UNITED STATES DISTRICT COURT FOR THE SOUTHERN …...supporting the court’s decision sealed from public view.”). Towers respectfully requests that the Court remove the “Highly

5124245

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CITY OF HOUSTON, TEXAS,

Plaintiff,

v. TOWERS WATSON & CO.,

Defendant.

Civil Action No. 4:14-cv-02213

DEFENDANT’S MOTION TO UNSEAL DEFENDANT’S

MOTION TO EXCLUDE THE EXPERT TESTIMONY OF KIM NICHOLL

Alex G. Romain

Attorney-in-charge

California Bar No. 314694

S.D. Adm. No. 2403760

Alison L. Plessman (Admitted pro hac vice)

Padraic W. Foran (Admitted pro hac vice)

Jennifer Bunn Hayden (Admitted pro hac vice)

Daniel Vinson (Admitted pro hac vice)

Jenna Williams (Admitted pro hac vice)

HUESTON HENNIGAN LLP

523 West 6th Street, Suite 400

Los Angeles, CA 90014

Telephone: (213) 788-4340

Facsimile: (888) 775-0898

Counsel for Defendant

WTW Delaware Holdings LLC

Case 4:14-cv-02213 Document 103 Filed in TXSD on 07/28/17 Page 1 of 27

TABLE OF CONTENTS

Page

- i - 5124245

SUMMARY OF FACTS AND ARGUMENT ............................................................................. 3

I. 2002-2013: The City’s Initial Explanations of the Root Causes of the Pension

Crisis: Stock Market Losses and Overtime Staffing ......................................................... 3

II. 2013-Present: The City Shifts the Blame to Towers ........................................................ 7

III. Towers Must be Allowed to Defend Itself in Public ...................................................... 11

PROCEDURAL BACKGROUND ............................................................................................. 12

ARGUMENT .............................................................................................................................. 14

I. The City Has Designated as “Highly Confidential” Information That Is Not

Protected by the Supplemental Protective Order ............................................................ 15

II. Towers’s Motion to Strike is Subject to a Strong Presumption of Public Access .......... 17

III. The City has Failed to Provide Compelling Reasons to Keep the Nicholl

Report or its Attachments Under Seal ............................................................................ 20


TABLE OF AUTHORITIES

Page(s)

- ii - 5124245

Cases

Apple Inc. v. Samsung Elecs. Co.,

727 F.3d 1214 (Fed. Cir. 2013)....................................................................................... 15

Averitt v. PriceWaterhouseCoopers L.L.P.,

89 S.W.3d 330 (Tex. App. 2002) .................................................................................... 18

Bank of Amer. Nat’l Tr. & Sav. Ass'n v. Hotel Rittenhouse Assocs.,

800 F.2d 339 (3d Cir.1986)............................................................................................. 21

Bankhead v. Gregg County,

2013 WL 124114 (E.D. Tex. Jan. 9, 2013) ..................................................................... 17

Bd. of Trustees of the Houston Firefighters Relief and Retirement Fund v. City of

Houston, Texas, No. 01-12-01167-CV, 466 S.W.3d 182 (Tex. Ct. App. 2015) ............. 10

Brown v. Advantage Eng’g, Inc.,

960 F.2d 1013 (11th Cir. 1992) ...................................................................................... 14

Chicago Tribune Co. v. Bridgestone/Firestone, Inc.,

263 F.3d 1304 (11th Cir. 2001) ...................................................................................... 19

City of Houston, Texas v. Bd. of Tr. of the Houston Firefighters’ Relief & Retirement

Fund, 2012 WL 12355512, No. 2012-28760 (Tex. Dist. Aug. 17, 2012) ................ 10, 11

City of Providence v. Buck Consultants, LLC,

2015 WL 7083732 (D. R.I. Nov. 13, 2015) .................................................................... 18

Ctr. for Auto Safety v. Chrysler,

809 F.3d 1092 (9th Cir. 2016) .................................................................................. 19, 20

Erfindergemeinschaft Uropep GbR v. Eli Lilly & Co.,

2017 WL 434207 (E.D. Tex. Feb. 1, 2017) .............................................................. 17, 20

Ferring Pharm., Inc. v. Braintree Labs., Inc.,

215 F. Supp. 3d 114 (D. Mass. 2016) ............................................................................. 17

Fourhorn v. City & Cty. of Denver,

261 F.R.D. 564 (D. Colo. 2009) ............................................................................... 12, 14

Fujitsu Ltd. v. Belkin Int’l, Inc.,

2012 WL 6019754 (N.D. Cal. Dec. 3, 2012) .................................................................. 18

Geiserman v. MacDonald,

893 F.2d 787 (5th Cir. 1990) .......................................................................................... 18


TABLE OF AUTHORITIES (cont.)

Page(s)

- iii - 5124245

GoDaddy.com LLC v. RPost Commc'ns Ltd.,

2016 WL 1158851 (D. Ariz. Mar. 24, 2016) .................................................................. 21

Gratz College v. Synergis Education Inc.,

2015 WL 9582743 (E.D. Pa. Dec. 30, 2015) ............................................................ 17, 19

In re High Sulfur Content Gasoline Prods. Liability Litig.,

517 F.3d 220, 230 (5th Cir. 2008) .................................................................................... 2

Kroy IP Holdings, LLC v. Safeway, Inc.,

2015 WL 432012 (E.D. Tex. Feb. 2, 2015) .............................................................. 16, 20

Lehman Bros. Holdings, Inc. v. Cornerstone Mortg. Co.,

2011 WL 649139 (S.D. Tex. Feb. 10, 2011) .................................................................. 19

Leucadia, Inc., v. Applied Extrusion Techs., Inc.,

998 F.2d 157 (3d Cir. 1993)............................................................................................ 20

Nixon v. Warner Commcn’s, Inc.,

435 U.S. 589 (1978) .................................................................................................. 12, 14

Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir.1994)......................................................................................... 12, 14

Robroy Indus. – Texas, LLC v. Thomas & Betts Corp., 2016 WL 325174 (E.D. Tex.

