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Case 1:15-cv-07433-LAP Document 1111 Filed 09/01/20 Page 1 of 14
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-LAP
v.
Ghislaine Maxwell,
Defendant.
THE GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS'
MEMORANDUM OF LAW IN SUPPORT OF EX PARTE MOTION TO INTERVENE
AND FOR CONFIDENTIAL ACCESS TO JUDICIAL RECORDS AND DISCOVERY
DOCUMENTS
The Government of the United States Virgin Islands (the "USVI") moves to intervene in
this action for the limited purpose of obtaining confidential access to both: (a) all sealed
documents related to the parties' motions for summary judgment [ECF No. 540 to 543, 586 to
586-3, 620 to 621, and 872]; and (b) all unfiled discovery deposition transcripts and exhibits
thereto. The USVI seeks to modify the Protective Order [ECF No. 62] solely to be granted
confidential access to these materials, and, if granted access, agrees to be bound by the Protective
Order.
The USVI seeks confidential access to these sealed documents and unfiled discovery
materials because they are very likely relevant to its pending Virgin Islands Criminally
Influenced and Corrupt Organizations Act ("CICO") enforcement action against the Estate of
Jeffrey E. Epstein and several Epstein-controlled entities before the Superior Court of the U.S.
Virgin Islands. See Exhibit A hereto (USVI's operative First Amended Complaint, filed
February 11, 2020). Access to other judicial documents in this action has already been granted
to intervening private parties in interest, see Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), and
also is the subject of ongoing litigation before this Court. See, e.g., ECF No. 1096-1108. The
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Court therefore should grant the USVI's motion and enter an order allowing the USVI to
intervene as of right or by leave and to obtain confidential access to all sealed documents relating
to the parties' motions for summary judgment and all unified deposition transcripts and exhibits
thereto for use in its pending law enforcement action against the Epstein Estate.
BACKGOUND
Under Virgin Islands law, the CICO authorizes the USVI through its Attorney General to
prosecute a civil action against any persons engaged in a pattern of criminal activity through
association with any enterprise. 14 V.I.C. §§ 605, 607. The USVI alleges in its CICO action
that decedent Jeffrey E. Epstein engaged in a criminal sexual trafficking enterprise in the Virgin
Islands, wherein he used his vast wealth and property holdings and a deliberately opaque web of
corporations and companies to transport young women and girls to his privately-owned islands
where they were held captive and subject to severe and extensive sexual abuse. See Ex. A,111
40-114. Epstein and his associates lured these girls and young women to his island with
promises of modeling and other career opportunities. Id., II 49. Once they arrived, though, they
were sexually abused, exploited, and held captive. Id.
By way of background, Epstein's privately-owned islands in the Virgin Islands were
essential to the sex-trafficking enterprise. Little St. James is a secluded, private island, nearly
two miles off-shore from St. Thomas with no other residents while Epstein resided there. Id., 1
66. It is accessible only by private boat or helicopter, with no public or commercial
transportation servicing the island. Id. Flight logs show that between 2001 and 2019, girls and
young women were transported to the Virgin Islands and then helicoptered to Little St. James.
Id., 146. Air traffic controller reports state that some victims appeared to be as young as 11
years old. Id., 151. Evidence also shows that when two of the victims, one age 15, attempted to
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escape from Little St. James, Epstein was able to organize search parties, locate them, return
them to his house, and then confiscate the 15-year old girl's passport to hinder her ability to
escape again. Id.,ll 57-58.
Epstein's Virgin Islands-based corporations and companies also played central roles in
the criminal sex-trafficking enterprise. CICO action Defendant Plan D, LLC, for example,
knowingly and intentionally facilitated the trafficking scheme by flying underage girls and young
women into the Virgin Islands to be delivered into sexual servitude. Id., 1
1 97. CICO action
Defendants Great St. Jim, LLC and Nautilus, Inc.—for which CICO action Defendants and
Epstein Estate Executors Darren Indyke and Richard Kahn served, respectively, as Secretary and
Treasurer—knowingly participated in the Epstein Enterprise and facilitated the trafficking and
sexual servitude of underage girls and young women by providing the secluded properties at,
from, or to which Epstein and his associates could transport, transfer, maintain, isolate, harbor,
provide, entice, deceive, coerce, and sexually abuse them. Id., fi 23-29, 98.
The Government alleges that Epstein and the CICO Defendants violated CICO by
committing and conspiring to commit criminal human trafficking offenses based upon the
foregoing conduct. See id., fi 115-170 (Counts I-VIII). The Government further alleges that
they violated CICO by committing and conspiring to commit various child-abuse, neglect, rape,
unlawful-sexual-contact, prostitution, and sex-offender-registry-related offenses based upon the
foregoing sexual-abuse conduct. See id.. 41'11 171-258 (Counts IX-XIX). The Government also
alleges that Defendants engaged in a civil conspiracy to conceal the unlawful sexual abuse
alleged. See id., III 281-287 (Count XXII).
In the present motion, the USVI seeks access to the following sealed documents and
unfiled discovery:
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• (a) All currently sealed documents filed in support of Defendant Ghislaine Maxwell's
motion for summary judgment (ECF No. 540 to 543, inclusive);
• (b) All currently sealed documents filed in support of Plaintiff Virginia L. Giuffre's
opposition to Defendant's motion for summary judgment (ECF No. 586 to 586-3,
inclusive);
• (c) All currently sealed documents in support of Defendant's Reply in support of motion
for summary judgment (ECF No. 620 to 621, inclusive);
• (d) All currently sealed parts of the Court's Opinion on Defendant's motion for summary
judgment (ECF No. 872);
• (e) All currently unfiled discovery deposition transcripts and exhibits thereto in this
action.
