Holland & Knight
31 West 52nd Street   New York, NY 10019   T212.513.3200   F 212.385.9010
Holland & Knight LLP   www.hklaw.com
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Christine N. Walz
(212) 513-3368
christine.walz@hklaw.com

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Febmary 20, 2018
Via Hand Delivery
Supreme Court of the State of New York
Appellate Division, Second Judicial Department
45 Monroe Place
Brooklyn, NY 11201
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Gizmodo Media Group LLC v. O’Reilly, Case No. 2017-02522, and Gizntodo
Media Group LLC v. O’Reilly, Case No. 2017-05359
REQUEST TO SCHEDULE APPEALS TOGETHER ON THE SAME DATE

Dear Clerk of the Court:
We represent Intervener-Appellant Gizmodo Media Group LLC (“Gizmodo Media
Group”) in the above-referenced matters. Pursuant to 22 NYCRR 670.7(c)(2), we write to
request that the appeals for both matters be scheduled to be heard on the same day. This letter
provides a brief statement of the bases of this request.
I. Introduction
Gizmodo Media Group has two appeals currently pending in the Second Department:
Gizmodo Media Group LLC v. O’Reilly, Case No. 2017-02522, and Gizmodo Media Group LLC
v. O’Reilly, Case No. 2017-05359. We request that the court schedule the appeals together on
the same day because parties and facts are interrelated and the legal issues are essentially the
same.
In both appeals Gizmodo Media Group seeks to lift the orders sealing court records that
the Trial Division entered in separate, though related, tort actions brought by the PlaintiffAppellee William J, O’Reilly. Mr. O’Reilly brought one action against his ex-wife, O’Reilly v.
McPhilmy, Index No. 602235/2016 (the “McPhlimy Action”), and the other against her former
matrimonial attorney, O'Reilly v. Klar, Index No. 608441/2016 (the “Klar Action”).1 Most of
the documents under seal in each action are the same. Hearing both matters on the same date
will thus avoid the risk of inconsistent rulings by different panels sitting on different days, and
will therefore conserve judicial resources and avoid excessive motion practice.
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1 The Appeal in the McPhilmy Action is this Court’s Case No. 2017-02522 and the Appeal in the Klar Action is this
Court’s Case. No. 2017-05359.

 February 20, 2018
Page 2

II. Factual and Procedural Background
Intervener-Appellant Gizmodo Media Group is the owner and publisher of the popular
news websites Gizmodo, Jalopnik, Jezebel, Deadspin, Splinter, Lifehacker, and Kotaku, which
cover a wide range of subjects, including politics, the media, and contemporary women’s issues.
Gizmodo Media Group has extensively reported on Mr. O’Reilly, an influential television
personality and conservative political commentator who recently and involuntarily separated
from his employer, Fox News, following numerous allegations of sexual harassment. At issue in
the McPhilmy and Klar Actions are two attempts by Mr. O’Reilly to avail himself of the courts
of this state to pursue in secret tort litigation against his ex-wife Maureen McPhilmy and her
former matrimonial attorney Michael N. Klar.
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A. The McPhilmy Action
Mr. O’Reilly filed a lawsuit alleging that Ms. McPhilmy fraudulently induced him to
enter into their Separation Agreement and Divorce Judgment and sought $10 million in damages.
On June 1, 2016, at the request of Mr. O’Reilly, the trial court issued a blanket sealing order,
which states:
Upon the foregoing papers the motion by plaintiff, unopposed, for
an Order pursuant to N.Y. Comp. Codes R. & Regs., Tit. 22 §216.1
sealing all documents and filings that refer to materials that are
confidential pursuant to the confidentiality agreement entered into
between plaintiff and defendant on April 2, 2010 and any future
motion or pleadings in this action that disclose or refer to such
confidential material, is granted. Lack of opposition is tantamount
to consent.
As of the date of this Order the Nassau County Clerk is directed to
seal the file, all documents and filings regarding the above
captioned action.
(MR. 7.)2 Based on this sealing order, the entire docket - including basic case information, the
sealing order itself, and all documents filed publicly prior to the issuance of the order - was
sealed. As a result, there are currently no filings in the case available to the public.
Gizmodo Media Group, and its predecessor Gawker Media LLC, filed motions to
intervene and to vacate the sealing order. (MR. 8, 182.) While these motions were pending, the
trial court conducted closed proceedings, refusing to provide Gizmodo Media Group’s counsel
with information about the time of the hearing, denying counsel’s request be heard, and ejecting
counsel from the courtroom. The hearing was closed to the public and the trial court made no
public findings before sealing the courtroom and excluding Gizmodo Media Group from these
2 For ease of reference, citations to the record on appeal for the McPhilmy Matter, Gizmodo Media Group LLC v.
O’Reilly, Case No. 2017-02522, are denominated MR.____. and citations to the records on appeal for the Klar
Matter, Gizmodo Media Group LLC v. O 'Reilly, Case No. 2017-05359 are denominated KR.____.

