Case 19-1540, Document 168-1, 09/11/2019, 2652598, Page1 of 2

DONALD J. TRUMP, et al.

v.
DEUTSCHE BANK AG, et al.

See Certification in supporting memorandum

**

**See Certification in supporting memorandum

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ADDENDUM
Moving Intervenors:
The Associated Press,
Cable News Network, Inc.,
The New York Times Co.,
POLITICO LLC and
WP Co., LLC, d/b/a the Washington Post

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IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

DONALD J. TRUMP, et al.,
Plaintiffs-Appellants,
Docket No. 19-1540-cv
v.
DEUTSCHE BANK AG, et al.,
Defendants-Appellees.

MOTION TO INTERVENE AND TO UNSEAL JUDICIAL RECORDS

BALLARD SPAHR LLP
Jay Ward Brown
Jacquelyn N. Schell
1675 Broadway, 19th Floor
New York, NY 10019-5820
T: (212) 223-0200
F: (212) 223-1942
brownjay@balladspahr.com
schellj@ballardspahr.com

Counsel for The Associated Press,
Cable News Network, Inc., The New
York Times Co., POLITICO LLC and
WP Co., LLC, d/b/a the Washington
Post

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
CORPORATE DISCLOSURE .................................................................................. 1
PRELIMINARY STATEMENT ............................................................................... 2
BACKGROUND ....................................................................................................... 3
ARGUMENT ............................................................................................................. 6
I.

THE MEDIA COALITION SHOULD BE ALLOWED TO
INTERVENE AND ENFORCE THE PUBLIC’S RIGHTS OF
ACCESS .......................................................................................................... 6

II.

THE PUBLIC’S FIRST AMENDMENT AND COMMON LAW
RIGHTS OF ACCESS TO THE JUDICIAL RECORDS AT
ISSUE CANNOT BE OVERCOME ............................................................... 7
A.

The First Amendment Provides A Right of Access To
Judicial Documents, Including The Deutsche Bank Letter................... 7

B.

Deutsche Bank Has Not Identified Any Compelling Interest
Sufficient To Overcome The Public’s First Amendment
Right Of Access................................................................................... 11

C.

The Public’s Common Law Right Of Access Also Requires
Release Of The Redacted Names ........................................................ 16

CONCLUSION ........................................................................................................ 18
CERTIFICATION PURSUANT TO L.R. 27.1(b) .................................................. 20

i

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TABLE OF AUTHORITIES
Cases

Page(s)

ABC, Inc. v. Stewart,
360 F.3d 90 (2d Cir. 2004) ...........................................................................10, 15
Alpha Funding Grp. v. Cont’l Funding, LLC,
17 Misc. 3d 959 (Sup. Ct. N.Y. Cty. 2007) ........................................................ 13
In re Application of N.Y. Times For Access to Certain Sealed Records,
585 F. Supp. 2d 83 (D.D.C. 2008) ...................................................................... 12
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,
814 F.3d 132 (2d Cir. 2016) ........................................................................passim
Brown v. Maxwell,
929 F.3d 41 (2d Cir. 2019) ............................................................................... 8, 9
Craig v. Harney,
331 U.S. 367 (1947) .............................................................................................. 7
Florida Star v. B.J.F.,
491 U.S. 524 (1989) ............................................................................................ 15
FTC v. Standard Fin. Mgmt. Corp.,
830 F.2d 404 (1st Cir. 1987) ................................................................................. 9
Globe Newspaper Co. v. Super. Ct.,
457 U.S. 596 (1982) ....................................................................................6, 8, 15
Individual Reference Servs. Grp. v. FTC,
145 F. Supp. 2d 6 (D.D.C. 2001) ........................................................................ 13
Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110 (2d Cir. 2006) ...................................................................6, 8, 9, 11
Martino v. Barnett,
595 S.E.2d 65 (W. Va. 2004).............................................................................. 13
In re McClatchy Newspapers, Inc.,
288 F.3d 369 (9th Cir. 2002) .............................................................................. 12