The USVI expects that these sealed documents and unfiled discovery contain critical information
related to Epstein's criminal enterprise in the Virgin Islands and beyond, and will be invaluable
for its CICO law enforcement action against the Estate and other named parties.'
LEGAL ARGUMENT
A. The USVI's Motion to Intervene Should be Granted.
Federal Rule of Civil Procedure 24 provides for intervention as of right by anyone
claiming "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). Rule 24(b) permits intervention 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). Rule 24(b) gives
the Court "broad discretion to permit a nonparty to intervene where the that party's claims and
the pending civil action share questions of law and fact and where such intervention would not
I The USVI has attempted to obtain these documents by serving a Virgin Islands Court-issued subpoena,
domesticated by a New York Court, upon counsel for Plaintiff herein, who was unable to produce the documents
because of this Court's Protective Order.
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'unduly delay and prejudice the adjudication of the rights of the original parties.' Bridgeport
Harbour Place 1, LLC v. Ganim, 269 F. Supp. 2d 6, 8 (D. Conn. 2002) (internal citation omitted).
District courts in this Circuit have permitted government actors to intervene in civil
actions. See Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1009 (E.D.N.Y. 1992).
Where an intervening party seeks modification of a protective order to allow access to
documents, this Court has found a motion to intervene to be the appropriate mechanism. See
Giuffre v. Maxwell, 325 F. Supp. 3d 428, 444 (S.D.N.Y. 2019), rev'd on other grounds, Brown v.
Maxwell, 929 F.3d 41 (2d Cir. 2019); Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y.
Nov. 2, 2016), ECF No. 496 (Opinion Granting Dershowitz Motion to Intervene); Giuffre v.
Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y. May 3, 2017), ECF No. 892 (Opinion Granting
Cemovich Motion to Intervene). Intervention may be permitted even years after a case has been
administratively closed. Counihan v. Allstate Ins. Co., 907 F. Supp. 54 (E.D.N.Y. 1995); AB v.
Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 155 (S.D.N.Y. 2004) (noting the "district court has
discretion with regard to determining the timeliness of a motion to intervene.").
Under Rule 24(a), this Court and others in this Circuit recognize a four-part test for a
non-party to be granted intervention as of right:
Upon 1) timely application anyone shall be permitted to intervene in an action
when the applicant claims 2) an interest relating to the property or transaction
which is the subject of the action and 3) the applicant is so situated that the
dispositions of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, 4) unless the applicant's interest is
adequately represented by existing parties.
Rhinebeck Cent. Sch. Dist., 224 F.R.D. at 155 (citing Wash. Elec. Cooperative, Inc. v. Mass.
Municipal Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990)). For timeliness, courts consider
"'(1) how long the applicant had notice of the interest ... ; (2) prejudice to existing parties
resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any
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unusual circumstances militating for or against a finding of timeliness.' D'Amato v. Deutsche
Bank, 236 F.3d 78, 84 (2d Cir. 2001) (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 70
(2d Cir. 1994)). The interest asserted must be "'direct, substantial, and legally protectable"' and
not "'speculative or remote." Abondolo v. GGR Holbrook Medford, Inc., 285 B.R. 101, 109
(E.D.N.Y. 2002) (quoting United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411, 415 (2d
Cir. 2001)).
Under Rule 24(b), courts in this Circuit consider the following factors in assessing
whether to grant permissive intervention:
(i) whether permitting the intervention would unduly delay or prejudice the
adjudication of the dispute among the original parties to the litigation; (ii) the
nature of the intervenor's interests; (iii) whether those interests could be
adequately represented by existing parties; and (iv) whether permitting
intervention will assist in developing and resolving the factual and legal disputes in
the litigation.
In re Visa Check/MasterMoney Antitrust Litig., 190 F.R.D. 309, 312 (E.D.N.Y. 2000). When
considering permissive intervention, "courts must examine whether intervention will prejudice
the parties to the action or cause undue delay." Abondolo, 285 B.R. at 110.
Pursuant to Rule 24, the USVI has a right to intervene in this action. Turning first to the
Rule 24(a) four-part test, the USVI satisfies each of the factors. The timeliness of the USVI's
Motion is not at issue because this litigation has closed, and there is no prejudice to the parties.
Moreover, intervention has been permitted years after a litigation has ended. See Giuffre, 325
F.Supp. 3d at 437. Therefore, the USVI satisfies this factor.
The USVI also asserts interests that are "'direct, substantial, and legally protectable."'
Abondolo, 285 B.R. at 109 (internal citation omitted). The USVI has a substantial law
enforcement interest to protect in its CICO enforcement action currently pending in the Virgin
Islands. The Attorney General of the Virgin Islands is responsible for advocating for the public's
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interest and enforcing the criminal laws of the Virgin Islands. See 3 V.I.C. § 114(3) (USVI
Attorney General has power and duty to "prosecute in the name of the People of the Virgin
Islands, offenses against the laws of the Virgin Islands"); 14 V.I.C. § 607(a) (USVI "Attorney
General ... may institute civil proceedings against any person ... in order to obtain relief from
conduct constituting a violation or in order to prevent or restrain a violation of any provision or
provisions of [the CICO]."). To protect and uphold that law enforcement responsibility, the
USVI seeks to intervene in this action. The individuals involved with this action, both named
parties and non-parties, are potentially victims, perpetrators and/or witnesses to the conduct at
issue in the USVI's CICO enforcement action. Moreover, the facts of this case substantiate at
least some of the USVI's claims, making it necessary to seek intervention to access information
that will aid in the enforcement of both federal law and the laws of the Virgin Islands.
The USVI also satisfies factors three and four because, absent intervention, its ability to
prove its causes of action in its law enforcement action may be hindered. Rhinebeck Cent. Sch.