Jan. 27, 2016) .................................................................................................................. 20

Romero v. Drummond, Co., Inc.,

480 F.3d 1234 (11th Cir. 2007) ...................................................................................... 20

S.E.C. v. Van Waeyenberghe,

990 F.2d 845 (5th Cir. 1993) .................................................................................... 12, 14

Sullo & Bobbitt, PLLC v. Abbott,

2013 WL 1949835 (N.D. Tex. May 13, 2013) ............................................................... 20

Test Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs., Inc.,

799 F.3d 437 (5th Cir. 2015) .......................................................................................... 19

Torres-Montalvo v. Keith,

2011 WL 5023271 (S.D. Tex. Oct. 17, 2011)................................................................. 14

Trover Grp., Inc. v. Dedicated Micros USA,

2015 WL 1406259 (E.D. Tex. March 26, 2015) ................................................. 12, 14, 15


TABLE OF AUTHORITIES (cont.)

Page(s)

- iv - 5124245

United States v. Amodeo (Amodeo II),

71 F.3d 1044 (2d Cir. 1995)............................................................................................ 20

United States v. Holy Land Found. for Relief & Dev.,

624 F.3d 685 (5th Cir.2010) ........................................................................................... 14

Statutes

Tex. Gov. Code § 802.1012 ........................................................................................................ 10

Other Authorities

Fed. R. Evid. 702 ........................................................................................................................ 18


5124245

For four years, the City of Houston (“the City”) has publicly accused Towers Watson &

Co. (“Towers”) of negligent misrepresentation and actuarial malpractice, falsely claiming that

Towers’s “flawed” work caused the City’s current pension crisis. See, e.g., 2013 Comprehensive

Annual Financial Report (“CAFR”) (excerpts attached as Ex. 1) at xi – xii; 2015 CAFR (excerpts

attached as Ex. 2) at xii; Amended Complaint (“Am. Compl.”) (Dkt. No. 61) at ¶ 5 (alleging that

Towers’s actuarial work is the “root cause of the pension funding crisis now facing the City of

Houston”). On May 8, the City’s expert, Kim Nicholl of Segal Consulting, issued a report

claiming that Towers’s actuarial work caused the City to incur approximately $830 million in

present and future damages.

By a separate motion filed today, Towers has moved to exclude Ms. Nicholl’s expert

testimony. See Defendant’s Motion to Exclude the Expert Testimony of Kim Nicholl (“Motion

to Exclude”). As Towers demonstrates in its motion, Ms. Nicholl’s opinions do not meet the

standards for expert witnesses, as she ignores the factual evidence and replaces it with

speculation. Because the City has improperly designated Ms. Nicholl’s entire expert report as

“Highly Confidential – Derivative Material,” Towers was obligated to file its motion under seal.

The City’s overly broad confidentiality designation means that while the City publicly accuses

Towers of being the “root cause” of the current pension crisis, Towers must defend itself in a

closed courtroom.

Such a result is plainly unfair to Towers, as well as to the general public. It is also

unjustified. The Court’s Supplemental Protective Order provides that Towers and the Houston

Firefighters’ Relief and Retirement Fund (“the Fund”) – but not the City – can designate as

“Highly Confidential” the personal information and census data of Fund beneficiaries. See

Supplement to Confidentiality Stipulation and Protective Order (“Supp. Prot. Order”), Dkt. No.


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74 at ¶ 2. The Supplemental Protective Order protects individual firefighter data—which is not

at issue in this motion—not the collective data or analysis on which Ms. Nicholl calculates her

purported damages. See id. The City has argued that it has no choice: it claims that because the

Fund designated certain firefighter census data as “Highly Confidential,” the City must designate

Ms. Nicholl’s entire report as “Highly Confidential – Derivative Material.” See Email from

James Southwick to Alex G. Romain (June 30, 2017) (attached as Ex. 3) at 1. But the text of the

Nicholl Report does not reveal the individual data protected by the Supplemental Protective

Order.1 And although the Fund has been willing to review Ms. Nicholl’s report to determine

what portions of her report, if any, should be designated as “Highly Confidential – Derivative

Material,” the City has steadfastly refused to allow the Fund to conduct this review, based on

the Fund’s confidentiality designations of the Fund’s own data. See Ex. 3 (Email from J.

Southwick to A. Romain). The City’s position makes no sense and belies the City’s argument

that it has no choice but to litigate this case in secret.

In fact, the City is striving to avoid a public hearing of Towers’s defenses. Ms. Nicholl’s

expert opinion is the only case the City has against Towers – and the City has no case. As

demonstrated below, the City brought this lawsuit for negotiating leverage in its longstanding

political struggle with the Fund. Towers is not responsible for the City’s pension crisis, but the

City has nevertheless cast Towers as a scapegoat. The City’s case is based entirely on

speculation, and Towers should not be compelled to defend itself in secret. See In re High Sulfur

Content Gasoline Prods. Liability Litig., 517 F.3d 220, 230 (5th Cir. 2008) (“Public confidence

[in our judicial system] cannot long be maintained where important judicial decisions are made

1 Some of the attachments to Ms. Nicholl’s Report contain individual firefighter data. In this

motion, Towers does not seek to unseal any individual firefighter data.


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behind closed doors and then announced in conclusive terms to the public, with the record

supporting the court’s decision sealed from public view.”).

Towers respectfully requests that the Court remove the “Highly Confidential – Derivative

Material” designation from:

(i) Ms. Nicholl’s expert report (attached as Ex. 1 to Motion to Exclude);

(ii) the data and compilation files listed below and submitted in support of Ms.

Nicholl’s report:

a. Sheet “070199 liab.” of Expert report calculations_Final.xlsx (attached as Ex.

