United States District Court, S.D. New York
Attorneys for Plaintiff WIGDOR LLP By: Douglas H. Wigdor,
Esq. Lawrence M. Pearson, Esq. Michael J. Willernin, Esq.
Attorneys for Defendants ARNOLD & PORTER LLP By: Michael
D. Schissel, Esq. Kathleen A. Reilly.
W. SWEET, U.S.D.J.
A, a non-party to this action, is joined by Defendants J.P.
Morgan Case & Co. ("JPMC"), Joe Kenney
("Kenney"), Adam Green ("Green") and
Leslie Lassiter ("Lassiter") (collectively, the
"Defendants"), in moving to protect Client A's
identity at trial and quash the trial subpoena for Client A
and certain of his family members. Upon the findings and
conclusions set forth below, Client A and Defendants'
motion is granted in part and denied in part. Defendants
filed 10 motions in limine and Plaintiff filed four
motions in limine. All of Plaintiffs motions were
resolved at oral argument on January 17, 2017 as were five of
Defendants' motions. Defendants' remaining five
motions in limine are granted in part and denied in
non-party, Client A, filed the instant motion to quash the
trial subpoena on December 23, 2016 and the motions in
limine were filed on January 9, 2017. The
motions were all heard and marked fully submitted on January
Motion to Protect Client A's Identity and Quash Client
A's Trial Subpoena is Granted in Part and Denied in
A and Defendants moved to protect the names of Client A,
other members of the A-Family, and affiliated entities from
disclosure at trial and to quash the trial subpoenas. For the
reasons that follow, Client A's identity will be
protected up until the time at which either of the parties
can make an in camera showing that Client A's testimony
will be relevant during trial. The motion to quash the
subpoenas is denied.
Federal Rule of Evidence 401, testimony is relevant if
"it has any tendency to make a fact more or less
probable than it would be without the evidence."
Fed.R.Evid. 401. Here, the only relevant inquiry is whether
Plaintiff's belief that she was whistleblowing about
potentially illegal conduct was reasonable at the time of her
employment and whether her whistleblowing led to her
termination. The parties dispute whether Client A's
testimony will help to determine the reasonableness of
Plaintiff's determination. Plaintiff argues that Client A
did not willingly comply with the Know Your Client
requirements and that Client A's deposition testimony was
inconsistent with other testimony from JPMC witnesses.
However, Plaintiff will need to demonstrate to the Court in
camera during trial why Client A's testimony will be
Plaintiff can make a showing of relevance, then the question
becomes whether the Court will protect Client A's
identity. Client A and Defendants warn of the harm that
Client A would suffer harm to his business if his identity
were revealed and he was required to testify, whereas
Plaintiff argues that she has a right to Client A's live
Second Circuit has a "presumption of access" to
live witnesses though cases dispute whether this presumption
is "especially strong" requiring
"extraordinary circumstances to justify
restrictions" United States v. Myers (In re
Nat'1 Broadcasting Co.), 635 F.2d 945, 952 (2d Cir.
1980), while other courts weigh the presumption as merely
"one of the interests" that may bow before
"good reasons" to deny the requested access.
Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434
(5th Cir. Unit A 1981); see also, United States v.
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
this presumption of access to testimony, courts must weigh
the "two countervailing factors: (i) the danger of
impairing law enforcement or judicial efficiency and (ii) the
privacy interests of those resisting disclosure."
Amodeo II, 71 F.3d at 1050. Client A does not argue
that there are any dangers to law enforcement or substantial
savings to judicial efficiency. Instead, Client A argues that
his privacy interests outweigh the presumption in favor of
have held that "[t]he privacy interests of innocent
third parties . . . should weigh heavily in a court's
balancing equation." Amodeo II, 71 F.3d at 1050
(quoting Gardner v. Newsday, Inc. (In re Newsday,
Inc.), 895 F.2d 74, 79-80 (2d Cir. 1990)). Courts will
not allow public access to information simply to
"gratify private spite or promote public scandal, "
and have "refused to permit their files to serve as
reservoirs of libelous statements for press
consumption." Amodeo II, 71 F.3d at 1051
(quoting Nixon v. Warner Communications, Inc., 435
U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978)).
II provided examples of the kinds of records that should
be protected from public disclosure such as "[f]inancial
records of a wholly owned business, family affairs,
illnesses, [and] embarrassing conduct with no public
ramifications." Amodeo II, 71 F.3d at 1051.
Further, "The nature and degree of injury must also be