Case Information
‐ 2868; ‐ ‐ cv(L) Brown v. Maxwell; Dershowitz v. Giuffre
In the United States Court of Appeals for the Second Circuit A UGUST T ERM No. ‐ ‐ cv
J ULIE B ROWN , M IAMI H ERALD C OMPANY , Intervenors ‐ Appellants , v.
G HISLAINE M AXWELL , Defendant ‐ Appellee , V IRGINIA L. G IUFFRE , Plaintiff ‐ Appellee
No. ‐ ‐ cv(L) No. ‐ (CON) No. ‐ 1722(CON)
A LAN M. D ERSHOWITZ , M ICHAEL C ERNOVICH , DBA C ERNOVICH M EDIA
Intervenors Appellants *2 V .
V IRGINIA L. G IUFFRE , Plaintiff ‐ Appellee ,
G HISLAINE M AXWELL , Defendant ‐ Appellee . [*] On Appeal from United States District Court Southern District New York A RGUED : M ARCH D ECIDED : J ULY Before: C ABRANES P OOLER D RONEY , Circuit Judges Intervenors Appellants Alan Dershowitz, Michael Cernovich, Miami Herald Company (with reporter Julie Brown) appeal certain orders United States Southern New York (Robert W. Sweet, Judge ) denying respective unseal filings defamation suit. conclude *3 District failed conduct the requisite particularized review when ordering sealing issue. At the same time, we recognize potential damage privacy reputation accompany disclosure hard ‐ fought, sensitive litigation. therefore clarify legal tools courts should use safeguarding integrity dockets. Accordingly, VACATE Court’s orders entered on November 2016, May 3, 2017, August ORDER unsealing summary judgment record described further herein, REMAND cause for particularized review remaining materials.
Judge Pooler concurs opinion except insofar it orders immediate unsealing record without remand.
S ANFORD L. B OHRER (Christine N. Walz, Madelaine J. Harrington, New York, NY, on brief ), Holland & Knight LLP, Miami, FL, Intervenors ‐ Appellants Julie Brown Miami Herald.
T Y G EE (Adam Mueller, brief ), Haddon, Morgan Foreman, P.C., Denver, CO, Defendant Appellee Ghislaine Maxwell.
P AUL G. C ASSELL (Sigrid S. McCawley, Boies Schiller Flexner LLP, Ft. Lauderdale, FL, on brief ), S.J Quinney College Law, University Utah, Salt Lake City, UT, for Plaintiff ‐ Appellee Virginia L. Giuffre. A NDREW G. C ELLI J R (David A. Lebowitz, on brief ), Emery, Celli, Brinckerhoff & Abady LLP, New York, NY, for Intervenor ‐ Appellant Alan M. Dershowitz.
M ARC R ANDAZZA (Jay Marshall Wolman, Las Vegas, NV, brief ), Randazza Legal Group, PLLC, Hartford, CT, Intervenor ‐ Appellant Michael Cernovich.
J OSÉ A. C ABRANES Circuit Judge :
Intervenors Appellants Alan M. Dershowitz (“Dershowitz”), Michael Cernovich (“Cernovich”), Miami Herald Company (with reporter Julie Brown, jointly “ Herald ”) appeal certain orders United States Southern District New York (Robert W. Sweet, Judge ) denying respective unseal filings defamation suit. conclude failed conduct requisite particularized review when ordering sealing issue. At same time, *5 recognize the potential damage to privacy and reputation accompany disclosure of hard ‐ fought, sensitive litigation. therefore clarify legal tools courts should use safeguarding integrity of dockets. Accordingly, VACATE District Court’s orders entered November 2, 2016, May 3, 2017, and August 2018, ORDER unsealing of record as described further herein, and REMAND cause particularized review of remaining materials.