8 to Motion to Exclude); and

b. Output – No Limits Match.pdf. (attached as Ex. 9 to Motion to Exclude);

(iii) the following exhibits introduced in Ms. Nicholl’s deposition:

a. Exhibit 500 to Nicholl Deposition (attached as Ex. 14 to Motion to Exclude);

b. Exhibit 504 to Nicholl Deposition (attached as Ex. 21 to Motion to Exclude);

and

c. Exhibit 505 to Nicholl Deposition (attached as Ex. 16 to Motion to Exclude).

Towers also requests that the Court unseal Towers’s Motion to Exclude Ms. Nicholl’s report and

Exhibits 1–18, 21.2

SUMMARY OF FACTS AND ARGUMENT

I. 2002-2013: The City’s Initial Explanations of the Root Causes of the Pension Crisis:

Stock Market Losses and Overtime Staffing.

Every year, by law, the City issues a Comprehensive Annual Financial Report (“CAFR”)

to its citizens, the Mayor, and the City Council. The City Controller—Houston’s “financial

watchdog”—issues the report and the City takes responsibility for the accuracy of its disclosures,

as well the completeness and fairness of the presentation. Although the City now blames Towers

2 In this motion, Towers is not asking the Court to unseal Exhibits 19 or 20 to the Motion to

Exclude, because those documents contain some individual firefighter data.


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for its pension crisis, for almost ten years, through these annual reports and in other publicly

available documents, the City told a different story. Between 2002 and 2013, the City explained

that two unanticipated events caused the current pension crisis: (i) market losses (in 2001 and

2008) and (ii) overtime staffing requirements for firefighters.

In 2000, the Fund proposed nine additional pension benefits for firefighters. See

Actuarial Analysis of Proposed Benefit Changes Under Section 10 of the Governing Statute

(“Section 10 Report”) (attached as Ex. 4) at 5 (COH-TP 020605). Towers evaluated the costs of

these proposed benefits and the Texas Pension Review Board approved of Towers’s work and

approved the benefits on May 22, 2000. See Ex. 4 (Section 10 Report) at 2 (COH-TP 020602);

Texas State Pension Review Board Agenda and Minutes, May 22, 2000 (attached as Ex. 5) at 3-4

(HFRRF_0022247-0022248). In the following year, the Fund proposed two additional pension

benefits, for a total of eleven additional benefits. See Cost Impact of Proposed Benefit

Enhancements (“2001 Benefits Letter”) (Jan. 24, 2001) (attached as Ex. 6) at 2. Towers

provided its final analysis of those benefits on January 24, 2001, and the Texas Legislature

approved of Towers’s work and passed those benefits on May 11, 2001. See Ex. 6 (2001

Benefits Letter) at 1-3; Texas Legislature Online History, H.B. 1569 (attached as Ex. 7). On

April 9, 2001—approximately two-and-a-half months after Towers issued its cost projections—

then-Mayor Lee Brown issued a press release announcing a staffing plan “to increase staffing to

four firefighters per [truck].” Mayoral Press Release (April 9, 2001) (attached as Ex. 8). The

City’s four-firefighters-per-truck plan was designed to address a “critical staffing problem,” but

as of August 2001, Houston was 400 firefighters short of that goal. See Houston Fire

Department Fact Sheet (August 2001) (attached as Ex. 9) at 2. As the City announced in its

CAFR, the new staffing plan caused a direct increase in the City’s firefighter payroll: the


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“increase in the FY 2002 Appropriation was primarily due to increases in firefighter overtime

to place four firefighters on a truck.” See 2002 CAFR (excerpts attached as Exhibit 10) at 48

(emphasis added). As the City has noted, pension liability is directly based on payroll. See

Review of City of Houston’s Employee Pension Plans (“Review of Pension Plans”) (attached as

Ex. 11) at 11 (explaining that “[p]ension benefits are based on the firefighter’s average monthly

salary from the highest 78 bi-weekly pay periods,” with the salary calculation including

overtime); see also Deposition of Todd Clark (“Clark Dep.”) (excerpts attached as Ex. 28) at

77:3 – 78:8.

In 2003, the City’s Finance and Administration Department explained another cause of

the City’s pension woes: stock market losses following the terrorist attacks of September 11,

2001. These market losses impacted the City of Houston as well as pension funds nationwide.

The City therefore noted that its emerging pension crisis was not unique:

While plans can be over-funded . . . or under-funded . . . in recent

years many over-funded plans have become under-funded plans

due to the sustained deterioration of the stock market that has led

to much lower returns on the investments made by the fund trustees.

Ex. 11 (Review of Pension Plans) at 4 (emphasis added). The following year, then-Mayor Lee

Brown reiterated the point, asserting that “[l]osses in the stock market have resulted in actuarial

deficiencies in the city’s three pension funds.” See Letter from Hon. Lee P. Brown to

Honorable Members of the City Council, City Controller and Citizens of Houston (attached as

Ex. 12) at 5 (emphasis added).

In 2004, the City again explained that stock market losses caused the pension crisis.

Then-Controller Annise Parker provided a detailed explanation in her official blog:

Public and private entities all across the country face staggering

pension problems, mostly due to the drop in the stock market and

the recession. . . .


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In 2001, Towers Perrin[] estimated that 14% of the city’s annual

payroll would be needed to cover pension obligations. We thought

we could afford the more generous pension benefits being discussed

in Austin.

In 2003, a new Towers Perrin report predicted pension obligations

would eat up more than 40% of the city’s annual payroll. What

happened between 2001 and 2003? Many of you with mutual

funds and 401k’s [sic] know. The stock market tanked.

. . .

Yes, we’ve got a serious problem. But it’s the result of the age and

demographics of the municipal workforce converging with

changes on Wall Street and in Austin.

The dilemma is complicated by the fact that we’re trying to predict

what may or may not happen two or three decades down the road.

No one knows for sure at what age an employee will retire or what

kind of returns we can expect from our investments in 2020. It’s

all imaginary numbers.

“Predicting who retires when not an exact science,” Line Item, Controller Annise D. Parker, 2004

(attached as Ex. 13) at 1-2 (emphases added); see also Deposition of Annise Parker (“Parker

Dep.”) (excerpts attached as Ex. 14) at 188:20-191:15 (confirming that her statements in the

above-referenced blog were accurate). At no point during this period did the City blame Towers

for any “flawed” actuarial analysis.