ii

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Monitor Patriot Co. v. Roy,
401 U.S. 265 (1971) ............................................................................................ 18
N.Y. Civil Liberties Union v. N.Y.C. Transit Auth.,
684 F.3d 286 (2d Cir. 2012) ................................................................................. 7
Newsday LLC v. Cty. of Nassau,
730 F.3d 156 (2d Cir. 2013) ...................................................................10, 17, 18
Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589 (1978) ......................................................................................16, 17
Prescient Acquisition Grp. v. MJ Publ’g Tr.,
487 F. Supp. 2d 374 (S.D.N.Y. 2007) ................................................................ 16
Press-Enter. Co. v. Super. Ct.,
464 U.S. 501 (1984) ..................................................................................8, 10, 11
Press-Enter. Co. v. Super. Ct.,
478 U.S. 1 (1986) ......................................................................................7, 10, 11
Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980) .............................................................................................. 7
Solomon v. Siemens Indus., Inc.,
8 F. Supp. 3d 261 (E.D.N.Y. 2014) .................................................................... 16
In re Special Proceedings,
842 F. Supp. 2d 232 (D.D.C. 2012) ........................................................12, 13, 14
United States v. Amodeo,
44 F.3d 141 (2d Cir. 1995) ................................................................................. 17
United States v. Amodeo,
71 F.3d 1044 (2d Cir. 1995) ........................................................................... 8, 17
United States v. Loughner,
769 F. Supp. 2d 1188 (D. Ariz. 2011) ..........................................................11, 12
Va. Dep’t of State Police v. Wash. Post,
386 F.3d 567 (4th Cir. 2004) .............................................................................. 12

iii

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Wash. Post v. Robinson,
935 F.2d 282 (D.C. Cir. 1991) ............................................................................ 12
Westmoreland v. CBS,
752 F.2d 16 (2d Cir. 1984) ................................................................................... 8
Other Authorities
16 C.F.R.
§ 313.1................................................................................................................. 14
§ 313.3...........................................................................................................13, 14

iv

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CORPORATE DISCLOSURE
Pursuant to Federal Rule of Appellate Procedure 26.1, undersigned counsel
hereby certify that:
1.

The Associated Press is a news cooperative incorporated under the

Not-for-Profit Corporation Law of New York and has no parents, subsidiaries or
affiliates that have any outstanding securities issued to the public.
2.

Cable News Network, Inc. (“CNN”), a Delaware corporation, is a

wholly owned subsidiary of Warner Media, LLC, a direct, wholly owned
subsidiary of AT&T Inc., a publicly traded corporation. AT&T Inc. has no parent
company, and to the best of CNN’s knowledge, no publicly held company owns
ten percent or more of AT&T’s stock.
3.

The New York Times Company, a publicly traded company, has no

parent company, and one publicly held corporation, Black Rock, Inc., owns
approximately 10 percent of its stock.
4.

POLITICO LLC is a wholly owned subsidiary of privately held

Capitol News Company, LLC.
5.

WP Company LLC d/b/a The Washington Post is a wholly owned

subsidiary of Nash Holdings LLC, which is privately held and does not have any
outstanding securities in the hands of the public.

1

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PRELIMINARY STATEMENT
This litigation involves President Donald J. Trump’s attempt to stop two
banks from producing his, his family’s, and his companies’ financial information
in response to Congressional subpoenas. Deutsche Bank AG (“Deutsche Bank”)
recently informed the Court that it has tax returns relating to some of the Trumprelated entities or individuals, but redacted the names of these entities and/or
individuals from its submission to this Court. Letter to the Clerk, August 27, 2019,
Dkt. 161 (“Deutsche Bank Letter”). Through this motion, The Associated Press,
Cable News Network, Inc., The New York Times Co., POLITICO LLC and WP
Co., LLC, d/b/a the Washington Post (collectively, the “Media Coalition”) seek to
enforce the public’s First Amendment and common law rights of access to judicial
proceedings and the records therein, specifically, to unseal the redacted names so
as to be able to inform the public which persons’ or entities’ tax returns are at issue
in this litigation. The Media Coalition does not by this motion seek access to any
underlying financial records.
This information should be released because the Deutsche Bank Letter is a
judicial record, to which both the First Amendment and the common law provide a
qualified right of access. The First Amendment access right can be overcome only
by on-the-record findings that secrecy is necessary to protect a compelling interest
and that sealing is narrowly tailored to serve that interest. Under the common law,

