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18-2868IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

VIRGINIA L. GIUFFRE,Plaintiff-Appellee,

—against—

GHISLAINE MAXWELL,Defendant-Appellee,

(Caption continued on inside cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF AND SPECIAL APPENDIX FOR INTERVENORS-APPELLANTS

d

SANFORD L. BOHRERHOLLAND & KNIGHT LLP701 Brickell Avenue, Suite 3300Miami, Florida 33131(305) 374-8500

CHRISTINE N. WALZMADELAINE J. HARRINGTONHOLLAND & KNIGHT LLP31 West 52nd StreetNew York, New York 10019(212) 513-3200

Attorneys for Intervenors-Appellants

Case 18-2868, Document 51, 12/10/2018, 2452291, Page1 of 80

—against—

SHARON CHURCHER, JEFFREY EPSTEIN,Respondents,

JULIE BROWN, MIAMI HERALD MEDIA COMPANY,

Intervenors-Appellants.


CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Civil Procedure, Intervenor

Miami Herald Media Company, by and through its attorneys, Holland & Knight

LLP, states that it is a wholly-owned subsidiary of the McClatchy Company, which

is publicly traded on the New York Stock Exchange.


i

TABLE OF CONTENTS PAGE

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I. INTERVENORS-APPELLANTS’ COVERAGE OF ALLEGATIONS AGAINST JEFFREY EPSTEIN AND GHISLAINE MAXWELL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

II. THE PROTECTIVE ORDER AND SEALING ORDER . . . . . . . . . . . . . 5

III. PRIOR ATTEMPTS TO UNSEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IV. THE ORDER DENYING INTERVENORS-APPELLANTS’ MOTION TO UNSEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

I. LEGAL STANDARDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B. Applicable Legal Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

i. Judicial Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ii. The Presumption of Access Under the Common Law . . . . . . . 10

iii. The Presumption of Access Under the First Amendment . . . 11

II. THE DOCUMENTS SOUGHT BY INTERVENERS- APPELLANTS ARE JUDICIAL DOCUMENTS SUBJECT TO THE PRESUMPTION OF ACCESS. . . . . . . . . . . . . . . . . . 13


PAGE

ii

A. The Documents are Judicial Documents Because They Were Submitted to the District Court to Influence an Adjudication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

B. At Minimum, the “Judicial Document” Determination Should Have Been Made on a Case-by-Case Basis. . . . . . . . . . . . . . . . . . . . . . . 16

C. The District Court Erred in Characterizing the Documents as “Discovery Documents” Passed Amongst the Parties. . . . . . . . . . . . 18

III. THE DISTRICT COURT SHOULD UNSEAL THE DOCKET IN ITS ENTIRETY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. The Press and Public Have a Right to The Documents at Issue Under the Common Law and the First Amendment. . . . . . . . . . . . . . 19

B. The District Court Miscalculated the Presumption of Access with Regard to the Summary Judgment Documents. . . . . . . . . . . . . . 20

C. The District Court Failed to Articulate A Compelling Reason to Seal the Summary Judgment Documents. . . . . . . . . . . . . . . . . . . . . . . 21

D. The District Court Failed to Justify Sealing the Remainder of the Docket. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28


iii

TABLE OF AUTHORITIES PAGE(S)

Cases

Aioi Nissay Dowa Ins. Co. v. ProSight Specialty Mgmt. Co., No. 12-cv-3274, 2012 WL 3583176 (S.D.N.Y. Aug. 21, 2012) . . . . . 25

Alexander Interactive, Inc. v. Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174 (S.D.N.Y. Sept. 2, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 25

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, No. 14-CV-6867 (VEC), 2016 WL 1071107 (S.D.N.Y. Mar. 18, 2016), aff’d, 814 F.3d 132 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Bernsten v. O’Reilly, 307 F. Supp. 3d 161 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Joy v. North, 692 F.2d 880 (2d Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Kavanagh v. Zwilling, 997 F. Supp. 2d 241 (S.D.N.Y.), aff’d, 578 F. App’x 24 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 26


PAGE(S)

iv

In re Omicom Grp., Inc. Sec. Litig., No. 02 CIV. 4483, 2006 WL 3016311 (S.D.N.Y. Oct. 23, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10, 11, 17

People v. Macedonio, 51 Misc. 3d 1219(A), 2016 WL 2616995 (N.Y. Sup Ct, Suffolk County, May 4, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . 27

Press–Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 26

The Diversified Group, Inc. v. Daugerdas, 217 F.R.D. 152 (S.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Under Seal v. Under Seal, 273 F. Supp. 3d 460 (S.D.N.Y. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 13, 27

United States v. Amodeo, 44 F.3d 141 (2d Cir.1995) (Amodeo I ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) (Amodeo II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Erie Cty., 763 F.3d 235 (2d Cir. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

United States v. Sattar, 471 F. Supp. 2d 380 (S.D.N.Y. 2006) . . . . . . . . . . . . . . . . . . . . . . . . 10, 13, 15, 16

United States v. Silver, No. 15-CR-93 (VEC), 2016 WL 1572993 (S.D.N.Y. Apr. 14, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 22, 23

United States v. Smith, 985 F. Supp. 2d 506 (S.D.N.Y. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Wells Fargo Bank, N.A. v. Wales LLC, 993 F.Supp.2d 409 (S.D.N.Y. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Wolinsky v. Scholastic Inc., 900 F.Supp.2d 332 (S.D.N.Y. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


PAGE(S)

v

Statutes

28 U.S.C. § 1332(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Fair Labor Standards Act (“FLSA”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rules

Local Civil Rule 5.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim


1

PRELIMINARY STATEMENT This case is about the public’s right to access court records concerning

allegations of sexual abuse that have been litigated behind closed doors. Miami

Herald Media Company (“Miami Herald”) and investigative journalist Julie Brown

(collectively “Intervenors-Appellants”) seek records that are highly relevant to

Miami Herald’s ongoing coverage of Jeffrey Epstein, the millionaire financier and

convicted sex-offender, who allegedly abused dozens of underage girls for years.

The investigation covers not only the criminal allegations, but also the troublingly

timid prosecution of Epstein, who entered into a plea deal with prosecutors under

which he ultimately served only 13 months in prison. Epstein’s victims were not

informed of the plea deal at the time it was made and were not able to protest his

sentencing. Miami Herald’s investigation seeks to determine whether Epstein’s

victims were heard by prosecutors and whether Epstein escaped more serious

consequences because of his wealth and political connections.

As part of its investigation, Miami Herald sought to review court records in

connection with civil and criminal cases concerning Epstein and his associates. The

instant appeal concerns the records of a defamation matter, brought by one of Epstein’s

alleged former victims, Virginia Giuffre, against Epstein’s associate, Ghislaine Maxwell

(“Defendant-Appellee” or “Ms. Maxwell”) on the grounds that Ms. Maxwell, in

coordination with Epstein, “facilitated [] sexual abuse” of Ms. Giuffre and “wrongfully


2

subjected Giuffre to public ridicule, contempt and disgrace by … calling Giuffre a liar

in published statements.” A.-117, ¶ 1. These records are presumptively public under the

First Amendment to the United States Constitution and the common law, but were

improperly sealed by the District Court. Miami Herald intervened in the defamation

action and moved to unseal the docket, but the motion to unseal was denied based, in

large part, on Ms. Maxwell’s tenuous privacy interests. See Sp.A.-1 (the “Order”).

At present, Miami Herald, Ms. Giuffre – Epstein’s alleged victim – and other

interested members of the public seek to open the docket to bring to light a full and fair

account of Epstein and his associates’ misdeeds. The District Court did not – as it was

required to do under the common law and the First Amendment – articulate compelling

reasons to seal the records. The District Court’s Order should therefore be reversed.

JURISDICTIONAL STATEMENT

The District Court for the Southern District of New York had original

jurisdiction over the underlying action pursuant to 28 U.S.C. § 1332(a). Intervenors-

Appellants moved to intervene in the underlying action and unseal the docket on

April 6, 2018. On August 27, 2018 the District Court entered the Order granting

Intervenors-Appellants’ motion to intervene and denying their motion to unseal in

its entirety. Sp.A.-1.

This Court has jurisdiction over this appeal under the collateral order doctrine.

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also United


3

States v. Erie Cty., 763 F.3d 235, 238 n.5 (2d Cir. 2014); Lugosch v. Pyramid Co.

of Onondaga, 435 F.3d 110, 117 (2d Cir. 2006). This appeal is timely: the District

Court entered its order on August 27, 2018, and Intervenors-Appellants filed their

Notice of Appeal on September 26, 2018.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

This appeal presents the following issues:

1. The District Court characterized the documents sought by Intervenors-

Appellants as either “discovery documents” or “summary judgment judicial

documents.” In regards to the former, the District Court held that “the documents

sealed in the course of discovery were neither relied upon by this Court in the

rendering of an adjudication, nor ‘necessary to or helpful in resolving [a] motion’”

and that therefore the documents were not entitled to a presumption of access.

Sp.A.-28. Notwithstanding this finding, the District Court also recognized precedent

holding that documents submitted in support of a motion to compel discovery

“presumably will be necessary to or helpful in resolving that motion” and that “they

are, therefore, judicial documents.” Sp.A.-31 (quoting Alexander Interactive, Inc. v.

Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174, at *2 (S.D.N.Y.

Sept. 2, 2014)). Did the District Court err in characterizing the documents sought

by Intervenors-Appellants, which include motions to compel discovery, as

“discovery documents” that are not entitled to the presumption of access?


4

2. Did the District Court err, in violation of the common law and the First

Amendment to the United States Constitution, in concluding that the privacy

interests of the parties in the underlying suit outweighed the public’s right of access

to the sealed documents submitted in connection with Defendant’s summary

judgment motion, notwithstanding Plaintiff’s support for Intervenors-Appellants’

motion to unseal?

3. The Protective Order specified that it “shall have no force and effect on

the use of any CONFIDENTIAL INFORMATION at trial” (A.-135) and therefore

allowed that the information disclosed by third parties pursuant to the Protective

Order could be disclosed. Did the District court err, in violation of the common law

and the First Amendment to the United States Constitution, in concluding that the

privacy interests of third-parties that relied on the Protective Order outweighed the

public’s right of access to the sealed documents submitted in connection with

Defendant’s summary judgment motion?

STATEMENT OF THE CASE

I. INTERVENORS-APPELLANTS’ COVERAGE OF ALLEGATIONSAGAINST JEFFREY EPSTEIN AND GHISLAINE MAXWELL.

For over three years, Miami Herald has reported on and investigated Epstein

and others who were involved in the sexual abuse of underage girls. It has covered,

among other subjects, the initial investigation by the Palm Beach state attorney, the

FBI and the U.S. Attorney’s Office, the negotiations between those law enforcement


5

agencies and Epstein’s legal defense team, and the ultimate decision by the U.S.

Attorney’s Office to sign a non-prosecution agreement that was negotiated in secret

and sealed in return for a guilty plea to a lesser state crime. The plea deal, which was

not revealed to Epstein’s victims at the time, resulted in him serving 13 months of

an 18-month sentence.

Coverage of this ongoing story requires that Miami Herald closely monitor

the civil and criminal cases brought in connection with Epstein’s crimes, including

the defamation matter underlying the instant appeal. As with other cases connected

with Epstein’s crimes, Miami Herald sought to access public court filings to shed

light on the investigation, the scope of the crimes, and, most importantly, the

remedies – or lack thereof – available to Epstein’s victims. Many of these questions

have yet to be answered because court records that could inform the investigation

were improperly sealed by the District Court pursuant to two overly broad orders –

a protective order entered March 18, 2016 (the “Protective Order”) (A.-131) and a

sealing order entered August 10, 2016 (the “Sealing Order”) (A.-265).