Dist., 224 F.R.D. at 156. No party to the present litigation has the responsibility of either
protecting the interests of the people of the Virgin Islands or enforcing its laws, as the USVI
itself does. Moreover, the USVI also may be hindered absent intervention because this action
involves testimony by and/or about Epstein, whereas his direct testimony is unavailable in the
CICO action due to his death while in federal custody. Furthermore, the allegations brought in
the present complaint are demonstrably distinct from those brought by the USVI in its CICO
enforcement action. Therefore, the USVI satisfies this and all factors for intervention as of right.
The USVI also satisfies Rule 24(b)'s requirements for permissive joinder, as a nonparty
whose claims "share questions of law and fact" with the litigation and whose intervention
"would not `unduly delay and prejudice the adjudication of the rights of the original parties.'
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Bridgeport Harbour, 269 F. Supp. 2d at 8 (internal citation omitted). The USVI's intervention
would not unduly delay or prejudice the adjudication of the dispute among the original parties to
the litigation because this litigation is closed (other than with respect to pending disputes over
unsealing and third-party access to documents) and because the USVI's substantial interests,
discussed inter alia, were not represented by the existing parties. In re Visa Check/MasterMoney
Antitrust Litig., 190 F.R.D. at 312.
For all of the reasons set forth, the USVI's Motion to Intervene should be granted.
B. The USVI's Motion for Access to Sealed Documents Should be Granted.
The First Amendment and federal common law each establish a presumption in favor of
access to certain judicial documents. Guzik v. Albright, No. 16-CV-2257 (JPO), 2018 U.S. Dist.
LEXIS 196006, at *9 (S.D.N.Y. Nov. 16, 2018); see Gambale v. Deutsche Bank AG, 377 F.3d
133, 140 (2d Cir. 2004). The initial issue on a non-party's request for access to a document filed
in a court is whether it is a "judicial document." Trump v. Deutsche Bank AG, 940 F.3d 146,
150-51 (2d Cir. 2019) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.
2006)). Merely filing a document with a court "'is insufficient to render that paper a judicial
document subject to the right of public access."' Trump, 940 F.3d at 150 (quoting United States
v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("Amodeo I")).
To be designated a judicial document, "the item filed must be relevant to the performance
of the judicial function and useful in the judicial process." Amodeo, 44 F.3d at 145. Judicial
documents are considered on a "continuum," ranging from "matters that directly affect an
adjudication to matters that come within a court's purview solely to insure their irrelevance."
United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II"); United States v. All
Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009). "Especially
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great weight is given to documents that are material to particular judicial decisions and thus
critical to `determining litigants' substantive rights -- conduct at the heart of Article III -- and . . .
public monitoring of that conduct.'" All Funds, 643 F. Supp. 2d at 583 (quoting Amodeo 11, 71
F.3d 1049).
Federal courts "'employ two related but distinct presumptions in favor of public access to
court proceedings and records: a strong form rooted in the First Amendment and a slightly
weaker form based in federal common law."' United States v. Doe, No. 3:19-MC-00027-AWT,
2019 U.S. Dist. LEXIS 36605, at *3 (D. Conn. Mar. 6, 2019) (quoting Newsday LLC v. County
of Nassau, 730 F.3d 156, 163 (2d Cir. 2013)). In the Second Circuit, courts utilize two methods
approaching the First Amendment right. Doe, 2019 U.S. Dist. LEXIS 36605, at *3. The
"experience-and-logic" approach applies to both judicial proceedings and documents, and asks
"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." Lugosch, 435 F.3d at 120. The second, applied only when the court considers
documents in proceedings covered by the First Amendment, asks whether the documents "are
derived from or are a necessary corollary of the capacity to attend the relevant proceedings." Id.
For the "experience-and-logic" approach, courts employ a two-pronged inquiry. Doe,
2019 U.S. Dist. LEXIS 36605, at *4; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 92 (2d
Cir. 2004). First, courts must consider "whether the place and process have historically been
open to the press and general public. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106
S. Ct. 2735 (1986) ("Press-Enterprise If'). Second, courts must consider "whether public access
plays a significant positive role in the functioning of the particular process in question." Id.;
Hartford, 380 F.3d at 92 ("The courts that have undertaken this type of inquiry have generally
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invoked the common law right of access to judicial documents in support of finding a history of
openness."). For the second approach, access to judicial documents has been "derived from or a
necessary corollary of the capacity to attend the relevant proceedings." Hartford, 380 F.3d at 93.
The federal common law right to access judicial documents attaches with different weight
depending on two factors. Doe, 2019 U.S. Dist. LEXIS 36605, at *6. Those factors assess "the
role of the material at issue in the exercise of Article III judicial power and the resultant value of
such information to those monitoring the federal courts." Amodeo 11, 71 F.3d at 1049. The
common law right must be weighed against countervailing interests favoring privacy, namely:
(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the documents were introduced during
the judicial proceedings.
United States v. Harris, 204 F. Supp.3d 10, 16-17 (D.D.C. 2016); Doe, 2019 U.S. Dist. LEXIS
36605, at *6-7. Only when competing interests outweigh the presumption may access be denied,
and "[w]here the presumption of access is 'of the highest' weight, as to material sought by the
public or press, the material `should not remain under seal absent the most compelling reasons.'"
Lugosch, 435 F.3d at 123 (quoting Joy v. North, 692 F.2d 880 (2d Cir. 1982)); Guzik v. Albright,
No. 16-CV-2257 (JPO), 2018 U.S. Dist. LEXIS 196006, at *6-7 (S.D.N.Y. Nov. 16, 2018)
(noting neither "the mere `[b]road and general' invocation of a privacy interest," nor "[v]ague
allusion to unelaborated primacy concerns" warrants denial of access.) (quoting In re N.Y. Times
Co., 828 F.2d 110, 116 (2d Cir. 1987)).
