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Sheehan & Associates, P.C. Attorneys at Law

10 Middle Neck Road, Ste. 200, Great Neck, NY 11021 Tel: (347) 635-4160/Fax: (516) 234-7800

[email protected] March 12, 2015

Via ECF and First-Class Mail Honorable Arlene R. Lindsay United States District Court Judge Eastern District of New York 815 Federal Plaza Central Islip, NY 11722

Re: BSI Mortgage IV, LLC v. Kaushik et al. Docket No. 14-cv-01640 (LDW)(ARL)

Dear Judge Lindsay: This firm is counsel to defendant Kaushik in the above-entitled action. Within the past week, the docket activity of this action has spiked in response to multiple letter-motions filed by The Margolin & Weinreb Law Group, LLP (MWLG). All attorneys understand the time-sensitive deadlines imposed by the rules of this Court and meeting them can be difficult. However, we must be cognizant of our ethical and legal obligations to comply with the rules of this tribunal. To wit, MWLG three letter-motions seeking to quash subpoenas directed to their clients were recently filed and responded to by this office. In all, MWLG cited legitimate privacy interests of movants in information sought by defendant. Regardless of how your Honor may rule on the aforesaid motions, your undersigned, and this Court, understand that participants in a legal proceeding before the federal courts, maintain bona fide privacy interests in certain information. Whether attorneys personally file their prepared documents with this Court or if they delegate this task to others, there is no exception to compliance with Rule 5.2 of the Federal Rules (FRCP). Specifically, unless ordered otherwise by your Honor, documents which contain an individuals Social Security Number (SSN) or date of birth must be redacted. Rule 5.2(a). While ostensibly claiming that defendants subpoenas directed towards their clients would undermine their legitimate privacy interests, MWLGs actions were not speculative, but definitive and concrete with potentially unfortunate consequences for its clients. All filers on CM/ECF are presented with the message, in all capital letter and red font, which states IMPORTANT NOTICE OF REDACTION RESPONSIBILITY, which must be consented to. Exhibit A. First, MWLGs motion to quash the subpoena duces tecum as to the phone records of Allen Lebo, MWLG reproduced the full date of birth and full SSN of Mr. Lebo and his presumptive

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Case 2:14-cv-01640-LDW-ARL Document 49 Filed 03/12/15 Page 1 of 3 PageID #: 945

spouse/partner, one Kalanit Lebouvich. Dckt. No. 38-1, Att. II, Requests 1-5, pp.11-14. The identifying information of the spouse/partner of Mr. Lebo was included with the original subpoena in order to allow the responsive parties to more thoroughly, accurately and efficiently provide the information requested of them. At this point, Kalanit Lebouvich has no connection this case, but even if she did, she is entitled to the protections of Rule 5.2(a).

Secondly, MWLGs motion to quash the subpoena as to the phone records of Lemmel, MWLG reproduced the year of Lemmels birth, in violation of Rule 5.2(a)(2). Dckt. No. 39-1, Att. II, Requests 1-7, pp.14-20. Your undersigned was pleased to observe that the privacy interests of Lemmel were partly protected, as the reproduction of his SSN was only the last four digits.

Third, MWLGs motion to quash the subpoenas duces tecum as to the phone records of

Yonel Devico reproduced the year of birth and full SSN of Devico. Dckt. No. 40-1, Attachment II, Requests 1-6, pp.16-17; Dckt. No. 40-2, Att. II, Requests 1-6, pp.15-17. It is clear to your undersigned and hopefully, after reviewing the letter-motions in reply to the motions seeking to quash the subpoenas issued to the phone records of Devico, that Mr. Devico values his privacy.