II. THE PROTECTIVE ORDER AND SEALING ORDER

On March 2, 2016, Defendant-Appellee Maxwell filed a motion for a

protective order, which averred broadly that:

In this action, both parties have sought and will seek confidential information in the course of discovery from the other party and from non-party witnesses. Release of such confidential information outside of the litigation


6

could expose the parties to “annoyance, embarrassment, [and] oppression” and result in significant injury to one or more of the parties’ business or privacy interests . . . Based on written discovery requests served to date, it is anticipated that Plaintiff will seek to question Ms. Maxwell concerning her personal and professional relationships as well matters concerning her private affairs. Furthermore, Plaintiff has served Ms. Maxwell with document requests that seek information of a sensitive and confidential nature. Dissemination of such information to third parties could be significantly harmful to Ms. Maxwell’s business and personal privacy interests.

A.-128. Despite the unspecified nature of Ms. Maxwell’s privacy interests, the

District Court entered an order that (1) applied to “all documents, materials, and

information,” at issue in the case (A.-131, ¶ 1); (2) allowed the parties to unilaterally

designate material as “Confidential” (A.-132, ¶ 3); and (3) required that any party

seeking to file confidential information submit a motion to seal (A.-134, ¶ 10).

Pursuant to Protective Order, numerous letter briefs were filed seeking to seal

various documents that would otherwise be available on the public docket. The letter

briefs themselves were bereft of detail. The vast majority simply identified the

document at issue, reiterated the language of the Protective Order, and stated that the

document at issue contained material “designated as confidential.” See, e.g., A.-137,

A.-139, A.-141, A.-144, A.-147, A.-148, A.-149, A.-152, A.-154, A.-157, A.-161,

A.-163, A.-165, A.-236, A.-237, A.-239, A.-243, A.-252, A.-253, A.-254, A.-256,

A.-262, A.-263. Nevertheless, the District Court granted each motion. Sp.A.-10.


7

Due to the volume of sealing requests, on August 9, 2016, the District Court

entered the Sealing Order, which removed the requirement that the parties file letter

briefs and prospectively granted them: “To reduce unnecessary filings and delay, it is

hereby ordered that letter motions to file submissions under seal pursuant to the District

Court’s Protective Order, ECF No. 62, are granted.” A.-265. This order effectively

withdrew judicial and public oversight from the sealing process. In total, one hundred

and sixty-seven documents – almost one fifth of the docket, were placed under seal.

Sp.A.-10. Importantly, in addition to the wholesale sealing of certain motions, the

entire body of Defendant-Appellee’s motion for summary judgment – 68 pages – was

redacted (see A.-315) and over half of the order denying Defendant-Appellee’s motion

for summary judgment was redacted. (A.-318, 320-69.) (hereinafter these documents

are referred to as the “Summary Judgment Documents”).

III. PRIOR ATTEMPTS TO UNSEAL

Prior to Intervenors-Appellants’ motion to unseal, two other third-parties –

lawyer Alan Dershowitz and journalist Michael Cernovich – separately moved to

unseal specific documents in the record. Mr. Dershowitz, himself implicated in

Epstein’s crimes, sought to unseal documents that he believes will vindicate his

reputation. Mr. Cernovich sought to unseal the Summary Judgment Documents in

connection with his own journalistic coverage of the Epstein case.


8

Both of these motions (respectively the “Dershowitz Motion” and “Cernovich

Motion”) were denied.1 The District Court’s reasoning (which is available only in

connection with the Cernovich Motion)2 was grounded in two risk factors that are

no longer relevant to the instant appeal. First, the court cited the “privacy interests”

of the parties which, as detailed below, have been waived by Ms. Giuffre. A.-401.

And, even if Ms. Giuffre had not waived her privacy interests, such interests are not

sufficient to overcome the public right of access. Second, the District Court reasoned

that premature release of sensitive information could taint the jury pool in the

upcoming trial. A.-400, 402. This risk was rendered moot when the case settled.

Both Mr. Cernovich and Mr. Dershowitz appealed, which appeals have been

consolidated with that of Intervenors-Appellants.

IV. THE ORDER DENYING INTERVENORS-APPELLANTS’ MOTIONTO UNSEAL.

On April 6, 2018, Intervenors-Appellants moved to intervene and unseal the

entire docket. A.405, 406. The District Court denied the motion to unseal on August

27, 2018. Sp.A.-1. This appeal followed.

1 As explained in the appeals brought by Mr. Dershowitz and Mr. Cernovich, the District Court misapplied the legal standard in denying these motions. Instead of treating the Cernovich and Dershowitz motions as motions to unseal, the District Court framed them as motions to modify a protective order. 2 The District Court’s order on the Dershowitz Motion is sealed.


9

ARGUMENT

I. LEGAL STANDARDS A. Standard of Review

In reviewing a District Court’s order to seal or unseal, the court’s findings are

examined for clear error, its legal determinations de novo, and its ultimate decision

to seal or unseal for abuse of discretion. Bernstein v. Bernstein Litowitz Berger &

Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016) (citing United States v. Amodeo,

44 F.3d 141, 146 (2d Cir.1995) (Amodeo I )).

B. Applicable Legal Standards

There is a long-established presumption of public access to “judicial

documents,” defined broadly as documents that are filed with the court and “relevant

to the performance of the judicial function and useful in the judicial process.”

Lugosch, 435 F.3d at 119 (quoting Amodeo I, 44 F.3d at 145). This presumption

finds its “twin sources in the common-law right of public access and the qualified

First Amendment right to attend judicial proceedings.” In re Omicom Grp., Inc. Sec.

Litig., No. 02 CIV. 4483 RCC/MHD, 2006 WL 3016311, at *1 (S.D.N.Y. Oct. 23,

2006). The party seeking closure bears the burden of demonstrating that sealing is

justified under the related but distinct First Amendment and common law tests.

Under Seal v. Under Seal, 273 F. Supp. 3d 460, 469 (S.D.N.Y. 2017).


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i. Judicial Documents

This circuit has defined “judicial documents” broadly, encompassing a spectrum

that ranges from “documents [] used to determine litigants’ substantive rights,” to those

documents that “play only a negligible role in the performance of Article III duties.”

Lugosch, 435 F.3d at 121. The strength of the common law presumption of access that

attaches to such documents varies in accordance with their place on the spectrum.

Documents more central to the performance of Article III duties garner a stronger

presumption, (id.) while those that “come within a court’s purview solely to insure

their irrelevance” garner a weaker presumption. United States v. Amodeo, 71 F.3d

1044, 1049 (2d Cir. 1995) (Amodeo II). Based on these guidelines, courts in this

Circuit have held that documents “submitted to the Court for purposes of seeking an

adjudication” are judicial documents. United States v. Sattar, 471 F. Supp. 2d 380,

385 (S.D.N.Y. 2006). These “judicial” documents are distinct from those that are not

filed with the court, such as those that are merely traded between the parties and that

therefore “lie entirely beyond the presumption’s reach.” Amodeo II, 71 F.3d at 1050.

ii. The Presumption of Access Under the Common Law

“The common-law presumption [of access] is intended to promote

accountability in the judicial process and to encourage public confidence in the

administration of justice.” In re Omnicom Group, Inc. Securities Litigation, 2006

WL 3016311, at *1. There is a three-step process used to determine whether the


11

common law presumption of access applies to documents before the court. First, the

court must determine that the documents in question are “judicial documents.”

Lugosch, 435 F.3d at 119. If so, a baseline presumption of access applies. Id.

Second, the court must determine the weight of the presumption of access. As stated

above, the presumption is strongest where the document is relied upon or used to

determine the substantive rights of litigants because “the strength of the presumption

. . . depends on the utility of the document in promoting oversight of the courts’

performance”. In re Omnicom Group Inc. Securities Litigation, 2006 WL 3016311

at *1. Summary judgment documents fit squarely within this category. The

presumption is weaker for documents that “come within a court’s purview solely to

insure their irrelevance,” such as with some discovery-related documents that are

filed with the court, however, the presumption of access still remains. Amodeo II,

71 F.3d at 1049. Third, once the weight of the presumption is determined, the court

balances the presumption against competing considerations. Under Seal, 273

F.Supp.3d at 467-68. “Such countervailing factors include but are not limited to the

danger of impairing law enforcement” or the “privacy interests of those resisting

disclosure.” Lugosch, 435 F.3d at 120 (citations omitted).

iii. The Presumption of Access Under the First Amendment

There is an even stronger presumption of public access to certain judicial

documents under the First Amendment. Hartford Courant Co. v. Pellegrino, 380


12

F.3d 83, 91 (2d Cir. 2004). The First Amendment right of access is linked directly

to the public’s right to attend judicial proceedings because “the ability of the public

and press to attend civil and criminal cases would be merely theoretical if the

information provided by docket sheets were inaccessible.” Id. at 93.

This Circuit has “articulated two different approaches for determining

whether “the public and the press should receive First Amendment protection in their

attempts to access certain judicial documents.” Lugosch, 435 F.3d at 120 (citations

omitted). The first approach – “experience and logic” – requires the court to consider

both whether the documents “have historically been open to the press and general

public” and whether “public access plays a significant positive role in the

functioning of the particular process in question.” Id. (quoting Press–Enterprise Co.

v. Superior Court, 478 U.S. 1, 8 (1986)). The second approach considers the extent

to which the judicial documents are “derived from or [are] a necessary corollary of

the capacity to attend the relevant proceedings.” Id. at 120. Once the court

determines that the First Amendment right of access applies, documents may be

sealed only if “specific, on the record findings are made demonstrating that closure

is essential to preserve higher values and is narrowly tailored to serve that interest.”

Id. (quoting In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987)). “Broad

and general findings by the trial court, however, are not sufficient to justify closure.”

Id.


13

II. THE DOCUMENTS SOUGHT BY INTERVENERS-APPELLANTSARE JUDICIAL DOCUMENTS SUBJECT TO THE PRESUMPTION OF ACCESS.

The District Court correctly determined that the Summary Judgment

Documents are judicial documents subject to the presumption of access, but erred in

its characterization of the rest of the docket. Courts in this Circuit construe “judicial

documents” broadly. Even those put before the court “solely to insure their

irrelevance” are entitled to a “predication” of access. Amodeo II, 71 F.3d at 1050.

Courts in this Circuit have also consistently reiterated that documents filed with the

court are judicial documents entitled to the presumption of access. See Under Seal,

273 F. Supp. 3d at 269;. Sattar, 471 F. Supp. 2d at 385 (generally, a document is a

“judicial document” if it is “submitted to the Court for the purposes of seeking or

opposing adjudication”). The District Court erred by grouping the remainder of the

sealed documents into one, vaguely described group of “discovery documents” and

in failing to analyze each document specifically to set forth why it fell outside the

broad definition of judicial documents adopted by this Circuit. Instead, the District

Court justified sealing nearly one-fifth of the docket in one short, nonspecific

paragraph, stating – without elaboration – that (1) the documents were not helpful

in resolving a motion, and (2) documents passed between the parties lie “beyond the

. . . reach” of the presumption of access. Sp.A.-28.


14

These two general statements, which constitute the entirety of the District

Court’s reasoning in this regard, are insufficient to justify the wholesale sealing of one

hundred and sixty-seven documents and redaction of many others. These documents

vary in nature and purpose, and include, at minimum: entries related to motions to

compel (A.-137, A.-142, A.-145, A.-148, A.-149, A.-155, A.-156, A.-157); entries

related to motions to serve deposition subpoenas, exceed deposition limits, reopen

Plaintiff’s deposition, or complete depositions (A.-151, A.-153, A.-159, A.-162, A.-

163, A.-166-170, A.-237, A.-240, A.-246); entries related to motion for sanctions or

an adverse inference (A.-245, A.-251, A.-257, A.-266); entries related to a brief in

support of privilege claimed for Plaintiff’s in camera submission (A.-143); entries

related to Defendant-Appellee’s response to a non-party’s motion to quash subpoena

(A.-241); entries related to Plaintiff’s sur-reply (A.-244, A.-248); entries related to

Plaintiff’s proposed search terms (A.-256); entries related to exhibits accompanying

Plaintiff’s notice of supplemental authority (A.-261); and entries related to a motion

for protective order (A.-267)3. The nature of the remaining documents filed under

seal is unknown because the Sealing Order released the parties from the requirement

of moving to seal documents in the first instance.