The sealed documents to which the USVI seeks access here are judicial documents under
both the common law and First Amendment analysis. See Brown, 929 F.3d at 47; Lugosch, 435
F.3d at 123 (noting documents submitted in support a motion for summary judgement, whether
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or not relied upon, "are unquestionably judicial documents under the common law."). And, as at
least one Court has found that "there is no countervailing privacy interest sufficient to justify
their continued sealing." Brown, 929 F.3d at 48. Due to the "strong First Amendment
presumption," denial of access to the summary judgment documents "may be justified only with
specific, on-the-record findings that sealing is necessary to preserve higher values . ." Id. at 47.
Here, as the Court noted in Brown, none exist. Id. at 48.
Moreover, the USVI seeks access to the summary judgment documents for use in its own
law enforcement action. See generally Foltz v. State Fann Mut. Ins. Co., 331 F.3d 1122, 1131
(9th Cir. 2003) ("Allowing the fruits of one litigation to facilitate preparation in other cases
advances the interests of judicial economy by avoiding wasteful duplication of discovery.").
Since the USVI seeks access to the sealed documents for use in its own related law enforcement
action, subject to a protective order that will maintain appropriate confidentiality, and not to
publicize the information contained therein, any concerns related to the privacy of parties
identified therein is absent. The Court thus should grant the USVI access to these sealed
documents.
C. The USVI's Motion for Confidential Access to linfiled Disco% en Documents
Should he Granted.
The Court also should modify the existing Protective Order (ECF No. 62) to permit the
USVI to confidentially access any discovery deposition transcripts and exhibits that have not
been filed with the Court. The Second Circuit has held that "[w]here there has been reasonable
reliance by a party or deponent, a District Court should not modify a protective order granted
under Rule 26(c) 'absent a showing of improvidence in the grant of the order or some
extraordinary circumstance or compelling need.' SEC v. TheStreet.com, 273 F.3d 222, 229 (2d
Cir. 2001) (quoting Martindell v. IT&T Corp., 594 F.2d 291, 296 (2d Cir. 1979)). Here, two
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circumstances support the Court's modification of the Protective Order to grant the USVI
confidential access to unfiled discovery deposition documents.
First, the existing Protective Order (ECF No. 62) is a blanket protective order, not a
targeted order making findings with respect to particular documents or testimony. Courts in this
Circuit, including this Court, have held that litigating parties have lesser reliance interests in
blanket protective orders than in more targeted orders. See, e.g., In re EPDM Antitrust Litig.,
255 F.R.D. 308, 319 (D. Conn. 2009) ("When considering a motion to modify, it is relevant
whether the order is a blanket protective order, covering all documents and testimony produced
in a lawsuit, or whether it is specially focused on protective certain documents or certain
deponents for a particular reason. A blanket protective order is more likely to be subject to
modification than a more specific, targeted order because it is more difficult to show a party
reasonably relied on a blanket order in producing documents or submitting to a deposition.");
Nielsen C. (U.S.), LLC v. Success Systems, Inc., 112 F. Supp. 3d 83, 120 (S.D.N.Y. 2015) ("A
broad protective order is less likely to elicit reliance 'because it is more difficult to show a party
reasonably relied on a blanket order in producing documents or submitting to a deposition.')
(quoting In re EPDM, 255 F.R.D. at 319). Since the Protective Order does not address specific
deposition testimony or exhibit documents, the parties do not have demonstrated reliance
interests in applying the Order to this testimony or these documents.
Second, the USVI's interest in obtaining access to testimony and documents in this action
relating to Epstein's sex-trafficking conduct that also is at issue in its CICO law enforcement
action is considerable. The USVI seeks access to this discovery through this action because it
already has been provided and therefore at the very least may be obtained more expeditiously
herein than through duplicative discovery in its separately-filed action. See generally In re
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EPDM, 255 F.R.D. at 324 ("Whether the collateral litigant could retrieve the same materials in
question through its own discovery requests or whether it is attempting to subvert a limitation on
discovery, such as the close of the factual record, should be taken into account. Certainly, if the
litigant could access the same materials and deposition testimony by conducting its own
discovery, it is in the interest of judicial efficiency to avoid such duplicative discovery."); Foltz,
supra, 331 F.3d at 1131 ("Allowing the fruits of one litigation to facilitate preparation in other
cases advances the interests of judicial economy by avoiding wasteful duplication of
discovery.").
Moreover, the USVI's interest in accessing this discovery may be far greater than a
matter of procedural efficiency. In light of Epstein's death in federal prison after the discovery
in this action was taken, his direct testimony is unavailable to the USVI. Thus, any testimony by
or about Epstein in this action may be critical to the USVI's law enforcement action.
Either or both of these considerations provide compelling grounds for modifying the
Protective Order to grant the USVI access to unfiled discovery deposition transcripts and
exhibits to those depositions in this action.
CONCLUSION
For all of the foregoing reasons, the USVI respectfully moves this Court to GRANT the
Ex Parte Motion to Intervene and for Access to Judicial Records and Discovery Documents.
Dated: September 1, 2020
Respectfully submitted,
/s/ William H. Narwold
William H. Narwold, Esq.
Motley Rice LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
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Tel: 860-882-1676
Fax: 860-882-1682
Email: [email protected]
Counsel of Recordfor Proposed Intervenor
Government of the United States Virgin Islands
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Virginia L. Giuffre,
Plaintiff, Case No.: 15-cv-07433-LAP
v.
Ghislaine Maxwell,
Defendant.
