         10-4164-cv
         App. of Utica Mutual v. INA Reinsurance

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 15th day of March, two thousand twelve.
 5
 6       PRESENT: JOSEPH M. McLAUGHLIN,
 7                BARRINGTON D. PARKER,
 8                RICHARD C. WESLEY,
 9                         Circuit Judges.
10
11
12       APPLICATION OF UTICA MUTUAL INSURANCE COMPANY, FOR AN ORDER
13       PURSUANT TO C.P.L.R. 7503(b) STAYING ARBITRATION OF A
14       CERTAIN CONTROVERSY AND DISQUALIFYING CHADBOURNE & PARKE LLP
15       FROM REPRESENTING INA REINSURANCE COMPANY N/K/A R&Q
16       REINSURANCE COMPANY IN THE ARBITRATION,
17
18                                     Petitioner-Appellant,
19
20                      v.                                                          10-4164-cv
21
22       INA REINSURANCE COMPANY N/K/A R&Q REINSURANCE COMPANY,
23
24                                     Respondent-Appellee,
25
26       and
27
28       CHADBOURNE & PARKE LLP,
29
30                                     Respondent.
31
32
33
 1   FOR APPELLANT:      ROBERT MORROW, Hunton & Williams LLP, New
 2                       York, NY (Walter J. Andrews, Syed S.
 3                       Ahmad, Hunton & Williams LLP, McLean, VA,
 4                       on the brief)
 5
 6   FOR APPELLEE:       JOHN F. FINNEGAN, Chadbourne & Parke
 7                       LLP, New York, NY (Philip Goodman, Kate
 8                       McSweeny, Chadbourne & Parke LLP,
 9                       Washington, DC, on the brief)
10
11        Appeal from the United States District Court for the
12   Southern District of New York (Hellerstein, J.).
13
14          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

15   AND DECREED that the judgment of the United States District

16   Court for the Southern District of New York is AFFIRMED.

17          Appellant Utica Mutual Insurance Company (“Utica”)

18   appeals from a judgment of the United States District Court

19   for the Southern District of New York (Hellerstein, J.),

20   denying Utica’s motion to disqualify Chadbourne & Parke LLP

21   ("Chadbourne") as counsel for Appellee INA Reinsurance

22   Company ("R&Q") in an arbitration dispute between Utica and

23   R&Q.    Utica also challenges the district court’s discovery

24   prophylaxis, and it’s unsealing of certain confidential,

25   non-privileged information underlying Utica's motion to

26   disqualify Chadbourne.    We assume the parties' familiarity

27   with the underlying facts, the procedural history, and the

28   issues presented for review.

29

                                    2
1        The denial of a motion to disqualify counsel is

2    reviewable only for abuse of discretion.     Bobal v.

3    Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir.

4    1990).    In light of the limited facts and issues presented

5    for our review, we find that the district court did not

6    abuse its discretion in denying Utica’s motion to disqualify

7    Chadbourne.     In coming to this conclusion, we emphasize that

8    we take no position as to whether the district court should

9    have applied New York State law considering that this

10   proceeding was removed from New York State court and

11   addresses only whether disqualification is appropriate.       We

12   also take no position as to whether an ethical wall can be

13   sufficient to rebut the presumption of disqualification of a

14   law firm where the conflicted attorney possesses material

15   information about a former client.     See, e.g., Kassis v.

16   Teacher's Ins. & Annuity Ass’n., 93 N.Y.2d 611, 616-17

17   (1999).     Utica did not raise these issues below or on

18   appeal, and we decline to consider them now in the first

19   instance.

20       Next, we reject Utica’s assertion that the district

21   court’s discovery prophylaxis was “incomplete.”     The

22   district court’s discovery prophylaxis was irrelevant to the


                                     3
1    disqualification motion and was voluntarily accepted by R&Q.

2    Utica has no basis to challenge it on appeal.

3        Finally, the district court did not abuse its

4    discretion in unsealing the record.   To determine whether

5    documents should be placed under seal, a court must balance

6    the public's interest in access to judicial documents

7    against the privacy interests of those resisting disclosure.

8    Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d

9    Cir. 2006).   The decision to seal the record “is one best

10   left to the sound discretion of the trial court, a

11   discretion to be exercised in light of the relevant facts

12   and circumstances of the particular case."   Nixon v. Warner

13   Comm., Inc., 435 U.S. 589, 599 (1978).   Here, the district

14   court concluded that Utica’s in camera and privileged

15   submissions will remain under seal.   The district court did

16   not abuse its discretion in determining that the public’s

17   interest in access to other non-privileged documents

18   outweighed Utica’s privacy interests in keeping those

19   documents sealed.

20       We have considered Utica’s remaining arguments and,

21   after a thorough review of the record, find them to be

22   without merit.


                                   4
1       For the foregoing reasons, the judgment of the district

2   court should be AFFIRMED.
3                               FOR THE COURT:
4                               Catherine O’Hagan Wolfe, Clerk
5
6




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