The City’s story—i.e., that stock market losses were the root cause of the pension

crisis—remained consistent for the next few years. In 2008, following the “great recession” of

2008,3 the City reported that “Wall Street’s difficulties could have major impacts on the

investments of the three pension systems, causing a corresponding increase in the unfunded

liability.” 2008 CAFR (excerpts attached as Ex. 16) at xii (emphasis added). And in 2009, the

3 See Deposition of former Mayor Bill White (“White Dep.”) (excerpts attached as Ex. 15) at

138:14-138:17 (describing recession of 2008 as the “great recession”).


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City warned that there could “still be some setbacks due to Wall Street’s difficulties as all three

pension systems invest heavily in the stock market.” 2009 CAFR (excerpts attached as Ex. 17)

at xi.

II. 2013-Present: The City Shifts the Blame to Towers.

Shortly before it filed this lawsuit, the City changed its story. It shifted the blame to

Towers, alleging that flawed actuarial projections caused the current pension crisis. See

Transcript of Testimony of City Attorney David Feldman, Houston City Council Meeting,

July 16, 2014 (excerpts attached as Ex. 18) at 15:14-16:12 (testifying that the City would not

have approved benefits increases absent Towers’s alleged actuarial malpractice); Ex. 1 (2013

CAFR) at xi–xii (claiming that the increases in liabilities were “far greater” than the projections

made by Towers); see also Am. Compl. at ¶¶ 5-6; Ex. 2 (2015 CAFR) at xii (claiming that City

later realized that these benefits were enacted based on “flawed actuarial projection[s]”).4

The City’s new story is fiction. The evidence reflects that “[i]f the Fund had earned 8.5%

annually, as the Fund Board and Towers assumed, the Fund would be 100% funded as of July 1,

2016. This is true even with the 2000 and 2001 benefit increases, and even if the City had

contributed to the Fund at a rate of just 15.4% of actual payroll, its minimum statutory

contribution at the time.” See Expert Report of Thomas Terry (excerpts attached as Ex. 19) at

¶ 183. The events that Towers did not—and could not—foresee were the stock market losses

and the City’s new overtime staffing plan.5 Ms. Nicholl does not challenge these points.

4 See Deposition of Steve Williams (former President of the Houston Professional Fire Fighters

Association) (excerpts attached as Ex. 23) at 85:15-85:20 (“I’m left with the impression at this

point that the City is trying to – and I’ll say it this way – a back door to trying to justify their

actions of these years related to the unfunded liability that exists for the City.”).

5 Notably, Towers also could not foresee that the City would repeatedly elect not to pay the

actuarially determined contribution rates, in part because the City assumed that the stock market

would rebound. See Ex. 15 (White Dep.) at 262:15-262:19 (“Q: [The city contribution rate


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Instead, she devises a theory based on pure speculation, and then expressly disregards the

undisputed factual record that refutes her theory. That is how Ms. Nicholl reaches, and

maintains, her claim of $833 million in damages.

Notably, Ms. Nicholl’s opinion—the City’s case—does not rely on the testimony of the

City’s three previous mayors. Those mayors—Mayor Lee Brown (1998 – 2004), Mayor Bill

White (2004 – 2010), and Mayor Annise Parker (2010 – 2016)—all testified under oath that they

could not identify anything that Towers had done wrong. See Deposition of Lee Brown (“Brown

Dep.”) (excerpts attached as Ex. 20) at 148:16-148:20 (“Q: Okay. So during your tenure as

mayor, you don’t have any basis to testify that Towers was making any misrepresentations to the

City? A: No, I do not.”); Ex. 15 (White Dep.) at 90:8-90:20 (“Q: During the time that you were

mayor, did you have any reason to believe that Towers made any misrepresentations to the City

of Houston with respect to the firefighters’ fund? A: No. Q: . . . did you have any reason to

believe that Towers had violated the generally accepted actuarial principles in connection with

its work for the firefighters’ fund? A: No.”); Ex. 14 (Parker Dep.) at 101:5-101:10 (“Q: Is it

your understanding that Towers violated some actuarial standards, professional actuarial

standards? A: I have no idea whether Towers violated some actuary – actuarial standards.”).

Similarly, other key City officials, testifying under oath, could not identify anything that

Towers did wrong. For example, the City’s former Chief Administrative Officer, Al Haines,

testified that he has no reason to believe Towers made errors in its work or fell below the

professional standard of care. See Deposition of Al Haines (“Haines Dep.”) (excerpts attached as

between 2005 and 2008] wasn’t the current actuarial contribution rate? A: It wasn’t the

actuary’s determination of the actuarial contribution rate as of that year.”); Tr. at 278:20-279:2

(“Q: You thought it would be okay for the City to pay a lower contribution rate because the

market – stock market performance would eventually even itself out? A: Not only that, but I

think that it had already begun to do so.”).


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Ex. 21) at 159:19-159:22 (“Q: Do you have any reason to believe that Towers in its provision of

actuarial services to the Fund did not in fact meet the actuarial standard of care? A: No.”). In

addition, the City’s former Chief Pension Executive, Craig Mason, who has publicly claimed that

Towers’s actuarial projections were flawed, acknowledged under oath that he could not identify

any such mistakes:

Q: Are you aware of any particular mistakes in Towers’ actuarial

calculations from that time?

A: No.


methodology at that time?

A: No.


assumptions at that time?

A: No.

Deposition of Craig Mason (“Mason Dep.”) (excerpts attached as Ex. 22) at 22:18-23:3

(emphases added).

The lack of evidence against Towers raises an obvious and important question: why did

the City file this lawsuit? Towers asked former Mayor Parker—who authorized this lawsuit—

that very question. Mayor Parker testified that the purpose of the City’s lawsuit against Towers

was to gain negotiation leverage on the Fund:

Q: So you filed a lawsuit against the firefighters’ fund to try to effect a

change in the [pension funding] framework, correct?