THE GOVERNMENT OF THE UNITED STATES VIRGIN ISLANDS'
MEMORANDUM OF LAW IN SUPPORT OF EX PARTE MOTION TO INTERVENE
AND FOR CONFIDENTIAL ACCESS TO JUDICIAL RECORDS AND DISCOVERY
DOCUMENTS
The Government of the United States Virgin Islands (the "USVI") moves to intervene in
this action for the limited purpose of obtaining confidential access to both: (a) all sealed
documents related to the parties' motions for summary judgment [ECF No. 540 to 543, 586 to
586-3, 620 to 621, and 872]; and (b) all unfiled discovery deposition transcripts and exhibits
thereto. The USVI seeks to modify the Protective Order [ECF No. 62] solely to be granted
confidential access to these materials, and, if granted access, agrees to be bound by the Protective
Order.
The USVI seeks confidential access to these sealed documents and unfiled discovery
materials because they are very likely relevant to its pending Virgin Islands Criminally
Influenced and Corrupt Organizations Act ("CICO") enforcement action against the Estate of
Jeffrey E. Epstein and several Epstein-controlled entities before the Superior Court of the U.S.
Virgin Islands. See Exhibit A hereto (USVI's operative First Amended Complaint, filed
February 11, 2020). Access to other judicial documents in this action has already been granted
to intervening private parties in interest, see Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), and
also is the subject of ongoing litigation before this Court. See, e.g., ECF No. 1096-1108. The
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Court therefore should grant the USVI's motion and enter an order allowing the USVI to
intervene as of right or by leave and to obtain confidential access to all sealed documents relating
to the parties' motions for summary judgment and all unified deposition transcripts and exhibits
thereto for use in its pending law enforcement action against the Epstein Estate.
BACKGOUND
Under Virgin Islands law, the CICO authorizes the USVI through its Attorney General to
prosecute a civil action against any persons engaged in a pattern of criminal activity through
association with any enterprise. 14 V.I.C. §§ 605, 607. The USVI alleges in its CICO action
that decedent Jeffrey E. Epstein engaged in a criminal sexual trafficking enterprise in the Virgin
Islands, wherein he used his vast wealth and property holdings and a deliberately opaque web of
corporations and companies to transport young women and girls to his privately-owned islands
where they were held captive and subject to severe and extensive sexual abuse. See Ex. A,111
40-114. Epstein and his associates lured these girls and young women to his island with
promises of modeling and other career opportunities. Id., II 49. Once they arrived, though, they
were sexually abused, exploited, and held captive. Id.
By way of background, Epstein's privately-owned islands in the Virgin Islands were
essential to the sex-trafficking enterprise. Little St. James is a secluded, private island, nearly
two miles off-shore from St. Thomas with no other residents while Epstein resided there. Id., 1
66. It is accessible only by private boat or helicopter, with no public or commercial
transportation servicing the island. Id. Flight logs show that between 2001 and 2019, girls and
young women were transported to the Virgin Islands and then helicoptered to Little St. James.
Id., 146. Air traffic controller reports state that some victims appeared to be as young as 11
years old. Id., 151. Evidence also shows that when two of the victims, one age 15, attempted to
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escape from Little St. James, Epstein was able to organize search parties, locate them, return
them to his house, and then confiscate the 15-year old girl's passport to hinder her ability to
escape again. Id.,ll 57-58.
Epstein's Virgin Islands-based corporations and companies also played central roles in
the criminal sex-trafficking enterprise. CICO action Defendant Plan D, LLC, for example,
knowingly and intentionally facilitated the trafficking scheme by flying underage girls and young
women into the Virgin Islands to be delivered into sexual servitude. Id., 1
1 97. CICO action
Defendants Great St. Jim, LLC and Nautilus, Inc.—for which CICO action Defendants and
Epstein Estate Executors Darren Indyke and Richard Kahn served, respectively, as Secretary and
Treasurer—knowingly participated in the Epstein Enterprise and facilitated the trafficking and
sexual servitude of underage girls and young women by providing the secluded properties at,
from, or to which Epstein and his associates could transport, transfer, maintain, isolate, harbor,
provide, entice, deceive, coerce, and sexually abuse them. Id., fi 23-29, 98.
The Government alleges that Epstein and the CICO Defendants violated CICO by
committing and conspiring to commit criminal human trafficking offenses based upon the
foregoing conduct. See id., fi 115-170 (Counts I-VIII). The Government further alleges that
they violated CICO by committing and conspiring to commit various child-abuse, neglect, rape,
unlawful-sexual-contact, prostitution, and sex-offender-registry-related offenses based upon the
foregoing sexual-abuse conduct. See id.. 41'11 171-258 (Counts IX-XIX). The Government also
alleges that Defendants engaged in a civil conspiracy to conceal the unlawful sexual abuse
alleged. See id., III 281-287 (Count XXII).
In the present motion, the USVI seeks access to the following sealed documents and
unfiled discovery:
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• (a) All currently sealed documents filed in support of Defendant Ghislaine Maxwell's
motion for summary judgment (ECF No. 540 to 543, inclusive);
• (b) All currently sealed documents filed in support of Plaintiff Virginia L. Giuffre's
opposition to Defendant's motion for summary judgment (ECF No. 586 to 586-3,
inclusive);
• (c) All currently sealed documents in support of Defendant's Reply in support of motion
for summary judgment (ECF No. 620 to 621, inclusive);
• (d) All currently sealed parts of the Court's Opinion on Defendant's motion for summary
judgment (ECF No. 872);
• (e) All currently unfiled discovery deposition transcripts and exhibits thereto in this
action.
The USVI expects that these sealed documents and unfiled discovery contain critical information
related to Epstein's criminal enterprise in the Virgin Islands and beyond, and will be invaluable
for its CICO law enforcement action against the Estate and other named parties.'