2

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courts balance the public’s right to information about the workings of the court
against the legitimate countervailing interests of the parties, and here, that balance
tips decisively in favor of the public.
To justify its redactions, Deutsche Bank points to regulatory and contractual
provisions it contends guarantee the privacy of the information in question, but this
contention does not withstand scrutiny. There is no basis in the record for a
finding that redacting the names in the Deutsche Bank Letter is necessary to
protect a compelling interest that would overcome the public’s rights of access.
There is no genuine privacy concern implicated by Deutsche Bank confirming
what is already widely understood—that it has copies of certain of the President’s
or his affiliates’ financial records—but it would set a disturbing precedent to allow
redactions of such rudimentary facts to go unchallenged, particularly in a case
involving a sitting president. The redacted information should be unsealed without
further delay.
BACKGROUND
In the underlying action, President Donald J. Trump, his family members,
and several affiliated entities (collectively, the “Trump Parties”)1 sought to prevent

1

The Trump Parties are Donald J. Trump (in his individual capacity), Eric
Trump, Ivanka Trump, Donald J. Trump, Jr., Donald J. Trump Revocable Trust,
Trump Organization, Inc., Trump Organization LLC, DJT Holdings LLC, DJT
3

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Deutsche Bank AG (“Deutsche Bank”) and Capital One Financial Corporation
(“Capital One”) from producing financial information in response to subpoenas
from two Committees of the U.S. House of Representatives (collectively, the
“Committees”).2 The trial court denied the requested injunction, prompting the
current interlocutory appeal.
The trial court ruled that the Committees’ subpoenas “all are in furtherance
of facially legitimate legislative purposes.” JA136. The Committees further
explained that the subpoenas relate to investigations of “serious and urgent matters
concerning the safety of certain banking practices, money laundering in the
financial sector, foreign influence in the U.S. political process, and the
counterintelligence threats posed by foreign financial leverage.” Dkt. 65 at 1.
They also allege that, “Mr. Trump and his companies have repeatedly engaged in
stonewalling intended to obstruct and undermine these inquiries.” Id. at 2.
After oral argument, this Court directed Deutsche Bank and Capital One to
state “whether it has in its possession any tax returns of any of the individuals or
entities named or referred to (directly or indirectly) in paragraph 1 of the

Holdings Managing Member LLC, Trump Acquisition LLC, and Trump
Acquisition, Corp.
2

These are the Committee on Financial Services of the U.S. House of
Representatives (Financial Services Committee) and Permanent Select Committee
on Intelligence of the U.S. House of Representatives (Intelligence Committee).

4

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subpoenas” and, if either bank believed “in good faith that all or any part of its
response to this Order is entitled to confidentiality, it shall set forth the basis for
such belief in its response.” Letter from the Court, August 27, 2019, Dkt. 156 at 1.
In its responsive filing, Deutsche Bank stated as follows:
Based on Deutsche Bank’s current knowledge and the
results of the extensive searches that have already been
conducted, the Bank has in its possession tax returns (in
either draft or as-filed form) responsive to the Subpoenas
for [Redacted]. In addition, the Bank has such
documents related to parties not named in the Subpoenas
but who may constitute ‘immediate family’ within the
definition provided in the Subpoenas. The Bank does not
believe it possesses tax returns responsive to the
Subpoenas for individuals named in the Subpoenas other
than those identified above.
Deutsche Bank Letter. Deutsche Bank does not state how many names are
redacted or whether the redacted names belong to individuals or entities, but the
letter makes clear that the redacted names were specifically referenced in the
subpoenas. Id.
Deutsche Bank claims that its redactions are necessary for three reasons:
first, pursuant to consumer privacy regulations promulgated pursuant to the
Gramm-Leach-Bliley Act (“GLBA”), 15 U.S.C. § 6802; second, because of
unspecified contractual obligations to its clients; and third, because the information
relates to tax returns. None of these proffered interests, however, is sufficient to
justify the redactions to this judicial record.