A: We had several suits against the firefighters’ fund . . . [W]e used

every mechanism that we had to try to get them to respond to what

we considered important issues for the city.

Q: Was this lawsuit another such mechanism?

A: It was.


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Ex. 14 (Parker Dep.) at 67:18-68:6 (emphasis added).

The pension-related disputes between the City and the Fund are both longstanding and

well-documented. The City has tried (unsuccessfully) to have the Fund adopt a meet-and-confer

requirement, which would have added flexibility to the City’s contribution rate. See Ex. 14

(Parker Dep.) at 148:5-148:17 (“A: . . . because we can negotiate with the other two pensions

through meet-and-confer, in both my first legislative session and my second legislative session,

the only thing I tried to do was get the ability to negotiate directly with HFRRF . . . Q: . . . the

Fund opposed that? A: Correct.”). Further, the City has sued the Fund (unsuccessfully) to

obtain the Fund’s audit census data. See Ex. 14 (Parker Dep.) at 270:18-270:25 (Q: . . . I want to

be clear about the number of – the pension related litigation that you had. . . . you sued the fund,

the firefighters’ fund, to try to get certain audit information; that was one lawsuit. Is that

correct? A: Yes.”); Bd. of Tr. of the Houston Firefighters’ Relief and Retirement Fund v. City of

Houston, Texas, No. 01-12-01167-CV, 466 S.W.3d 182, 191 (Tex. Ct. App. 2015) (holding that

the HFRRF Board is not required to produce actuarial information under Tex. Gov. Code

§ 802.1012, which requires the City to perform an independent actuarial audit every 5 years).

Notably, the City obtained through this lawsuit (against Towers) the firefighter census data that it

sought—but could not obtain—through its prior lawsuit (against the Fund). Compare Dkt. No.

74 ¶ 2 & Ex. A. (Supplemental Protective Order providing for the production of categories of

Fund census data for active and inactive members used for Fund valuations), with Affidavit of

Madeleine Appel in Support of Houston’s Amended Motion for Final Summary Judgment (July

26, 2012) (attached as Ex. 26), City of Houston, Texas v. Bd. of Tr. of the Houston Firefighters’

Relief & Retirement Fund, No. 2012-28760 (Tex. Dist.) at 3-4 (seeking many of the same

categories of census data for active and inactive employees, including date of birth, gender,


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member contributions, monthly benefits, and DROP balance information), and Houston’s

Amended Motion for Final Summary Judgment (attached as Ex. 27), City of Houston, Texas v.

Bd. of Tr. of the Houston Firefighters’ Relief & Retirement Fund, 2012 WL 12355512, No.

2012-28760 (Tex. Dist. Aug. 17, 2012) (seeking all “underlying documents, information, and/or

electronic data for all valuations, studies, reports, and audits prepared for the Fund”).

III. Towers Must be Allowed to Defend Itself in Public.

The City’s attempt to litigate its case under seal is not only unfair, it has no basis in the

text of the protective orders or the governing law. First, the Supplemental Protective Order was

entered into “solely” to protect “individual firefighter demographic and personal financial

information,” or “census data,” held by the Fund and certain categories of “personal and private

information of individual firefighters.” Supp. Prot. Order (Dkt. No. 74) at ¶ 2. It does not

protect collective data or compilations of data or analysis. The data, calculations, and analysis

that Towers seeks to unseal do not reference or discuss any individual firefighter or

individualized benefits that would reveal the data designated as “Highly Confidential.”

The City’s confidentiality designation fails to distinguish between individual and

collective data. The City also makes no attempt to distinguish between information that is

confidential and information that is already public. By designating Ms. Nicholl’s entire report as

“Highly Confidential – Derivative Material,” the City has designated as confidential

information that is already public, including Kim Nicholl’s qualifications, descriptions and

quotations of the Actuarial Standards of Practice (“ASOPs”), and descriptions of actuarial

principles. Ms. Nicholl’s Report also includes ample quotations from and analysis of documents

produced in this litigation which are not designated as Confidential, such as letters sent between

Towers and the Fund regarding benefits increases. See, e.g., Exhibit 1 to Motion to Strike

(Nicholl Expert Report) ¶¶ 52-63).


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Second, notwithstanding the Supplemental Protective Order, a strong presumption of

public access to court records applies to Towers’s Motion to Exclude because it is a Daubert

motion that is substantially related to the merits of the City’s case. See Nixon v. Warner

Commcn’s, Inc., 435 U.S. 589, 597 (1978); S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848-49

(5th Cir. 1993). The presumption of public access is particularly strong where the party seeking

protection is a public entity. See Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787–88 (3d

Cir.1994); Fourhorn v. City & Cty. of Denver, 261 F.R.D. 564, 568 (D. Colo. 2009). This

presumption may only be overcome by demonstrating compelling reasons, supported by specific

factual bases, for why information should remain under seal. See Trover Grp., Inc. v. Dedicated

Micros USA, 2015 WL 1406259, at * 1 (E.D. Tex. March 26, 2015). The City has failed to meet

its burden, and the Court should grant Towers’s motion to unseal.

PROCEDURAL BACKGROUND

The Court has entered two stipulated protective orders: (i) the Confidentiality Stipulation

and Protective Order (the “Protective Order”), Dkt. No. 46; and (ii) the Supplement to

Confidentiality Stipulation and Protective Order (the “Supplemental Protective Order”), Dkt. No.

74. Under the Protective Order, any entity that produces documents can designate those

documents as “Confidential” if they contain certain types of information, such as sensitive

personal information, trade secrets, marketing plans, or financial data. See Dkt. No. 46 at ¶¶ 2,

7.6 The Supplemental Protective Order, for its part, aims “solely” to protect “individual

firefighter demographic and personal financial information,” or “census data,” held by the Fund

6 Only one of the documents that Ms. Nicholl considered in her expert report is currently

designated as “confidential.” See Ex. 19 to Motion to Exclude (TOWERS_WATSON-002076-

002176). In this motion, Towers is not asking to unseal that document but reserves the right to

do so in the future.