I. BACKGROUND
A. Jeffrey Epstein’s Conviction CVRA Suit The origins case lie decade ‐ old criminal proceeding against financier Jeffrey Epstein (“Epstein”). On June Epstein pleaded guilty Florida state charges soliciting, procuring person under age eighteen for, prostitution. The charges stemmed sexual activity with privately hired “masseuses,” some whom were under eighteen, Florida’s age consent. Pursuant agreement state federal prosecutors, Epstein pleaded state charges. He received limited jail time, registered sex offender, agreed pay compensation his victims. return, prosecutors declined bring federal charges.
Shortly after Epstein entered his plea, two his victims, proceeding “Jane Doe 1” “Jane Doe 2,” filed suit against Government Southern Florida under Crime Victims’ Rights Act (“CVRA”). victims sought nullify plea *6 agreement, alleging Government failed to fulfill its legal obligations to inform and consult them process leading up Epstein’s plea deal. [1]
On December 30, 2014, two additional unnamed victims—one whom has now self ‐ identified as Plaintiff ‐ Appellee Virginia Giuffre (“Giuffre”)—petitioned join CVRA case. These petitioners included filings not only descriptions sexual abuse by Epstein, but also new allegations sexual abuse by several other prominent individuals, “including numerous prominent American politicians, powerful business executives, foreign presidents, well ‐ known Prime Minister, other world leaders,” well Dershowitz (a long ‐ time member Harvard Law School faculty who had worked Epstein’s legal defense) Defendant ‐ Appellee Ghislaine Maxwell (“Maxwell”). [2]
Dershowitz moved intervene, seeking “strike outrageous impertinent allegations made against him request show cause order attorneys made them.” Exercising its authority “strike pleading insufficient *7 defense any redundant, immaterial, impertinent, or scandalous matter . . on its own,” Florida District (Kenneth A. Marra, Judge ) sua sponte struck all allegations against additional parties pleadings, including those against Dershowitz, and therefore denied Dershowitz’s motion moot.
The stricken allegations, however, quickly found way into press, several media outlets published articles repeating Giuffre’s accusations. response allegations, on January 3, 2015, Maxwell’s publicist issued press statement declaring that Giuffre’s allegations “against Ghislaine Maxwell are untrue” that her “claims obvious lies.”
B. Giuffre Sues Maxwell
On September 21, 2015, Giuffre filed underlying action against Maxwell Southern New York. Giuffre alleged Maxwell had defamed her through other statements. Extensive hard fought discovery followed. Due volume sealing requests filed during discovery, August 2016, entered Sealing Order effectively ceded control sealing process parties themselves. Sealing Order disposed requirement parties file individual letter briefs request sealing prospectively granted all parties’ *8 future sealing requests. total, documents—nearly one ‐ fifth docket—were filed under seal. These sealed documents include, inter alia motions compel discovery, motions sanctions and adverse inferences, limine and similar material.
On January 6, 2017, Maxwell filed motion summary judgment. parties submitted memoranda law and supporting exhibits contesting motion under seal. On March 22, 2017, denied motion heavily redacted ‐ page opinion. Once again, entire summary judgment record, including unredacted version opinion denying summary judgment, remained under seal. On May 24, 2017, Maxwell Giuffre executed settlement agreement, and case was closed next day.
C. Motions Intervene Unseal
Over course litigation before Judge Sweet, three outside parties attempted unseal some all material. On August 11, 2016, Dershowitz moved intervene, seeking unseal three that, he argues, demonstrate Giuffre invented accusations against him. On January 2017, Cernovich, independent blogger self described “popular political journalist,” moved intervene, seeking unseal record, Dershowitz joined his motion. On April after case had settled, Herald moved intervene unseal *9 the entire docket. The District granted each of these motions intervene, but denied related requests unseal in orders entered November 2, 2016, May 3, 2017, and August 27, 2018, respectively.
The Appellants timely appealed each of orders denying their respective motions unseal. Although each Appellant seeks release different set documents, all argue failed analyze individually properly apply access documents. therefore ordered appeals heard in tandem held argument March 2019.
