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Elliott Investment Management LP
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Order | Filed: June 12, 2024 In Re: Application Of Blue Skye Financial Partners S.A.R.L.
| New York Southern
Order
ORDER granting 94 Letter Motion for Discovery. The Court is in receipt of Blue Skye's letter (Dkt. #94) requesting clarification or modification of the governing protective order in this action; EMC's response (Dkt. #96); and Blue Sky e's above reply (Dkt. #97). As a matter of interpretation, the Court disagrees with Blue Skye that the protective order, in its current form, permits Blue Skye to "submit Protected Material to the courts in all three authorized foreign proc eedings, and use it in those cases, even if foreign law, procedure, and/or practice requires that any discussion of the evidence at a hearing or trial must occur in a session open to the public." (Dkt. #94). Further, for substantially the reason s set forth in EMC's letter, the Court will not modify the protective order to do so. The Court also disagrees with Blue Skye that the heightened standard of Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) does not apply here. For one, the documents at issue are not "judicial documents" to which there is a presumption in favor of access under United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995). Further, it is not fair to say that the documents at issue here were not produced in reasonable reliance on the protective order, a la S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001) (a case in which the discovery material at issue, specifically, deposition testimony, was provided before the entry of the re levant protective order). In issuing its order compelling discovery from EMC, the Court took into consideration Blue Skye's "willing[ness] to accommodate... [confidentiality] concerns by stipulating to an adequate protective order," Dk t. #34 at 30; what is more, the Court credits EMC's good-faith assertion that it has "relied upon the limitations in the Protective Order in producing thousands of sensitive documents." (Dkt. #96). Above all, courts routinely enter pro tective orders to safeguard § 1782 discovery; the Court will not here declare -- as Blue Skye would have it -- that all such protective orders are undeserving of a presumption against modification simply because one party, as an overarching mat ter, "ha[s] been compelled to produce" the underlying discovery. Arcesium LLC v. Advent Software, Inc., 2022 WL 621973, at *5 (S.D.N.Y. Mar. 3, 2022). The Court will, however, permit a modification of the protective order to clarify that B lue Skye "may use Protected Material in the consolidated civil case to which the SPA Annulment Action was recently joined," albeit not as broadly as "any other civil action or proceeding in Luxembourg where a claim is asserted by Blue Skye and Luxembourg Investment Company 159 S.a. r.l. to invalidate or annul the Transaction and/or the SPA." In view of the consolidation of the SPA Annulment Action into a larger civil case, the Court finds that there is a "compelling need " to modify the protective order, such that Blue Skye may continue to use the discovery in (what is now) the SPA Annulment Action. Martindell, 594 F.2d 291 at 296. Accordingly, the Court hereby ORDERS the parties to meet and confer and submit a proposed amended version of the protective order for the Court to enter, consistent with the terms of this Order, on or before June 25, 2024. The Clerk of Court is directed to terminate the pending motion at docket entry 94. SO ORDERED. (Signed by Judge Katherine Polk Failla on 6/12/2024) (ks)
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Response | Filed: June 11, 2024 | Entered: June 11, 2024 In Re: Application Of Blue Skye Financial Partners S.A.R.L.
| New York Southern
Reply to Response to Motion
LETTER REPLY to Response to Motion addressed to Judge Katherine Polk Failla from Vincent Levy dated June 11, 2024 re: 94 LETTER MOTION for Discovery requesting clarification and/or modification to Protective Order addressed to Judge Katherine Polk Failla from Vincent Levy dated June 5, 2024. . Document filed by Blue Skye Financial Partners S.A.R.L...(Levy, Vincent)
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Response | Filed: June 10, 2024 | Entered: June 10, 2024 In Re: Application Of Blue Skye Financial Partners S.A.R.L.
| New York Southern
Response to Motion
LETTER RESPONSE to Motion addressed to Judge Katherine Polk Failla from Andrew Ditchfield dated June 10, 2024 re: 94 LETTER MOTION for Discovery requesting clarification and/or modification to Protective Order addressed to Judge Katherine Polk Failla from Vincent Levy dated June 5, 2024. . Document filed by Elliott Management Corporation..(Ditchfield, Andrew)
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