5

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ARGUMENT
I.

THE MEDIA COALITION SHOULD BE ALLOWED TO
INTERVENE AND ENFORCE THE PUBLIC’S RIGHTS OF
ACCESS.
The Media Coalition should be permitted to intervene for the limited

purpose of defending the public’s constitutional and common law rights of access
to the judicial record at issue. Courts have widely recognized that the press is a
proper party to assert the public’s access rights, and that intervention is the proper
procedure for vindicating that right. See, e.g., Globe Newspaper Co. v. Super. Ct.,
457 U.S. 596, 609 n.25 (1982); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110, 118-19 (2d Cir. 2006) (summarizing cases approving of press intervention).
As the Supreme Court squarely has held, when a court limits the public’s access to
its proceedings, including the record thereof, “representatives of the press and
general public ‘must be given an opportunity to be heard on the question of their
exclusion.’” Globe Newspaper, 457 U.S. at 609 n.25 (citation omitted)).
Intervention is equally appropriate at the appellate level to vindicate the public’s
access rights. See, e.g., Motion Order, Roe v. United States, Nos. 10-2905-cr &
11-479-cr, (2d Cir. Apr. 10, 2017), Dkt. 409 (granting Forbes Media LLC and
Richard Behar’s motion to intervene and challenge sealing). As the Media
Coalition here seeks to enforce its members’ and the public’s rights of access to a
judicial record in this action, intervention is appropriate and should be granted.

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II.

THE PUBLIC’S FIRST AMENDMENT AND COMMON LAW
RIGHTS OF ACCESS TO THE JUDICIAL RECORDS AT ISSUE
CANNOT BE OVERCOME.
The public has a presumptive, albeit qualified, right of access to judicial

documents that is particularly urgent in this case given the issues under
investigation by Congress and the separation of powers questions raised by this
proceeding. This qualified right, which arises under both the First Amendment and
the common law, requires the unsealing of the names in the Deutsche Bank Letter.
A. The First Amendment Provides A Right Of Access To Judicial
Documents, Including The Deutsche Bank Letter.
The First Amendment to the U.S. Constitution provides an affirmative,
enforceable right of public access to both criminal and civil court proceedings.
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980) (“We hold that
the right to attend criminal trials is implicit in the guarantees of the First
Amendment[.]” (footnote omitted)); see also Craig v. Harney, 331 U.S. 367, 374
(1947) (“A trial is a public event. What transpires in the court room is public
property.”); see also Press-Enter. Co. v. Super. Ct. (“Press-Enter. II”), 478 U.S. 1,
9 (1986) (same); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286,
298 (2d Cir. 2012) (recognizing right of access not only to trials but to all “related
proceedings and records”).
The right of access ensures that courts “have a measure of accountability”
and promotes “confidence in the administration of justice”—goals that cannot be
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accomplished “without access to testimony and documents that are used in the
performance of Article III functions.” United States v. Amodeo, 71 F.3d 1044,
1048 (2d Cir. 1995) (“Amodeo II”). “Openness thus enhances both the basic
fairness of the criminal trial and the appearance of fairness so essential to public
confidence in the system.” Press-Enter. Co. v. Super. Ct. (“Press-Enter. I”), 464
U.S. 501, 508 (1984); see also Westmoreland v. CBS, 752 F.2d 16, 22 (2d Cir.
1984) (“Underlying that First Amendment right of access ‘is the common
understanding that a major purpose of that Amendment was to protect the free
discussion of governmental affairs.’” (quoting Globe Newspaper, 457 U.S. at
604)).
“A ‘judicial document’ or ‘judicial record’ is a filed item that is ‘relevant to
the performance of the judicial function and useful in the judicial process.”
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d
Cir. 2016) (per curiam) (quoting Lugosch, 435 F.3d at 119). Put differently,
documents are “judicial records” if they “would reasonably have the tendency to
influence a district court's ruling on a motion or in the exercise of its supervisory
powers.” Brown v. Maxwell, 929 F.3d 41, 49 (2d Cir. 2019). Courts also consider
the “experience and logic” test, which “requires the court to consider both whether
the documents ‘have historically been open to the press and general public’ and