On March we issued order show cause why we “should unseal summary judgment motion, including any filed connection with this motion, Court’s summary judgment decision.” parties timely filed their responses.
II. DISCUSSION
There two categories issue these appeals: (1) summary judgment record, which includes parties’ briefs, statements undisputed facts, incorporated exhibits; (2) filings made course discovery process respect limine Opinion, explain our law requires unsealing materials and individualized review remaining materials.
While law governing public access to these largely settled, yet adequately addressed potential harms often accompany access. These harms apparent. Over forty years ago, Supreme observed that, without vigilance, courts’ files might “become vehicle improper purposes.” Our legal process already susceptible to abuse. Unscrupulous litigants can weaponize discovery process humiliate embarrass adversaries. Shielded by “litigation privilege,” bad actors can defame opponents pleadings depositions without fear lawsuit liability. Unfortunately, public access has potential exacerbate these harms privacy reputation ensuring damaging irrevocably enters public record.
We therefore take opportunity describe tools available courts protecting integrity judicial process, emphasize courts’ responsibility exercise these powerful tools. also caution critically assess allegations contained pleadings.
A. Standard of Review
When reviewing a district court’s decision to seal a filing or maintain such a seal, “we examine court’s factual findings for clear error, its legal determinations de novo, its ultimate decision seal unseal abuse of discretion.”
B. Summary Judgment Materials
With respect first category of materials, it is well ‐ settled that “documents submitted a its consideration a motion are—as matter law—judicial documents which strong access attaches, under both common law First Amendment.” light strong First Amendment presumption, “continued sealing may justified only with specific, on ‐ ‐ record findings that sealing necessary preserve higher values only if sealing order narrowly tailored achieve that aim.” *12 In this case, the District Court erred in several respects. [14] First, it failed give proper weight the presumption of access that attaches documents filed in connection summary judgment motions. District reasoned that the summary judgment were “entitled a lesser of access” because “summary judgment was denied Court.” [15] In assigning a “lesser presumption” materials, District relied on a single sentence of dicta from our decision in United States v. Amodeo . [16] have since clarified, however, this sentence was based on “quotation partial concurrence partial dissent D.C. Circuit . . [and] thus not considered decision of either this or D.C. Circuit.” [17] fact, we expressly rejected proposition “different types of might receive different California, Riverside Cty. , 464 U.S. 510 (1984); protection of attorney client privilege, Lugosch , 435 F.3d at 125; “the danger impairing law enforcement efficiency,” SEC. TheStreet.Com F.3d (2d Cir. 2001); “the privacy interest those who resist disclosure,” id. Our discussion here focuses specifically District Court’s denial Herald’s motion unseal entire record. Because decision grants relief all Appellants, need not discuss any separate, additional error
Court’s denial earlier unseal. Giuffre, F. Supp. 3d at 444. F.3d (2d Cir. 1995) (“ Amodeo II ”) (“One judge [in Columbia Circuit] has pointed out, example, where
denied motion, essentially postponing final determination substantive legal rights, interest access pressing.” (internal quotation marks omitted; emphasis original)). Lugosch
weights based on extent to which they were relied upon resolving [a] motion [for summary judgment].” [18]
Second, contravention our precedent, Court failed review documents individually and produce “specific, on ‐ record findings that sealing is necessary preserve higher values.” [19] Instead, made generalized statements about record whole. [20] This too was legal error.
Finally, upon reviewing summary judgment connection with appeal, we find that there no countervailing privacy interest sufficient justify continued sealing. Remand respect these documents thus unnecessary. Accordingly, avoid any further delay, [21] order that summary judgment (with minimal redactions) be unsealed upon issuance our mandate.
