Sweet, D.J.
I. Prior Proceedings...433
II. The Motion to Intervene is Granted...437
III. The Issues and the Applicable Standards...437
IV. The Motion to Unseal the Discovery Documents is Denied...442
V. The Summary Judgment Judicial Documents...442
VI. The Motion to Unseal the Summary Judgment Judicial Documents is Denied...444
VII. Conclusion...447
Third-party proposed intervenors The Miami Herald Media Company (the "Miami Herald") and investigative journalist for the Miami Herald Julie Brown ("Brown") (collectively, 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 all of the documents previously sealed in this action.
Resolution, clarity and certainty, sometimes delayed, are hallmarks of the judicial process. The present motions challenge certain resolutions of this settled and closed action and raise significant issues, the conduct of the discovery process, the enforceability of confidentiality agreements and protective orders, the privacy rights of parties and witnesses, the public interest and the role of the media, and the transparency of the judicial process.
This defamation action from its inception in September 2015 to its settlement in May 2017 has been bitterly contested and difficult to administer because of the truth or falsity of the allegations concerning the intimate, sexual, and private conduct of the parties and of third persons, some prominent, some private. The instant motions renew that pattern and require a reexamination of the effort to provide an appropriate resolution of the issues presented by the litigation.
Upon this reexamination and the conclusions set forth below, the motion to intervene is granted, and the motion to unseal is denied as to the documents produced in the discovery process and as to the summary judgment judicial documents based on the difficult balancing of the conflicting principles described below.
I. Prior Proceedings
In early 2011 Giuffre, in an interview with journalist Sharon Churcher ("Churcher")
On January 1, 2015, Giuffre moved to join two alleged victims of Epstein who had initiated an action under the Crime Victims' Rights Act against the United States, purporting 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 Motion as being personally involved in the sexual abuse and sex trafficking scheme created by Epstein.
On January 3, 2015, Maxwell again issued a statement, responding to the allegations made in connection with Giuffre's Joinder Motion. Maxwell stated that Giuffre's allegations "against Ghislaine Maxwell are untrue" and that Giuffre's "claims are obvious lies" (the "January 3 Statement").
Giuffre filed her complaint in this action on September 21, 2015 (the "Complaint"), setting forth her claim of defamation by Maxwell arising out of the Maxwell January 3 Statement. Giuffre alleged she was the "victim of sexual trafficking and abuse while she was a minor child" and that Maxwell "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 the course of a decade she had been sexually abused at "numerous locations" around the world with prominent and politically powerful men.
Vigorous litigation was undertaken by the parties, as demonstrated by the 950 docket entries as of August 27, 2018, including a motion to dismiss the Complaint which was denied by opinion of February 29, 2016 (the "February 29 Opinion"). The primary issue presented was the truth or falsity of the January 3 statement issued by Maxwell, which in turn challenged all the previous statements made to the press by Giuffre and in Giuffre's Joinder Motion. This resulted, understandably, in a lengthy and tumultuous discovery process resulting in 18 hearings and 15 decisions.
After hearing counsel, it was determined that fact discovery would be completed on July 29, 2016,
The Protective Order also provided the procedures to designate any such material as confidential, and to challenge such designations. Id. ¶¶ 8-10. Upon review by an attorney 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 material designated as confidential with the Court, it was to additionally file 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, designated documents "shall not ... be disclosed."
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 specified that it "shall have no force and effect 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 to the Protective Order, each of which were granted. On August 9, 2016, an order amended the Protective Order as follows:
To reduce unnecessary filings and delay, it is hereby ordered that letter motions to file submissions under seal pursuant to the Court's Protective Order, 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 necessary. A party wishing to challenge the sealing of any particular submission may do so by motion.
Sealing Order, ECF No. 348. One hundred sixty-seven documents were sealed pursuant to the Sealing Order.
On August 11, 2016, Intervenor Alan Dershowitz ("Dershowitz" or "Intervenor Dershowitz") moved to unseal three documents: (1) portions of a Reply Brief submitted by Churcher in support of her motion to quash the subpoena served on her; (2) emails between Churcher and Giuffre submitted in connection with the same motion; and (3) a draft of a manuscript prepared by Giuffre submitted in connection with a motion to extend a time deadline. See Dershowitz Motion to Intervene, Aug.
Pursuant to several amendments, a trial date of May 25, 2017 was determined. See Order, Oct. 30, 2015, ECF No. 13; Amended Proposed Discovery and Case Management Plan, Sept. 30, 2016, ECF No. 451; Amended Second Discovery and Case Management Plan, Feb. 27, 2017, 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 the parties between January 5, 2017 and May 1, 2017, on which decision was reserved. See ECF Nos. 520, 522, 524, 526, 528, 530, 533, 535, 561, 563, 567, 608, 663-667, 669, 671, 673, 675, 677, 679, 681, 683, 685-86, 689, 691.
