BAT LLC, Plaintiff, v. TD BANK, N.A. et al., Defendants 15 CV 5839 (RRM) (CLP) United States District Court, E.D. New York Signed September 23, 2019 Filed September 24, 2019 Counsel Robert L. Rimberg, Goldberg & Rimberg PLLC, New York, NY, Joseph Zelmanovitz, Stahl & Zelmanovitz, New York, NY, Kelly Christine Griffin-Fromm, Goldberg Weg & Markus PLLC, New York, NY, Elliot Hahn, Hahn Eisenberger PLLC, Brooklyn, NY, Seth Eisenberger, Law Office of Seth Eisenberger, Brooklyn, NY, for Plaintiff. Andrew Hamelsky, Stradley Ronon Stevens & Young, LLP, New York, NY, Jenifer Ann Scarcella, White & Williams LLP, New York, NY, for Defendant TD Bank N.A. Huaou Yan, Philadelphia, PA, Michael David Silberfarb, Blank Rome, New York, NY, for Defendant Halifax Security, Inc. Patrick Stoltz, Kaufman Borgeest & Ryan LLP, Valhalla, NY, for Defendant Securecom Wireless LLC. Katie Anne Mabanta, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Lydia Security Monitoring Inc. James D. Gassenheimer, Pro Hac Vice, Berger Singerman LLP, Miami, FL, Michel O. Weisz, Pro Hac Vice, Michel O. Weisz, P.A., Doral, FL, Deborah A. Del Sordo, Ahmuty, Demers & McManus Esq., New York, NY, for Defendant Integrated Security Systems. Pollak, Cheryl L., United States Magistrate Judge ORDER *1 On August 3, 2015, plaintiff BAT LLC (“BAT”) commenced an action in the Supreme Court of New York, Kings County, against defendants TD Bank, N.A. (“TD Bank” or “the Bank”) and ADT LLC (“ADT”),[1] alleging a breach of contract claim, a violation of New York Banking Law § 338 against TD Bank, and gross negligence claims against both TD Bank and ADT in connection with a safe deposit box located at 1602 Avenue U, Brooklyn, New York (the “Avenue U branch”). (Compl. ¶¶ 4, 21-55).[2] The box was broken into and its contents were stolen on or about August 6, 2012. On October 9, 2015, the action was removed to this Court. Currently before this Court are: 1) TD Bank's motion for a protective order, pursuant to Fed. R. Civ. P. 26(c), relating to plaintiff's request to depose a Rule 30(b)(6) witness from the Bank; and 2) TD Bank's motion to file certain exhibits to the protective order motion under seal. For the reasons set forth below, TD Bank's motion for a protective order is granted in part and denied in part insofar as the scope of the 30(b)(6) Notice is concerned; TD Bank is ordered to designate one or more 30(b)(6) witnesses; and TD Bank's motion to file under seal is granted. A. The Bank's Motion for Protective Order 1) The Parties’ Positions Plaintiff served a Rule 30(b)(6) notice on the Bank on January 11, 2019, seeking to have the Bank produce a witness or witnesses who could testify about a list of 89 different topics, including general subjects such as “Information concerning the Burglary,” “Information concerning the Security System and Alarm System,” as well as “Information concerning TD's Affirmative Defenses asserted in this action,” and “TD's discovery responses in this action.” (Not. Topics ¶¶ 1, 2, 26, 63).[3] There are additional requests that are separate but specifically related to the more general requests, such as “[t]he precise date and time that the Box which is the subject of this action ... was unlawfully accessed,” and “[t]he correct location of any items that were in the Box prior to the Burglary.” (Id. ¶¶ 80, 85). TD Bank seeks a protective order, arguing that plaintiff has already deposed six representatives of the Bank, who were identified and produced because they were the ones most knowledgeable about the burglary, the alarm system, the investigations, and TD Bank's relationship with the third-party vendors and alarm monitoring companies. (Def.’s Mot. Prot. at 1). The Bank asserts that every TD Bank witness with knowledge has been deposed and the vast majority of the topics listed in the Notice have been covered or could have been covered during these depositions. According to the Bank: “Simply, there is no one left for TD Bank to produce with knowledge of these topics.” (Id.) Indeed, the Bank notes that during the course of several of the depositions, counsel asked the witness if there was anyone else at the Bank with more knowledge of a particular topic and the witness either responded “no” or indicated the name of another witness who has also already been deposed. (Id. at 7). The Bank also contends that there are a number of topics that are improper in that they seek legal opinions and conclusions of law. (Id. at 8 (citing Not. Topics ¶¶ 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 63, and 89)). *2 In response, plaintiff BAT contends that while the Bank has produced employees and former employees as witnesses for deposition, “these witnesses testified that they lacked knowledge or they contradicted each other throughout their testimony.” (Pl.’s Feb. 7 Ltr. at 1).