To The Information...4 Conclusion...5 i 2 of 8
Table of Authorities Cases Mancheski v. Gabelli Group Capital Partners, 39 A.D.3d 499 (2d Dep't 2007)... 5 MBIA Ins. Corp. v. Countrywide Home Loans, Inc., No. 602825/08, 2013 WL 450030 (N.Y. Sup. Jan. 3, 2013)... 1, 4 Mosallem v. Berenson, 76 A.D.2d 345, 349 (1 st Dep t 2010)... 1, 4 Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 124 (1st Dep't 1998)... 5 Rules 22 NYCRR 216.1.... 4 ii 3 of 8
Defendant Indy Research Labs LLC ( Indy ) respectfully submits this memorandum of law in opposition to the application of Perseus Telecom Limited ( Perseus ), for redaction, sealing, and non-disclosure. PRELIMINARY STATEMENT Perseus s application to restrict certain information from this court s public docket nowhere cites to the law or explains how its request comports with the law because it does not. Perseus s application further fails to show, as it must, that compelling circumstances... justify restricting public access to the exhibits to Indy s motion to dismiss. MBIA Ins. Corp. v. Countrywide Home Loans, Inc., No. 602825/08, 2013 WL 450030, at *3-4 (Jan. 3, 2013) (N.Y. Sup. Ct., Bransten, J.) quoting Mosallem v. Berenson, 76 A.D.2d 345, 349 (1 st Dep t 2010). There are no compelling circumstances here. Most importantly, the information sought to be redacted is not, in fact, sensitive. Perseus does not seek to redact, for instance, technical proprietary information. Instead, they seek to redact the location and names of data centers which they access all information which is publicly available on Perseus s own website and elsewhere on the internet, and is used by all vendors and customers in this market. Further, Perseus has not guarded the secrecy of this information. In its business discussions with Indy Research, Perseus did not secure a Non-Disclosure Agreement concerning the information at issue (or any other information). Many of the documents from which Perseus seeks to redact information do not even indicate that the documents or information is confidential. In addition, Perseus allowed the information to be maintained on the court s website, unredacted, for five days before belatedly claiming that the material was confidential. Perseus s application is without basis in law or fact and should be immediately denied. 1 4 of 8
I. The Information is Not Sensitive STATEMENT OF FACTS Perseus s claims that the information is trade secret, proprietary business information and/or competitively sensitive information must be disregarded. Perseus s CEO swears that the [c]ircuit end-point locations, the configuration of Plaintiff s structure and the configuration of Plaintiff s equipment for its clients are not public information and have been developed by Plaintiff exclusively, at great expense, for its business to serve its customers and compete with other firms. Location end points are proprietary, highly sensitive and are critical in competing in the market. Affidavit of Jock Percy, dated July 12, 2016, 5; see also, Affirmation of Christopher M. Tarnok, dated July 12, 2016, ( Tarnok Aff. ) 11-13. This is not true. Looking at the actual words Perseus seeks to redact, rather than Perseus s overblown descriptions, makes this clear. Perseus s description of the information it seeks to seal as configuration and equipment is mystifying, as Perseus does not, in fact, seek to redact any such information. (See Tarnok Aff., Ex. B.) What Perseus in fact seeks to redact is only the addresses of data centers at which it maintains a presence. (See id.) But this information is in no way secret or proprietary. The location information is mundane and also is widely available to the public, both on Perseus s own website and on the internet, for example: http://perseus.co/global-network/ http://perseus.co/60hudson-globalconnectivity/ https://en.wikipedia.org/wiki/60_hudson_street http://www.datacenterknowledge.com/special-report-the-worlds-largest-datacenters/worlds-largest-data-center-350-e-cermak/ https://www.datacenters.com/verizon-carteret-data-center 2 5 of 8