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whether ‘public access plays a significant positive role in the functioning of the
particular process in question.’” Lugosch, 435 F.3d at 120 (citation omitted).
The information at issue here—information submitted for the Court’s
consideration in determining the merits of the appeal—is analogous to documents
submitted for consideration on a motion for summary judgment. This Circuit
previously has held that the First Amendment (and common law) right of access
attaches to documents like these, “which are submitted to, and accepted by, a court
of competent jurisdiction in the course of adjudicatory proceedings,” regardless of
how the court ultimately rules on the motion or whether the court actually
considers the documents. Id. at 122 (quoting FTC v. Standard Fin. Mgmt. Corp.,
830 F.2d 404, 409 (1st Cir. 1987) (First Circuit reaches same conclusion)). Here,
the Court expressly requested the information in the Deutsche Bank Letter for the
purpose of ruling on this appeal or at least “exercis[ing] its supervisory powers”
over the action, and Deutsche Bank provided it for the Court’s consideration in the
course of these adjudicatory proceedings. See Brown, 929 F.3d at 49. Thus, the
Letter and the information it includes are unquestionably “judicial documents” to
which the First Amendment access right applies.
Where, as here, the public’s First Amendment right of access attaches to a
judicial document, courts may seal those documents in whole or, as here, in part,
only upon making specific, on-the-record findings that the party seeking closure

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or sealing has carried its burden of justifying the denial of public access. PressEnter. II, 478 U.S. at 13-14 (specific, on-the-record findings required to close
hearing); Bernstein, 814 F.3d at 141 (“[f]inding that a document is a judicial
document triggers a presumption of public access, and requires a court to make
specific, rigorous findings before sealing the document or otherwise denying
public access” (quoting Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 167 n.15
(2d Cir. 2013))); ABC, Inc. v. Stewart, 360 F.3d 90, 106 (2d Cir. 2004) (party
seeking closure bears burden of demonstrating that right of access is overcome).
At bottom, courts must make specific, on-the-record findings that the party
seeking closure has met the Supreme Court’s four-pronged test by demonstrating:
 first, that there is a substantial probability that allowing access is likely to
harm a compelling governmental interest, Press-Enter. II, 478 U.S. at 1314;
 second, that no reasonable alternative to a limitation on access can
adequately protect the threatened interest, id.;
 third, that any limitation is narrowly tailored such that it is no broader
than necessary to protect the threatened interest, id.; if narrower
limitations exist—e.g., redacting portions of records and partially closing
hearings rather than blanket sealing and closure, they must be employed,
Press-Enter. I, 464 U.S. at 512-13; and
 fourth, that any restriction will be effective in protecting the threatened
interest, Press-Enter. II, 478 U.S. at 14.3
3

Similarly, before Courts authorize sealing of judicial records subject to the
public’s common law right of access, they must weigh the presumption of access
against competing considerations. Lugosch, 435 F.3d at 120.