3 Many of these documents were identified through the letter briefs that were submitted to the District Court and that specified which documents the moving party sought to place under seal. Each of these letter motions was granted. Sp.A.-10.


15

A. The Documents are Judicial Documents Because They WereSubmitted to the District Court to Influence an Adjudication.

In this Circuit, whether or not a document has been filed is the key question

in the judicial document determination. When a document is submitted to a court,

the public interest in that document is triggered because the moving party believes

the document adds to the persuasiveness of her request before the court. The public

has an interest in monitoring whether the court agrees with the party, or disregards

that party’s submission in favor of other evidence – that a court ultimately declines

to rely on certain documents is immaterial. Sattar, 471 F. Supp. 2d 380, is

instructive. In Sattar, for instance, the court considered whether a letter from the

defendant’s counsel transmitting a psychiatric report constituted a judicial

document. Id. at 383. Counsel had submitted the document with respect to

defendant’s sentence, but the court ultimately declined to rely on the documents.

The court held that the documents were judicial documents, reasoning:

The Court did not find the submissions to be useful and did not rely on them. The Court set forth at sentencing the reasons for the sentence and did not refer at all to the letter from [counsel] or the report by [defendant’s physician]. However, the Court of Appeals for the Second Circuit recently held, in the context of documents submitted in support of and in opposition to a motion for summary judgment, before the motion was even decided, that it did not make a difference to the classification of a document as a judicial document that the document was not actually relied upon by the court. See Lugosch, 435 F.3d at 122–23, 126. It is sufficient that the document was


16

submitted to the Court for purposes of seeking or opposing an adjudication. See id.

Sattar, 471 F. Supp. 2d at 385 (emphasis supplied); see also United States v. Silver,

No. 15-CR-93 (VEC), 2016 WL 1572993, at *4 (S.D.N.Y. Apr. 14, 2016) (noting,

in regards to a motion in limine, “Whether the Court issued a final decision on the

Motion and whether the Motion resulted in the admission or exclusion of evidence

at trial does not affect the judicial document determination”). Therefore, the District

Court’s blanket statement that the sealed documents were neither relied upon by the

court, nor “necessary to or helpful in resolving [a] motion” is inadequate to

disqualify the documents from the “judicial document” definition. Sp.A.-28. This

is especially true in light of this Circuit’s rule that documents deemed “irrelevant”

to the substance of an action are nevertheless entitled to a presumption of access.

Amodeo II, 71 F.3d at 1050.

B. At Minimum, the “Judicial Document” Determination Should HaveBeen Made on a Case-by-Case Basis.

At the very least, the “judicial document” determination should have been

made on a document-by-document basis. As this Circuit has instructed, the

determination of whether a document is a “judicial document” should “emphasize

the role of the document in the judicial process.” United States v. Erie Cty., 763

F.3d 235, 239 (2d Cir. 2014). The sealed and redacted documents on the docket vary

in their nature and purpose. The unsubstantiated statement that such documents


17

were “not helpful in resolving a motion” (Sp.A.-28) does not stand to reason,

particularly because many of these documents are exhibits annexed in support of

motions submitted to the District Court for the purpose of influencing a decision.

That any of these motions were not dispositive motions makes no difference.

This court has consistently held that a presumption of access exists with respect to

any document “which is presented to the court to invoke its powers or affect its

decisions.” Amodeo II, 71 F.3d at 1050, see also Alexander Interactive, Inc., 2014

WL 4346174 (“documents to be submitted are in support of a motion to compel

discovery [] presumably will be necessary to or helpful in resolving that motion.

They are, therefore, judicial documents”); In re Omnicom Grp., 2006 WL 3016311

at *2 (holding that a “series of letter briefs with accompanying exhibits . . . certainly

qualify as judicial documents” because they were submitted “to request the court to

exercise its adjudicative powers in favor of the parties’ respective views of a

discovery dispute”); Schiller, 2006 WL 2788256, at *5 (holding that briefs and

supporting papers submitted in connection with a dispute over the confidentiality of

discovery materials were “created by or at the behest of counsel and presented to a

court in order to sway a judicial decision” and were therefore “judicial documents

that trigger the presumption of public access”).

The District Court should have explained – and must now be instructed to

explain – whether or not each individual document falls within the broad definition of


18

judicial documents set forth by this Circuit. It must then proceed to determine, again

on a document-by-document basis, whether there is a lawful reason for the document

to be sealed. An individual determination as to the nature of each document is

especially important in connection with the documents sealed after the Sealing Order,

and therefore not identified in a letter brief. The public has no means to monitor the

court’s characterization of documents filed with it if the type or designation of the

documents themselves are undisclosed. Indeed, Intervenors-Appellants have been

disadvantaged in their argument to unseal precisely because they cannot even

characterize or describe the documents that have been sealed and are unavailable to

them, much less present an argument regarding why sealing was unlawful.

C. The District Court Erred in Characterizing the Documents as “Discovery Documents” Passed Amongst the Parties.

Though the documents sought by Miami Herald vary in nature in purpose,

they have one thing in common: they are not documents that were merely “passed

between the parties in discovery.” Sp.A.-28. The Miami Herald is not seeking

documents that were never filed, but merely passed between the parties during

discovery. It is seeking filed documents. With regard to standard discovery

documents exchanged by the parties, as a general rule, such documents are not filed

in the first instance:

A party seeking or opposing relief under Fed. R. Civ. P. 26 through 37 inclusive, or making or opposing any other motion or application, shall quote or attach only those


19

portions of the depositions, interrogatories, requests for documents, requests for admissions, or other discovery or disclosure materials, together with the responses and objections thereto, that are the subject of the discovery motion or application, or that are cited in papers submitted in connection with any other motion or application.

Local Civil Rule 5.1. Miami Herald seeks those documents that have been filed but

sealed; it does not seek all documents merely traded between the parties pursuant to

requests for production. It bears noting that the committee note in support of Local

Civil Rule 5.1 states that “[this rule] continues to serve a very useful purpose by

making clear that only those discovery materials that are necessary to the decisional

process should be filed in connection with a motion or application.” Local Civil

Rule 5.1 note (2011)(emphasis supplied). Stated otherwise, Local Rule 5.1 aims to

ensure that only “judicial documents” i.e., documents that are “relevant to the

performance of the judicial function and useful in the judicial process” are filed.

These are the documents that Intervenors-Appellants seek and to which they are

entitled under the common law and the First Amendment.

III. THE DISTRICT COURT SHOULD UNSEAL THE DOCKET IN ITS ENTIRETY.

A. The Press and Public Have a Right to The Documents at Issue Under the Common Law and the First Amendment.

The judicial documents at issue – both the Summary Judgment documents and

the remainder of those on the docket – are relevant to an ongoing investigation that

raises significant questions of public interest. These questions include how the


20

Epstein case was disposed of by the criminal justice system, whether victims were

treated properly, whether Epstein’s victims were unfairly kept in the dark about the

terms of his plea deal, whether Epstein was given favorable treatment because of his

wealth and status, in short, whether the public interest was served. These questions

have yet to be answered because records that could provide responsive information

have been sealed. The public, including Epstein’s victims, has the right to know how

Epstein’s case was prosecuted. The law provides the public with the presumption of

access in order to hold our legal institutions accountable and to maintain confidence

that they will protect the most vulnerable in our society.

The Summary Judgment Documents, which discuss the core issues in the

underlying defamation matter, garner the highest presumption and should not remain

under seal absent the most compelling reasons. Joy v. North, 692 F.2d 880, 893 (2d

Cir. 1982); Lugosch, 435 F.3d at 123. The remainder of the docket garners a similar,

if slightly weaker, presumption that can only be overcome by specifically articulated

countervailing interests. As set forth below, the District Court failed to articulate

these interests, and therefore must be reversed.

B. The District Court Miscalculated the Presumption of Access with Regard to the Summary Judgment Documents.

As a preliminary matter, the District Court ignored recent precedent and

incorrectly determined that the Summary Judgment Documents were entitled to a

“lesser” presumption of access because the motion for summary judgment was denied.


21

Sp.A.-34 (citing Amodeo II, 71 F.3d at 1049). Lugosch, 435 F.3d at 122, makes clear

that the outcome of a summary judgment motion has nothing to do with the weight of

its presumption. Noting with approval case law in the First Circuit, this Court in

Lugosch stated: “The First Circuit has clearly held that ‘relevant documents which are

submitted to, and accepted by, a court of competent jurisdiction in the course of

adjudicatory proceedings, become documents to which the presumption of public

access applies,’ a framing that has nothing to do with how a court ultimately

comes out on a motion.” Id. at 122 (emphasis supplied). Continuing this reasoning,

this Court stated: “to equate the weight of the presumption with the disposition of each

particular claim would require the Court to review the documents under varying

standards, which would be extremely difficult and a waste of judicial resources.” Id.

at 123 (quoting The Diversified Group, Inc. v. Daugerdas, 217 F.R.D. 152, 159 n. 5

(S.D.N.Y. 2003)). Therefore, the Summary Judgment Documents should be unsealed

unless there is a compelling and narrowly tailored reason for closure.

C. The District Court Failed to Articulate A Compelling Reason to Seal the Summary Judgment Documents.

There is no recognized privacy interest in allegations of sex-trafficking. At

its core, however, that is what the District Court’s Order protects. The Order states

that “the primary countervailing factor is ‘the privacy interests of those resisting

disclosure,’” (Sp.A.-35), but neglects to note that Ms. Maxwell – Epstein’s alleged

associate and the defendant in the underlying defamation claim – is the only party


22

advocating for continued sealing. All other interested parties, Mr. Dershowitz and

Mr. Cernovich, Miami Herald, and Ms. Giuffre have petitioned to open the docket

so that the public can access a full and fair account of the lawsuit.

Yet, despite this consent from Ms. Giuffre, the Order places great weight on

protecting the interests of Ms. Giuffre and similarly situated victims, essentially

ignoring Ms. Giuffre’s clearly stated position. Citing Kavanagh v. Zwilling, 997 F.

Supp. 2d 241, 256 (S.D.N.Y.), aff’d, 578 F. App’x 24 (2d Cir. 2014), the Order

emphasizes that the “interest [in privacy] is amplified where, as here, the Summary

Judgment [] Documents ‘contain sensitive and personal information about the sexual

abuse of minors.” Sp.A.-38. However, the motion to unseal in Kavanagh, was put

forth by the alleged abuser and there is nothing in the opinion indicating that the

victim advocated the same. Here, the situation is reversed. The compelling privacy

interest in this matter belongs to Ms. Giuffre, who advocates unsealing the entire

docket, to provide the public with the “complete picture of the abuse that occurred

. . . ”. A.-428. Moreover, Ms. Giuffre has already, for years, been publically

identified as a victim of Epstein’s. Continued sealing of these documents would do

nothing to protect Ms. Giuffre’s interests.

United States v. Silver, 2016 WL 1572993, at *8, also cited by the District

Court, is similarly inapposite. There, the court considered whether to unseal a

Motion in Limine and corresponding briefs that discussed extramarital affairs among


23

the defendant – a public official – and two women. In regards to the defendant, the

court reasoned that the “otherwise personal and embarrassing conduct [had] public

ramifications.” Id. And further that “[t]he privacy interest of the [d]efendant—a

public official convicted of participating in criminal schemes that were cut from the

same corrupt cloth as the evidence discussed in the Motion in Limine—does not, in

this case, trump the public’s right of access.” Id. at *7 (emphasis supplied). The

privacy interests of the two women warranted redaction, but, in contrast to the

present issue on appeal, both women advocated closure. Moreover, despite the

privacy interests at stake, the court ordered unsealing accompanied by narrowly

tailored redaction to “obscure the identities of the Jane Does while simultaneously

disclosing the nature of the evidence that the Government sought to admit.” Id.