http://www.equinix.com/locations/united-states-colocation/new-york-data-centers/ny4/ Moreover, the locations have not been developed by Plaintiff exclusively rather, they are well known sites developed and maintained by third parties that are known to and used by many of Perseus s competitors as well. Indeed, the address information is neither sensitive nor significant not least because the companies that develop and maintain these sites openly advertise the data centers location and features, providing Google Maps links datasheets of technical specifications, and even video virtual tours of the locations. See, e.g., http://www.equinix.com/locations/united-states-colocation/new-york-data-centers/ny4/; http://www.telx.com/data-center/chicago/. The locations of data centers worldwide can be looked up in numerous online directories, including https://www.datacenters.com/directory and http://www.datacentermap.com/. Perseus s claim that these addresses are trade secrets or competitively sensitive is bizarre and absolutely baseless. II. Perseus Has Not Guarded This Information Until it sought to redact the exhibits to Indy s motion to dismiss a few weeks ago after the exhibits had appeared publicly on the court s e-filing system for five days Perseus had made no effort to protect the information or in any way restrict Indy s disclosure of it. As Perseus admits, Indy did not, in fact, sign a Non-Disclosure Agreement. (Tarnok Aff., 17-18.) Further, Perseus was aware for weeks before the filing that Indy planned to file a motion to dismiss, did not raise any confidentiality issues before the due date, and waited for five days after the filing to review the motion papers. The argument that Indy is bound by Perseus s Standard Terms and Conditions is wrong here for the same reasons as stated in Indy s motion to dismiss: Indy did not agree to such Terms and Conditions; Indy required that the Service Order Form it signed explicitly state that it 3 6 of 8
had not agreed to such Terms and Conditions; and, in any event, Perseus had completely failed to provide the services that (among other factors) would trigger the start of the Terms and Conditions. (Id., Exs. E, H.) Notwithstanding Perseus s particular failures in these regards, as discussed in Point A above, Perseus actually makes the information public on its website. ARGUMENT I. This Court Should Not Restrict Access to the Information Perseus has not met its burden to warrant any restrictions on the information under 22 NYCRR 216.1. There is a broad presumption under New York law favoring public access to judicial proceedings and court records. MBIA Ins., 2013 WL 450030, at * 3 citing Mosallem, 76 A.D.3d at 348. This presumption stems from the State's long recognition that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly and fairly. Id. Confidentiality is clearly the exception, not the rule, and the party seeking to seal court records has the burden to demonstrate compelling circumstances to justify restricting public access. Id. citing Mosallem, 76 A.D.3d at 349. In order to determine whether a business s information is entitled to protection, courts may consider a number of factors, such as: (1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the business] to guard the secrecy of the information; (4) the value of the information to [the business] and to [its] competitors; (5) the amount of effort or money expended by [the business] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. MBIA Ins., 2013 WL 450030, at * 4 citing Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 124 (1st Dep't 1998). Determination of whether the release of documents threatens a harm to a business s competitive business advantage hinges on a finding that such information: is 4 7 of 8
proprietary; involves current or future business strategies; is closely guarded; and, if disclosed, would given a competitor an unearned advantage. Id., at * 4 citing Mancheski v. Gabelli Group Capital Partners, 39 A.D.3d 499, 503 (2d Dep't 2007). None of these factors are present here. As discussed above, the information is publicly available and easily accessible at various internet sites, including Perseus's own website and on Wikipedia. Perseus made no effort to safeguard this information with Indy, or more broadly. Given that it is all so public and mundane, there can be no argument that it is proprietary or strategic. There also is no risk that disclosure would give a competitor an unearned advantage, because it already is disclosed. The law overwhelmingly favors the unrestricted access to this information. Perseus's failure to address or even cite to the law confirms the frivolity of their application. CONCLUSION For the reasons stated above, Defendant Indy Research Labs LLC respectfully requests that the Court deny plaintiffs application for an Order requesting redaction, sealing, and other limitations on the evidence submitted in support of the motion to dismiss. Dated: July 14,2016 CLARICK GUERON REISBAUM LLP f4 ~IrP:C Emily Reisbaum' Sarah Louise Bishop 220 Fifth Avenue, 14th Floor New York, New York 10001 Telephone: 212.633.4310 Email: ereisbaum@cgr-iaw.com Attorneys for Defendant Indy Research Labs LLC 5 8 of 8