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Sharkey v. J.P. Morgan Chase & Co.

United States District Court, S.D. New York

January 26, 2017

JENNIFER SHARKEY, Plaintiff,
v.
J.P. MORGAN CHASE & CO., JOE KENNEY, ADAM GREEN, and LESLIE LASSITER, in their official and individual capacities, Defendants.

          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.

          OPINION

          ROBERT W. SWEET, U.S.D.J.

         Client 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 part.

         Prior Proceedings

         The 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 17, 2017.

         The Motion to Protect Client A's Identity and Quash Client A's Trial Subpoena is Granted in Part and Denied in Part

         Client 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.

         Under 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 relevant.

         If the 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 testimony.

         The 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) ("Amodeo II").

         Against 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 disclosure.

         Courts 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)).

         Amodeo 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 ...


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