Free Motion to Seal - District Court of Connecticut - Connecticut

Case 3:03-cv-00350-MRK

Document 109

Filed 07/20/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

ADAP, INC.

VS. RITZ REALTY CORP. and AVALONBAY COMMUNITIES, INC.

: CASE NO. 303CV350(MRK) : : : : : : JULY 18, 2005

MOTION FOR PERMISSION TO FILE UNDER SEAL PURSUANT TO LOCAL RULE 5(d) Defendant AvalonBay Communities, Inc. ("AvalonBay"), hereby respectfully files this Motion for Permission to File Under Seal Pursuant to Local Rule 5(d). Pursuant to the Joint Trial Memorandum Instructions in Nonjury Cases for the Honorable Mark R. Kravitz (revised 11/03) and the Court's Scheduling Orders, the parties are required to submit to Judge Kravitz a complete copy of their trial exhibits on July 18, 2005. Certain of the trial exhibits have been designated as "Confidential" between the parties. AvalonBay moves the Court to seal Exhibit 553 for ID, Purchase and Sale Agreement Between Ritz Realty Corporation and AvalonBay Communities, Inc., dated October 17, 2001 (MW0648 ­ 0688). This proposed exhibit contains confidential and proprietary information concerning the price and other financial terms that AvalonBay agreed with Ritz for the Riverview Plaza proposed development. AutoZone has submitted as its Exhibit 6 for ID a version of this agreement which has been redacted to delete these confidential terms. Accordingly, only the confidential financial terms of the Purchase and Sale Agreement would be sealed from the public.

ORAL ARGUMENT NOT REQUESTED

Case 3:03-cv-00350-MRK

Document 109

Filed 07/20/2005

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In addition, Defendants have designated as proposed exhibits certain documents which Plaintiff produced to the Defendants subject to a claim of confidentiality pursuant to a confidentiality agreement entered into by the parties during discovery. Consistent with the terms of the confidentiality agreement, AvalonBay is submitting copies of these proposed exhibits to the Court in accordance with the filing procedures of Local Rule 5(d), so as to afford Plaintiff the opportunity to seek an order sealing the subject information: 517. 519. 527. 528. 529. 530. 531. 534. 536. 537. 538. 539. E-mail from Terry McKee to David Gilmore regarding Ritz's ability to redevelop Riverview Plaza (TM000059). Profit and Loss Summary, Fiscal Year 2003, dated 9/5/03 (SS036 ­ 0037). Profit and Loss Summary, Fiscal Year 2000, dated September 6, 2000. Profit and Loss Summary, Fiscal Year 2001, dated September 5, 2001. Profit and Loss Summary, Fiscal Year 2002, dated September 11, 2002. Profit and Loss Summary, Fiscal Year 2003, dated September 9, 2003. Profit and Loss Summary, Fiscal Year 2004, dated September 8, 2004. E-mail from Jessica Desrosieis to Shawn Sheikhzadeh regarding DIY, COMM, total sales and average tickets increase (SS0002 ­ 0005). Ground Lease between the Norwalk Curry Tire Company, Inc. and AutoZone, Inc. (MM00567 ­ 00598). One Party Listing Agreement by the Norwalk Curry Tire Company, Inc. dated August 8, 2002 (MM00612 ­ 00614). Letter dated September 19, 2002 from W. Robert Blank to Jim Lanzaro, regarding the KIA dealership site (MM00604). Letter dated March 7, 2002 from Eric Berliner to Jim McClain, regarding construction phasing plan for reconfiguration of Riverview Plaza (RR00143 ­ ARC0059). AutoZone Development Project Summary with Commercial Program for West Avenue / Merlin Avenue, Norwalk, Connecticut (MM00523). AutoZone Real Estate P&L and Capital History, dated May 19, 2003 (MM00530). -2-

540. 541.

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542. 543. 544.

AutoZone Real Estate history P&L and Capital Comparison (Proforma Format) for Fiscal Years 1999 through 2000 (MM00435). Document beginning with "LOCATION: West Avenue / Norwalk, CT." (MM00437 ­ 00439). Facsimile dated August 26, 2002 from Jim Lanzard to Mike Martin, attaching information on 50 Cross Street and 30 Belden Avenue (MM00427 ­ 00430). Map showing Merlin Avenue / West Street and KIA locations (B00137). Letter dated January 18, 2002 from Mark Robbins to Eric Berliner, regarding tenant consents (AB00173 ­ 00175). E-mail dated September 10, 2003 from Jessica Desrosiers to Shawn Sheikhzadeh, regarding fisal year 2003 and 2002 DIY, COMM, and total sales and average ticket increase (SS0002 ­ 0005). Northeast AutoZone Real Estate Status ­ Bob Blank (TM000169 ­ 000178).

549. 562. 566.

567.

Because the information at issue in these proposed exhibits is Plaintiff's, AvalonBay takes no position as to whether they should remain under seal. DEFENDANT, AVALONBAY COMMUNITIES, INC.

By_____________________________________ Joseph L. Hammer (ct00446) David M. Bizar (ct20444) Day, Berry & Howard LLP CityPlace I Hartford, CT 06103-3499 Tel: (860) 275-0100 Fax: (860) 275-0343 E-mail: [email protected] [email protected]

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Filed 07/20/2005

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CERTIFICATION THIS IS TO CERTIFY that a copy of the foregoing was sent this 18th day of July, 2005, via first class mail, postage prepaid to: Bruce L. Elstein, Esq. Elstein & Elstein 1087 Broad Street Bridgeport, CT 06604-4294 Phone: (203) 367-4421 Fax: (203) 366-8615

Andrew L. Houlding, Esq. Rome McGuigan Sabanosh, P.C. One State Street Hartford, CT 06103-3101 Phone: (860) 493-3468 Fax: (860) 724-3921

____________________________________ Joseph L. Hammer

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