(emphasis supplied). This approach is a far cry from authorizing the redaction the

entire body of Defendant-Appellee’s motion for summary judgment and over half of

the order denying Defendant-Appellee-Maxwell’s same motion. See also

Application of Newsday, Inc., 895 F.2d 74, 80 (2d Cir. 1990) (rejecting “drastic

restrictions on the common law right of access” and only authorizing redactions of

“references to innocent third parties”). There is simply no precedent that favors the

“privacy interests” of an alleged sex-offender over that of victims advocating for

disclosure and the public’s right to information regarding our justice system’s

treatment of victims of sexual abuse.


24

The District Court’s second reason for closure – the parties’ reliance on the

Protective and Sealing Orders – also fails to overcome the “compelling” standard

required by the law. The District Court reasoned – in error – that the guarantee of

confidentiality was critical to the parties’ settlement agreement and, accordingly,

that unsealing would denigrate the integrity of the judicial process by betraying such

reliance. Sp.A.-39. This position neglects that courts in this Circuit have repeatedly

ordered the unsealing in cases with protective orders or confidentiality provisions.

Gambale v. Deutsche Bank AG, 377 F.3d 133, 143 (2d Cir. 2004), is instructive. In

Gamble – a sex-based discrimination suit – the plaintiff filed documents disclosed

in discovery – labeled as confidential by the defendant-bank – in support of her

opposition to summary judgment. Id. at 135. The bank moved for, and was granted,

a temporary protective order subject to renewal upon motion. Id. The parties then

jointly advised the court that they had reached a settlement agreement and,

importantly, the bank asserted that “the settlement was motivated significantly by its

desire to avoid public disclosure at trial of the temporarily sealed documents.” Id.

at 136 (emphasis supplied). Nevertheless, the District Court later unsealed the

documents on the grounds that they were “judicial documents . . . entitled to the

presumption of access.” Id. at 138. This Circuit affirmed.4

4 The Court disagreed with the District Court’s decision that the settlement amount, which was disclosed in a court conference, should be unsealed.


25

In Bernstein, 814 F.3d at 139, as well, the court ordered that the unsealing of

a complaint notwithstanding the fact that the “parties settled the suit on confidential

terms.” In Bernsten v. O’Reilly, 307 F. Supp. 3d 161 (S.D.N.Y. 2018), the court

held that settlement and arbitration agreements themselves, which were submitted in

support of a motion to compel, were subject to a presumption of access and should

be unsealed. Similarly, in Wolinsky v. Scholastic Inc., 900 F.Supp.2d 332, 334

(S.D.N.Y. 2012), the court addressed whether to seal an FLSA settlement agreement

that contained a confidentiality provision and had been submitted to the court for

approval. Defendant argued that confidentiality was a material term of the agreement

constituting part of the consideration provided by plaintiff; however, the Court found

the argument to be unavailing:

[T]he mere fact ‘that the settlement agreement contains a confidentiality provision is an insufficient interest to overcome the presumption that an approved FLSA settlement agreement is a judicial record, open to the public.’ . . . [T]he presumption of public access would become virtually meaningless if it could be overcome by the mutual interest of the parties in keeping their settlement private.

Id. at 338. See also Wells Fargo Bank, N.A. v. Wales LLC, 993 F.Supp.2d 409, 414

(S.D.N.Y. 2014) (holding the fact that the agreement “contains a confidentiality

clause is not binding here, given the public’s right of access to ‘judicial

documents.’”); Aioi Nissay Dowa Ins. Co. v. ProSight Specialty Mgmt. Co., No. 12-

cv-3274, 2012 WL 3583176, at *6 (S.D.N.Y. Aug. 21, 2012) (“[W]hile enforcement


26

of contracts is undeniably an important role for a court, it does not constitute a

‘higher value’ that would outweigh the presumption of public access to judicial

documents . . . Respondents may have an action for breach of contract against

[petitioner] for its alleged failure to adhere to its obligations under the confidentiality

agreement—the Court makes no finding whatsoever on that question.”). Reliance

on confidentiality agreements has been repeatedly outweighed by competing

interests, including the very interests at issue here – the public right of access.

Therefore, such reliance cannot constitute an interest compelling enough to

overcome the standards set by the common law and First Amendment.

D. The District Court Failed to Justify Sealing the Remainder of the Docket.

Finally, the District Court’s Order is overly broad because it sealed documents

in their entity without any individualized analysis. In fact, court records cannot

constitutionally be sealed from public view unless the court makes on the record

findings that “closure is essential to preserve higher values and is narrowly tailored

to serve that interest.” Press-Enter. Co., 478 U.S. at 13-14 (internal quotation marks

omitted); In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (“Broad and

general findings . . . are not sufficient to justify closure.”).

To meet this standard, the District Court was required to review and analyze

each document to determine both that sealing was necessary to protect a compelling

interest (that outweighs the presumption of access under the First Amendment and


27

the common law), and that the sealing is only as extensive as required to protect that

compelling interest. Under Seal, 273 F. Supp. 3d at 466 (“motions to seal documents

must be carefully and skeptically review[ed] . . . to insure that there really is an

extraordinary circumstance or compelling need to seal the documents from public

inspection.”) (citation omitted); see also People v. Macedonio, 51 Misc. 3d 1219(A),

2016 WL 2616995, at *12 (N.Y. Sup Ct, Suffolk County, May 4, 2016) (Ordering

limited redaction of innocent third parties names and identifying information

because “a blanket sealing of the plea agreement . . . would not satisfy the narrow

tailoring required to safeguard the First Amendment right of access). That analysis

must be made on a case-by-case and document-by-document basis. See Bernstein

v. Bernstein Litowitz Berger & Grossmann LLP, No. 14-CV-6867 (VEC), 2016 WL

1071107, at *10 (S.D.N.Y. Mar. 18, 2016), aff'd, 814 F.3d 132 (2d Cir. 2016)

(“Accordingly, determining whether the ethical concerns raised by providing public

access to a judicial document outweigh the public’s constitutional right of access

must be done on a case-by-case basis); United States v. Smith, 985 F. Supp. 2d 506,

528 (S.D.N.Y. 2013) (“Rather, the courts should evaluate the extent of the harm to

public officials caused by the discovery materials on a case-by-case basis, taking

into consideration the nature of the information in the discovery materials, as well

as the public officials at issue”).


28

The District Court entirely failed to undertake this analysis and its Order must

be reversed as a result.

CONCLUSION

For the foregoing reasons, the District Court’s Order must be reversed.

Dated December 10, 2018

Respectfully submitted, /s/ Sanford L. Bohrer SANFORD L. BOHRER HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 (305) 374-8500 CHRISTINE N. WALZ MADELAINE J. HARRINGTON HOLLAND & KNIGHT LLP 31 West 52nd Street New York, New York 10019 (212) 513-3200 Attorneys for Intervenors-Appellants


CERTIFICATE OF COMPLIANCE WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 6,576, excluding the parts of the brief exempted by

Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(5) because this

brief has been prepared in a proportionally spaced typeface using Microsoft Word

in Times New Roman 14-Point font.

Dated: New York, NY December 10, 2018

Respectfully submitted,

/s/ Sanford L. Bohrer SANFORD L. BOHRER HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 (305) 374-8500CHRISTINE N. WALZ MADELAINE J. HARRINGTON HOLLAND & KNIGHT LLP 31 West 52nd Street New York, New York 10019 (212) 513-3200Attorneys for Intervenors-Appellants


SPECIAL APPENDIX


TABLE OF CONTENTS

PAGE

Opinion of the Honorable Robert W. Sweet Appealed From, dated August 27, 2018 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SPA-1


Case 1:15-cv-07433-RWS Document 953 Filed 08/27/18 Page 1 of 41

SPA-1

UNITED STATES DISTRI CT COURT SOUTHERN DISTRICT OF NEW YORK

----------------------------------------x

VIRGINIA GIUFFRE,

Plaintiff,

-against-

GHISLAINE MAXWELL,

Defendant.

------------------------------~---------x

APPEARANCES:

Coun sel f or Inter venors Julie Brown & Miami Herald Media Company

HOLLAND & KNIGHT LLP 31 West 52~ Street Ne w York, NY 1001 9 By: Christine N. Wa l z , Es q.

Sanfo rd L. Bohrer, Esq.

Counsel for Pl aintiff Vi rginia Gi uffre

BOIES SCHILLER & FLEXNER LLP 401 E. Las Olas Boulevard, Suite 12 00 Fo rt Laude rdal e , FL 333 01 By: Si g rid S . Mccawle y, Esq.

Mered i th L . Schul t z , Esq .

BOIES SCHILLER & FLEXNER LLP 333 Ma in St r eet Armo n k , NY 10504 By : David Boies , Esq .

EDWARDS POTTINGLER LLC 425 North Andre ws Ave nue , Sui te 2 Fo rt La uderdale, FL 33301 By : Br adley J . Edwards , Es q.

15 Civ. 7433 OPINION



SPA-2

S.J. QUINNEY COLLEGE OF LAW UNIVERSITY OF UTAH1

383 Universi t y Street Salt Lake City , UT 84112 By: Paul G. Cassell, Esq.

Counsel for Defendant Ghislai ne Maxwell

HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 By: Laura A. Menninger, Esq.

Jeffrey S. Pagliuca , Esq. Ty Gee, Esq.

Counsel for Intervenor Michael Cernovich

RANDAZZA LEGAL GROUP, PLLC 100 Pearl Street , 14 th Floor Hart ford , CT 06103 By : J ay M. Wolman, Esq .

Counsel for Intervenor Alan Dershowitz

EMERY CELLI BRINCKERHOFF & ABADY, LLP 600 Fifth Avenue , 10th Floor New York, NY 10020 By: Andrew G. Celli, Jr ., Esq.

1 This dayt i me business address is provided for identification and correspondence purposes only a nd is not intended to imply institutional endorsement by t he University of Utah for this private representation .



SPA-3

Table of Contents

I . Prior Proceedings ... ........ . .. . ............................ 2

II.The Motion to Intervene is Granted ..... . .. .. .. . ... . ... . .... 11

III. The Issues and the Applicable Standards .... ... ..... ... .... 13

IV . The Motion to Unseal the Discovery Documents is Denied .... 24

V . The Swnmary Judgment Judicial Documents .. .. . .. ... ...... .... 26

VI. The Motion to Unseal the Summary Judgment Judicial Documents

is Denied ..................................... .. . ...... ... ... . 30

VII. Conclusion ... . .......... ... ........ . ...... . . ... ... .... ... . 38



SPA-4

Sweet, D . J.

Third- party proposed i n tervenors The Miami Herald

Media Company (the "Miami Heral d") and investigative journalist

for t he Miami He rald Julie Brown ("Brown") (collectiv~ly, the

"Intervenors"), have moved pursuant to Federal Rule of Civil

Procedure 24 to intervene in this defamation action brought by

plaintiff Virginia Giuffre ("Giuffre " or the "Plaintiff")

against defendant Ghislaine Maxwell ("Maxwell " or the

"Defendant") and to unseal al l o f the documents previous l y

sealed in this action.

Resolut ion, c l arity and certainty, sometimes delayed,

are hallmarks of the judicial process. The present motions

c hal lenge certain r e solutions of thi s settled and closed action

a nd raise significant issues , the conduct of the discovery

process , the enfo r ceability of confidentiality agreement s and

protective order s , the privacy rights of parties and witnesses ,

the public interest and the role of t he media, and the

transparency of the judicial process .

This defama t ion action from its incept i o n in September

2015 t o its settlement in May 2017 has been bitterly contested

and difficult to administer because of the t r u t h or fa l sity of

1



SPA-5

the allegations concerning the intimate , sexual , and private

conduct o f the parties and o f third persons, some prominent ,

some privat e . The instant motions renew t hat pattern and require

a reexamination of the effort t o provide an appropriate

resolution of the issues presented by the litigat i on.