Maxwell filed a motion for summary judgment on January 6, 2017, which was heard on February 16, 2017 and denied by an opinion filed on March 22, 2017. See Sealed Document, March 24, 2017, ECF No. 779 (the "Summary Judgment Opinion"). The parties, in accordance with the agreed upon procedures, were directed to jointly file a proposed redacted version of the Summary Judgment Opinion consistent with the Protective Order. The agreed upon redacted opinion was filed with the Court and made public on the docket on April 27, 2017 (the "Redacted Opinion"). See Redacted Opinion, April 27, 2017, ECF No. 872.
On January 19, 2017, Intervenor Michael Cernovich ("Cernovich" or "Intervenor Cernovich") made a motion to unseal the materials submitted in connection with Maxwell's motion for summary judgment, which the Court denied on May 3, 2017 (the "May 3 Opinion") on the basis that Cernovich "ha[d] not established a compelling need for the documents obtained in discovery which undergird the summary judgment decision." Giuffre v. Maxwell , No. 15 Civ. 7433 (RWS),
The parties arrived at a settlement and jointly stipulated to dismiss this action on May 24, 2017. See Stipulation of Voluntary Dismissal, ECF No. 916; Joint 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, 2017.
On April 9, 2018, the Miami Herald filed the instant motion, contending that all sealed documents in this action are presumptively public under both common law principles and the First Amendment to the U.S. Constitution, and were sealed pursuant to an improvidently granted protective order, which allowed the parties to designate information as confidential without the particularized judicial scrutiny required by the law prior to sealing. See ECF No. 62. The motion was joined by Intervenor Dershowitz, who requested that he be advised of any documents unsealed in order to request unsealing of
II. The Motion to Intervene is Granted
Federal Rule of Civil Procedure 24 provides intervention of right under Rule 24(a) to anyone who "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a). Permissive intervention may be granted to anyone "who has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b).
Because courts, including this one, "have repeatedly recognized that members of the press (and other non-parties) may seek to pursue modification of confidentiality orders that have led to sealing of documents filed with the court," and since "the appropriate procedural mechanism to do so is a motion to intervene," the motion of Brown and the Miami Herald to intervene is granted. See In re Pineapple Antitrust Litig. , No.
Although the case was closed by the Clerk of Court on May 25, 2017 pursuant to the settlement agreement, "intervention for the purpose of challenging confidentiality orders is permissible even years after a case is closed." United States v. Erie Cnty., N.Y. , No. 09 Civ. 849S,
Accordingly, the motion to intervene is granted, and it is appropriate to reopen the case for the disposition of the instant motion.
III. The Issues and the Applicable Standards
The issues presented by the parties engage vital societal concepts, the privacy rights of individuals, 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 helpful guidance.
Legal scholars and jurists have long sought to refine the boundaries of privacy, or "the right to be let alone," but the result remains a mosaic, the development of which can be traced more to the unraveling of case law than the priority of certain rights over others. See Louis Menand, Why Do We Care So Much About Privacy? , THE NEW YORKER , June 18, 2018.
The legal implications of privacy have been considered in relation to "telegraphy, telephony, instantaneous photography (snapshots), dactyloscopy (fingerprinting), Social Security numbers, suburbanization, the Minnesota Multiphasic Personality Inventory, Fourth Amendment 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 Family,' the Starr Report, the memoir craze, blogging, and social media." Id. at 6; see e.g., Smith v. Maryland ,
Privacy has also been "associated with privilege (private roads and private sales)," see United States v. Knotts ,
In the law, "privacy functions as a kind of default right when an injury has been inflicted and no other right seems to suit the case." Menand, supra at 6. The right to privacy might emanate from one or many Amendments to the Constitution. For example, the right prohibiting the government from obtaining heat wave information from within one's home by way of sense-enhancing technology not in general public use arises from notions of privacy rooted in Fourth Amendment jurisprudence, see Kyllo v. United States ,
The montage of privacy law that has developed around these disparate concepts does not lend itself to easy determinations of privacy rights. Nevertheless, certain things enjoy an undisputed right to privacy: trade secrets, see Kewanee Oil Co. v. Bicron Corp. ,
There are two "related but distinct presumptions in favor of public access to court ... records: a strong form rooted in the First Amendment and a slightly weaker form based in federal common law." Newsday LLC v. Cnty. of Nassau ,
Pretrial discovery is intended to aid the parties in their search for truth. See Hickman v. Taylor ,
Whether discovery or trial, "a court must first conclude that the documents at issue are indeed 'judicial documents.' " Lugosch v. Pyramid Co. of Onondaga ,
Under the common law approach, once a document is classified as a judicial document, the presumption of access attaches.
However, the First Amendment "provides the public and the press a constitutional right of access to all trials, criminal or civil."
The Second Circuit has recognized two approaches for determining whether the First Amendment right of access extends to particular judicial records. Lugosch ,
In the second approach, First Amendment protection attaches to judicial documents "derived from or a necessary corollary of the capacity to attend the relevant proceedings."