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Because neither Deutsche Bank nor the government has or can make this showing
with respect to the redacted information in question, the Court should order the
immediate filing of an unredacted copy of the Letter.
B. Deutsche Bank Has Not Identified Any Compelling Interest
Sufficient To Overcome The Public’s First Amendment Right Of
Access.
Deutsche Bank has not carried its burden of showing a substantial risk to a
compelling interest if the names at issue are placed in the public record of this
proceeding. See Press-Enter. II, 478 U.S. at 13-14. The Supreme Court has
stressed that a denial of access is permissible only when “essential to preserve
higher values.” Press-Enter. I, 464 U.S. at 510 (citation omitted). “Conclusory
assertions” and the mere “possibility” of harm are insufficient. See Press-Enter. II,
478 U.S. at 15 (“The First Amendment right of access cannot be overcome by the
conclusory assertion that publicity might deprive the defendant of” right to fair
trial).
While privacy considerations may in some limited circumstances qualify as
a compelling interest, “privacy and reputational concerns typically don’t provide
sufficient reason to overcome a qualified First Amendment right of access.”
United States v. Loughner, 769 F. Supp. 2d 1188, 1196 (D. Ariz. 2011). Further,
there is no compelling interest in protecting the “privacy” of facts that are already
public. Wash. Post v. Robinson, 935 F.2d 282, 291-92 (D.C. Cir. 1991); Va. Dep’t
11

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of State Police v. Wash. Post, 386 F.3d 567, 579 (4th Cir. 2004); Loughner, 769 F.
Supp. 2d at 1196.
Moreover, many, if not all, of the parties whose financial information is at
issue are people who have a diminished privacy interest because they (or their
principals, in the case of the business entities) voluntarily sought public office or
positions in a hotly contested presidential campaign. See In re Application of N.Y.
Times For Access to Certain Sealed Records, 585 F. Supp. 2d 83, 93 n.14 (D.D.C.
2008) (“injury to official reputation is an insufficient reason for repressing speech
that would otherwise be free” (quoting In re McClatchy Newspapers, Inc., 288
F.3d 369, 374 (9th Cir. 2002))). For example, federal prosecutors involved in
convicting a sitting U.S. Senator on corruption charges that were later vacated
because of prosecutorial misconduct did not have a privacy interest in sealing a
report about their misdeeds. In re Special Proceedings, 842 F. Supp. 2d 232, 246
(D.D.C. 2012) (in allowing access to records, noting that “the identity of the
subjects was known from the outset of the investigation, the matters under
investigation were largely known to the public from the outset and arose from the
subject attorneys’ conduct during the proceedings in a highly-publicized criminal
trial”).
Here, Deutsche Bank has pointed to three general privacy concerns but done
little to establish that the concerns apply to the names redacted from the Letter and

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even less to explain why the concerns, even if otherwise valid, would rise to the
level of a compelling interest.
First, Deutsche Bank claims that the GLBA, specifically 16 C.F.R. § 313.3,
prohibits disclosure of the names because disclosure would reveal Deutsche Bank
clients or indicate the nature of Deutsche Bank’s business with them. Dkt. 161.
Deutsche Bank, however, has not shown that this rule applies in this circumstance.
As an initial matter, the cases cited by Deutsche Bank do not involve the public’s
rights of access to judicial pleadings. See Individual Reference Servs. Grp. v. FTC,
145 F. Supp. 2d 6, 40 (D.D.C. 2001) (involving challenge to GBLA rule-making
procedures under Administrative Procedure Act), aff’d sub nom. Trans Union LLC
v. FTC, 295 F.3d 42 (D.C. Cir. 2002); Martino v. Barnett, 595 S.E.2d 65, 72 (W.
Va. 2004) (requiring production of GBLA protected information in personal injury
discovery dispute); Alpha Funding Grp. v. Cont'l Funding, LLC, 17 Misc. 3d 959,
968-69 (Sup. Ct. N.Y. Cty. 2007) (resolving discovery dispute, under New York
state law, over loan and tax return information not relevant to case). In addition,
the GBLA and regulations cited are limited to individual consumers, not
commercial clients, see 16 C.F.R. § 313.1(b), but the Bank has not alleged that the
redacted names belong exclusively to individuals, as opposed to business entities
or some combination of the two. While the GBLA might apply to limit
dissemination by Deutsche Bank of individuals’ names and addresses in limited