LEGAL ARGUMENT
A. The USVI's Motion to Intervene Should be Granted.
Federal Rule of Civil Procedure 24 provides for intervention as of right by anyone
claiming "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). Rule 24(b) permits intervention 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). Rule 24(b) gives
the Court "broad discretion to permit a nonparty to intervene where the that party's claims and
the pending civil action share questions of law and fact and where such intervention would not
I The USVI has attempted to obtain these documents by serving a Virgin Islands Court-issued subpoena,
domesticated by a New York Court, upon counsel for Plaintiff herein, who was unable to produce the documents
because of this Court's Protective Order.
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'unduly delay and prejudice the adjudication of the rights of the original parties.' Bridgeport
Harbour Place 1, LLC v. Ganim, 269 F. Supp. 2d 6, 8 (D. Conn. 2002) (internal citation omitted).
District courts in this Circuit have permitted government actors to intervene in civil
actions. See Twenty First Century Corp. v. LaBianca, 801 F. Supp. 1007, 1009 (E.D.N.Y. 1992).
Where an intervening party seeks modification of a protective order to allow access to
documents, this Court has found a motion to intervene to be the appropriate mechanism. See
Giuffre v. Maxwell, 325 F. Supp. 3d 428, 444 (S.D.N.Y. 2019), rev'd on other grounds, Brown v.
Maxwell, 929 F.3d 41 (2d Cir. 2019); Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y.
Nov. 2, 2016), ECF No. 496 (Opinion Granting Dershowitz Motion to Intervene); Giuffre v.
Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y. May 3, 2017), ECF No. 892 (Opinion Granting
Cemovich Motion to Intervene). Intervention may be permitted even years after a case has been
administratively closed. Counihan v. Allstate Ins. Co., 907 F. Supp. 54 (E.D.N.Y. 1995); AB v.
Rhinebeck Cent. Sch. Dist., 224 F.R.D. 144, 155 (S.D.N.Y. 2004) (noting the "district court has
discretion with regard to determining the timeliness of a motion to intervene.").
Under Rule 24(a), this Court and others in this Circuit recognize a four-part test for a
non-party to be granted intervention as of right:
Upon 1) timely application anyone shall be permitted to intervene in an action
when the applicant claims 2) an interest relating to the property or transaction
which is the subject of the action and 3) the applicant is so situated that the
dispositions of the action may as a practical matter impair or impede the
applicant's ability to protect that interest, 4) unless the applicant's interest is
adequately represented by existing parties.
Rhinebeck Cent. Sch. Dist., 224 F.R.D. at 155 (citing Wash. Elec. Cooperative, Inc. v. Mass.
Municipal Wholesale Elec. Co., 922 F.2d 92, 96 (2d Cir. 1990)). For timeliness, courts consider
"'(1) how long the applicant had notice of the interest ... ; (2) prejudice to existing parties
resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any
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unusual circumstances militating for or against a finding of timeliness.' D'Amato v. Deutsche
Bank, 236 F.3d 78, 84 (2d Cir. 2001) (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 70
(2d Cir. 1994)). The interest asserted must be "'direct, substantial, and legally protectable"' and
not "'speculative or remote." Abondolo v. GGR Holbrook Medford, Inc., 285 B.R. 101, 109
(E.D.N.Y. 2002) (quoting United States v. Peoples Benefit Life Ins. Co., 271 F.3d 411, 415 (2d
Cir. 2001)).
Under Rule 24(b), courts in this Circuit consider the following factors in assessing
whether to grant permissive intervention:
(i) whether permitting the intervention would unduly delay or prejudice the
adjudication of the dispute among the original parties to the litigation; (ii) the
nature of the intervenor's interests; (iii) whether those interests could be
adequately represented by existing parties; and (iv) whether permitting
intervention will assist in developing and resolving the factual and legal disputes in
the litigation.
In re Visa Check/MasterMoney Antitrust Litig., 190 F.R.D. 309, 312 (E.D.N.Y. 2000). When
considering permissive intervention, "courts must examine whether intervention will prejudice
the parties to the action or cause undue delay." Abondolo, 285 B.R. at 110.
Pursuant to Rule 24, the USVI has a right to intervene in this action. Turning first to the
Rule 24(a) four-part test, the USVI satisfies each of the factors. The timeliness of the USVI's
Motion is not at issue because this litigation has closed, and there is no prejudice to the parties.
Moreover, intervention has been permitted years after a litigation has ended. See Giuffre, 325
F.Supp. 3d at 437. Therefore, the USVI satisfies this factor.
The USVI also asserts interests that are "'direct, substantial, and legally protectable."'
Abondolo, 285 B.R. at 109 (internal citation omitted). The USVI has a substantial law
enforcement interest to protect in its CICO enforcement action currently pending in the Virgin
Islands. The Attorney General of the Virgin Islands is responsible for advocating for the public's
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interest and enforcing the criminal laws of the Virgin Islands. See 3 V.I.C. § 114(3) (USVI
Attorney General has power and duty to "prosecute in the name of the People of the Virgin
Islands, offenses against the laws of the Virgin Islands"); 14 V.I.C. § 607(a) (USVI "Attorney
General ... may institute civil proceedings against any person ... in order to obtain relief from
conduct constituting a violation or in order to prevent or restrain a violation of any provision or
provisions of [the CICO]."). To protect and uphold that law enforcement responsibility, the
USVI seeks to intervene in this action. The individuals involved with this action, both named
parties and non-parties, are potentially victims, perpetrators and/or witnesses to the conduct at
issue in the USVI's CICO enforcement action. Moreover, the facts of this case substantiate at
least some of the USVI's claims, making it necessary to seek intervention to access information
that will aid in the enforcement of both federal law and the laws of the Virgin Islands.
The USVI also satisfies factors three and four because, absent intervention, its ability to
prove its causes of action in its law enforcement action may be hindered. Rhinebeck Cent. Sch.