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and certain categories of “personal and private information of individual firefighters.” Supp.

Prot. Order at ¶ 2. The Supplemental Protective Order provides that work product that

“analyz[es] or discuss[es]” “Highly Confidential” material must be designated “Highly

Confidential – Derivative Material.” Id. at ¶ 5.

On May 8 and 19, 2017, the City produced the Expert Report of Kim Nicholl, as well as

several files (in .pdf and excel formats) including her compilations of data and underlying

calculations. The City designated all 91 pages of the Nicholl Report and all of the files with her

compilations and calculations as “Highly Confidential – Derivative Material” under the

Supplemental Protective Order.

On June 14, 2017, Towers sent a letter to the City, objecting to the overly broad

designation of the Nicholl Report. See Letter from Alex G. Romain to Geoffrey Harrison

(attached as Ex. 24). Towers requested that the City “re-produce Ms. Nicholl’s expert report,

designating only the limited portions of her report (or accompanying data) that directly reference

or reveal ‘Highly Confidential’ information as ‘Highly Confidential Derivative Material,’ in

accordance with the Court’s [Supplemental Protective] Order.” Id.

Shortly thereafter, Towers asked the City whether it would allow the Fund to review Ms.

Nicholl’s report, so that the Fund could determine whether any portion of the information

Towers seeks to unseal is “derivative” of the Fund’s “highly confidential” designations. See

Email from Alex G. Romain to Geoffrey Harrison and James Southwick (June 29, 2017)

(attached as Ex. 3) at 1-2. The City objected to Towers showing the Nicholl Report to the Fund

and refused to de-designate any portion of the Nicholl Report. See Email from James Southwick

to Alex G. Romain (June 30, 2017) (attached as Ex. 3) at 1. The parties met and conferred by


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telephone on July 17, 2017 regarding this motion to unseal and the City opposes the relief sought

in this motion.

ARGUMENT

“[T]he courts of this country recognize a general right to inspect and copy public records

and documents, including judicial records and documents.” Nixon v. Warner Commcn’s, Inc.,

435 U.S. 589, 597 (1978); S.E.C. v. Van Waeyenberghe, 990 F.2d 845, 848-49 (5th Cir. 1993)

(noting that the longstanding right to inspect and copy judicial records exists to “promote

trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a

more complete understanding of the judicial system, including a better perception of its

fairness”). “Absent a showing of extraordinary circumstances . . . the court file must remain

accessible to the public.” Brown v. Advantage Eng’g, Inc., 960 F.2d 1013, 1016 (11th Cir.

1992). “That [right to public access] is implemented, the Fifth Circuit has explained, through a

strong presumption in favor of a common law right of public access to court proceedings.”

Trover Grp., Inc. v. Dedicated Micros USA, 2015 WL 1406259, at * 1 (E.D. Tex. March 26,

2015) (quoting United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (5th Cir.

2010)). “[T]he presumption favors public access, particularly here where the party seeking

protection is a public entity.” Fourhorn v. City & Cty. of Denver, 261 F.R.D. 564, 568 (D. Colo.

2009) (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787–88 (3d Cir. 1994)).

Although the common law right of access to court documents and judicial records is “not

absolute,” Nixon, 435 U.S. at 598, the district court’s discretion to seal the record of judicial

proceedings must be “used sparingly,” Holy Land Found. for Relief & Dev., 624 F.3d at 690.

The party seeking to keep documents under seal has the burden of establishing that the

presumption of public access to court records should be overcome. See Trover Grp., Inc., 2015

WL 1406259, at *2 (collecting cases); Torres-Montalvo v. Keith, 2011 WL 5023271, at *2 (S.D.


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Tex. Oct. 17, 2011). To overcome the presumption, “the party must articulate compelling

reasons supported by specific factual findings that outweigh the general history of access and the

public policies favoring disclosure,” which requires a “strong and particularized showing of

need.” Trover Grp., Inc., 2015 WL 1406259, at *2 (quoting in part Apple Inc. v. Samsung Elecs.

Co., 727 F.3d 1214, 1221 (Fed. Cir. 2013)).

The City claims that because the Nicholl Report analyzes some data that have been

designated as “highly confidential” under a stipulated protective order, the entire Report is

properly designated as “Highly Confidential – Derivative Material.” The City’s argument is not

persuasive because: (i) the City’s designations go far beyond what is contemplated by the

Supplemental Protective Order; (ii) even if the City’s designations were proper, the common law

presumption of public access dictates that the Court should hear Towers’s motion on the public

record; and (iii) the City has failed to demonstrate compelling reasons why Towers’s motion

(and defense) should be under seal.

I. The City Has Designated as “Highly Confidential” Information That Is Not

Protected by the Supplemental Protective Order.

The City has marked all 91 pages of the Nicholl Report, and all the data and compilation

attachments to her report, as “Highly Confidential – Derivative Material” under the

Supplemental Protective Order in this case. According to the Supplemental Protective Order, the

City may designate as “Highly Confidential – Derivative Material” only text or data that

“analyze[s] and discuss[es]” individual data. Supp. Prot. Order at ¶ 5. It may not designate

collective analysis of data—including statistics designed to replicate Towers’s prior reports or

analysis—or commentary on data which reveals nothing about individual Fund participants. To

be clear, Towers is not seeking to unseal any of the individual census data produced by the Fund


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at this time.7 The data, calculations, and analysis included in the text of the Nicholl Report or the

attachments Towers seeks to de-designate, however, do not reference or discuss any individual

firefighter or individualized benefits that would reveal any of the data that has been marked

“Highly Confidential,” such as social security numbers, birthdays, individual salaries, individual

benefits, or the beneficiaries for any participant. For example, many of the numbers in the

Nicholl Report relate to her projections and damages estimates, and do not reveal anything

confidential about the Fund or Towers. See, e.g., Ex. 1 to Motion to Exclude (Nicholl Rep.) at

¶¶ 65-72 (calculating benefits for a hypothetical sample firefighter); ¶ 75 (calculating “corrected”

1999 Towers valuation). There is no basis to keep such calculations from the public. See Kroy

IP Holdings, LLC v. Safeway, Inc., 2015 WL 432012, at *3 (E.D. Tex. Feb. 2, 2015) (refusing to

allow a party to redact data and numbers where they do not reflect proprietary financial

information but “relate simply to the opinion of [plaintiff’s] damages expert as to what share of

Safeway’s profits from the accused program should go to [plaintiff]”).