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circumstances not applicable here,4 it expressly excludes names and information
that are “publicly available.” 16 C.F.R. § 313.3(n)(3)(ii); see also In re Special
Proceedings, 842 F. Supp. 2d at 246. Here, the persons and entities that are the
objects of the subpoena publicly announced themselves, and their status as
Deutsche Bank clients, by filing this lawsuit to enjoin Deutsche Bank’s production
of their financial records. Deutsche Bank has cited no law to support its contention
that the “nature of the business” with the individuals or entities would be protected
by the GBLA, much less explained why protecting this publicly available
information when contained in a judicial record would be a compelling
government interest.
Even if the GBLA otherwise required non-disclosure of the names in this
instance—and it plainly does not—the Supreme Court has repeatedly ruled that
First Amendment interests supersede statutory confidentiality provisions, unless
the provisions are narrowly tailored to protect a compelling interest. See, e.g.,
Globe Newspaper, 457 U.S. at 610-11 (invalidating state statute presumptively
excluding press and public from courtroom during testimony of underage victim of

4

The regulation cited by Deutsche Bank includes in the definition of
“nonpublic personal information” “any list of individuals’ names and street
addresses that is derived in whole or in part using personally identifiable financial
information (that is not publicly available) such as account numbers.” 16 C.F.R. §
313.3(n)(3)(i).

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sexual offense); see also Florida Star v. B.J.F., 491 U.S. 524 (1989) (invalidating
state statute criminalizing publication of name of victim of sexual offense on First
Amendment grounds).
Second, Deutsche Bank’s allusion to contractual obligations “often”
included in its customer contracts does nothing to establish that any specific
contract actually prohibits it from disseminating the names in question in the first
instance, and such speculation by Deutsche Bank that a contractual term might
exist is utterly insufficient to meet its burden. See ABC, Inc., 360 F.3d at 106
(“The burden is heavy on those who seek to restrict access to the media, a vital
means to open justice.”). But in any event, even if Deutsche Bank had identified a
contractual promise of confidentiality actually applicable to one of the persons or
entities implicated, a contractual obligation to keep information private cannot
overcome a constitutional right of access. See, e.g., Bernstein, 814 F.3d at 131-32
(unsealing pleadings in civil case despite parties’ settlement agreement conditioned
on maintenance of records under seal).
Third, Deutsche Bank’s assertion that tax return information receives special
protection is similarly insufficient. While the privacy interests implicated by
personal financial information may, in some circumstances, justify limited
redactions, Deutsche Bank provides no support for the proposition that names may
be redacted from a judicial record simply because they are the names of persons or

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entities who filed tax returns. Indeed, not even the cases Deutsche Bank cites
support this proposition. See Prescient Acquisition Grp. v. MJ Publ'g Tr., 487 F.
Supp. 2d 374, 376-77 (S.D.N.Y. 2007) (after making required findings on record,
sealing only two blank checks, which included signature examples and therefore
posed substantial risk of financial fraud); Solomon v. Siemens Indus., Inc., 8 F.
Supp. 3d 261, 285-87 (E.D.N.Y. 2014) (after making required findings on record,
sealing tax returns themselves, where summaries of information were on public
record elsewhere and rationale for filing tax returns in record was dubious).
As Deutsche Bank has not identified a substantial risk to a compelling
government interest, it cannot meet its burden to overcome the public’s right of
access, and the redacted names should be unsealed forthwith.
C. The Public’s Common Law Right Of Access Also Requires
Release Of The Redacted Names.
In addition to the First Amendment right of access, courts “have long
recognized the ‘general right to inspect and copy public records and documents,
including judicial records and documents.’” Bernstein, 814 F.3d at 142 (quoting
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). This common law
right of access “is said to predate the Constitution.” United States v. Amodeo, 44
F.3d 141, 145 (2d Cir. 1995).
The presumptive common law right of access attaches to documents that
are “presented to the court to invoke its powers or affect its decisions.”
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Bernstein, 814 F.3d at 142 (comparing summary judgment pleadings, which
“only the most compelling reasons can justify sealing” with discovery documents
“passed between the parties” but not presented to court, and which thus often
“play no role in the performance of Article III functions” (internal marks and
citations omitted)). The weight of the common law presumption may vary,
“depending on two factors: (a) ‘the role of the material at issue in the exercise of
Article III judicial power’ and (b) ‘the resultant value of such information to those
monitoring the federal courts.’” Newsday, 730 F.3d at 165 (quoting Amodeo II,
71 F.3d at 1049). The Court must then balance these factors against
“countervailing interests favoring secrecy.” Id.
The information in the Deutsche Bank Letter was specifically requested by,
and provided to, the Court as part of its decision-making process, invoking a
strong common law presumption of access. See Bernstein, 814 F.3d at 142. And
the public interest in these materials, and this case more broadly, could not be
higher. The question of which specific entities or individuals—from among a
group whose identities are already publicly known—will be the subject of this
Court’s adjudication is of substantial value to those monitoring the Court and the
execution of its duties in this case, litigation commenced by the President to
prevent Congress from obtaining financial documents from certain persons and
entities closely associated with him, thereby raising important questions about