Dist., 224 F.R.D. at 156. No party to the present litigation has the responsibility of either
protecting the interests of the people of the Virgin Islands or enforcing its laws, as the USVI
itself does. Moreover, the USVI also may be hindered absent intervention because this action
involves testimony by and/or about Epstein, whereas his direct testimony is unavailable in the
CICO action due to his death while in federal custody. Furthermore, the allegations brought in
the present complaint are demonstrably distinct from those brought by the USVI in its CICO
enforcement action. Therefore, the USVI satisfies this and all factors for intervention as of right.
The USVI also satisfies Rule 24(b)'s requirements for permissive joinder, as a nonparty
whose claims "share questions of law and fact" with the litigation and whose intervention
"would not `unduly delay and prejudice the adjudication of the rights of the original parties.'
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Bridgeport Harbour, 269 F. Supp. 2d at 8 (internal citation omitted). The USVI's intervention
would not unduly delay or prejudice the adjudication of the dispute among the original parties to
the litigation because this litigation is closed (other than with respect to pending disputes over
unsealing and third-party access to documents) and because the USVI's substantial interests,
discussed inter alia, were not represented by the existing parties. In re Visa Check/MasterMoney
Antitrust Litig., 190 F.R.D. at 312.
For all of the reasons set forth, the USVI's Motion to Intervene should be granted.
B. The USVI's Motion for Access to Sealed Documents Should be Granted.
The First Amendment and federal common law each establish a presumption in favor of
access to certain judicial documents. Guzik v. Albright, No. 16-CV-2257 (JPO), 2018 U.S. Dist.
LEXIS 196006, at *9 (S.D.N.Y. Nov. 16, 2018); see Gambale v. Deutsche Bank AG, 377 F.3d
133, 140 (2d Cir. 2004). The initial issue on a non-party's request for access to a document filed
in a court is whether it is a "judicial document." Trump v. Deutsche Bank AG, 940 F.3d 146,
150-51 (2d Cir. 2019) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.
2006)). Merely filing a document with a court "'is insufficient to render that paper a judicial
document subject to the right of public access."' Trump, 940 F.3d at 150 (quoting United States
v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) ("Amodeo I")).
To be designated a judicial document, "the item filed must be relevant to the performance
of the judicial function and useful in the judicial process." Amodeo, 44 F.3d at 145. Judicial
documents are considered on a "continuum," ranging from "matters that directly affect an
adjudication to matters that come within a court's purview solely to insure their irrelevance."
United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995) ("Amodeo II"); United States v. All
Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 583 (S.D.N.Y. 2009). "Especially
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great weight is given to documents that are material to particular judicial decisions and thus
critical to `determining litigants' substantive rights -- conduct at the heart of Article III -- and . . .
public monitoring of that conduct.'" All Funds, 643 F. Supp. 2d at 583 (quoting Amodeo 11, 71
F.3d 1049).
Federal courts "'employ two related but distinct presumptions in favor of public access to
court proceedings and records: a strong form rooted in the First Amendment and a slightly
weaker form based in federal common law."' United States v. Doe, No. 3:19-MC-00027-AWT,
2019 U.S. Dist. LEXIS 36605, at *3 (D. Conn. Mar. 6, 2019) (quoting Newsday LLC v. County
of Nassau, 730 F.3d 156, 163 (2d Cir. 2013)). In the Second Circuit, courts utilize two methods
approaching the First Amendment right. Doe, 2019 U.S. Dist. LEXIS 36605, at *3. The
"experience-and-logic" approach applies to both judicial proceedings and documents, and asks
"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." Lugosch, 435 F.3d at 120. The second, applied only when the court considers
documents in proceedings covered by the First Amendment, asks whether the documents "are
derived from or are a necessary corollary of the capacity to attend the relevant proceedings." Id.
For the "experience-and-logic" approach, courts employ a two-pronged inquiry. Doe,
2019 U.S. Dist. LEXIS 36605, at *4; Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 92 (2d
Cir. 2004). First, courts must consider "whether the place and process have historically been
open to the press and general public. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106
S. Ct. 2735 (1986) ("Press-Enterprise If'). Second, courts must consider "whether public access
plays a significant positive role in the functioning of the particular process in question." Id.;
Hartford, 380 F.3d at 92 ("The courts that have undertaken this type of inquiry have generally
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invoked the common law right of access to judicial documents in support of finding a history of
openness."). For the second approach, access to judicial documents has been "derived from or a
necessary corollary of the capacity to attend the relevant proceedings." Hartford, 380 F.3d at 93.
The federal common law right to access judicial documents attaches with different weight
depending on two factors. Doe, 2019 U.S. Dist. LEXIS 36605, at *6. Those factors assess "the
role of the material at issue in the exercise of Article III judicial power and the resultant value of
such information to those monitoring the federal courts." Amodeo 11, 71 F.3d at 1049. The
common law right must be weighed against countervailing interests favoring privacy, namely:
(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the strength of any property and
privacy interests asserted; (5) the possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the documents were introduced during
the judicial proceedings.
United States v. Harris, 204 F. Supp.3d 10, 16-17 (D.D.C. 2016); Doe, 2019 U.S. Dist. LEXIS
36605, at *6-7. Only when competing interests outweigh the presumption may access be denied,
and "[w]here the presumption of access is 'of the highest' weight, as to material sought by the
public or press, the material `should not remain under seal absent the most compelling reasons.'"