 February 20, 2018
Page 3

proceedings. Following this closed hearing, on January 13, 2016, the trial court issued a written
order summarily denying Gizmodo Media Group’s motion to vacate the sealing order, stating:
While the instant action is not in the nature of a post judgment
application to the matrimonial proceeding, the graverman (sic) of
the requested relief in the action is inextricably intertwined with
the issues in the matrimonial proceeding....For this Court to grant
the intervenor’s requested relief in the instant action would in
actuality obviate the sealing of the matrimonial action which this
Court declines to do.
(MR. 5.) The appeal in the McPhilmy Action followed.
B. The Klar Action
On December 12, 2016, Mr. O’Reilly filed a related tort complaint against Defendant
Michael N. Klar—his ex-wife Maureen McPhilmy’s former attorney—alleging that Mr. Klar
aided and abetted the fraudulent inducement of Mr. O’Reilly and Ms. McPhilmy’s Separation
Agreement and Divorce Judgment and committed a fraud on the court. (KR. 17-24.) In this
lawsuit as well, Mr. O’Reilly seeks damages of $10 million. Id. at 24. This lawsuit, like the
McPhilmy Action, sounds only in tort.
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On January 23, 2017, Mr. Klar filed a motion to dismiss the Complaint and an order to
show cause in the Trial Division seeking permission to publicly file the documents attached to
his motion to dismiss and to unseal the documents filed in the O ’Reilly v. McPhilmy proceeding.
(KR. 57-59.) On January 26, 2017, Mr. O’Reilly requested, through an order to show cause, that
the trial court seal the entire matter as the court did in O'Reilly v. McPhilmy. (KR. 60-61.)
Gizmodo Media Group moved to intervene in the Trial Division to oppose the sealing of any
filings in the matter. (KR. 62-71.)
On May 2, 2017, the trial court issued a sealing order, which directed that 19 of the
exhibits be sealed in their entirety, on grounds that they were filed in the matrimonial action,
have a “close connection to the matrimonial action,” or are decisions captioned under anonymity.
(KR. 4-12.) The sealing order also extended to the notice of motion to dismiss, the
accompanying moving affidavit of Mr. Klar, and the accompanying supporting affirmation of
Charles Singer. (Kr. 11.) The only documents before the Trial Division that were not sealed by
the sealing order are (1) the Complaint in this action; (2) a stipulation extending the time to
respond to the Complaint; and (3) a letter concerning service of the summons and complaint in
the matrimonial action.3 (KR. 8-12.)
Following the entry of the sealing order, the Court also entered a decision denying Mr.
Klar’s motion to dismiss. The decision and order on the motion were also sealed in their entirety.

3 Subsequent to the Trial Division’s order, the scheduling order and requests for discovery served by Mr. Klar were
filed publicly.

 February 20, 2018
Page 4

The Court made no additional findings of fact or law to support its decision to seal the decision
and order. The Appeal in the Klar Action Followed.
HI. Argument
The Second Department rules provide that, upon written request of a party, this Court
may hear appeals from orders or judgments in separate actions or proceedings together on the
same day. 22 NYCRR 670.7(c). The appeals in the McPhilmy and Klar Actions should be
scheduled together because the parties and facts are interrelated and the legal issues are
essentially the same. Scheduling a joint hearing will thus avoid the risk of inconsistent rulings
by different panels sitting on different days and economize on judicial resources.
In both cases, Gizmodo Media Group seeks to lift the sealing orders that were imposed,
without basis, by the Trial Division. The Trial Division refused to granted Gizmodo’s attempts
to lift the sealing orders on the grounds that the relief requested and documents at issue in the
underlying tort litigation are “inextricably intertwined with the issues in the matrimonial
proceeding” (MR. 5) or have a “close connection to the matrimonial action” (KR 8-11). In both
matters, Gizmodo Media Group contends that the underlying actions sound only in tort, and
therefore are presumptively public, and that Mr. O’Reilly has not met his heavy burden to
establish good cause for either trial court’s entry of the sealing orders.
A. The Majority of the Sealed Documents in Both Actions are the Same
Most of the documents at issue in the Klar and McPhilmy Actions are the same. A
decision vacating the sealing order in one action should therefore also be issued in the other. In
the McPhilmy Action, the Trial Division sealed the entire docket, including basic case
information and all documents prior to the issuance of the order. (MR. 7.) In the Klar Action,
Defendant-Appellant Klar sought to publicly file documents in support of his motion to dismiss
that were previously sealed in either the McPhilmy Action or in the underlying divorce action
between Mr. O’Reilly and Ms. McPhilmy. (KR. 58.)
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It therefore it would make little practical sense for separate panels of this Court to hear
these appeals, and hearing the appeals for both actions on the same date will avoid the risk of
inconsistent rulings.
B. Gizmodo Media Group Makes the Same Legal Arguments In Support of Its Motions
to Unseal the Documents In Both Actions
The legal arguments made by Gizmodo Media Group in both appeals are largely the
same. First, in both actions, Gizmodo Media Group argues that the public has a qualified right of
access to judicial records that can be overcome only upon a finding of facts establishing a
compelling need for confidentiality. (Brief on Appeal of Intervenor-Appellant Gizmodo Media
Group, LLC in Support of Public Access to Judicial Documents and Proceedings at 7, Gizmodo
Media Group, LLC v. O'Reilly, Case No. 2017-02522 (2d Dept. 2017) (“McPhilmy Intervener
Brief’); (Brief on Appeal of Intervenor-Appellant Gizmodo Media Group, LLC in Support of

