Lohnn v. Int'l Bus. Machs. Corp.

• Decision Date: 04 January 2022
• Docket Number: 21-cv-6379 (LJL)
• Parties: DENISE LOHNN, Executor of the Estate of Jorgen Lohnn, Deceased, Plaintiff, v. International Business Machines Corp., Defendant.
• Court: U.S. District Court — Southern District of New York

DENISE LOHNN, Executor of the Estate of Jorgen Lohnn, Deceased, Plaintiff,
v.
International Business Machines Corp., Defendant.

No. 21-cv-6379 (LJL)

United States District Court, S.D. New York

January 4, 2022

MEMORANDUM AND ORDER

LEWIS J. LIMAN, UNITED STATES DISTRICT JUDGE

Defendant International Business Machines Corp. (“IBM” or “Defendant”) moves to maintain under seal documents filed in support and in opposition to the motion for summary judgment of plaintiff Denise Lohnn (as Executor of the Estate of Jorgen Lohnn, Deceased) (“Plaintiff) and to keep redacted the information it contends is confidential in the publicly filed versions of those documents. Plaintiff opposes the motion. The parties have filed on the docket many letter motions and letters regarding sealing. See Dkt. Nos. 13, 20-22, 31, 34, 38-40. The documents at issue are:

• Plaintiffs motion for summary judgment, Dkt. Nos. 14 17

• Plaintiffs statement of material facts in support of the motion for summary judgment, Dkt. Nos. 15, 18

• Plaintiffs declaration of Shannon Liss-Riordan (“Liss-Riordan”), Dkt. Nos. 16, 19

• Plaintiffs exhibits to the declaration of Liss-Riordan, Dkt. Nos. 16-5 to 16-8, 19-5 to 19-8;

• Defendant's response to Plaintiffs statement of material facts in support of the motion for summary judgment, Dkt. Nos. 28-29;

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• Plaintiffs reply in support of the motion for summary judgment and in opposition to Defendant's cross-motion to dismiss, Dkt. Nos. 32, 36;

• Plaintiffs declaration of Liss-Riordan in support of the motion for summary judgment, Dkt. Nos. 33, 37; and

• Plaintiffs exhibits to the declaration of Liss-Riordan that were wholly filed under seal, Dkt. Nos. 16-10 to 16-44, 19-10 to 19-44.

See also Dkt. No. 38 (listing documents that were filed under seal and publicly with redactions).

Defendant requests that the Court leave the redactions in place pending resolution of the underlying dispute, see, e.g., Dkt. No. 20 at 3; Dkt. No. 34 at 2, or to stay decision on unsealing pending the Court's ruling on Defendant's motion to dismiss, see Dkt. No. 39 at 1. Alternatively, if the Court disagrees with Defendant's position, Defendant asks the Court to stay its decision so that Defendant may seek appellate review. See Dkt. No. 20 at 3; Dkt. No. 22 at 2; Dkt. No. 34 at 3; Dkt. No. 39 at 1-2. Plaintiff takes the position that the documents do not satisfy the standards in this Circuit for confidentiality and accordingly should be made immediately publicly accessible. See, e.g., Dkt. No. 21 at 6.

For the following reasons, the Court grants IBM's motion in part and denies it in part. The Court denies the motion to the extent that it seeks a blanket order maintaining under seal documents and information in this Court simply because it was conveyed in arbitrations that were subject to a confidentiality agreement. It grants the motion to the extent that IBM seeks more limited redactions necessary to protect privacy interests of IBM or other third parties.

BACKGROUND

I. The Complaint, Case Management Plan, and Summary Judgment Motion

On July 27, 2021, Plaintiff filed this action seeking a declaratory judgment that certain provisions in the arbitration agreement Plaintiffs decedent signed with IBM were invalid and unenforceable because they prevented Plaintiff from effectively vindicating the rights of her

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deceased husband under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Dkt. No. 1 (the “Complaint”). This case is one of many that have been filed in this District seeking essentially the same relief but on behalf of different parties and sometimes involving different facts. Other actions challenging IBM's arbitral confidentiality provision are pending before Judges Furman, Koeltl, and McMahon. See, e.g., In Re: IBM Arb. Agreement Litig., 21-cv-6296 (S.D.N.Y.) (Furman, J.); Chandler v. Int'l Bus. Machs. Corp., 21-cv-6319 (S.D.N.Y.) (Koeltl, J.); Lodi v. Int'l Bus. Machs. Corp., 21-cv-6336 (S.D.N.Y.) (Koeltl, J.); Tavenner v. Int'l Bus. Machs. Corp., 21-cv-6345 (S.D.N.Y.) (McMahon, J.).