Lugosch, 435 F.3d at 123 (quoting Joy v. North, 692 F.2d 880 (2d Cir. 1982)); Guzik v. Albright,
No. 16-CV-2257 (JPO), 2018 U.S. Dist. LEXIS 196006, at *6-7 (S.D.N.Y. Nov. 16, 2018)
(noting neither "the mere `[b]road and general' invocation of a privacy interest," nor "[v]ague
allusion to unelaborated primacy concerns" warrants denial of access.) (quoting In re N.Y. Times
Co., 828 F.2d 110, 116 (2d Cir. 1987)).
The sealed documents to which the USVI seeks access here are judicial documents under
both the common law and First Amendment analysis. See Brown, 929 F.3d at 47; Lugosch, 435
F.3d at 123 (noting documents submitted in support a motion for summary judgement, whether
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or not relied upon, "are unquestionably judicial documents under the common law."). And, as at
least one Court has found that "there is no countervailing privacy interest sufficient to justify
their continued sealing." Brown, 929 F.3d at 48. Due to the "strong First Amendment
presumption," denial of access to the summary judgment documents "may be justified only with
specific, on-the-record findings that sealing is necessary to preserve higher values . ." Id. at 47.
Here, as the Court noted in Brown, none exist. Id. at 48.
Moreover, the USVI seeks access to the summary judgment documents for use in its own
law enforcement action. See generally Foltz v. State Fann Mut. Ins. Co., 331 F.3d 1122, 1131
(9th Cir. 2003) ("Allowing the fruits of one litigation to facilitate preparation in other cases
advances the interests of judicial economy by avoiding wasteful duplication of discovery.").
Since the USVI seeks access to the sealed documents for use in its own related law enforcement
action, subject to a protective order that will maintain appropriate confidentiality, and not to
publicize the information contained therein, any concerns related to the privacy of parties
identified therein is absent. The Court thus should grant the USVI access to these sealed
documents.
C. The USVI's Motion for Confidential Access to linfiled Disco% en Documents
Should he Granted.
The Court also should modify the existing Protective Order (ECF No. 62) to permit the
USVI to confidentially access any discovery deposition transcripts and exhibits that have not
been filed with the Court. The Second Circuit has held that "[w]here there has been reasonable
reliance by a party or deponent, a District Court should not modify a protective order granted
under Rule 26(c) 'absent a showing of improvidence in the grant of the order or some
extraordinary circumstance or compelling need.' SEC v. TheStreet.com, 273 F.3d 222, 229 (2d
Cir. 2001) (quoting Martindell v. IT&T Corp., 594 F.2d 291, 296 (2d Cir. 1979)). Here, two
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circumstances support the Court's modification of the Protective Order to grant the USVI
confidential access to unfiled discovery deposition documents.
First, the existing Protective Order (ECF No. 62) is a blanket protective order, not a
targeted order making findings with respect to particular documents or testimony. Courts in this
Circuit, including this Court, have held that litigating parties have lesser reliance interests in
blanket protective orders than in more targeted orders. See, e.g., In re EPDM Antitrust Litig.,
255 F.R.D. 308, 319 (D. Conn. 2009) ("When considering a motion to modify, it is relevant
whether the order is a blanket protective order, covering all documents and testimony produced
in a lawsuit, or whether it is specially focused on protective certain documents or certain
deponents for a particular reason. A blanket protective order is more likely to be subject to
modification than a more specific, targeted order because it is more difficult to show a party
reasonably relied on a blanket order in producing documents or submitting to a deposition.");
Nielsen C. (U.S.), LLC v. Success Systems, Inc., 112 F. Supp. 3d 83, 120 (S.D.N.Y. 2015) ("A
broad protective order is less likely to elicit reliance 'because it is more difficult to show a party
reasonably relied on a blanket order in producing documents or submitting to a deposition.')
(quoting In re EPDM, 255 F.R.D. at 319). Since the Protective Order does not address specific
deposition testimony or exhibit documents, the parties do not have demonstrated reliance
interests in applying the Order to this testimony or these documents.
Second, the USVI's interest in obtaining access to testimony and documents in this action
relating to Epstein's sex-trafficking conduct that also is at issue in its CICO law enforcement
action is considerable. The USVI seeks access to this discovery through this action because it
already has been provided and therefore at the very least may be obtained more expeditiously
herein than through duplicative discovery in its separately-filed action. See generally In re
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EPDM, 255 F.R.D. at 324 ("Whether the collateral litigant could retrieve the same materials in
question through its own discovery requests or whether it is attempting to subvert a limitation on
discovery, such as the close of the factual record, should be taken into account. Certainly, if the
litigant could access the same materials and deposition testimony by conducting its own
discovery, it is in the interest of judicial efficiency to avoid such duplicative discovery."); Foltz,
supra, 331 F.3d at 1131 ("Allowing the fruits of one litigation to facilitate preparation in other
cases advances the interests of judicial economy by avoiding wasteful duplication of
discovery.").
Moreover, the USVI's interest in accessing this discovery may be far greater than a
matter of procedural efficiency. In light of Epstein's death in federal prison after the discovery
in this action was taken, his direct testimony is unavailable to the USVI. Thus, any testimony by
or about Epstein in this action may be critical to the USVI's law enforcement action.
Either or both of these considerations provide compelling grounds for modifying the
Protective Order to grant the USVI access to unfiled discovery deposition transcripts and
exhibits to those depositions in this action.
CONCLUSION
For all of the foregoing reasons, the USVI respectfully moves this Court to GRANT the
Ex Parte Motion to Intervene and for Access to Judicial Records and Discovery Documents.
Dated: September 1, 2020
Respectfully submitted,
/s/ William H. Narwold
William H. Narwold, Esq.
Motley Rice LLC
One Corporate Center
20 Church Street, 17th Floor
Hartford, CT 06103
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Tel: 860-882-1676
Fax: 860-882-1682
Email: [email protected]
Counsel of Recordfor Proposed Intervenor
Government of the United States Virgin Islands
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