Upon this reexamination and the conclus i ons s et forth

below, the motion to intervene is granted, and the mot i on to

unseal is denied as to t he documents produced in the discovery

p rocess and a s to the summary judgment judicial documents based

o n the diff i cult balan c ing of the confl icting principles

descr ibed be low.

I. Prior Proceedings

I n early 2011 Giuffre, in a n i nterview with journalist

Sh aron Churcher ("Churchern) which was published i n two British

tabloids , described Maxwell's alleged role as someone who

recruited o r facilitated the recruitment of young females for

sexual activity with Jeffrey Epst e i n ("Epsteinn), that she ,

Giuffre , had been inter vie wed by the Federal Bureau of

Investigation (" FBi n) in 2011, and that she had discussed

Maxwell's i nvolvement in t h e descri bed sexual abuse . Maxwell

issued a statement denying t h is account on March 9, 2 01 1 .

2



SPA-6

On January 1, 2015, Giuffre moved to join two a l leged

victims of Epstein who had initiated an action under the Crime

Victims ' Rights Act against the United States, purport ing to

challenge Epstein's plea agreement . Giuffre ' s joinder motion

(the "Joinder Motion") included numerous details about Giuffre's

sexual abuse and listed the perpetrators of her abuse. Giuffre

repeatedly named Maxwell in the Joinder Mo t ion as being

personally involved in the sexual abuse and sex trafficking

scheme created by Epstein.

On January 3, 2015, Maxwell again issued a s tatement ,

responding to the allegations made in connection with Giuffre 's

Joinder Motion . Maxwell stated that Giuffre's allegations

"against Ghi slaine Maxwell are untrue" and that Giuffre's

"claims are obvious lies" (the "January 3 Statement" ) .

Giuffre filed her complaint i n this acti on on

September 21, 2015 (the "Complaint"), setting forth her claim of

defa mation by Maxwell arising out of the Maxwel l January 3

Statement . Giuffre alleged she was the "vict im o f sexual

trafficking and abuse while she was a minor child" and that

Maxwe ll "facilitated" Giuffre's sexual abuse and "wrongfully"

subjected Giuffre to "public ridicule, contempt and disgrace" by

denying Giuffre's allegations . Giuffre further alleged that over

3



SPA-7

the course of a decade she had been sexually abused at "numerous

locations" around the world with prominen t and pol i tically

powerful men.

Vigorous litigation was undertaken by the parties, as

demonstrated by the 950 docket entries as o f August 27 , 2018 ,

including a motion to dismiss the Complaint which was denied by

opinion of February 29, 2016 (the "February 29 Opinion"). The

p rimary issue presented was the truth or fals ity o f the January

3 statement issued by Maxwell, which in turn challenged all t he

previous statements made t o the press by Giuffre and in

Giuffre ' s Joinder Motion. This resulted, understandably, in a

lengthy and tumult uous d iscovery process resulting in 1 8

hearings and 15 d e cisions.

After hearing counsel, it was determined t hat fact

discovery would be completed on Ju l y 29, 2016, 2 see Proposed

Discovery and Case Management Plan , Aug. 1, 2016 , ECF No. 317 .

Both parties early on recognized t he extreme sensi tivities and

privacy interests aris i ng out o f a n effect i ve discovery process

involving the truth or falsity of the allegations at issue . The

2 The parties reserved the right to extend thi s deadline where the parties so a greed, or fo r good cause shown. See Proposed Discovery and Case Management Plan , Aug . 1 , 2016 , ECF No . 317.

4



SPA-8

consequent protective order was entered into by the parties on

agreement , and endorsed by the Court on March 17, 2016 (the

"Protective Order"), and the sealing order was ordered by the

Court o n August 9 , 201 6 (the " Sealing Order"), for the purpose

of protecting the discovery and dissemination o f confidential

information to be exchanged in this action. See Protective

Order , ECF No. 62 . This Protect ive Order allowed the parties to

provide discovery on h ighly private and sensitive subj ects

without it being disclosed to the public , absent an additional

order of t his Court . The Protective Order served "to protec t the

discovery a nd dissemination of confidential information or

infor mation which will properly annoy , embarrass, o r oppress any

party, witness , or person providi ng discovery in t his case ." Ee~·

0kt. 62. The Protective Order applied broadly "to all documents ,

materials, and informat i on , including wi thout limitation,

documents produced , a n s we rs to interrogatories, responses to

r e quests for admission, deposition testimony, a n d other

information disclosed pursuant to the disclosure or discovery

dut ies created by the Federal Rules o f Civil Procedure." Id . ~

1.

The Prot e c tive Order also provided the procedures to

desi gnate any such material as confidential , and to chall e nge

s uch designations. I d . ~~ 8-10. Upon r eview by an attorney

5



SPA-9

acting in good faith, the designating party was to designate

certain confidential information as "CONFIDENTIAL," triggering a

set of protections as to that document for the duration of the

action. Id. ! 8. When a party filed materi al designated as

confidential with the Court, it was to additionally fi l e a

Motion to Seal pursuant to Section 6.2 of the Electronic Case

Filing Rules & Instructions for the Southern District of New

York. Id . ! 10. Absent consent of the producing party,

des i gnated documents " shall not . be disclosed." 3 Id. ! 5.

At the conclusion of the case, the parties could elect

either to return the confidential material to the designating

party or destroy the documents. Id . ! 12. The Protective Order

3 The necessary exceptions to this rule are as follows:

[S]uch information may be disclosed to : a) attorneys actively working on this case ; b) persons regularly employed or assoc i ated with the attorneys actively working on t his case whose assistance is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this case; c) the parties;

d) expert witnesses and consultants retained in connection with this procee ding, to the extent such disclosure is necessary for preparation, trial or other proceedings in this case; e) the Court and its employees . . in this case; f) stenographic reporters who are engaged in proceedings necessarily

incident to the conduct of this action; g) deponents , witnesses, or potential witnesses; and h) other persons by written agreement of t h e parties.

Id. ! 5 .

6



SPA-10

specified that it "shall have no force and e ffect on the use of

any CONFIDENTIAL INFORMATION at trial." Id.

From March 17, 2016 to August 9 , 2016, 26 motions to

seal were filed with the Court pursuant t o t he Protective Order,

.each of which we re granted . On August 9, 2016, an order amended

the Pro tective Order as follows :

To reduce unnecessary filings and delay, it is hereby ordered that letter motions to file submiss i ons under seal pursuant to the Court ' s Prot ective Or der, ECF No. 62, are granted . The Protective Order is amended accordingly such that filing a letter motion seeking sealing for each submission is no longer n ecessary. A party wishing to challenge t he sealing of any particular submi ssion may do so by motion .

Sealing Order, ECF No. 348 . One hundred sixty-seven documents

were sealed pursuant t o the Sealing Order.

On Augus t 11, 2016 , Intervenor Alan Dershowit z

("Dershowitz" or "Intervenor Dershowitz") moved to unseal three

documents: (1) port i ons of a Reply Brief submitted by Churcher

in support of her motio n to quash the subpoena served on her;

(2) emails b e tween Churcher and Giuffre submitted in connection

wi t h the same mot i on; and (3) a draft of a manuscript prepared

by Giuffre submitted in connection with a moti on to ext end a

time deadline. See Dershowitz Motion to Intervene, Aug . 11,

2016 , ECF Nos. 362- 64 . Other than the requested documents which

7



SPA-11

he sought in order to make a public statement, Dersh owitz agreed

to be bound by the Protective Order. See Dershowit z Deel. , ECF

No. 363 i 30 . On November 2 , 2016, the motion wa s denied on the

basis that these documents "were s ubmi tted with respect to t he

discovery process rather than in connection with t h P. rlisposition

of any substantive issue, and therefore are not judicial

documents" such that no presumption o f access exists . Giuffre v .

Maxwell, No. 1 5 Civ . 7433 (RWS) (S .D.N.Y. Nov. 2 , 2 016), ECF No.

496 . Appeal h as been fil ed on that decision .

Pursuant t o severa l amendment s , a t rial date of May

25 , 2017 was determined. See Order , Oct. 30 , 2015 , ECF No. 13 ;

Amended Prop osed Discovery and Case Management Plan , Sept. 30,

201 6 , ECF No. 451; Amended Second Discovery and Case Management

Plan, Feb . 27, 2 017, ECF No. 648 ; Joint Letter, May 8 , 2017, ECF

No. 912.

Expert discovery was completed on November 30 , 2016 .

See id.

Twenty-nine motions in limine were filed by t h e

parties between January 5 , 2017 a nd May 1, 2 01 7 , on which

decision was reserved. See ECF Nos . 520 , 522, 52 4, 526 , 528 ,

8



SPA-12

530, 533 , 535, 561, 563, 567, 608, 663 - 667 , 669 , 671 , 673 , 675,

677, 679 , 681, 683 , 685-86 , 68 9 , 691 .

Maxwell filed a motion fo r summary judgment on January

6 , 20 17 , which was heard on February 1 6 , 2017 and denied by an

opinion filed on March 22 , 2017. See Sealed Document , March 2 4,

201 7 , EC F No. 779 ( the "Summary Judgment Opinion"). The parties ,

in accordance with the agreed upon procedures , were directed to

joint l y fi le a proposed redac ted version of the Summary Judgment

Opinio n consistent wi t h t he Protective Order . The a greed upon

redacted opinion was fil ed with the Court and made public on the

docket o n April 27 , 2017 (the "Redacted Opi nion") . See Redacted

Opinion, April 27 , 2017, ECF No . 872 .

On January 19 , 2017, Intervenor Michael Cernovich

("Cernovi c h" or "Intervenor Cernovich") made a motion t o unseal

the ma t erials submitted in connec tion with Maxwell' s motion for

summary judgment, which the Court denied on May 3 , 2017 (the

"May 3 Opinion") on the basis that Cernovi c h "ha[d] not

established a compelling need for the documents obtained in

discovery which undergird the summary judgment decis i o n. "

Giuffre v. Maxwell, No. 15 Civ . 7433 (RWS ) (S.D.N.Y. Ma y 3 ,

2 017), ECF No . 892. "This act i on is current l y scheduled for

9



SPA-13

trial i n mid-May and a release of contested confidential

discovery mate rials coul d conceivab ly taint the jury pool . " Id.

The parties arrived at a settlement and joint ly

stipulated to dismiss this action on May 24 , 2017. See

Stipul ation of Vol untary Di s missal, ECF No. 916 ; J oint

Stipulation for Dismissal, ECF No. 919. The settlement

presumably is pursuant to the Protective Order and remains

confidential with terms known only to the parties . This case was

closed on May 25 , 201 7 .

On April 9 , 2018, t h e Miami Herald filed the instant

motion, contending t hat all sealed documents in thi s action are

presumptively public under both common law principles and the

First Amendment to the U.S. Constitution , and were sealed

pursuant to an improvident l y g ranted protective order, which

allowed the parties to designate information as confidential

without the particularized judicial s c rutiny required by the law

prior to seali ng . See ECF No . 62 . The motion was joined by

Interveno r Dershowit z, who requested t hat he be advised of any

doc uments unsealed in order to request unsealing of additional

document s to protect his interests , and by Intervenor Cernovich.

Argume nt was heard on May 9 , 2018 , at which time this motion was

considered f ully submitte d.

10



SPA-14

II . The Motion to Intervene is Granted

Federal Rule of Civil Procedure 24 provi des

int ervention of right under Rule 24(a) to anyone who " claims an

interest re l ating to the property or transact ion that i s the

sub j ect of the actio n , and i s so s.ituated t hat dispos i ng of the

act i on may as a practical matter impair or impede the mova n t 's

ability to protect its interest , un l ess exis t ing part i es

adequate ly r e p r esent that interest." Fed. R. Civ . P. 24(a ) .