*14 C. The Remaining Sealed Materials
The law governing disclosure of remaining in case is only slightly more complex. Supreme has recognized a qualified right “to inspect copy judicial records documents.” [23] defining “judicial records documents,” we have emphasized “the mere filing of a paper document with insufficient render paper a judicial document subject right access.” [24] Instead, “the item filed must be relevant performance judicial function useful in judicial process order it designated a judicial document.” [25]
As our precedent makes clear, a “perform[s] judicial function” only when it rules currently before it, but also when properly exercising its inherent “supervisory powers.” A security numbers. also redacted names alleged minor victims sexual abuse deposition testimony police reports, well deposition responses concerning intimate matters where questions were likely only permitted—and responses only compelled—because strong expectation continued confidentiality. See Fed. R. Civ. P. 5.2. While appreciate views expressed Judge Pooler’s separate opinion, panel majority believes efforts invested three former judges reviewing these adequately address those concerns. Nixon , U.S. 597–98. United States v. Amodeo F.3d (2d Cir. 1995) (“ Amodeo I ”). Id. Cf. United States HSBC Bank USA, N.A. (2d Cir. 2017)
(explaining that, considering whether report monitor charged with assessing compliance deferred prosecution agreement *15 document is thus “relevant to the performance of the judicial function” if it would reasonably have the tendency to influence a district court’s ruling a motion or in the exercise of its supervisory powers, without regard to which way the ultimately rules or whether the document ultimately in fact influences the court’s decision. Accordingly, if in applying these standards, a determines documents filed by a party are relevant performance of a judicial function, no presumption of access attaches.
Once item deemed relevant exercise of judicial power, “the weight be given of access must be governed role of at issue exercise of Article III judicial power resultant value of such information those document, “[i]f district court’s conception its supervisory power context were correct, Monitor’s Report would quite obviously relevant performance judicial function useful judicial process” (internal quotation marks omitted)). Whether a specific judicial decision constitutes a “performance judicial function” question law. Accordingly, we review determinations de novo Id. at Amodeo I F.3d 145–46 (concluding documents were relevant performance function because they would “informed” district court’s decision whether discharge retain Receiver); see also FTC. Standard Fin. Mgmt. Corp. (1st Cir. 1987) (citing Federal Rule Evidence 401’s “having any tendency” definition relevance determining whether were “judicial documents”). As explain below, there several (often preferable) tools beyond
sealing courts can use protect dockets becoming vehicle irrelevant—and potentially defamatory—accusations. See Section D, post. *16 monitoring federal courts.” [29] Thus, while evidence introduced at trial connection with enjoys a strong presumption public access, documents that “play only negligible role performance Article III duties” are accorded only low presumption that “amounts to little more than prediction public access absent countervailing reason.” Documents that are never filed with court, but simply “passed between parties discovery, lie entirely beyond presumption’s reach.” remaining materials at issue here include filings related to, inter alia compel testimony, to quash trial subpoenae, exclude certain deposition testimony. All such motions, at least face, call upon court exercise its Article III powers. Moreover, erroneous judicial decision ‐ making respect such evidentiary discovery matters can cause substantial harm. Such are therefore value “to those monitoring federal courts.” Thus, all submitted connection with, relevant to, decision making subject at least some presumption public access.
*17 Although a court’s authority oversee discovery control the evidence introduced at trial surely constitutes an exercise judicial power, note authority is ancillary the court’s core role in adjudicating case. Accordingly, the presumption access in filings submitted in connection with discovery disputes or motions in limine is generally somewhat lower than applied material introduced at trial, or in connection dispositive such as motions for dismissal or summary judgment. Thus, while must still articulate specific substantial reasons for sealing material, reasons usually need not be compelling those required seal filings.
Here, precise basis District Court’s decision deny motion unseal these remaining materials unclear. three paragraphs devoted issue, Court emphasized potential embarrassment “given highly sensitive nature underlying allegations,” concluded “the documents course discovery were neither relied upon by [the District] rendering adjudication, nor necessary or helpful resolving motion.” It therefore unclear whether held these were (and thus must disclosed discovery process shielded Protective Order. See TheStreet.Com F.3d at Amodeo II, at 1049–50. Giuffre F. Supp. 3d. (internal quotation marks brackets
omitted). *18 not subject a presumption of public access), found that privacy interests outweighed limited right of public access.