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separation of powers. See Newsday, 730 F.3d at 165. The broader Congressional
investigation is looking into, among other things, attempts by foreign nations to
influence U.S. citizens, including the President, during his campaign for office or
since. See, e.g., Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (“[I]t can
hardly be doubted that the constitutional guarantee [of free speech] has its fullest
and most urgent application precisely to the conduct of campaigns for political
office.”).
The ultimate decision in this case and the information requested by the
Court to reach its decision are of extraordinary public importance, and as
demonstrated above, Deutsche Bank has not identified any valid, applicable
privacy interest, much less demonstrated why any such personal privacy interest
would outweigh the exceptional public interests at stake. Thus, the common law
right of access also requires that the names redacted from the Deutsche Bank
Letter be unsealed forthwith.
CONCLUSION
For the reasons stated above, the Media Coalition respectfully requests that
the Court (i) grant their motion to intervene in this action for the limited purpose of
enforcing the public’s right of access to judicial proceedings and records, and (ii)
unseal the information redacted by Deutsche Bank in its August 27, 2019, letter to
the Court, without further delay.

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 Case 19-1540, Document 168-2, 09/11/2019, 2652598, Page24 of 25

Dated: September 11, 2019
Respectfully submitted,
BALLARD SPAHR LLP
/s/ Jacquelyn N. Schell
Jay Ward Brown
Jacquelyn N. Schell
1675 Broadway, 19th Floor
New York, NY 10019-5820
T: (212) 223-0200
F: (212) 223-1942
brownjay@balladspahr.com
schellj@ballardspahr.com

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 Case 19-1540, Document 168-2, 09/11/2019, 2652598, Page25 of 25

CERTIFICATION PURSUANT TO L.R. 27.1(b)
Pursuant to Local Rule 27.1(b), the undersigned counsel certifies that they
have notified opposing counsel of their intention to move to intervene and to
unseal the records at issue. Opposing counsel responded as follows:


The Trump Parties take no position as to the Media Coalition’s motion to
intervene but reserve all rights to object or respond to the motion to
unseal.



Deutsche Bank does not object to the Media Coalition’s motion to
intervene but objects to the motion to unseal. Deutsche Bank reserves
the right to file a response.



The Committees take no position as to the Media Coalition’s motion to
intervene. The Committees take no position as to the motion to unseal, to
the extent the named entities or individuals are parties to this litigation,
but oppose the motion to unseal, to the extent the named entities or
individuals are not parties.



The Media Coalition did not receive a response from Capital One prior to
filing.
Dated: September 11, 2019
Respectfully submitted,
BALLARD SPAHR LLP
/s/ Jacquelyn N. Schell
Jay Ward Brown
Jacquelyn N. Schell
1675 Broadway, 19th Floor
New York, NY 10019-5820
T: (212) 223-0200
F: (212) 223-1942
brownjay@balladspahr.com
schellj@ballardspahr.com

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