Not only does the City fail to distinguish between individual census data (which is

protected by the Supplemental Protective Order) and compilations or analysis that reveal no such

data, it has also failed to acknowledge that any part of the Nicholl Report can be de-designated.

This position inexplicably maintains that Ms. Nicholl’s discussion on publicly available

documents and documents which the parties have agreed to de-designate must remain “Highly

Confidential – Derivative Material.” See, e.g., Ex. 1 to Motion to Exclude (Nicholl Rep.) at

¶¶ 60-63, 109 (citing and discussing documents produced by the Fund that the Fund has agreed

to de-designate and make public); id. at ¶¶ 34-59, 73-74 (citing and discussing documents

7 Towers’s position in this motion is not intended to waive any of its rights or objections for

purposes of trial.


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produced by Towers that Towers has agreed to de-designate and make public). It is difficult to

discern how the City could have any colorable privacy, financial, or proprietary concerns about

public or de-designated documents relating to Towers’s work on the Fund, where neither of the

two parties involved with the documents – the Fund or Towers – object to making them public.

Nicholl’s commentary on such documents, if “derivative” of anything, is derivative only of

public or non-designated documents. Additionally, the City refuses to agree to de-designate

even the most benign portions of the report, such as those describing Ms. Nicholl’s resume and

credentials, or describing the role and responsibilities of actuaries and basic actuarial concepts.

See, e.g., id. at ¶¶ 6-8, Att. A; id. at ¶¶ 19-33. Despite repeated requests by Towers, the City has

maintained this unreasonable position and has made no effort to communicate which portions of

the expert report, if any, are worthy of confidentiality.

II. Towers’s Motion to Strike is Subject to a Strong Presumption of Public Access.

Daubert motions and materials submitted in connection therewith, are subject to the

presumption of the public right of access. See, e.g., Erfindergemeinschaft Uropep GbR v. Eli

Lilly & Co., 2017 WL 434207, at *2 (E.D. Tex. Feb. 1, 2017) (applying presumption of public

access to expert reports and excerpts of expert depositions attached to Daubert motions and

requiring a party to meet the high burden of showing compelling reasons to keep documents

under seal); Ferring Pharm., Inc. v. Braintree Labs., Inc., 215 F. Supp. 3d 114, 128 (D. Mass.

2016) (allowing motion to unseal testimony and documents, including briefs and exhibits related

to Daubert motions); Bankhead v. Gregg County, 2013 WL 124114, at *2-3 (E.D. Tex. Jan. 9,

2013) (applying the presumption of public right of access to motion to exclude experts and

denying motions to seal); Gratz Coll. v. Synergis Educ. Inc., 2015 WL 9582743, at *1 (E.D. Pa.

Dec. 30, 2015) (denying motions to seal in conjunction with several motions, including motion

to exclude expert testimony, because the party did not provide “any basis or justification for


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placing all of the filings under seal in light of the public’s right to access judicial records and

documents”); Fujitsu Ltd. v. Belkin Int’l, Inc., 2012 WL 6019754, at *5 (N.D. Cal. Dec. 3, 2012)

(denying a motion to seal exhibits connected with Daubert motions and motions in limine where

the exhibits “relate to the resolution of the case on the merits as they are essential to each party’s

calculation of damages,” where the experts will be “testifying extensively at trial regarding the

substance” of the reports, and where the Daubert motion could lead to the “complete exclusion”

of the expert and therefore “critically affect[] the outcome of the case”).

Towers’s motion to exclude Kim Nicholl is subject to a strong presumption of public

access because Towers’s motion to strike goes directly to the merits of this case. First, in actions

involving negligent misrepresentation and malpractice, having a qualified expert testify on the

standard of care is generally required. See Geiserman v. MacDonald, 893 F.2d 787, 791 (5th

Cir. 1990) (establishing standard of care through expert witness is “necessary” in cases where the

allegation of negligence is not evident or “apparent to a lay person or established as a matter of

law”); Averitt v. PricewaterhouseCoopers L.L.P., 89 S.W.3d 330, 334 (Tex. App. 2002) (in suit

against defendant accountants for malpractice and negligent breach of fiduciary duty, “the real

issue remains one of whether the professional exercised that degree of care, skill, and diligence

that professionals of ordinary skill and knowledge commonly possess and exercise”). Several of

Ms. Nicholl’s opinions regarding alleged “errors” as to the standard of care do not meet the

requirements of Federal Rule of Evidence 702. Second, Towers argues that Ms. Nicholl’s

report—the only basis for damages in this case—does not meet the plain requirements of Federal

Rule of Evidence 702 and so should be stricken. Accordingly, the motion to exclude effectively

disposes of the City’s claims in this case. See City of Providence v. Buck Consultants, LLC,

2015 WL 7083732, at *6 (D. R.I. Nov. 13, 2015) (granting summary judgment for defendant in


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actuarial malpractice action where damages were speculative). Because the motion to exclude

the expert report of Kim Nicholl is a “substantive pretrial motion,” Romero v. Drummond, Co.,

Inc., 480 F.3d 1234, 1245 (11th Cir. 2007), that is “more than tangentially related to the merits”

of this case, a strong presumption of public access applies. See Ctr. for Auto Safety v. Chrysler,

809 F.3d 1092, 1101 (9th Cir. 2016),

The City’s position ignores the well-established law that parties in litigation cannot

stipulate around the requirements of the right of access, which belongs to the public at large.