[4] Moreover, plaintiff contends that there is a distinction between a Rule 30(b)(6) witness and a regular fact witness because the testimony of a regular witness does not bind the corporate entity. (Id. at 2). Given that there were a significant number of answers given by the prior witnesses indicating that they did not know the answer to the question, plaintiff seeks a witness who has been educated on all of the matters in the Notice to testify on behalf of the Bank and provide binding testimony. (Id.)[5] With respect to the specific witnesses previously produced by the Bank, plaintiff contends that even though the Bank produced these witnesses, they had limited knowledge and could not provide answers to critical questions. Specifically, plaintiff cites the testimony of Gerard Donnelly, the Bank's Vice President and Regional Investigations Manager, who testified as to various topics identified in the Notice, including the burglary and investigation, blueprints and the layout of the bank, the material of the vault, boxes, and locks, alarm panels, surveillance, basement security system, communication outages, alarm delays and reports concerning the burglary. (See Def.’s Mot. Prot. at 5-6). Plaintiff argues that Mr. Donnelly could not respond to “simple relevant questions” regarding the alarm system, the alarm system backup, vault construction, repair to the vault, safe deposit boxes, locks, and alarm panels. (Pl.’s Feb. 7 Ltr. at 2-3). Plaintiff contends that when Donnelly could not answer certain questions regarding the burglary, he suggested that Haymon Goon would have relevant knowledge. (Id. at 4). Mr. Goon was TD Bank's Senior Investigator. (Def.’s Mot. Prot. at 4). He testified as to the specifics of the burglary, the condition of the vault and bank after the burglary, wiring in the basement, information given to law enforcement, surveillance footage, and the alarm panel. (Id.) Plaintiff complains that Mr. Goon lacked information about all of these topics. (Pl.’s Feb. 7 Ltr. at 4). With respect to John Minster, the Bank's Manager of Global Physical Security, whose job was to manage technology at the Bank, plaintiff complains that he was “extremely evasive” and claimed to lack knowledge about the cost of security, and contradicted the testimony of James Power, the Bank's former Head of Global Security. (Id. at 5; see also Def.’s Mot. Prot. at 4-5). Although the Bank claims that Mr. Minster testified about the programming of the alarm system, alarm systems and monitoring, communication outages, signal delays, and the programming of the alarm system, among other topics, plaintiff asserts that he could not answer questions and denied knowledge as to the Bank's instructions concerning signal delays, denied programming the alarm panel, and lacked knowledge as to the surveillance footage of the burglary and other topics. (Pl.’s Feb. 7 Ltr. at 5). Plaintiff makes similar claims with respect to the lack of knowledge of other of the Bank's witnesses. (Id.) *3 As for the breadth of topics listed in the Notice, plaintiff contends that the 89 topics “comport[ ] precisely with case law's requirement that 30(b)(6) topics be set forth by the requesting party with ‘painstaking specificity.’ ” (Id. at 7 (quoting Blackrock Allocation Target Shares: Series S Portfolio v. Wells Fargo Bank, Nat's Ass'n, No. 14 CV 09371, 2017 WL 9400671, at *1 (S.D.N.Y. Apr. 27, 2017))). Plaintiff notes that the topics it has identified in the 30(b)(6) Notice are all relevant to the issues in the case. These include 1) general burglary questions (Not. Topics ¶¶ 1, 8, 25, 77, 80, 82, 83, 84, 85); 2) the security and alarm systems and general security questions (Not. Topics ¶¶ 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 56, 71, 72, 73, 74, 75, 86, 87, 88); 3) safe deposit box and contract questions (Not. Topics ¶¶ 17, 76); 4) communications with co-defendants, third party monitoring companies, outages and cellular back-ups (Not. Topics ¶¶ 18, 19, 20, 21, 27, 54, 55, 57, 58, 59, 60, 61, 62, 63, 65, 66, 67, 68, 69, 70, 78, 79, 81); and 5) the security officer's report (Not. Topics ¶¶ 23, 24). (Pl.’s Feb. 7 Ltr. at 7-9). Finally, plaintiff argues that it should be allowed to obtain information regarding the Bank's affirmative defenses. (Id. at 10) (citing Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. 