Nell v. City of New York
1:19-cv-06702-LGS
S.D.N.Y.Oct 19, 2020Background:
- Nell v. City of New York (S.D.N.Y.); defendant City moved to file Exhibit L to its summary judgment papers under seal (Exhibit L includes CityTime meeting minutes).
- Court ordered particularized justification for sealing (citing Lugosch) and gave City leave to renew partially.
- Law Department attorneys met with agency personnel about FLSA treatment in the CityTime payroll system; two pages (CityTime 000859–60) are meeting minutes recording legal advice from Law Dept. attorneys to OPA/FISA/OLR.
- Subsequent pages (CityTime 000875–77) are operational meeting minutes without lawyers present, reflecting the outcome of that legal advice.
- City withdrew its request to seal 000875–77 but renewed sealing for 000859–60, arguing attorney‑client privilege; those two pages had been produced under a limited waiver stipulation.
- Court granted the motion in part: sealed the two pages (000859–60) as narrowly tailored to protect attorney‑client privilege and permitted the remaining pages to be filed publicly.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to seal CityTime 000859–60 (meeting minutes showing Law Dept. attorneys giving legal advice) | Public presumptive access; sealing requires compelling, particularized justification | Attorney‑client privilege protects these minutes because they record confidential legal advice to agency clients about FLSA/CityTime programming | Court sealed 000859–60 as narrowly tailored to protect the privilege |
| Whether to seal CityTime 000875–77 (operational minutes with no lawyers present) | Public access; plaintiffs did not challenge the designation | Initially sought sealing but City withdrew request; these reflect operational implementation, not direct legal advice | City withdrew sealing request; pages to be filed on the public docket |
Key Cases Cited
- Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (presumption of public access; sealing requires particularized, on‑the‑record findings and narrow tailoring)
- Brennan Ctr. for Justice v. U.S. Dep’t of Justice, 697 F.3d 184 (2d Cir. 2012) (sets out elements of attorney‑client privilege)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (privilege exists to encourage full and frank communication between attorneys and clients)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (U.S. 1978) (trial court has discretion to limit public access to judicial records)
- Public Citizen, Inc. v. Dep’t of Educ., 388 F. Supp. 3d 29 (D.D.C. 2019) (disclosure of privileged material can deter agencies from seeking legal advice and impair governmental functioning)