Per missive i ntervention ma y b e granted t o a n yone "who has a

clai m or de f ense that shares with the main action a common

question of l a w or fact." Fed . R. Civ. P . 2 4(b) .

Because courts, including this one, "have repeatedly

recogni zed that members of t h e press (and other non-parties) may

seek to pursue mod i ficat i o n of confid entiality orders that have

led t o sealing of documents f i l e d with the court," and since

"the appropriate procedural mechanism to do so is a motion to

intervene , " the mot i on of Brown a n d the Miami Hera ld to

intervene is g r anted . See In re Pineapple Antitrus t Litig., No .

04 Md . 1628 (RMB} (MHD} , 2 0 15 WL 5439090, at *2 (S . D.N .Y. Aug .

10 , 2015); Giuffre v . Maxwell, No . 15 Civ . 7433 (RWS} (S.D.N . Y.

Nov. 2 , 20 1 6 ), ECF No. 496 (Opinio n Granti ng Dersho wi t z Motion

to Intervene); Giuff re v . Maxwell , No. 1 5 Civ . 7433 (RWS }

11



SPA-15

(S.D.N.Y . May 3 , 2017) , ECF No. 892 (Opinion Grantin g Cernovich

Motion to Intervene ).

Although the case was closed by the Clerk of Court on

May 2 5, 2017 pursuant t o the settlement agreement , "intervent ion

for the purpose of chal l enging confidentiality orders is

permissible even years afte r a case is closed . " United States v .

Erie Cnty , r N.Y., No . 09 Civ. 849S , 2013 WL 4679070 , at *6

(W . D.N . Y. Aug. 30 , 2013) , revrd on other gds ., 763 F.3d 235 (2d

Cir. 2014); see also In re Pineapple Antitrust Litig. , 2015 WL

5439090 , a t *2 ("[T]here is no implication in the caselaw or in

common sense why the passage of more than three years should

disable a journalist from seeking unsealing.") . Moreover,

"[w]hether deemed a n intervention as of right under Ru le 24(a)

or a permissive intervention under Rule 24(b) , intervention by

the press-a step prel iminary t o determini ng whether any sealed

documents should be d i sclosed- should be granted absent some

compelling justification for a contrary result . " In re Pineapple

Antitrust Litig., 2015 WL 5439090 , at *2 (footnote omitted).

Accordingly , the motion to intervene is granted, a nd

it is appropriate to reopen the case f or the disposition of the

instant motion .

12



SPA-16

III . The Issues and the Applicable Standards

Th e i ssues presented by the parties engage vital

societal concepts , the privacy rights of i ndi viduals, the

judicial process to establish truth or falsity, the transparency

of that process, and freedom of information and of the press . On

these concepts our Circuit has rendered hel pful guidance. 4

4 See United States v . HSBC Bank USA, N.A ., 863 F.3d 125 (2d Cir . 2017) (noting discovery documents l ie beyond the presumption of public access); Bernstei n v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 1 32 {2d Cir . 2016) (weighi ng value of public disclosure of complaint against privacy interests in f avor of access); Newsday LLC v . Cnty. of Nassau, 730 F . 3d 156 (2d Cir. 2013) (finding First Amendment right of access to contempt proceeding) ; N.Y. Civil Liberties Union v. N. Y.C . Transit Auth ., 684 F . 3d 286 (2d Clr . 2012 ) (qualified First Amendment righ t of pub lic access attached to TAB hearings conducted by Ne w York City Transit Authority); United States v. Aref, 533 F . 3d 72 (2d Cir . 20 08) (finding that where classified i nformation presented at trial, if disclosed , would jeopard i ze national securi ty weighed against public access); Lugosch v . Pyramid Co . of Onondaga , 435 F . 3d 110 (2d Cir. 2 006) (existence of confidentia l ity order alone did not defeat presumption of public access); Hartford Courant Co . v . Pellegrino, 380 F . 3d 83 (2d Cir. 2004) ( establishing qualified First Amendment right of access to sealed docket s heets ) ; Sec . Exch . Comm'n v . TheStreet . com, 273 F . 3d 222 (2d Cir . 200 1 ) (holding pretrial deposition test imo ny were not "judicial documents"); DiRussa v . Dean Wi tter Reynolds Inc . , 121 F . 3d 818 (2d Cir . 1997) (sealing file pursuant to confiden tiality agreement between part ies was not abuse of d iscretion); United States v . Amodeo, 44 F . 3d 141 (2d Cir. 1995) ("Amodeo I") (finding it proper for district court t o e dit and r e dact judicial document t o allow access to appropriate portions after weighing competing interests ) ; United States v. Amodeo , 7 1 F . 3d 1044 (2d Cir . 1 995} ("Amodeo II") (presumption of access afforded to particular document filed with court varies with document ' s r e l evan ce to exercise of Art i c l e III functions); Gardner v . Newsda y , 895 F. 2d 74, 79 {2d Cir . 1990) (balancing newspaper's common law right of access

13



SPA-17

Because of t he nature of t his de f amation actio n, the particular

allegations at issue involving sexua l conduct, and the need to

b e able to rely on court determinations, this mot ion presents a

unique pattern fo r decis i on .

Legal scholars and jurists have long sought to refine

the boundaries of privacy, or " t he right to be let alone ," but

the r esult remains a mosaic , the deve lopment of which can be

t raced more t o the unraveling of case law t h a n the priority of

certain rights over others . See Louis Menand, Why Do We Care So

Much About Priva cy? , THE NEW YORKER, June 18, 2018.

The legal impl ications of privacy have been considered

in relat i on to "telegraphy, telephony, instantaneous photography

(snapshots) , dactyloscopy (fingerprint ing) , Social Security

numbers , suburbanization , the Minnesota Multiphasic Personality

Inventory, Fourth Ame ndment jurisprudence, abortion rights, gay

liberation, human-subject research, the Family Educational

Rights and Privacy Act , ' 60 Minutes, ' Betty Ford , the 1973 PBS

documentary ' An American Fami ly,' the Starr Report , the memoir

craze , b logging, and social media." Id . at 6 ; see e.g. , Smith v.

with defendant's privacy rights) ; Joy v. North, 692 F.2d 880 (2d Cir. 1 982 ) (di s tinguishing between documents obtain e d in discovery from those fi l ed pursuant to an adjudication for purposes of the "judicial document" determi nation ).

14



SPA-18

Maryland, 442 U. S . 7 35 ( 197 9) (holding no reasonable expectation

of privacy in phone numbers dialed); Assoc. Press v . U. S. Dep't

of Defense, 554 F.3d 274 (2009) (finding Guantanamo detai nees

enjoy a privacy interest i n the nondi sclosure of their names and

identifying i nformation in records containing allegations of

abuse by military personnel and by other detainees); Nat'l

Archives & Records Admin. v . Favish , 541 U.S. 157 (2004)

(holding Freedom of Information Act ("FOIA") recognizes

surviving family members' right t o personal privacy with respect

to their c lose relative's d eath-scene images).

Privacy has also been "associated with privilege

(private roads and private sales) , " see United States v. Knotts,

460 U.S . 276, 282 (1983 ) (holding that defendant enjoyed a

reasonable expectation of privacy when driving on his premises,

but that no such expectation extended to his travel on public

thoroughfares) , "with confidentialit y (private conversations),"

see Katz v . United States , 389 U.S . 347, 351 (1967) (holding

that defendant did not shed his reasonable expectation of

privacy in holding a pr i vate conversation in a public phone

booth), "with noncomformi ty and dissent ," see Warden v . Hayden,

387 U.S . 295 , 323 (1967) (Douglas , J., dissenting) ("Those who

wrote the Bill of Rights believed that every indivi dual needs

both to communicate with others and t o keep h is affa i rs to

15



SPA-19

himself . That dual aspect of privacy me ans that the individual

should have t he freedom to select for himsel f the t ime and

circumstances whe n he will s hare h is secrets with others and

decide t he extent of that sharing."), "with shame and

embarrassment , " sec Perlman v. U.S . Dep't of Justice, 312 F . 3 d

100, 106 (2d Cir . 2002 ), vacated and remanded, 5 41 U. S. 970

(2 004) , aff'd, 380 F.3d 110 (2d Cir. 20 04) (per cur i am)

(witnesses and third parties "possess strong privacy interests,

because being identified as par t o f a law e nforcement

investigation could s ubject them to 'embarrassments and

harassment '"), "with the deviant and the taboo . .," see

Lawrence v. Texas, 539 U.S. 558 , 573 (2003) (holding that

persons i n a h omosexu a l relationship may seek aut onomy in their

consensua l sexual conduct in t he home j ust as heterosexua l

persons do) , " a nd with subterfuge and concealment , " see U. S .

Dep ' t of Justice v . Reporters Comm . For Freedom of Press , 489

U. S . 749, 763 (1 989 ) (holding that an indivi dual ' s interest in

nondisclosure of an FBI rap s heet was the sort of personal

privacy interest that Congress intended FOIA law enfor cement

exemption to p rotect ); see Menand, supra at 6.

In the law, "privacy functions as a k ind of default

right when an injury has b een inflicted and no other r i ght seems

to suit the case ." Menand, supra a t 6. The right to privacy

16



SPA-20

might emanate from one or many Amendments to the Constitution.

For example, the right prohibiting the government from obtaining

heat wave informat ion from withi n one's home by way of sense

enhancing technology not in general public use arises from

notions of privacy roo t ed in Fourth Amendment jurisprudence , see

Kyllo v . United Sta tes, 533 U.S . 27, 34 (2001), while the right

of a woman, with certain exceptions , to pursue an abortion

beyond the state's police powers e xists i n the zones of privacy

arising from the First, Fourth , Fifth, Ninth and Fourteenth

Amendments, see Roe v. Wade, 410 U.S. 1 13 , (1973) (holding t hat

constitutional right of privacy is broad enough to encompass

woman's decision whether or not to terminate her pregnancy , but

that this right i s not absolute in that the state may properly

assert important i nterest s in safeguarding h ealth, in

maintaining medical standards and in protecting potential life).

The montage of privacy law that has developed around

these disparate concepts does not lend itself t o easy

determinations of privacy r ights . Nevertheless, certain t hings

enjoy an undisputed r ight to privacy: trade secrets , see Kewanee

Oil Co. v. Bicron Corp., 416 U.S. 470, 475-76 {1974) {the holder

o f a trade secre t is protected against the disclosure or

unauthori zed use o f the trade secret); sexual activity (a l though

of what kind it remains to be determined), compare Lawrence, 539

17



SPA-21

U.S. 558 (making it unconstitutional to criminalize homosexual

rel ations) with Eisenstadt v . Baird, 405 U.S . 438 (1972)

(holding unconstitutional Massachuset ts statute permitt ing

marri ed persons to obtain cont r acepti ves but p rohi biting

distribution of contraceptives to single persons); And persona l

characteristi cs-such as t he rad iat i on of heat from one ' s home ,

Kyllo, 533 U. S . 27 , and the unampli f ied sound of one's voice ,

Ka t z , 389 U. S . 347-which make up Fourth Amendment juri sprudence .

These privacy rights, in the context of this action, are

bal a n ced agai nst t h e public ' s r i ght t o access rooted in First

Amendment and common law jurisprudence .

There are two "related but distinct presumptions in

favor of public access to court . . records : a strong form

rooted in t he First Amendment and a s l ightly weaker form based

in federa l common law . " Newsday LLC v . Cnty . of Nassau, 730 F . 3d

156 , 163 (2d Cir . 2013). Generally, the public holds a n

affirmative , enforceable right of access to judicial r ecords

under both t he common law and the First Amendment to t he U. S .

Constitution . " The presumption of access is based on the need

for federal courts, although independent- indeed, part i cul arly

because they are independent- to have a measure of accountability

and for the public to have confidence in the administration of

j ustice . " United States v . Amodeo, 71 F. 3d 1044 , 1048 (2d Cir .