To be clear, the First Amendment creates only a presumptive right of access. Newsday ,
IV. The Motion to Unseal the Discovery Documents is Denied
The parties early on agreed that the release of confidential information inherent to the discovery process could expose the parties to annoyance, embarrassment, and oppression given the highly sensitive nature of the underlying allegations. The parties mutually assented to entering into the Protective Order. The parties relied upon its provisions, as did dozens of witnesses and other non-parties. Documents designated confidential included a range of allegations of sexual acts involving Plaintiff and non-parties to 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 prior allegations of sexual assault; and Plaintiff's medical history. The Protective Order has maintained the confidentiality of these sensitive materials. One hundred sixty-seven discovery documents were added to the docket and sealed pursuant to the Protective Order.
Further, upon the issuance of an opinion by this Court, the parties were directed to jointly file a proposed redacted version consistent with the Protective Order as set forth above. The parties submitted the Redacted Opinion to maintain the confidentiality established by the Protective Order.
Except as discussed below, 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." See Alexander Interactive, Inc. v. Adorama, Inc. , No. 12 Civ. 6608 (PKC) (JCF),
V. The Summary Judgment Judicial Documents
Under the common law and First Amendment, the primary inquiry is whether the documents at issue are "judicial documents." To be a judicial document, "the item filed must be relevant to the performance of the judicial function and useful in the judicial process," Lugosch ,
Documents filed with the court vary in their status as 'judicial documents.' At one end of the continuum, "[t]he mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access." United States v. Amodeo ,
Somewhere in the middle lie documents "submitted ... in support of a motion to compel discovery [which] ... presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents." Alexander Interactive, Inc. ,
The Summary Judgment Opinion refers to facts drawn from Maxwell's Memorandum of Law in Support of Maxwell's Motion for Summary Judgment; Maxwell's Rule 56.1 Statement of Material Facts; Giuffre's Statement of Contested Facts and Giuffre's Undisputed Facts; and Maxwell's Reply to Giuffre's Statement of Contested Facts and Giuffre's Undisputed Facts pursuant to Local Civil Rule 56.1 (the "Factual Statements").
The Factual Statements, citing the evidence upon which they rely, formed 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 described the 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
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 ,
VI. The Motion to Unseal the Summary Judgment Judicial Documents is Denied
Intervenors contend that the Summary Judgment Judicial Documents should be unsealed because they carry a strong presumption of access under both the First Amendment and common law, and there are no compelling reasons to keep them sealed.
Because it has been determined that the Summary Judgment Opinion and the materials submitted in connection with it are judicial documents, the weight of the presumption under the common law must be determined, in addition to any countervailing factors. See Bernstein ,
Intervenors assert that because Defendant's motion for summary judgment fits squarely into the definition of a judicial document, those materials are entitled to the strongest presumption of access. Maxwell contends that the Intervenors are not in a position to determine the weight of the presumption afforded each summary judgment document because they have not seen each document.
While the Summary Judgment Judicial Documents are entitled to a presumption of access, this presumption is less "where a district court denied the summary judgment motion, essentially postponing a final determination of substantive legal rights, [because] the public interest in access is not as pressing." See Amodeo II ,
"Notwithstanding the presumption of access under both the common law and the First Amendment, the documents may be kept under seal if 'countervailing factors' in the common law framework or 'higher values' in the First Amendment framework so demand." Lugosch ,
Here, the primary countervailing factor is "the privacy interests of those resisting disclosure." Amodeo II ,
In assessing the weight to be accorded an assertion of a right of privacy, "courts should first consider the degree to which the subject matter is traditionally considered private rather than public." Amodeo II ,
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 also be weighed," which means that consideration must also be given to "the sensitivity of the information and the subject but also of how the person seeking access intends to use the information." Amodeo II ,
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.
The same considerations apply under the First Amendment, where the "presumption is rebuttable upon demonstration that suppression 'is essential to preserve higher values and is narrowly tailored to serve that interest.' " Hartford Courant Co. ,
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 its 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, factor in the confidential settlement arrived at. That one of the parties to that settlement, Giuffre, no longer opposes unsealing does not vitiate the strength of the agreement. Indeed given the entire context of the litigation it may demonstrate the need to compel the parties to stick to their bargain. See
While the Intervenors cite to the public interest, there are no particulars identified that point to the need for evidence gathered from the period from 2015 to 2016 concerning events that took place over 15 years ago. See Lugosch ,
Further, as the Supreme Court noted in Nixon v. Warner Communications, Inc. ,
The unsealing of the Summary Judgment Judicial Documents would both promote scandal arising out of unproven potentially libelous statements-particularly in light of the allegations relating to the sexual abuse of minors by public figures, and defeat the compelling privacy interests of the parties and non-parties who relied on the Protective Order.
In light of the above, the "extraordinary circumstances," Stern ,
VII. Conclusion
Based on the facts and conclusions set forth above, the Intervenors' motion to intervene is granted, and this motion to unseal is denied and the action is closed.
It is so ordered.
Notes
The parties reserved the right to extend this deadline where the parties so agreed, or for good cause shown. See Proposed Discovery and Case Management Plan, Aug. 1, 2016, ECF No. 317.
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 associated with the attorneys actively working on this 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 proceeding, 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 the parties.
Id. ¶ 5.
See United States v. HSBC Bank USA, N.A. ,