“The moving party’s burden—and the Court’s role—are not reduced or diminished in any way

simply because there is a Protective Order in place governing discovery.” Gratz Coll., 2015 WL

9582743, at *3. “Courts distinguish between the standard for an order sealing documents filed

with the court and the standard for a protective order limiting dissemination of documents

produced in discovery.” Lehman Bros. Holdings, Inc. v. Cornerstone Mortg. Co., 2011 WL

649139, at *5 (S.D. Tex. Feb. 10, 2011). Parties may enter into protective orders for the

purposes of discovery, as the public right of access to the courts does not apply to documents

exchanged in the discovery process. See Test Masters Educ. Servs., Inc. v. Robin Singh Educ.

Servs., Inc., 799 F.3d 437, 454 (5th Cir. 2015). Additionally, documents attached to motions

related to discovery disputes, such as motions to compel production of documents, are usually

not afforded the presumption of public access because they police only the discovery process and

are generally unrelated to the merits of the case. See, e.g., Chicago Tribune Co. v.

Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312 (11th Cir. 2001) (per curiam); Ctr. for Auto

Safety, 809 F.3d at 1097. Once documents are filed in the court in connection with any

“substantive pretrial motion,” however, and regardless of the existence of a protective order for

the purposes of discovery, courts will apply a strong presumption of public access to court


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records. Romero, 480 F.3d at 1245; see also Sullo & Bobbitt, PLLC v. Abbott, 2013 WL

1949835, at *3 (N.D. Tex. May 13, 2013) (applying a strong presumption of public access to

court records to any motion that is “filed with the court and play[s] a significant role in the

judicial process”); United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1049 (2d Cir. 1995) (to

any motion that plays a role in “determining the litigants’ substantive rights”); Leucadia, Inc. v.

Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993) (to any “pretrial motion[] of a

nondiscovery nature, whether preliminary or dispositive, and the material filed in connection

therewith”); Ctr. for Auto Safety, 809 F.3d at 1102 (to any motion that is “more than tangentially

related to the merits of a case”).

III. The City has Failed to Provide Compelling Reasons to Keep the Nicholl Report or

its Attachments Under Seal.

The City has failed to provide any reason, let alone a “compelling reason supported by

specific factual findings,” for its position that the Nicholl Report and the spreadsheets that

Towers seeks to de-designate must remain under seal. Kroy IP Holdings, LLC, 2015 WL

432012, at * 2; see also Erfindergemeinschaft Uropep GbR, 2017 WL 434207, at *2 (requiring a

party to show “a compelling and particularized need to prevent disclosure” and a demonstration

of the “specific harm or prejudice that will result if the exhibits at issue are not sealed”).

First, as noted above, having a protective order in place does not relieve a party from the

burden of demonstrating that its need to keep information confidential outweighs the public’s

interest in access to court records. Second, the City’s generic, conclusory statement that the

Supplemental Protective Order has been entered by this Court is not related to any particular

piece of information that should remain confidential and is not a sufficient basis to keep

documents under seal. See Robroy Indus. – Texas, LLC v. Thomas & Betts Corp., 2016 WL

325174, at *2 (E.D. Tex. Jan. 27, 2016) (“As justification for the requests, they have simply


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asserted that certain materials have been designated as confidential and, as such, documents

referencing those materials should be sealed. Such conclusory statements are insufficient to

show good cause for wholesale sealing orders of the sort sought here.”). This is particularly true

given that the flaws in Ms. Nicholl’s assumptions are at the heart of Towers’s motion to strike

and would be central to the trial, giving them a strong presumption of public access. See

GoDaddy.com LLC v. RPost Commc’ns Ltd., 2016 WL 1158851, at *4 (D. Ariz. Mar. 24, 2016)

(holding that the portion of the expert report that “is the element of [the expert’s] report that

[plaintiff] predominantly challenges as unreliable under Daubert” and will “undoubtedly . . . be

brought to the jury’s attention at trial” is entitled to the highest presumption of public access).

The City’s position mocks the public’s right of access to judicial records, a right that “antedates

the Constitution” itself. Bank of Amer. Nat’l Tr. & Sav. Ass’n v. Hotel Rittenhouse Assocs., 800

F.2d 339, 343 (3d Cir.1986).

Dated: July 28, 2017 Respectfully submitted,

By: /s/ Alex G. Romain

Alex G. Romain

Attorney-in-charge

California Bar No. 314694

S.D. Adm. No. 2403760

Alison L. Plessman (Admitted pro hac vice)

Padraic W. Foran (Admitted pro hac vice)

Jennifer Bunn Hayden (Admitted pro hac vice)

Daniel Vinson (Admitted pro hac vice)

Jenna Williams (Admitted pro hac vice)

HUESTON HENNIGAN LLP

523 West 6th Street, Suite 400

Los Angeles, CA 90014

Telephone: (213) 788-4340

Facsimile: (888) 775-0898

Counsel for Defendant

WTW Delaware Holdings LLC


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CERTIFICATE OF CONFERENCE

I certify that counsel for WTW Delaware Holdings LLC conferred with the City’s

counsel regarding de-designating the Expert Report of Kim Nicholl and Towers’s Motion to

Unseal the Motion to Exclude the Expert Testimony of Kim Nicholl:

telephonically (July 17, 2017 (Alex G. Romain, Jennifer B. Hayden, & Jenna

Williams with James T. Southwick and Abigail C. Noebels));

via email (July 14, 2017 (Romain to Geoffrey L. Harrison & Southwick); July 14,

2017 (Southwick to Romain); July 16, 2017 (Romain to Harrison & Southwick);

and July 17, 2017 (Southwick to Romain)).

By /s/ Alex G. Romain

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing document was duly

served electronically on all known counsel of record through the Court’s Electronic Filing

System on the 28th day of July 2017.

By: /s/ Alex G. Romain


Documents

UNITED STATES DISTRICT COURT FOR THE SOUTHERN …...supporting the court’s decision sealed from public view.”). Towers respectfully requests that the Court remove the “Highly