On either interpretation, however, District Court’s holding was error. Insofar District Court held that these are not judicial documents because it did not rely them adjudicating motion, this was legal error. As explained above, proper inquiry is whether relevant performance of function, not whether they were relied upon. Indeed, decision ‐ makers often find that great deal of relevant does ultimately sway decision. And insofar District Court held privacy interests outweigh of access each thousands of pages issue, decision—which appears been made without particularized review—amounts an abuse discretion.
In light District Court’s failure conduct individualized review materials, it is necessary do so now. believe District Court best situated conduct review. can directly communicate parties, can therefore more swiftly thoroughly consider particular objections unsealing specific materials. Relatedly, can obtain parties’ assistance effecting any necessary redactions, notifying any outside parties whose privacy interests might *19 implicated unsealing. Accordingly, we remand cause conduct such particularized review unseal all for which public access outweighs any countervailing privacy interests.
D. Protecting Integrity Judicial Proceedings While we disagree Court’s disposition unseal, share its concern files might used “promote scandal arising out unproven potentially libelous statements.” therefore describe certain methods courts can employ protect process from being coopted for purposes. Supreme has explained “[e]very has
supervisory power over its own records files” ensure they “are not used gratify private spite or promote scandal” or “serve reservoirs libelous statements press consumption.” This supervisory function only within district court’s power, but also among its responsibilities. practice, courts employ several methods fulfill function. They may, instance, issue protective orders
forbidding dissemination certain “to protect party or person annoyance, embarrassment, oppression, undue *20 burden” require that filings containing such material be submitted under seal. [40] If parties then seek to file such materials, the may deny them leave do so. [41] courts may also seek counteract effect defamatory statements by explaining on record statements appear lack credibility. Moreover, under Federal Rule Civil Procedure 12(f), may strike such material from filings on grounds it is “redundant, immaterial, impertinent, or scandalous.” [42] Because such rejected or stricken material is not “relevant performance function” it would not be considered “judicial document” would enjoy no presumption access. [43] Finally, appropriate *21 circumstances, courts may impose sanctions on attorneys parties under Federal Rule Civil Procedure 11(c).
E. A Cautionary Note conclude a note caution to regarding
reliability court filings such those unsealed today.
Materials submitted by parties to court should be understood for what they are. They do not reflect court’s own findings. Rather, they are prepared parties seeking advance own interests an adversarial process. Although affidavits depositions are offered “under penalty perjury,” it is fact exceedingly rare for anyone prosecuted for perjury civil proceeding. Similarly, *22 pleadings, complaints, briefs—while supposedly based on underlying evidentiary material—can be misleading. Such documents sometimes draw dubious inferences from already questionable or present ambiguous material definitive.
Moreover, court filings are, in some respects, particularly susceptible to fraud. For while threat defamation actions deter malicious falsehoods in standard publications, this threat is non ‐ existent with respect certain filings. This is so because, under New York law (which governs underlying defamation claim here), “absolute immunity liability defamation exists for oral or written statements made . . in connection with a proceeding before a court.” [46] Thus, although act filing a document a might be thought lend document additional credibility, in fact, allegations appearing in might be less credible than those published elsewhere.
*23 We have long noted that the press plays vital role ensuring the public right of access and enhancing “the quality and safeguards the integrity the factfinding process.” [48] When faithfully observing its best traditions, the print electronic media “contributes public understanding the rule law” “validates [its] claim functioning surrogates public.” [49]
At same time, media does profound disservice when it reports on parties’ allegations uncritically. We have previously observed that courts cannot possibly “discredit every statement document turned up course litigation,” criticized “the use media somewhat misleading term ‘court records’ referring items.” [50] Even ordinarily critical v. Smith , N.Y. 214, 219–20 (1897)). It follows, then, that immaterial impertinent statements are (at least nominally) actionable, particularly when they “so needlessly defamatory warrant inference express malice.” Id. (same) It seems us when strikes statements record pursuant Fed. R. Civ. P. 12(f) ground matter “impertinent” “immaterial,” it makes very same determination permits defamation action under common law. think system would well served were our common law courts revitalize crucial qualification litigation privilege. Westmoreland v. Columbia Broad. Sys., Inc. , F.2d (2d Cir. 1984)
(quoting Globe Newspaper Co. v. Superior Norfolk Cty. , U.S. (1982)). Richmond Newspapers, Inc. Virginia U.S. 572–73 (1980) (plurality
opinion) (internal quotation marks omitted). Amodeo II
readers take reference “court papers” as some sort marker reliability. This would be mistake. therefore urge media exercise restraint covering
potentially defamatory allegations, we caution public read accounts with discernment.
