"Protecting Reputation Is Not Enough to Overcome Public Access" to Court Records

A lawyer tried to seal a copy of an earlier judge's order that had made certain claims about the lawyer.

From the July 11 decision in Lask v. Fallon, by Magistrate Judge James Wicks (E.D.N.Y.):

Following resolution of this case, Plaintiff now seeks to seal a docket entry of an otherwise public record—a court decision issued by the Hon. Loretta Preska in an unrelated case that was filed in this case in support of an earlier motion to dismiss…. [T]his is [the third] attempt to remove or seal this document from the court record…. And in this case, three times is not a charm and must be denied (again).

In this latest motion, Plaintiff moved for the identical relief that was before the Hon. Judge Rachel P. Kovner, which was denied. In relevant part, Judge Kovner wrote:

The challenged order, submitted as an exhibit in support of defendant Fallon's motion to dismiss, easily qualifies as a judicial document…. '[T]he general and deeply rooted rule is that the presumptive right of access is afforded strong weight when applied to documents that play a central role in determining litigants' substantive rights—conduct at the heart of Article III.' … And … to the extent plaintiff asserts a privacy interest, '[t]he fact that a document has been publicly available weighs against restricting public access to it.'

But that's not all. That first application to seal was filed only after Judge Kovner denied Plaintiff's motion to strike the document from the docket. Since those two rulings, only two circumstances changed, namely, the parties consented to the undersigned [Magistrate Judge] for all purposes … and the case settled. Plaintiff argues now that the case is resolved and that the documents requested to be sealed are "not part of the adjudicative process in this case" and so, the motion to seal should now be granted. For the reasons that follow, Plaintiff's Motion to Seal is DENIED….

"A judicial document is not simply a document filed with the court, but one that is 'relevant to the performance of the judicial function and useful in the judicial process.'" … Generally, motions to dismiss have been deemed a judicial document…. Here, Plaintiff seeks to seal an exhibit to Defendants['] … Motion to Dismiss and redact paragraph 21 of Defendants' Declaration in Support of the Motion to Dismiss. Thus, these documents submitted in connection with their Motion to Dismiss, clearly [are judicial documents]. {"Because a Motion to Dismiss is potentially dispositive of a party's claims, a strong presumption of public access attaches to these documents."} …

[W]ithdrawal of a motion {does not} change the nature of the original document(s) filed…. Indeed, if a case settles or otherwise is resolved prior to a Court's ruling on the merits of the motion, the condition of the filings remains that of a "judicial record." See Bernstein v. Bernstein Litowitz Berger & Grossmann (2d Cir. 2016)….

Plaintiff … discusses the reputational harm that will occur if this motion is denied. Notably, Courts have held that protecting reputation is not enough to overcome public access.

Finally, "once '[t]he genie is out of the bottle,' the Court does 'not [have] the means to put the genie back.'" As previously noted, these documents were filed on November 12, 2024. Failure to take prompt action in requesting that public documents be sealed may, alone, be a justifiable reason to deny a motion to seal. This is Plaintiff's second request to move to seal the same documents. The first request came three months after the filing and now, this request nearly eight months later.

Accordingly, Plaintiff has not overcome the presumption of public access, and the Motion to Seal is denied.

Looking at Judge Rachel Kovner's earlier decision, which this decision refers back to, plaintiff seemed to be trying to seal a copy of this order by Judge Loretta Preska, which also seems to be excerpted in Magistrate Judge Robert Lehrburger's decision last week in Rhee-Karn v. Lask (S.D.N.Y.) (a malpractice case against Ms. Lask):

Lask's stalking of Judge Preska, on the other hand, has ample support in the record. In an order dated August 1, 2019, Judge Preska described Lask's shocking behavior directed at a federal judge, her family, and her judicial clerks:

[I]n the Court's view, Ms. Lask has stalked the Court and chambers staff. She has alleged that she has been "informed that [the Court's] husband owned stock in [a] company" that Ms. Lask sued 17 years ago. Ms. Lask also purports to have investigated chambers IP addresses and monitored certain sites visited. Because of these actions, the matter has been referred to the United States Marshal.

Ms. Lask has telegraphed additional delay and aggravation—she has threatened to seek "a hearing with" … two former law clerks of the Court (neither of whom has the remotest possible connection to any fact in the underlying action). Ms. Lask purports to have called them after she had an interchange with the Court that she deemed unsatisfactory. (Ms. Lask does not explain how she just happened to contact one of the Court's former law clerks immediately after the call.) She also purports to have recorded one or both of her calls to [the former law clerks]—possibly an illegal and/or unethical act for a lawyer.

Due to the referral of the matter to the United States Marshal, Judge Preska recused herself from the matter. Although Lask's outrageous conduct was unquestionably effectuated in bad faith and without legal color, Rhee-Karn has not demonstrated that she is entitled to attorney's fees or costs under either § 1927 or the Court's inherent authority.

Here's Ms. Lask's response to the July 11 decision rejecting her motion to seal:

I respectfully submit this letter to preserve my objection to the Court's July 11, 2025 Order (ECF 81) denying a motion to seal Defendant Fallon's filing, which he has since withdrawn and disavowed. I understand from the decision that the Court does not wish to entertain further briefing on this issue. For clarity, this letter does not seek reconsideration and should not be converted to such. It is submitted solely to preserve the record for appeal. SerVaas Inc. v. Mills, 661 F. App'x 7, 9 (2d Cir. 2016). Please note that I appreciate that while denying the motion to seal, Your Honor exercised commendable restraint by declining to recite, quote, or describe the contents of the prejudicial document.

As the Court may recall, the June 25, 2025 conference was held for me and Mr. Fallon to inform that a joint motion to seal his filing was sought. Your Honor acknowledged that Judge Kovner previously ruled on a related request. I responded that new facts exist, Fallon joined in the motion to seal and Your Honor informed to file the motion and to note that Fallon did not oppose it.

I respectfully object to the Order's characterization of the motion as a reconsideration. It was based on materially new facts not before Judge Kovner, including post-Kovner facts of Fallon's deposition testimony that a third party encouraged the filing unrelated to this case, Fallon withdrew the motion he attached the document at issue to before any consideration, and he expressly agreed in his letter on the docket that the document was immaterial and joined in the sealing - supporting the document is not part of the adjudicative process and fails the first prong of Lu[g]osch. Further, I believe the Order misapplied controlling precedent under Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) and Nixon v. Warner Commc'ns, 435 U.S. 589 (1978) - both prohibiting court dockets from being used to "gratify private spite or promote public scandal."