29, 34 (D. Conn. 2003) (holding that a party is entitled to obtain the facts relied upon to support the answer and counterclaims, but not the attorney's advice or mental impressions)). The Bank in its Reply Letter dated February 12, 2019, reiterates its position that “there is no one else for TD Bank to produce with additional knowledge of the topics identified in the Notice.” (Def.’s Feb. 12 Reply at 2). According to the Bank, the witnesses who were produced were the heads of their departments, were educated as to the topics in the Notice and are the only individuals with first-hand knowledge. (Id.) In addition, the Bank asserts that these very witnesses would be the individuals called upon to educate a corporate representative if they were not themselves designated as the representative. (Id.) The Bank contends that it has produced the lead individuals on the relevant topics and while they may not have known the answers to certain questions, it does not mean that there is anyone else who would have more knowledge. (Id. at 3). 2) Analysis Under Federal Rule of Civil Procedure 26, parties are entitled to obtain broad discovery of any “nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Rule 26 vests the trial judge with broad discretion to dictate the sequence of discovery and narrowly tailor discovery to the needs of the case. Crawford-El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); see also AMW Material Testing, Inc. v. Town of Babylon, 215 F.R.D. 67, 72 (E.D.N.Y. 2003) (noting that district courts “are empowered to use protective orders to temper the scope of discovery”). Courts have held that the proportionality standard set out in the revised Rule 26 was added “in part, in order to ‘encourage judges to be more aggressive in identifying and discouraging discovery overuse’ by emphasizing the need to analyze proportionality before ordering production of relevant information.” Henry v. Morgan's Hotel Grp., Inc., No. 15 CV 1789, 2016 U.S. Dist. LEXIS 8406, at *8-9 (S.D.N.Y. Jan. 25, 2016) (internal citations omitted); see also Dongguk Univ. v. Yale Univ., 270 F.R.D. 70, 73 (D. Conn. 2010) (stating that the “proportionality consideration was added in 1983 specifically to address the perceived problem of over-discovery”). There are three factors set out in Rule 26(b)(2)(C) that courts should consider in determining whether the discovery sought is proportional to the needs of the case: 1) the discovery is unreasonably cumulative or duplicative; 2) the party seeking the discovery had ample opportunity to obtain the information sought through other means; and 3) the burden or expense of the discovery outweighs its likely benefit. Fed. R. Civ. P. 26(b)(2)(C). *4 Rule 30(b)(6) requires a corporation to “respond to a notice for a deposition on a particular subject matter by providing such ‘persons’ as are knowledgeable about the subject matter.” Reilly v. Natwest Markets Corp., Inc., 181 F.3d 253, 259 (2d Cir. 1999). Under Rule 30(b)(6), the corporation is allowed to designate an individual to testify on its behalf, understanding that the testimony binds the corporation. State of N.J. v. Sprint Corp., No. 03-2071-JWL, 2010 U.S. Dist. LEXIS 14890 at *9 (D. Kan. Feb. 19, 2010). Like other forms of discovery, a Rule 30(b)(6) notice of deposition is subject to the proportionality limitations of Rule 26 and the court has discretion to issue a protective order where the party can demonstrate “good cause” to avoid “annoyance, embarrassment, oppression or undue burden or expense.” Fed. R. Civ. P. 30(b)(6)(c)(4). The Notice must “describe with reasonable particularity the matters for examination,” Fed. R. Civ. P. 30(b)(6), but the court may strike parts of the 30(b)(6) notice if it is overbroad. TriState Hosp. Supp. Corp., 226 F.R.D. 118, 125 (D. Conn. 2005). a) Affirmative Defenses and Discovery Topics The plaintiff lists six topics that seemingly relate to the Bank's Answer in response to plaintiff's allegations of breach of contract and negligence against co-defendants Halifax, COPS, and ISS. (See Ans. ¶¶ 51-75).