III. CONCLUSION
To summarize, hold follows:
(1) Materials submitted connection motion summary judgment are subject strong presumption public access.
(2) The record issue will unsealed upon issuance our mandate, subject minimal redactions.
(3) Materials submitted connection with, relevant to, discovery motions, motions limine other non ‐ dispositive subject lesser—but still substantial— access.
(4) directed review remaining individually unseal those materials appropriate.
*25 (5) District courts should exercise full range their substantial powers ensure files do become vehicles defamation.
For foregoing reasons, VACATE orders District Court entered November 2016, May 3, 2017, August ORDER unsealing record as described herein, REMAND cause District Court particularized review remaining materials.
In undertaking this task, Court may be well served by ordering parties submit unredacted, electronic copies remaining materials, well specific, proposed redactions. also order parties identify notify additional parties whose privacy interests would likely be implicated disclosure these materials. interests economy, any future appeal this
matter shall referred panel.
POOLER, Circuit Judge, dissenting in part :
I join the Court’s opinion every respect but one: the decision unseal the summary judgment record ourselves. I agree all most the must be unsealed. Nevertheless, my view, district court is better suited task. As Court’s opinion recognizes connection with remaining materials, district court is better positioned communicate with parties and any nonparties whose privacy interests might be affected by unsealing. On score, it worth clarifying here breadth Court’s unsealing order: it unseals nearly pages material. task identifying and making specific redactions substantial volume perilous; consequences even seemingly minor error grave are irrevocable. Moreover, although I share majority’s concern about avoiding delay, I would alleviate concern through other means—perhaps order directing district act expeditiously making clear what types limited redactions are appropriate. sum, I would unseal district court’s decision only leave remainder review, redact, unseal remand.
[*] Clerk directed amend captions set out above.
[1] On February 21, 2019, Florida ruled federal prosecutors had violated CVRA failing adequately notify two victims ‐ plaintiffs plea deal. has yet determined appropriate remedy. See Doe v. United States F. Supp. 3d 1204–17 (S.D. Fla. 2019).
[2] Doe United States No. CV ‐ ‐ KAM, WL *2 (S.D. Fla. Apr. 2015) (internal quotation marks omitted).
[3] Id. (internal quotation marks brackets omitted).
[4] Fed. R. Civ. P. 12(f).
[5] Doe WL *2–3.
[6] See Giuffre Maxwell F. Supp. 3d (S.D.N.Y. 2018).
[7] Br. Appellant (Cernovich)
[8] Giuffre Maxwell, No. ‐ cv, Docket No.
[9] Nixon Warner Commc ʹ ns, Inc. U.S. (1978).
[10] See notes 46–47 accompanying text, post
[11] Bernstein v. Bernstein Litowitz Berger & Grossmann LLP F.3d (2d Cir. 2016).
[12] Lugosch v. Pyramid Co. Onondaga (2d Cir. 2006). observe our holding Lugosch relies on general principle parties may “be assumed supported papers admissible evidence non ‐ frivolous arguments.” Id. at 122. Insofar has, through striking filing, specifically found assumption inapplicable, categorical rule Lugosch may apply. See notes 42–43 accompanying text, post.