Plaintiff's husband was an employee of IBM for about fifteen years until he was terminated in 2016 at the age of fifty-seven. Id. ¶ 7. He died thereafter from suicide. Id. Summarized broadly, the Complaint alleges that he was the victim of a widespread campaign at IBM orchestrated from the top to replace its older workforce with younger employees so that the demographics of its employee population would more closely match the younger demographics of IBM's newer technology competitors. Id. ¶¶ 8-9. Plaintiff intends to bring an action against IBM under the ADEA. Because Plaintiff's husband signed IBM's form arbitration agreement, Plaintiff intends to do so in an arbitral forum.

Plaintiff is represented by counsel who has prosecuted many similar actions against IBM in arbitration. In those arbitrations, counsel has obtained allegedly explosive evidence that would prove Plaintiff's claim. Plaintiff complains that IBM has taken the position that such information, which would prove her case, may not be used because of the confidentiality provision governing those other arbitrations. IBM knows the information; Plaintiff and her counsel know the information; but IBM has taken the position that the arbitrators should not know it and has prevailed on that argument in several prior arbitrations. IBM filed the instant

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sealing motions to keep confidential from the public any information exchanged in those arbitrations, the positions taken by IBM and the employees in those arbitrations, and the outcome of those arbitrations.

On October 15, 2021, in lieu of an initial pretrial conference to set a schedule for discovery, the parties submitted a joint proposed case management plan and scheduling order. Dkt. No. 10. The parties jointly proposed a schedule for filing motions, which had Plaintiff filing first: Plaintiff would file a motion for summary judgment by October 28, 2021; Defendant would file an opposition to that motion and a cross-motion to dismiss by November 18, 2021; Plaintiff would respond by December 9, 2021; and Defendant would respond by December 23, 2021. Id. The Court approved and signed the case management plan. Dkt. Nos. 11-12.

The parties filed the motion papers in accordance with the schedule set forth in the case management plan. On October 28, 2021, Plaintiff filed her summary judgment motion. Among other arguments in the motion, Plaintiff contends that the confidentiality provision in the arbitration agreement-as IBM has interpreted it-has prevented her from effectively vindicating her husband's rights under the ADEA and thereby has frustrated Congress's purposes in passing the ADEA. Although ostensibly intended to afford both parties a more informal and confidential forum in which to litigate federal age discrimination issues, Plaintiff contends that the agreement and the arbitration clause in general have been used by IBM to prevent claimants from obtaining and using the evidence they would need to make their claims, making the ADEA a hollow remedy. Plaintiff argues that the clause should not be interpreted and applied in such a way that would prevent her from using that evidence in the arbitration.

The confidentiality clause-which the parties have not filed under seal-is broad. Although it starts with the notion that proprietary information, trade secrets, and sensitive

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information should be protected, it sweeps more broadly to arguably cover everything that takes place in the arbitration (with no apparent exception for information that is independently learned by a party to the arbitration or that is otherwise public). Tellingly, though, it is qualified in one respect. Although it prohibits parties generally from disclosing information from the arbitration proceeding (including in other confidential proceedings), it permits public disclosure when necessary to confirm or challenge an award or when otherwise required by law or judicial decision. It provides:

Privacy and confidentiality are important aspects of arbitration. Only parties, their representatives, witnesses and necessary administrative staff of the arbitration forum may attend the arbitration hearing. The arbitrator may exclude any non-party from any part of a hearing.

To protect the confidentiality of proprietary information, trade secrets or other sensitive information, the parties shall maintain the confidential nature of the arbitration proceeding and the award. The parties agree that any information related to the proceeding, such as documents produced, filings, witness statements or testimony, expert reports and hearing transcripts is confidential information which shall not be disclosed, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision by reason of this paragraph.

Dkt. No. 30-1.

Plaintiff's memorandum in support of her summary judgment motion and Plaintiff's Local Rule 56.1 statement set forth certain information that IBM had claimed was subject to the confidentiality provision. According to IBM, that information from previous arbitrations could not be used in Plaintiff's arbitration, but Plaintiff claimed it was necessary to make her claim under the ADEA. These summary judgment papers also cited to the positions taken in those prior arbitrations by IBM and by counsel for the claimants.

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II. The Motions to Seal

Alongside the summary judgment motion, Plaintiff filed a motion, on IBM's behalf, seeking permission to file the summary judgment motion and accompanying declaration and exhibits under seal. Dkt. No. 13 at 1; see also Dkt. Nos....