[6] These topics include “any claim” by TD Bank that any of its co-defendants was negligent or that any of the co-defendants breached an agreement with the Bank. (See Not. Topics ¶¶ 28-33). In its Answer, the Bank admitted the existence of contracts with these other entities, but denied knowledge or information sufficient to respond to plaintiff's allegations that these entities were negligent or in breach of contract. (See Ans. ¶¶ 51-75). Topic No. 26 is a single request for “Information concerning TD's Affirmative Defenses asserted in this action.” (See Not. Topic ¶ 26). The Bank's Answer contains twenty (20) affirmative defenses, including 1) failure to state a claim; 2) estoppel; 3) waiver; 4) lack of standing; 5) unclean hands; 6) statute of limitations, and others. (Ans. at 10-13). Topic No. 26 does not confine the inquiry in any way, does not limit the inquiry to the factual underpinnings of the defenses, see Sec. Ins. Co. of Hartford v. Trustmark Ins. Co., 218 F.R.D. at 34, and increases the total number of topics from 89 to 109 since each affirmative defense is arguably a separate topic. This Court has previously held that Rule 30(b)(6) depositions are intended to discover facts; it is improper to use the 30(b)(6) deposition to ascertain how a party intends to marshal the facts and support its legal theories. See Gov't Employees Ins. Co. v. Lenex Servs., No. 16 CV 6030, 2018 U.S. Dist. LEXIS 43584 at *9 (E.D.N.Y. Mar. 15, 2018) (citing SEC v. Morelli, 143 F.R.D. 42, 47 (S.D.N.Y. 1992); see also Liveperson, Inc. v. 24/7 Customer, Inc., No. 14 CV 1559, 2015 WL 4597546 at *7 (S.D.N.Y. July 30, 2015)); see also Krasney v. Nationwide Mut. Ins. Co., No. 06 CV 1164, 2007 U.S. Dist. LEXIS 90876, at *10 (D. Conn. Dec. 11, 2007) (holding that a plaintiff's effort to use a 30(b)(6) deposition to explore the facts upon which defendant was intending to rely was highly inefficient and the 40 topics listed in the notice were not reasonably particular). Given that the Bank has not alleged claims of breach of contract or negligence against the co-defendants and therefore is unlikely to have evidence of such claims, and given defendant's assertion that plaintiff has already been provided with discovery of the facts relating to the affirmative defenses (see Def.’s Jan. 15, 2019 Ltr. at 2), the Court find the request for a 30(b)(6) witness on Topics 26 and 28-33 to be overly broad and not proportional to the issues in the case. *5 Topics 34 through 53 ask for information relating to claims by the other co-defendants that either the Bank, the other co-defendants, or non-parties were negligent or breached an agreement with respect to services provided at the Bank. (See Not. Topics ¶¶ 34-53). The factual basis and support for the affirmative defenses and theories on which the other co-defendants intend to seek to impose liability on each other are not within the Bank's knowledge, and the requests appear designed to harass and annoy the Bank. The Court denies the requests for a 30(b)(6) witness on Topics 34 through 53. Indeed, as the Bank notes in its January 15, 2019 letter to plaintiff, depositions of representatives from co-defendants ISS, COPS, and the landlord have already been taken, during which time the plaintiff could have inquired of those witnesses if there were facts relevant to their defenses. (Def.’s Jan. 19 Ltr. at 2, n.1). With respect to Topic 63 – “TD's discovery responses in this action,” this request is overly broad and patently improper. Similarly, Topic 89 asks TD Bank for a witness to testify as to “Information concerning any diamonds found in the hotel room of Helen Sieger in Miami, Florida at the time of her arrest.” How the Bank is to have any information of the content of Ms. Sieger's hotel room, apart from what was available in third-party documents and testimony, is unclear, and because it is outside the Bank's knowledge, appears to be designed to harass and not a good faith effort to obtain relevant information. The Court strikes Topics 63 and 89. b) Other Topics and Designation of 30(b)(6) witness(es) As plaintiff notes, it seeks information about a variety of topics that have already been addressed in prior depositions of the Bank witnesses. (Pl.’s Feb. 7 Ltr. at 2-3). These include such topics as the burglary, the alarm and security systems, communications with vendors, the safety deposit boxes, and the security officer's report. (See Not.). Plaintiff claims that it needs a 30(b)(6) witness to testify on all of these topics because the prior witnesses either could not answer questions asked by the plaintiff or contradicted answers given by other witnesses. (Pl.’s Feb. 7 Ltr. at 1). However, a review of the topics listed in the 30(b)(6) Notice do not provide sufficient detail as to the topics that plaintiff believes prior depositions did not adequately cover. Instead, plaintiff has listed