Indeed, Mr. Devico places such a high value on privacy that he appears to have sought, at all times to be the hidden hand moving the pieces before this honorable Court. Until recently, Devico had been successful, as defendant was unable to locate, through the proper utilization of the discovery devices as set forth in the FRCP, any paper trail directly connecting him to the within proceedings. Having thus now obtained said information, it is evident that Devico, a citizen of New York, like defendant Kaushik, directly instructed certain non-parties (i.e., FCI Lender Services, Inc.) to not disclose his identity or connection to this action subject to diversity jurisdiction. 28 USC 1332. Of course, it is now expected that counsel for plaintiff will disclaim any connection of BSI Mortgage IV, LLC to Mr. Devico but that is the subject for another time. Nevertheless, despite the frustration Devicos attempts to remain in the shadows have caused defendant Kaushik and the detrimental impact this has had on his ability to adequately defend himself in this litigation, your undersigned does not believe that Mr. Devico deserves to have his full date of birth and full SSN reproduced on publicly filed documents. Mr. Devico is entitled to the opportunity to account for his actions. He is also entitled, in accordance with Rule 5.2(a), to have certain personally identifiable information redacted from court filings. It is almost satirical, yet still disturbing, that MWLG while done yeomans work in concealing Devicos connection to the underlying action but now that the cat is out of the proverbial bag, MWLG has made no effort to redact his private and personally identifiable information. Whether, having now been connected to this action, Mr. Devico personally instructed his counsel that he wished to end this charade and come forth before this tribunal to accept his heretofore central, yet concealed role with full candor or whether the reproduction of his full date of birth and SSN was due to a failure of MWLG to properly comply with Rule 5.2(a), this should not have occurred. If Devico or his counsel at MWLG desires to publish his date of birth and SSN in its

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entirety, MWLG is permitted to seek permission of this Court to file the unredacted versions under seal or file a redacted and unredacted version under seal. Rules 5.2(d) and 5.2(f). In the alternative, Devico is permitted to file his own motions, pro se, whereby he can willingly waive the protections afforded to him by this Court under Rule 5.2(a). Rule 5.2(h). It is the height of irony, that Mr. Devico, who has seemingly (mis)appropriated the private cellular telephone number and business address of someone with no connection to this action, has had all of his relevant personally identifiable information disclosed to the public at-large through his Counsel, which may or may not have sought to shield his involvement in what appears to be his efforts to make a mockery of the United States legal system. Dckt. No. 47, p.2, 1. By no means would your undersigned ever think that Devicos possible actions justify this disclosure.

On behalf of defendant Kaushik, I regret that the personally identifiable information of Devico and his alleged cohorts has been made readily available to the public through the electronic filings by MWLG. Upon informing defendant Kaushik of recent developments in this case, including those matters raised in this letter, Mr. Kaushik reacted with shock and regret for the affected persons. Mr. Kaushiks education and professional background is in the field of information technology and computer programming, with an emphasis on privacy rights. To that end, Mr. Kaushik has instructed me that he will provide, at no cost whatsoever, a free seminar at the office of MWLG, wherein he will instruct those persons whom MWLG has tasked with the filing of documents via CM/ECF, on the proper use of software to redact personally identifiable information. There are no conditions on this offer of Mr. Kaushik, which will remain open indefinitely and is unconnected to the contentious issues of this litigation.

Your Honor addressed similar issues to those raised in this letter, in the Order issued by your

Honor on May 22, 2012 in Standever Electrical Construction Corp., et al. v. United Healthcare, Inc., et al., 12-cv-1371 (SJF)(ARL), annexed hereto as Exhibit B. In accordance with the guidance of your Honor in Standever Electrical Construction Corp., defendant requests that your Honor directs: (i) that the Clerk of the Court restrict access to Document Nos. 38, 39 and 40 to case participants, (ii) order MWLG to move to amend the identified filings in strict violation of Rule 5.2(a), to which defendant Kaushik consents, (iii) that the Clerk of the Court lift the restrictions on access as set forth in directive (i) upon granting MWLGs motion to amend the identified filings and (iv) your Honor emphasize to MWLG the importance of Rule 5.2(a).

Thank you for your attention to this matter.

