But since it is short and to the point here it is in Word
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
In RE: Application of NXIVM Corporation for Ex Parte Motion
to Shorten Time on Motion to Compel the Deposition of
Nonparty Witness Toni Natalie and Motion to Compel the
Deposition of Nonparty Witness Toni Natalie,
DECISION AND ORDER
SUSAN FAYE DONES (10-04338-BDL) and
KIM MARIE WOOLHOUSE (10-04339-BDL).
NXIVM Corporation commenced this miscellaneous civil action by the filing of a motion
to compel the deposition of a nonparty witness. That witness, Toni Foley, responded by filing a
motion to quash a subpoena served on her by NXIVM.1
On August 22, 2011, in open Court, I granted NXIVM’s motion to compel, denied Foley’s
motion to quash, and directed that the deposition be conducted on Wednesday, September 7, 2011.
(Dkt. #10.) The deposition did take place on that date and has concluded.
NXIVM, however, has also moved for an order sealing virtually the entire record in this
action, particularly a “statement” filed by Foley (Dkt. #11) in support of her motion to quash. See
1The motion to compel refers to Foley as Toni Natalie, which apparently is her maiden
name. In her papers, she refers to herself as Toni Foley.
Case 6:11-mc-06009-DGL -JWF Document 15 Filed 09/08/11 Page 1 of 3
NXIVM’s motion is denied. The well-established presumption of accessibility to court
documents is reflected in Local Rule 5.4, which states that “there is a presumption that Court
documents are accessible to the public and that a substantial showing is necessary to restrict access.”
See also Orion Pictures v. Video Software Dealers Ass’n, 21 F.3d 24, 26 (2d Cir. 1994) (“[C]ourts
have recognized a strong presumption of public access to court records. This preference for public
access is rooted in the public’s first amendment right to know about the administration of justice”)
(citing Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978)).
While this presumption of access can be overcome by a number of countervailing interests,
such as preserving a defendant’s right to a fair trial or a third party’s privacy interests, see, e.g.,
Stephanski v. Goord, No. 02-CV-562F, 2005 WL 711628, at *1-*2 (W.D.N.Y. Mar. 29, 2005), the
Second Circuit has emphasized that a district court “must carefully and skeptically review sealing
requests to insure that there really is an extraordinary circumstance or compelling need” to seal court
records. Orion Pictures, 21 F.3d at 27. Likewise, while “[t]he court may strike from a pleading ...
any immaterial, impertinent, or scandalous matter,” Fed. R. Civ. P. 12(f), “[m]otions to strike are
generally disfavored,” and are committed to the district court’s sound discretion. Freydl v.
Meringolo, No. 09 Civ. 07196, 2011 WL 2566082, at *1 (S.D.N.Y. June 16, 2011) (quoting
Lamoureux v. Anazaohealth Corp., 250 F.R.D. 100, 102 (D.Conn. 2008)).
Applying these standards here, I find that NXIVM has not presented facts sufficient to
overcome the presumption of openness and public access to judicial proceedings, or the general
policy disfavoring the striking of filed documents absent strong reasons for doing so. Although the
written “statement” filed by Foley contains various allegations of wrongdoing on the part of NXIVM
and its counsel, I do not believe that the matters contained in Foley’s statement are so far beyond the
pale as to warrant that they be either struck or sealed. See Lynch v. Southampton Animal Shelter
Foundation Inc., No. 10–CV–2917, 2011 WL 3273872, at *5-*6 (E.D.N.Y. July 29, 2011) (setting
for standards for determining whether material is subject to striking under Rule 12(f)).
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Case 6:11-mc-06009-DGL -JWF Document 15 Filed 09/08/11 Page 2 of 3
NXIVM’s motion to seal (Dkt. #14) is denied.
The deposition of Toni Foley, a/k/a Toni Natalie, having been held on September 7, 2011,
the Clerk of the Court is hereby directed to close this action.
IT IS SO ORDERED.
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
September 8, 2011.
First citing “the public’s first amendment right to know about the administration of justice,” Judge Larimore went on to quote from several prior cases that had all been decided against parties that wanted to seal other court records. After reviewing the applicable standards regarding such matters , he then concluded: “Applying these standards here, I find that NXIVM has not presented facts sufficient to overcome the presumption of openness and public access to judicial proceedings, or the general policy disfavoring the striking of filed documents absent strong reasons for doing so. Although the written “statement” filed by Foley (FULL STATEMENT HERE) contains various allegations of wrongdoing on the part of NXIVM and its counsel (He’s referring to Toni’s claim that Lipo Pam filed a false instrument with the court) , I do not believe that the matters contained in Foley’s statement are so far beyond the pale as to warrant that they be either struck or sealed.”
And just to add a little more salt to Pam’s wounds, the judge then directed the Clerk of the Court “to close this action” – which means that NXIVM will have to file an appeal with the second circuit if they want to try and reverse this decision. Now, normally, no one would spend the time and money it takes to appeal this kind of decision. But regular readers will remember that NXIVM did just that when its motion for a preliminary injunction in the Rick Ross case was denied by the local District Court back in 2003. It then appealed the negative decision that it got from the second circuit to the UNITED STATES SUPREME COURT but that attempted appeal was, of course, summarily denied without any oral arguments.
Word is already circulating in Buffalo that Willy-the-Turtle Savino and his erstwhile colleague, Beth Bovine, have already suggested to NXIVM that their law firm, Damon & Morey, should take over the lead on all of NXIVM’s legal proceedings in New York State. If that happens, rumor has it that local talk show host Paul Vandenberg may move Lipo Pam off of his “5 Most important Women in the Capital District” list. So long, Pammy…we hardly knew ya. And don’t let that door hit you in your fat ass!
Till next time remember “Justice delayed is still justice served”