virtually every possible subject that could be raised in this litigation, and described them in such broad terms that it is impossible to know how defendant would prepare a 30(b)(6) witness to answer questions beyond those already answered by the heads of the departments with presumably the most knowledge in the organization. (Not. Topics ¶¶ 1, 8, 24). All of these topics have been explored with the prior witnesses. The vague and generalized requests give no indication as to what areas plaintiffs believe were not adequately covered by the prior depositions, nor are they sufficiently limited to allow defendant an opportunity to prepare a witness should one be ordered. Similarly, plaintiffs seek “Information concerning the Security System and Alarm System,” “Information concerning the programming of TD Bank's Alarm System,” “Information concerning security cameras at the Avenue U Branch,” “Information concerning the testing of the alarm system,” “Information concerning the Avenue branch vault including the security of same,” and “Information concerning TD Bank's instructions to third-party monitoring companies.” (Not. Topics ¶¶ 2, 5, 7, 11, 14, 18). Again, in many instances, there is no limit as to timing, location or scope for these broad topics. A Rule 30(b)(6) deposition is not to be used to re-ask all of the questions a party has previously explored with multiple witnesses. Bellinger v. Astrue, No. 06 CV 321, 2011 WL 4529602 at *––––, 2011 U.S. Dist. LEXIS 110953 at *17 (E.D.N.Y. Sep. 28, 2011) (holding that the 30(b)(6) topics were unreasonably cumulative where plaintiff had already deposed individuals familiar with and involved in the events giving rise to the claim). Here, the vast majority of topics have been explored with at least one and in many cases multiple witnesses. As is clear from plaintiff's letter, there are specific questions which plaintiff believes were not adequately answered by the witnesses presented. (See Pl.’s Feb. 7 Ltr. at 6 (citing Bianchi's inability to explain why TD's security protocol changed)). However, rather than detail those areas, the 89 topics listed by plaintiff seem to cover broad, unlimited topics without regard to the fact that much of this information has already been provided. If the plaintiff had specific questions that it felt the witnesses had not adequately answered, it should have detailed such in its Notice when asked by defendant to narrow or withdraw its Notice. *6 Defendant notes that it has offered to produce another witness, Mr. McCluskey, head of TD Bank's Investigations department. If defendant were to designate a 30(b)(6) witness to become familiar with the overly broad topics listed in the Notice, the witness would likely consult with the heads of the departments that cover the areas sought – individuals who have already been deposed and who, according to the Bank are the most knowledgeable on the subjects. (Def.’s Feb. 12 Reply at 4). Moreover, it is unclear what information the witness would be seeking to prepare for the deposition. While plaintiff may not be satisfied with some of the answers it received during the individual depositions, it may be that the Bank does not possess that information and there are no witnesses who could provide it. See Ecomm'n Sols., LLC v. CTS Holdings, Inc., No. 15 CV 2671, 2018 U.S. Dist. LEXIS 74325 at *17-18 (holding that “when a corporate representative testifies to a lack of non-privileged information (or a lack of non-privileged facts), he is testifying that the company itself does not possess non-privileged information (or non-privileged facts).”). Given that Plaintiff seeks information about a variety of topics that have already been addressed in prior depositions of Bank witnesses, the Court was not inclined to allow further 30(b)(6) depositions. To ensure that defendant has no remaining witnesses to produce, on September 9, 2019, the Court ordered that T.D. Bank certify that there are no other witnesses remaining who would be appropriate to produce in response to a 30(b)(6) Notice. Further, the Court ordered that T.D. Bank certify that the answers which the witnesses the plaintiff has already deposed are binding on the Bank.[7] On September 9, 2019, TD Bank filed a letter with the Court “represent[ing] that at trial TD Bank will not produce any other corporate witness other than those who have already been deposed.” (Def.’s Sept. 9 Ltr. at 1).[8] The September 9th letter also stated that “TD Bank reserves the right to call non-corporate witnesses including expert witnesses at the time of trial.” (Id.)