18



SPA-22

1995) ("Amodeo II"). However , "the r ight to inspect .

judicial records is n ot absolute. Every court h as supervisory

power over its own records and f iles, and access h as been denied

where court files might have become a vehicle for improper

purposes" such as us ing records "to gratify spite or promote

scandals" or where files might serve "as r eservoirs of libe l ous

s tatements f or press consumption." Nixon v. Warner Commc 'ns,

Inc. , 435 U. S . 589 , 5 98 (1978); see also Amodeo II, 71 F. 3d at

1051 (internal quotation marks and c itation omitted) ("Courts

have long declined to a llow public access simply to cater to a

morbid craving f o r that which is sensational and impure .").

Pretrial discovery is intended to aid the parties in

their search for t ruth. See Hickman v . Taylor, 329 U. S . 4 95, 501

(1947) (celebrating that " [t]he depos i tion- d i scovery regime set

out by the Federal Rul es of Civil Procedure i s an extremely

permissive one to which cou r ts have l ong ' a ccorded a broad and

liberal treatment to effectuate their p u rpose that civil trials

in the federal court s [need not ] be carried on in the dark,'"

and that d i scovery is a powerful tool for "the parties t o obtain

t he fullest possible knowledge of t he i ssues and facts b e fore

tri a l."). It i s presumed that the t rial itsel f will make the

final determination of trut h or fal s ity . The boundary between

19



SPA-23

discovery and tr i al is sometime s , as here , blurred. The effort

i s assis t ed by the definit i on of " judicial documents ."

Whether discovery or trial , " a court must first

conclude that the document s at issue a r e indeed 'judicial

documents.'" Lugosch v. Pyramid Co. of Onondaga, 435 F. 3d 110,

119 (2d Ci r. 2006); see also id . (noting that " only judicial

documents are subject to a presumptive right of public access,

whether on common l aw or Fist Amendment grounds."). If the

document is a judicia l document , courts next ask whe ther the

presumption of access is a product of the commo n law right of

access, or of t he more robust First Ame ndme n t right to access

certain judicial documents . Id. at 11 9-2 0 . It is a given

accepted by t he Protec tive Order that the tria l and a l l trial

documents are accessible and public absent special

c i rcumstances.

Under the common law approach , once a document is

classified as a judici al document , t he p resump tio n of access

a ttaches . Id. a t 119 . The court mus t then determine the weight

of the presumption of access, wh ich is a function of "the role

of the material at issue in the exercise of Article III judicial

power" a nd " t he resultant value o f such information to those

monitoring the federa l courts . " See id . ; Stern v. Cosby, 529 F.

20



SPA-24

Supp. 2d 417, 420 {S.D.N.Y. 2007) (internal citations omitted)

("the court must determine the weight of the presumption, that

is, whether the presumption is an especially strong o ne that can

be overcome only by extraordinary circumstances or whether the

presumption is a low one that amounts to little more than a

prediction of public access absent a countervailing reason or

whether the presumption i s somewhere in between."). Documents

traditionally fal l somewhere on a continuum "from matters that

directly affect an adjudication to matters that come within a

court's purview solely to ensure their irrelevance." Amodeo II,

71 F . 3d at 1049. Such a presumption under the common law may be

overcome by demonstrating that sealing serves to further other

"substantial interests," such as "a third party's personal

privacy interests, the public's safety, or preservati on of

attorney-client privilege." Under Sea l v. Under Seal , 273 F.

Supp . 3d 460, 467 (S.D.N.Y. 2017) (collecting cases).

However, the First Amendment "provides the public and

the press a constitutional right of access to all trials,

criminal or civil . " Id. at 468 {citing Richmond Newspapers, Inc.

v. Virginia , 448 O. S . 555 , 580 (1980)) {internal c i tation

omitted) . This right applies specifically to "related

proceedings and records" and "protects the public against the

government ' s arbitrary interference wi t h access to important

21



SPA-25

information." N.Y. Civil Liberties Union v . N. Y . C. Transit

Auth ., 684 F.3d 286 , 298 (2d Cir. 2012) (citations omitted) . As

noted above , the Protective Order specified t hat confidential

material would not be protected with respect to any document

proffered at trial .

The Second Circuit has recognized two approaches f o r

determining whether the First Amendment right of access extends

to particular judicial r ecords. Lugosch, 435 F.3d at 120. In the

first approach, the "logic and experience" test, a court

evaluates whether t he docume nts are those that "have

historically been open to the press and general public" and for

which "public access plays a significant positive role in the

functioning of the particula r process in question." Id . Courts

applying the "logic and experience" test have generally found a

presumption of openness, based on the common law approach.

Hartford Courant Co . v . Pellegrino, 380 F.3d 83, 92 (2d Cir .

2004) .

In the second approach, First Amendment protection

attaches t o judicial documents "derived from or a necessary

corollary of the capacity to attend the relevant proceedings."

Id . at 93 . Accordingly, the Second Circuit has found "the right

to inspect [judicial] documents derives from the public nature

22



SPA-26

of particular tribunals ." Id.; see also id. (observing t hat

"[o]ther c ircuits that have addressed [the] question h ave

construed the constitutional right of acces s to apply to writ ten

documents submitted in connection with judici al proceedings that

themselves implicate the right of access.").

To be clear , the First Amendment creat es only a

presumptive right of access. Newsday, 730 F.3d at 1 64 - 65. "What

offends the First Amendment is the attempt to do so wit hout

suffic ient justification ." N.Y. Civil Liberties Union, 684 F.3d

at 296 . Under either approach , a presumpt ive right of access may

be overcome by "specific, on-the-record findi ngs that sealing is

necessary to preserve highe r values a nd on l y if the sealing

order is narrowly tailored to achieve that aim." Lugosch, 435

F.3d at 124 . The party seeking to keep t he judicial documents

under seal carries the burden of demonstrating t hat higher

values overcome the presumption of public access, DiRussa v .

Dean Witter Reynolds Inc., 121 F.3d 818 , 826 (2d Cir. 1997), and

such a showing must be supporte d by "findings specific enough

that a reviewing court can de termine whether t he c l osure order

wa s properly entered." Press-Enter. Co . v . Superior Court of

Cal ., Riverside Cnty., 464 U.S . 501, 510 (1984).

2 3



SPA-27

IV. The Motion to Unseal the Discovery Documents is Denied

The parties early on agreed that the release o f

confidential information inherent to the discovery process could

expose the parties to annoyance, embarrassment, and opprP.ssion

given the h i ghl y sensitive nature of the underlyi ng allegations .

The parties mutually assented to entering i nto t he Protect ive

Order. The parties relied upon its provisions, as did dozens of

witnesses and other non-parties. Documents designated

confidentia l included a range of al l egat ions of sexual acts

involving Plaintiff and non-parties t o this litigation, some

famous, some not; the identities of non- parties who either

allegedly engaged in sexual acts with Plaintiff or who allegedly

facilitated such acts ; Plaintiff's sexual history and pr i or

allegations of sexual assault; and Plaintiff's medical history.

The Protect i ve Order has mai ntained the confidentiality of these

sensitive materials. One hundred sixt y-seve n discovery documents

were added to the docket and sealed pursuant to the Protective

Order.

Further , upon the issuance of a n opinion by t his

Court , the parties were directed to jointly file a proposed

redacted version consistent with the Protective Order as set

f orth above . The parties submitted the Redacted Opi n i on to

24



SPA-28

maintain the confidentiality established by the Protective

Order .

Except as discusse d below, the documents seale d in the

course of discovery were neither relied upon by this Court in

the rendering of a n adjudication, nor "necessary to or hel pful

in resolving [a] motion." See Alexander In teractive, Inc. v .

Adorama, Inc., No. 12 Civ . 6608 (PKC) (JCF) , 2014 WL 4346174 , at

*2 (S .D .N .Y. Sept. 2 , 2014) . Moreover, our Circuit has "long

recognized that documents ' passed between t he parties in

discovery[] lie entirely beyond t he . reac h' of the

presumption of publ ic access." United States v . HSBC Bank USA,

N.A., 863 F .3d 125 , 1 39 (2d Cir . 2017); see also Sec. Exch .

Comm'n v. Am. Int'l Grp., 71 2 F .3d 1, 24 (D.C. Cir. 2013)

("[T]hough filing a document with the court i s not sufficient t o

render the document a jud i cia l record, i t is ver y much a

prerequisite."). To provide "unthi n kabl e access to every item

t urned up in the course of litigation would be unthinkable ."

Amodeo II , 71 F.3d at 1048. Accordingly , t he motion to unseal

the discovery documents is denied.

25



SPA-29

V. The Summary Judgment Judicial Documents

Under the common law and First Amendment, the primary

inquiry is whether the documents at issue are "judicia l

documents." To be a judicial document , "t:he it.em filed must be

re l evant to the performance of the judicial function and useful

in the judicial process ." Lugosch, 435 F.3d at 119; see HSBC

Bank USA/ N.A., 863 F. 3d at 134 ("The threshold merits quest i on

i n this case is whether the [sealed document] is a judicial

document , as only judicial documents are subj ect to a

presumptive right of public access , whether on common law or

First Amendment grounds."). In making such a determination,

courts consider the "relevance of the document's specific

contents to the nature of t he proceeding" and t he degree to

which "access to the document would materially assist the public

in understanding the issues before t he . court, and in

evaluating the fai rness and integrity of the court's

proceedings." Bernstein v . Bernstein Litowitz Berger & Grossmann

LLP, 814 F.3d 132, 139 (2d Cir . 2016) (citing Newsday LLC, 730

F.3d at 166- 67) (alteration omitted).

Documents fi l ed with the court vary i n their status a s

' judicial documents. ' At one end of the continuum, "[t]he me r e

filing of a paper or document with t h e court i s insufficie n t to

26



SPA-30

render that paper a judicial document subject to the right of

p ubli c access." United States v . Amodeo, 44 F . 3d 141 , 145 (2 d

Cir. 1995) ("Amodeo I"). Likewi se , the filing of "deposition

transcripts, interrogatories , and documents exchanged in

d i scovery" with a court is not suffici ent to reach the status of

judicial document, and to cons i der them as such "would

constitute a radical expansion of the 'public acce ss' doctrine."

HSBC Bank USA, N.A ., 863 F . 3d at 139 (citing Amodeo II , 71 F . 3d

at 1048) ; accord Joy v. North, 692 F. 2d 880, 893 (2d Cir. 1982)

("Discovery involves the use of compulsory process t o faci lit ate

orderly preparation for trial, not to educate or titillate the

public. Private matters which are d iscoverable may, upon a

showing of cause , be put under seal under Rule 26(c) , in the

fi rst instance."). At the other e nd, the " case law i s clear that

pleadings and summary judgment papers . . are judicial

documents upon filing . " Id. at 141-42 . The Second Circuit has

repeatedly held that all documents submitted in support of a

motion for summary judgment , whether or not relied upon, "are

unquestionabl y judicia l documents under the common law."

Lugosch, 435 F.3d at 123. The same appl ies for complaints. See

Bernstein , 814 F.3d at 140 (internal citation omitted) ("A

complaint , which initiates judi cial proceedings, is the

cornerstone of every case , the very arc hitecture of the lawsuit,

27



SPA-31

and access to the complaint i s almost always necessary if the

public is to under s t and a court's decis ion ." ) .

Some where in the middle l ie documents "submitted

in suppo rt of a motion to compel discovery [which]

presumably will be necessary to or hel pful in resolving that

motion . They are, therefore , judicial documents . " Alexander

Interactive/ Inc., 2014 WL 434617 4, at *2; see al so In re

Omnicom Grp./ In c. Sec. Litig., No. 02 Civ . 4483 (RCC) (MHD) ,

2006 WL 3016311, at *2 (S.D .N. Y. Oct. 23, 2006) (internal

c itation omitted) (finding that a "series of letter briefs with

accompanying exhibits . certai nly qualify as judicial

documents" because t hey are "relevant to the perfo r man ce of the

judicia l functi on and useful in the judicial process.").