Respectfully submitted, /s/ Spencer Sheehan Spencer Sheehan

Attachments/Exhibits (2) cc: Counsel of Record (first-class mail and CM-ECF)

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EXHIBIT A

Case 2:14-cv-01640-LDW-ARL Document 49-1 Filed 03/12/15 Page 1 of 3 PageID #: 948

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EXHIBIT B


UNITED STATES DISTRICT COURTEASTERN DISTRICT OF NEW YORK--------------------------------------------------------------XSTANDEVER ELECTRICAL CONSTRUCTION,CORP., et al.,

Plaintiffs, ORDER-against- CV 12-1371 (SJF)(ARL)

UNITED HEALTH CARE, INC., et al.,

Defendants.--------------------------------------------------------------XLINDSAY, Magistrate Judge:

Before the court is the plaintiffs May 16, 2012 letter application seeking leave from thecourt to (i) file an amended complaint redacting the names of the parents and child in both thecaption and complaint and replacing them with initials; (ii) amend the Stipulation electronically filed May 4, 2012 as Document No. 4; and (iii) seal the original complaint electronically filedMarch 20, 2012, in order for the minor plaintiff to proceed anonymously in this matter. Defendants consent and join in this application.

Fed. R. Civ. P. 5.2(a) provides that in an electronic or paper filing with the court that,inter alia, contains the name of an individual known to be a minor, the filer may include in lieuthereof only the minors initials. See Fed. R. Civ. P. 5.2(a)(3). Here, however, counsel for theminor plaintiff filed this case in the full name of the minor in the caption and throughout thecomplaint, and therefore has waived the protection of Rule 5.2(a). See Fed. R. Civ. P. 5.2(h) (Aperson waives the protection of Rule 5.2(a) as to the persons own information by filing itwithout redaction and not under seal.). That being said, the Advisory Committee Notes to Rule5.2(h) acknowledges that an inadvertent failure to redact or seal may be remedied upon motion tothe court. See Rule 5.2(h) Advisory Committee Notes (If a person files an unredacted identifierby mistake, that person may seek relief from the court.).

Although there has been a delay of approximately two months from the filing of theoriginal complaint to the instant application, given the interest in protecting the privacy of aminor and the availability of Rule 5.2, the application to amend the caption, complaint andstipulation to redact the full name of the minor and designate the minor by initials in filings madewith the court is granted. The application to redact the names of the parents is denied. Nojustification has been provided to conceal their identities. Moreover, inasmuch as only oneparty may act in a representative capacity with respect to an infant . . . who comes before thecourt, Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 650 (2d Cir. 1999); see Rogriguez v.City of New York, Nos. 10-CV-4661; 11-CV-1683 (JG)(SMG), 2011 WL 2259745, at *1(E.D.N.Y. June 6, 2011), the complaint in this case should be amended accordingly to complywith the case law. Finally, all future filings in an electronic or paper filing with the court shallinclude only the initials of the minor.

With respect to the prior documents filed with the court that contain the name of the

Case 2:12-cv-01371-SJF-ARL Document 10 Filed 05/22/12 Page 1 of 2 PageID #: 56Case 2:14-cv-01640-LDW-ARL Document 49-2 Filed 03/12/15 Page 2 of 3 PageID #: 952

minor, viz. Document Nos. 1, 4, 7, 8, and 9, the Clerk of the Court is directed to restrict access tothese documents to the case participants. The parties are directed to refile Document Nos. 4, 7, 8and 9 with amended captions.

In addition, the Clerk of the Court is directed to redact the caption of the case on thecourts electronic filing system and designate the minor only with the minors initials as requiredby the E-Government Act of 2002 and Rule 5.2.

Dated: Central Islip, New York SO ORDERED:May 22, 2012

_________/s/_____________________ARLENE R. LINDSAY

United States Magistrate Judge

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Case 2:12-cv-01371-SJF-ARL Document 10 Filed 05/22/12 Page 2 of 2 PageID #: 57Case 2:14-cv-01640-LDW-ARL Document 49-2 Filed 03/12/15 Page 3 of 3 PageID #: 953

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