[9] On September 10, 2019, BAT submitted a letter expressing concern that the Bank had not agreed to be bound by its witnesses’ testimony at trial, despite the requirement of Federal Rule of Civil Procedure 30(b)(6) that TD bank designate a witness as its 30(b)(6) representative. (Pl.’s Sept. 10 Ltr. at 1)[10] (citing Sabre v. First Dominion Capital, LLC, No. 01 CIV. 2145 (BSJ), 2002 WL 31556379, at *2 (S.D.N.Y. Nov. 15, 2002)). In response, the Bank asserted that “[t]he issue of whether TD Bank is bound by the testimony of certain witnesses is a question to be determined at the time of trial.” (Def.’s Sept. 10 Ltr. at 1).[11] *7 Rule 30(b)(6) of the Federal Rules of Civil Procedure provides that corporations “must ... designate one or more officers, directors, or managing agents” or other persons who “consent to testify on its behalf.” Fed. R. Civ. P. 30(b)(6) (emphasis added). In Sabre v. First Dominion Capital, the court noted that testimony given as a Rule 30(b)(6) witness is different than testimony given as an individual, as the 30(b)(6) witness “testifies as a representative of the entity, his answers bind the entity and he is responsible for providing all the relevant information known or reasonably available to the entity.” 2002 WL 31556379 at *2 (internal quotations and citations omitted). Although the Bank claims that the issue of which witness’ testimony will bind the Bank as a 30(b)(6) witness is “a question to be determined at the time of trial,”[12] the Court in Sabre v. First Dominion Capital ordered the parties to resolve any “ambiguities” regarding the 30(b)(6) witness issue before trial. Id.; see also Funk v. Belneftekhim, 861 F.3d 354, 361 (2d Cir. 2017) (upholding the district court's order requiring defendants to identify a 30(b)(6) witness prior to trial). Rule 37 of the Federal Rules of Civil Procedure further provides “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery,” including if “a corporation or other entity fails to make a designation under Rule 30(b)(6).” Fed. R. Civ. P. 37(a)(1), (a)(3)(B)(ii). The plaintiff need not wait until trial for TD Bank to designate its 30(b)(6) witness. Given the Bank's refusal to designate the witness or witnesses whose testimony will be binding, the Court Orders the Bank to designate a 30(b)(6) witness once the plaintiff revises its Rule 30(b)(6) Notice and provides a sufficiently detailed revised list of no more than 20 topics about which, despite discovery completed to date, BAT still lacks sufficient information or requires a binding answer on the part of the Bank. If BAT believes that there is good cause to extend its Notice beyond 20 topics, BAT must seek leave of this Court; the Court shall only grant an extension beyond 20 topics if BAT can demonstrate that it has not already received sufficient information from TD Bank on the topic in question. The Court orders TD Bank to make its 30(b)(6) witness designation within 30 days of receiving BAT's revised Notice. B. Motion to File Under Seal In a separate letter motion dated January 24, 2019, the Bank moves for an Order allowing certain exhibits[13] to be filed under seal. (Def.’s Jan. 24 Ltr.).[14] These exhibits are the deposition transcripts that the Bank relies on in support of its motion for a protective order, and a chart marked during the course of one of those depositions. The Bank contends that pursuant to a Discovery Confidentiality Agreement, the parties agreed to designate certain documents as confidential, including “all information disclosed ... during discovery ... and in testimony given in a deposition or hearing.” (Def.’s Feb. 12 Exhibits Ltr., Ex. 1 at 1).[15] The Bank contends that the deposition transcripts contain information about the Bank's security and alarm system, its procedures for monitoring the alarm system, and decisions in implementing changes to the system. (Id. at 1). The Bank argues that if this information were to become public, it could jeopardize the security of numerous TD Bank locations and potentially the finances of the Bank's customers. (Id.) Moreover, the Bank asserts that testimony about the burglary should remain confidential because the burglary is the subject of an ongoing police investigation. (Id. at 1-2). Plaintiff objects to the filing of the entire transcript under seal, citing the presumption of public access. (Pl.’s Feb. 7 Ltr. at 1).