The Summary Judgment Opin ion refers to facts drawn

from Maxwell's Memorandum of Law in Support of Maxwell's Motion

for Summary Judgment ; Maxwel l ' s Rule 56.1 Statement of Material

Facts ; Gi u ffre ' s Statement of Contested Facts a nd Giuffre ' s

Undisputed Facts; a nd Maxwell ' s Repl y t o Gi uffre 's Statement of

Contested Facts and Giuffre 's Undisputed Facts pursuant to Local

Civi l Rule 56. 1 (the "Factual Statements") .

28



SPA-32

The Factual Statements, citing the evidence upon which

they rely, f ormed the basis of or the recital of both

uncontested and disputed material facts contained in the Summary

Judgment Opinion. The recital and the Factual Statements

constitute the evidentiary mirror of the issues presented by the

Complaint. That recital descri bed t he issues to be resolved at

trial , if, as was the case, the summary judgment was denied.

This portion of the Summary Judgment Opinion and the Factual

Statements (the "Summary Judgment Judicial Documents") reveals

the substance of the evidence jointly deemed confidential by the

parties. It was therefore redacted by the parties.

As a matter of law, papers submitted in support of the

summary judgment motion are "judicial documents" triggering a

presumption of access subject to balancing under the First

Amendment and common law if they "directly affect an

adjudication." Lugosch, 435 F.3d at 1 23 ("As a matter of law, we

hold that the contested documents-by virtue of having been

submitted to the court as supporting material in connection with

a motion for summary judgment- are unquestionably judic i al

documents under the common law."). The Summary Judgment Judicial

Documents are therefore judicial documents subject to a

presumption of access.

29



SPA-33

VI . The Motion to Unseal the Summary Judgment Judicial

Documents is Denied

Intervenors contend that the Summary Judgment Judi cial

Documents should b e unsealed because they carry a strong

presumption of acc ess under both the First Amendment and common

l aw , and there are no compelli ng reas ons to keep them sealed .

Because i t has been d etermined that the Summa ry

Judgment Opinion and the materi als submitted in connection with

it are judi c i al document s, the weight of the presumpt ion under

the common l aw must be determined, in addit ion to any

countervaili ng factors . S ee Bernstein, 8 14 F . 3d a t 143 (citing

Lugosch , 43 5 F . 3d at 11 9- 20) (interna l quotation ma r ks omitted)

(not i ng that the fi nal step of t he inquiry as to the summary

judgment pape rs is the "weight-of-the-presumption analysis :

ba l ancing the value of p ublic discl osure and coun t erva i l i ng

factors . ") .

Intervenors asse rt that because Defendant ' s motion for

summary judgment fits squarely into t he definition of a j udicial

document , those materi a ls are entit l ed to the strongest

presumption of access. Maxwe ll contends that the Int ervenors are

not in a position to det ermine the wei ght of the presumption

30



SPA-34

afforded each summary judgment document because they have no t

seen each document.

While the Summary Judgme n t Judicia l Document s are

entitled to a presumption of access, this presumption is l P.ss

"where a district court denied t he summary judgment motion,

essentially postponing a final determination o f substantive

l egal rights , [because ] t he public interest in access is not as

p r essing ." See Amodeo II, 7 1 F.3d a t 1049 (quoting In re

Reporters Comm . f o r Freedom of the Press , 773 F.2d 1325 , 1342

n. 3 (D . C. Cir. 1985) (internal quotation marks omitted)

(emphas i s in o rigi nal) (alteration added) ). Because the mot i on

for summary judgment was d enied by the Court on March 22 , 20 1 "/ ,

the Summary Judgment Judicial Document s are entitled to a lesser

presumption of access .

"Notwithstanding the presumpti on of access under both

the common law and the First Amendment, the documents may be

kept under seal if ' countervailing factors' i n the common law

f ramewor k or 'higher values ' in the Firs t Amendment framework so

demand ." Lugosch , 435 F. 3d at 125 . At common law, the

presump tion of access may be overcome by demonstrat i ng that

"sealing wil l further o t her substantial interests suc h as a

t hird party ' s per sona l privacy interest s , t he public's safety,

31



SPA-35

or preservation of attorney-client privilege." Under Seal, 273

F. Supp . 3d at 467; see Amodeo II , 71 F.3d at 1050 (describing

law enforcement interests and privacy of third persons as

factors that weigh against the presumption of access) ; United

States v . Aref, 533 F.3d 72, 83 (2d Cir. 2008) (affirming a

sealing order "[g]iven the legitimate national-security concerns

at play"); Lugosch, 435 F.3d at 125 (stating that attorney-

client privilege "might well be . a compelling reason11 to

overcome the presumption of access); see also Sec. Exch. Comm'n

v. TheStreet.com, 273 F.3d 222, 234 (2d Cir. 2001) (noting that

where the presumption in favor of public access does not apply,

and a document was filed under seal pursuant to a protective

order, "a s trong p resumption against public access" applies if a

party to the protective order objects on privacy grounds and

establishes " reasonabl[e] reli[ance] on the protective order.").

Here , the primary countervailing factor is "the

privacy interests of those resisting disclosure ." Amodeo II, 71

F.3d at 1050; see also Gardner v. Newsday, 895 F.2d 74, 79 (2d

Cir. 1990) (" [T l he common law right of access is qualified by

recognit i on of the privacy rights of the persons whose intimate

relations may thereby be disclosed . ") . The Second Circuit has

repeatedly held that "[t]he privacy interests of innocent third

parties . . should weigh heavily in a court's balancing

32



SPA-36

equation.ll Id. at 79-80; see also Amodeo II, 71 F.3d at 1051

("Such interests, while not always f itting comfortably under the

rubric 'privacy,' are a venerable common law exception to the

presumption of access.ll).

In assessing the weight to be accorded an assertion of

a right of privacy, "courts should f irst consider the degree to

which the subject matter is traditionally considered private

rather than public.ll Amodeo II, 71 F . 3d at 1051. For example,

"[f]inancial records of a wholly owned business, family affairs,

illnesses, embarrassing conduct with no public ramifications ,

and similar matters will weigh more heavily against access than

conduct affecting a substantial portion of the public . ll Id. ; but

see United States v . Silver, No. 15 Cr. 93 (VEC), 2016 WL

1572993, at *6 n.5 (S.D.N . Y. April 14, 2016) (emphasizing that

"the expectation of privacy in an amorous relationship where

official government business and personal benefit are

intertwined is necessarily less than an amorous relationship

between wholly private c itizens or between a private c iti zen and

a government official where there is no i ntersection with state

business . In the case of the former , there is the ever- present

risk of public scrutiny and a l egitimate public interest in

e nsuring that government officials are acting in the public' s

interest rather than in the private interest of a paramour.").

33



SPA-37

This is a defamation case involving the truth or

falsity of the underlying allegations of the sexual assault and

sexual trafficking of minors involving public and private

persons. The Summary Judgment Judicial Documents openly refer to

and discuss these allegations in comprehensive detail. This

establishes a strong privacy interest here.

The "nature and degree of injury must a l so be

weighed," which means that consideration must also be given to

"the sensitivity of t he information and the subject but also of

how the person seeking access intends to use the information."

Amodeo II, 71 F.3d 1051.

The privacy interests of Maxwell, Giuffre, Dershowitz,

as well as dozens of third persons, all of whom relied upon the

promise of secrecy outlined in the Protective Order and enforced

by the Court, have been implicated. It makes no difference that

Giuffre and Dershowitz have chosen to waive their privacy

interests to the underlying confidential information by

supporting this motion, as Maxwell has not agreed to such a

waiver.

More importantly , the dozens o f non-parties who

provided highly confidential information relating to t h e ir own

34



SPA-38

stories provided that information in reliance on the Protective

Order and the understandin g t hat it would continue to protect

everything it claimed it would. This interest is amp l i fied

where , as here, t h e Summary Judgment Judicial Documents " contain

sensitive and personal information aho11t. the sexual abuse of [J

minor [s ] ." Ka vanagh v. Zwilling, 997 F. Supp. 2d 2 41, 256

(S.D.N.Y. 2014). To disregard this protection now wou ld be to

implicate the rights of dozens of individuals who shared private

information under the trusted understanding that it would remain

sealed . See Ga rdner, 895 F .2d at 79 ("[T]he privacy i nterests of

innocent third parties as well as thos e of defendants that may

be harmed by disclosure of the Title III material should weigh

heavily in a cou rt ' s balancing equatio n . The job of

prot ecting such interests r es ts heavily wi th the t rial judge ,

since all the parties who may be harmed by disclosure are

typically not before the court.u) .

The same considerat i ons apply under the First

Amendment, where the "presumption i s rebuttable upon

demonstration that suppres s i on ' is essential to prese r ve higher

values and i s narrowly tailored to serve that i n terest .'"

Hartford Courant Co. , 380 F.3d at 96 (quoting Press-Enterprise

Co . v. Superior Court o f Cal., Riverside Cnty ., 4 64 U.S . 501,

510 (1984)) (internal citation omitted) What must b e determined

35



SPA-39.. .~ '

is the "harm to a compelling interest , " Under Seal, 273 F. Supp.

3d at 469 , balanced against, in this case , a generalized public

interest. So long as "specific, o n the record findings are made

demonstrat i ng t hat ' closure is essential to preserve h igher

values and i s narrowly tailorerl to ser ve that interest, ' " the

documents may be sealed. In re N . Y . Times Co ., 828 F.2d 110, 116

(2d Cir. 1987) (citing Press -Enterprise Co. , 464 U.S. 510).

The compelling interest is the privacy interest

discussed above . It is also the integrity of the judicial

process .

The parties by their conduct have demonstrated

reliance on the Protective Order and i ts provisions. It is not

necessary to have forty years of judicial experience to know

that reliance on the confidentiality agreement with respect to

the evidence relating to the truth or falsity of the Giuffre

allegations was a significant, if not determinative , facto r i n

the confidential settlement arrived at . That one of the parties

to that settlement , Giuffre, no longer opposes unsealing does

not vit i ate the strength of the agreement . I ndeed given the

entire context of the litigation it may demonstrate the need to

compel the parties to stick to t heir bargain . See id. (noting

that this Circuit is ins tructe d to "give added weight to fair

36



SPA-40

trial and privacy interests where requiring disclosure will have

a potentia l chilling effec t o n fut u re movants.").

While the Intervenors cite to the public interest,

there are no partic ul ars identified that point to t h e need for

evidence gathered from t he period from 2015 to 2016 concerning

events that t ook place over 15 years ago. See Lugosch, 435 F.3d

at 125 ("Notwithstanding t h e presumption of public acce ss . • I

the documents may be kept under seal if .

the First Amendment frame work so demand.").

'higher values' in

Further, as the Supreme Court noted in Nixon v. Warner

Communicat i on s, Inc., 435 U. S . at 589 , "courts have the power to

insure that their r ecords are not used to gratif y p rivate spite

or promote pub l i c scandal, and have refused to permit their

files to serve as r eservoirs of l ibelous statements f or press

consumption ." (interna l quotation mar ks omi tted) .

The unsealing of the Summary Judgment Judicial

Docume n t s would both promote scandal arising out of unproven

potent ially l ibe l ous statements- part icul a rly in light of the

allegation s relat i ng to t h e sexual abuse of minors by public

figures , a nd defeat the compelling privacy interests of the

parties a nd non- parties who relie d on the Protective Order.

37



SPA-41

In light of the above, the "extraordinary

circumstances," Stern, 529 F. Supp. 2d at 420, have been

established. The common law and First Amendment presumptions of

access have been outweighed in favor of maintaining the sealing

agreed upon by the parties and relied upon by third parties.

VII. Conclusion

Based on the facts and conclusions set forth above,

the Intervenors' motion to intervene is granted, and this motion

to unsea l is denied and the action is closed.

It is so ordered.

New York, NY

Augu•tf). 7 2018

38

-.~ / ,,

U.S.D.J.