[13] Id. Examples countervailing values include, depending circumstances, preserving “the right accused fundamental fairness jury selection process,” Press Enter. Co. Superior
[18] Id. at 123.
[19] Id. at
[20] See, e.g. Giuffre, F. Supp. 3d at (summarily concluding all “[t]he Summary Judgment Judicial Documents openly refer discuss these allegations [of sexual assault sexual trafficking] comprehensive detail, those allegations “establish[] strong privacy interest here”).
[21] Cf. Lugosch (ordering “the mandate shall issue forthwith” expedite unsealing process).
[22] Upon issuance our mandate, minimally redacted version record will made accessible Appeals docket. implemented minimal redactions protect personally identifying information personal phone numbers, contact lists, birth dates, social
[29] Amodeo II at 1049.
[30] Id. at 1050.
[31] Id.
[32] Id.
[33] previous decisions, identified important exception general rule: access does apply submitted solely so decide whether same
[36] See text accompanying notes 12–18 26–28, ante.
[37] See re City New York n.21 (2d Cir. 2010) (explaining “abuse discretion” nonpejorative, legal “term art”).
[38] Giuffre F. Supp. 3d at
[39] Nixon, U.S. (internal quotation marks).
[40] Fed. R. Civ. P. 26(c); see also TheStreet.Com , 273 F.3d at 229–30.
[41] See, e.g. , S.D.N.Y. Electronic Case Filing Rules & Instructions, February 1, 2019 Edition, Rule 6.1, http://nysd.uscourts.gov/ecf/ECF%20Rules%20020119%20Final.pdf.
[42] Fed. R. Civ. P. 12(f). Courts may strike material pleadings either “on its own” or “ motion made party.” Id. Although strike material solely “on ground matter impertinent immaterial” are disfavored, when also “scandalous,” no applies. Cf. Lipsky v. Commonwealth United Corp. , F.2d 887, (2d Cir. 1976); see also Talbot v. Robert Matthews Distrib. Co. , F.2d (7th Cir. 1992) (“Allegations may stricken scandalous if matter bears no possible relation controversy cause objecting party prejudice.”); Wine Markets Int ʹ l, Inc. v. Bass , F.R.D. (E.D.N.Y. 1998) (“Motions strike generally favored, except relation scandalous matters.”); Alvarado Morales Digital Equip. Corp. F.2d 617–18 (1st Cir. 1988) (categorizing scandalous “matter which impugned character defendants”).
[43] Amodeo I
[44] relevant part, Rule provides: By presenting pleading, written motion, or other paper . . . an attorney or unrepresented party certifies . . . it not being presented for any improper purpose, harass, cause unnecessary delay, or needlessly increase cost litigation . . . . [T]he may impose an appropriate sanction on any attorney, law firm, or party violated rule or responsible violation . . . . sanction include nonmonetary directives; an order pay penalty into court; or, if imposed motion warranted effective deterrence, order directing payment movant part all reasonable attorney’s fees other expenses directly resulting violation. Fed. R. Civ. P. See also Amodeo II (describing sanctions available court).
[45] Sonia Sotomayor & Nicole A. Gordon, Returning Majesty Law Politics: A Modern Approach Suffolk U. L. Rev. n.52 (1996) ( ʺ Perjury cases often pursued . . .”).
[46] Front, Inc. Khalil N.Y.3d (2015); see also Kelly v. Albarino , (2d Cir. 2007) (adopting reasoning explaining privilege “the broadest possible privileges”); Restatement (Second) Torts § (1977) (“A party a private litigation or a private prosecutor or defendant a criminal prosecution absolutely privileged publish defamatory matter concerning another communications preliminary proposed judicial proceeding, institution or during course part of, proceeding which he participates, if matter has some relation proceeding. ” ). But see note post.
[47] While common law courts generally interpreted litigation privilege broadly, they nevertheless maintain important (if rarely implemented) limitation its scope: qualify privilege, statement must “material pertinent questions involved.” Front N.Y.3d (quoting Youmans
[51] See note ante.