[16] *8 Rule 26(c) permits a court to issue a protective order authorizing a party to file a document under seal “for good cause.” Fed. R. Civ. P. 26(c)(1). The burden is on the party seeking to file the document under seal to show as to each document the specific harm or prejudice that will occur if sealing is not authorized. See United States v. Amodeo (“Amodeo I”), 44 F.3d 141, 148 (2d Cir. 1995). The Court must balance the strong interest of the public's right to access judicial documents with the interest of the party seeking to keep the document or information under seal. In Cumberland Packing Corp. v. Monsanto Co., this Court addressed the presumption of public access to judicial documents. 184 F.R.D. 504, 506 (E.D.N.Y. 1999). The Court explained that the presumption of access that attends judicial documents stems both from the common law tradition and from the Constitution: “[a]s the exercise of Article III [judicial] powers is a formal act of government, it should be subject to public scrutiny absent ‘exceptional circumstances.’ ” Id. at 505 (quoting United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1049 (2d Cir. 1995)). A “judicial document” is one that is presented to the Court, “relevant to the performance of the judicial function[,] and useful in the judicial process.” United States v. Amodeo (“Amodeo I”), 44 F.3d at 145. Documents relevant to the performance of the judicial function are presumptively subject to public inspection and thus not properly sealed. See id. at 146. In contrast to judicial documents, “[d]ocuments that play no role in the performance of Article III functions ... lie entirely beyond the presumption's reach ... and stand on a different footing than a motion filed by a party seeking action by the court or ... any other document which is presented to the court to invoke its powers or affect its decisions.” Id. at 1050 (emphasis added) (citations and quotation marks omitted). Judicial documents that play “only a marginal role” in the judicial process receive a low presumption of access, and may remain sealed “absent a countervailing reason.” Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. at 506 (quoting United States v. Amodeo (“Amodeo II”), 71 F.3d at 1050). Here, the Bank seeks to file the entire deposition transcripts of the Bank's witnesses under seal in the context of a discovery motion. Unlike documents parties submit to a court when moving for summary judgment, which “should not remain under seal absent the most compelling reasons,” Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982); see also Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006) (holding that “documents submitted to a court for its consideration in a summary judgment motion are – as a matter of law – judicial documents to which a strong presumption of access attaches”), the public's interest in access to discovery documents is less than the presumption afforded documents submitted in connection with a dispositive motion. See United States v. HSRC Bank USA, N.A., 863 F.3d 125, 139 (2d Cir. 2017) (holding that discovery documents are never automatically judicial documents); S.E.C. v. TheStreet.Com, 273 F.3d 222, 233 n.11 (2d Cir. 2001) (holding that there is no presumption of public access to all discovery materials, especially if those documents are only passed between the parties in discovery, as opposed to submitted to the court) (citing United States v. Amodeo (“Amodeo II”), 71 F.3d at 1050). The exhibits at issue were not simply passed between the parties in discovery; the Bank submitted the transcripts to the Court to support its motion for a protective order, discussed supra at 2 et seq. However, just because the transcripts are among the materials the Court considered in evaluating TD Bank's motion for a protective order does not automatically make them “judicial documents” subject to public disclosure. The transcripts have played only a marginal role in the progress of this case and thus are subject to public access only “absent a countervailing reason.” See Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. at 506 (quoting United States v. Amodeo (“Amodeo II”), 71 F.3d at 1050). The Bank has provided such a countervailing reason. The transcripts discuss the Bank's security operations; TD Bank avers that if such information was made publicly available, it could jeopardize the security of both the Bank and its customers. (See Def.’s Jan. 24 Ltr., Def.’s Feb. 12 Exhibits Ltr.). Given that the precipitating event for this litigation was the Bank's burglary, the Bank's reluctance to make public its security protocols is something the