 February 20, 2018
Page 5

Public Access to Judicial Documents and Proceedings at 6, Gizmodo Media Group, LLC v.
O'Reilly, Case No. 2017-05359 (2d Dept. 2017) (“Klar Intervenor Brief’.)) Both briefs argue
that the trial courts’ decisions contravene Section 216.1 of the Uniform Rules for New York
Trial courts, which reads, in part:
(a)
Except where otherwise provided by statute or rule, a court
shall not enter an order in any action or proceeding sealing the
court records, whether in whole or in part, except upon a written
finding of good cause, which shall specify the grounds thereof. In
determining whether good cause has been shown, the court shall
consider the interests of the public as well as of the parties. ...
(McPhilmy Intervenor Brief at 7-8; Klar Intervenor Brief at 7.) Both briefs also assert that the
heavy presumption of openness and the safeguards of the First Amendment favor disclosure, and
that Mr. O’Reilly has not established good cause to overcome the high bar needed to justify the
overly broad sealing orders. (McPhilmy Intervenor Brief at 9-11; Klar Intervenor Brief at 8-10.)
Both briefs argue that that public has a particularly significant interest in the underlying
litigations due to Mr. O’Reilly’s status as a public figure and the public allegations of fraud he
has made against an officer of the court. (McPhilmy Intervenor Brief at 21-22; Klar Intervenor
Brief at 17-18.) As such, both actions will require that this Court interpret the same statutory
provision as well as the First Amendment, in contexts that are remarkably similar.
Finally, both briefs argue that the respective sealing order in each case is insufficiently
narrowly tailored. (McPhilmy Intervenor Brief at 17; Klar Intervenor Brief at 16.) The only
difference in these issues is that in the McPhilmy Action, the Trial Division sealed the entire
docket, whereas in the Klar Action, the Trial Division sealed almost all of the documents on file.
As discussed above, most of the documents currently under seal are the same in both cases.
In sum, due to the similarities in the underlying facts and the legal arguments made in
both actions, to avoid inconsistent rulings, and to conserve judicial resources, we respectfully
request that this Court grant Gizmodo Media Group’s request to hear these appeals together.
Respectfully submitted,
HOLLAND & KNIGHT LLP

cc: Counsel of Record
(Via Email and First Class Mail)

 AFFIDAVIT OF SERVICE

State of New York

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County of New York )

ELVIN RAMOS, being duly sworn, deposes and says:
1.
I am over 18 years of age, am employed by the firm of Holland & Knight LLP,
31 W. 52nd Srtreet, New York, NY 10019, am not a party to this action and reside in the State of
New York, County of Queens.
2.
On Tuesday, February 20, 2018,1 served a true copy of the within Letter, dated
February 20, 2018, re request to schedule appeals together on the same date, by email and
by depositing a true copy of said letter, properly enclosed in sealed, post paid envelopes, in an
official depository of the United States Postal Service, located within the State of New York,
County of New York, to be delivered by First Class Mail to:
Frederic S. Newman, Esq.
Hoguet Newman Regal & Kenney, LLP
10 East 40th Street, 35th Floor
New York, NY 10016
Attorney for Plaintiff-Appellee William J. O’Reilly
Edward Spiro, Esq.
Morvillo Abramowitz Grand lason & Anello PC
565 Fifth Avenue
New York, NY 10017
Attorney for Intervenor-Appellee Maureen McPhilmy
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Charles A. Singer, Esq.
11 Middle Neck Road, Suite 310
Great Neck, NY 11021
Attorney for Defendant-Appellant Michael N. Klar

Elvin Ramos
Sworn to before me this
day of February. 2018

Notary Ifublic