plaintiffs, as alleged victims of that burglary, should appreciate as compelling. The Court finds that the Bank's concern presents an adequate reason to file Exhibits 3 through 9 to its motion for protective order under seal, and so grants the Bank's motion. CONCLUSION *9 For the reasons given above, the Court grants the Bank's motion for a protective order insofar as the Court has found the 89 topics outlined in plaintiff's Rule 30(b)(6) to be overly broad and not proportional to the needs of the case. The Court Orders BAT to provide a sufficiently detailed revised list of no more than 20 topics, and Orders TD Bank to designate one or more 30(b)(6) witnesses within 30 days of receiving any such revised Notice from BAT. The Court further grants TD Bank's motion to file Exhibits 3 through 9 to the protective order motion under seal. SO ORDERED. Footnotes [1] ADT was dismissed from the action on December 15, 2015. (See Notice of Voluntary Dismissal, Dec. 15, 2015, ECF No. 11). [2] Citations to “Compl.” refer to plaintiff's Complaint, dated August 3, 2015, attached as Exhibit #2 to the Notice of Removal filed by TD Bank, ECF. No. 1. [3] Citations to “Not.” refer to plaintiff's Rule 30(b)(6) Notice to Take Deposition, dated January 11, 2019, attached as Exhibits #1 and #2 to the Motion for Protective Order (“Def.’s Mot. Prot.’ ”), dated January 24, 2019 and filed by TD Bank, ECF. No. 159. [4] Citations to “Pl.’s Feb. 7 Ltr.” refer to plaintiff's Response in Opposition to the defendant's Motion for Protective Order, dated February 7, 2019, filed by BAT LLC, ECF. No. 169. [5] Plaintiff also complains that the Bank failed to comply with the Court's rules requiring a “meet and confer” before bringing a motion before this Court. (Pl.’s Feb. 7 Ltr. at 1). Defendant contends that it sent a letter to plaintiff, dated January 15, 2019, explaining that it had no other witnesses to offer with first-hand knowledge and requesting that the plaintiff withdraw the Notice. (See Def.’s Feb. 12 Reply at 1-2, ECF No. 171 (citing January 15, 2019 Letter to Plaintiff, ECF No. 159 Attachment 2)). [6] Citations to “Ans.” refer to TD Bank's Answer, Affirmative Defenses, and Jury Demand to the Fourth Amended Complaint, dated September 28, 2016 filed by TD Bank, ECF. No. 56. [7] Both orders are documented in the Minute Entry for Telephone Conference held on September 9, 2019, shown on the case docket sheet between ECF Nos. 185 and 186. [8] Citations to “Def.’s Sept. 9 Ltr.” refer to defendant's Letter Regarding Trial Witnesses, dated September 9, 2019, filed by TD Bank, ECF. No. 185. [9] In addition to BAT's concern regarding the lack of a 30(b)(6) witness, discussed infra at 13-14, BAT also protested TD Bank's reservation of the right to call non-corporate witnesses, raising the possibility that TD might call former, technically “non-corporate” employees as surprise witnesses at trial. (See Plaintiff's Letter in Response to TD's Letter Regarding Witnesses, dated September 9, 2019, filed by BAT LLC, ECF. No. 186). In response, the Bank clarified that former employees of TD Bank will be considered “corporate” employees, and affirmed that the Bank will only call former employees who have already been deposed. (See “Def.’s Sept. 10 Ltr.” refer to defendant's Reply in further clarification of TD Bank's Letter to Court Regarding Trial Witnesses, dated September 10, 2019, filed by BAT LLC, ECF. No. 187). [10] Citations to “Pl.’s Sept. 10 Ltr.” refer to plaintiff's Letter in Response to TD's Letter Regarding Witnesses, dated September 10, 2019, filed by BAT LLC, ECF. No. 186. [11] Citations to “Def.’s Sept. 10 Ltr.” refer to defendant's Reply in further clarification of TD Bank's Letter to Court Regarding Trial Witnesses, dated September 10, 2019, filed by BAT LLC, ECF. No. 187. [12] Def.’s Sept. 10 Ltr. at 1. [13] Specifically, Exhibits 3 through 9, attachments 1 through 7 to Defendant's Motion for Protective Order dated January 24, 2019, filed by TD Bank, ECF. No. 160. [14] Citations to “Def.’s Jan. 24 Ltr.” refer to defendant's Motion for Protective Order, dated January 24, 2019, filed by TD Bank, ECF. No. 159, with attachments at ECF No. 160. [15] Citations to “Def.’s Feb. 12 Exhibits Ltr.” refer to defendant's Reply in support of its Request to File Exhibits Under Seal, dated February 12, 2019, filed by TD Bank, ECF. No. 172. [16] Citations to “Pl.’s Feb. 7 Ltr.” refer to plaintiff's Reply in Opposition to defendant's Motion for Protective Order, dated February 7, 2019, filed by BAT LLC, ECF. No. 170.