EFTA00792252.pdf

Selected docket entries for case 18-2868 Generated: 03/20/2019 00:37:01 Filed Document Description Page Docket Text 03/19/2019 121 Notice of Appearance for Amicus 2 NOTICE OF APPEARANCE AS AMICUS COUNSEL Counsel FILED on behalf of, <EDIT by Clerk's Office> , FILED. Service date 03/19/2019 by CM/ECF. [2521592] [18-2868] 03/19/2019 15.1. Motion for Leave for Non—Party 3 MOTION FOR LEAVE TO INTERVENE, on behalf of Limited Intervenor to File Unredacted Non—Party Filer(s), FILED. Service date03/19/2019 by Motions Ex CM/ECF.[2521598] [18-2868] 03/19/2019 152 Motion for Limited Intervention 4 MOTION FOR LEAVE TO INTERVENE, on behalf of by Non—Party J. Doe FILED Non—Party Filer(s), FILED. Service date03/19/2019 by CM/ECF. 2521599 18-2868 03/19/2019 153 MOTION TO FILE AMICUS CURIAE BRIEF, on behalf .151Motion for Leave to File as 5 of Non—Patty Filer(s), FILED. Service date03/19/2019 by Amicus FILED CM/ECF.[2521600] [18-2868] 153 John Doe Amicus Brief 11 03/19/2019154 Motion for Leave for Non—Party 24 MOTION FOR LEAVE TO INTERVENE, on behalf of Limited Intervenor to Proceed Under Non—Party Filer(s), FILED. Service date03/19/2019 by Pseudonym (2) CM/ECF.[2521601] [18-2868] EFTA00792252  Case 18-2868, Document 150, 03/19/2019, 2521592, Pagel of 1 NOTICE OF APPEARANCE FOR SUBSTITUTE, ADDITIONAL, OR AMICUS COUNSEL Short Title: v. Maxwell Docket No.: 18-2868 Substitute, Additional, or Amicus Counsel's Contact Information is as follows: Name: Paul M. Krieger Firm Krieger Kim & Lewin LLP Address:500 Fifth Avenue, 34th Floor Telephone: (212) 390-9550 Fax: (212) 390-9550 [email protected] Appearance for, Amicus Curiae John Doe (party/designation) Select One: E Substitute counsel (replacing lead counsel: (name/firm) EISubstitute counsel (replacing other counsel: (name/firm) DIAdditional counsel (co-counsel with: (name/firm) IZIAmicus (in support of: Defendant-Appellee Ghislaine Maxwell (party/designation) CERTIFICATION I certify that: Ell am admitted to practice in this Court and, if required by Interim Local Rule 46.1(a)(2), have renewed my admission on 01/29/2015 OR D applied for admission on /S/ Paul M. Krieger Signature of Counsel: Type or Print Name: Paul M. Krieger EFTA00792253  Case 18-2868, Document 151, 03/19/2019, 2521598, Pagel of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-8574511 MOTION INFORMATION STATEMENT Docket Numberfs): 18-2868 Captionhum than Motion kr: Leave for Non-Party Seeking Limited Intervention to File Unredacted Motions Ex Parte, Under Seal, for in camera Review Set forth pmcisc, compkte statement of relief sought: Leave to file unredacted motions seeking (1) limited v. Maxwell intervention to lodge objections/show good cause why specific summary judgment material should remain sealed/be redacted; and (2) leave to use pseudonym, for in camera review, pending review of the district court's sealing orders and this Court's further direction. MOVING PARTY:1 Doe, Non-Party Limited Intervenor OPPOSING PARTY:M Plaintiff-Appellee DPktirmiff Encl.:n(4mi ElAppellmt/Petitioner ppellec/Responlent MOVING ATTORNEY: Kerrie L. Campbell OPPOSING ATTORNEY:Sigrid moe-awieY [name ofattorney, whh firm, address. glione number and e-mail] KCampbell-Law, PLLC BOIES SCHILLER FLEXNER UP 1629 K St., NW, Suite 300, Washington, DC 20006 401 E. Las Olas Blvd. Suite 1200 Fort Lauderdale, FL, 33301 202.681-5432; kcampbell©kcamlaw.com 954 377 4223; smccawley©bsfilp.com Cowl- Judge/ Agency appealed from: U.S. District Court for the Southern District of New York (Sweet, J.) Please check appropriate boxes: FOR EMERGENCY MOTIONS. MOTIONS FOR STAYS AND INJIJCTIONS PENDING APPEAL: I las movant notificdApposing counsel (required by Local Rub 27.1): Has this request for rekf been trade bebw? JYcs ZYes jNo (explain): Has this relief been previously sought in this come Yes Requested return date and expknation of emergency: Opposing l's positinn on merleett_ i non:used apposetiLiDon't Know Does oppetS coulee! Send ne a response: [Yes ON° LICIDon't Know Is twat argument on motion requested? El Ycs DiSa(requests for oral argunx:nt wi not rEccssarily he granted) I las arguminit date of appeal been set? CIYesEiNo If yes, enter tine: March 6. 2019 Signature of Moving Attorney: Kerrie L. Campbell Date:03.19.19 Service by:✓ r D0ther [Attach proof of senicel * Motion Information Statement only; Motions to be filed ex parte with Court, under seal, for in camera review Form T-I0/10(rev.I2-I3) EFTA00792254  Case 18-2868, Document 152, 03/19/2019, 2521599, Pagel of 1 UNITED snits COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212.857.8500 MOTION INFORMATION STATEMENT Docket Number(s): 18-2868 Ciaptim fuse short Wel %lotion br: Limited Intervention by Non-Party J. Doe Set forth bebss precise. complete statement of relief sought: Non-party movant seeks leave to intervene for the limited v. Maxwell purpose of lodging objections and demonstrating good cause why specific content pertaining to Doe in materials subject to district court sealing orders and this Courts March11. 2019 Order to Show Cause [DE 138] should remain sealed or be redacted to protect Doe's compelling privacy interests. MOVING PARTY:J• Doe. Non-Party Limited Intervenor OPPOSING PARTY Plaintiff-Appellee phintif ElDcfendant DAppekuu/Petitbner DAppelec/Respondent MOVING ATTORNEY:Kerrie L. Campbell OPPOSING ATTORNEY:Sigrid McCawley (name ofattorney, wih fern . address, phone number and e-maig KCampbell-Law, PLLC BOIES SCHILLER FLEXNER LLP 1629 K St, NW, Suite 300, Washington, DC 20006 401 Las Olas Blvd. Suite 1200, Ft. Lauderdale, FL 33301 202.681-5432; [email protected] 954.337.4223; [email protected] Cow. Judge/ Agency appealed tram: U.S. District Court for the Southern District of New York (Sweet J.) Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND I los movant notiftedr opposing counsel (mquied by Local Rub 27.1): ElYes jNo(explaii): INJUCTIONS PENDING APPEAL: Has this request fix mlef been nude below? Has this relef been previously sought this court? Yes Yes Roo Requested return date and explanation ofemergency: OPPosbfi l's position on motion: nopposed ElOpposcdriGon't Know Does opposS coun$41intend tend a response: I tNo Don't Know Is tral argument on motion requested? [] Yes 0 (requests for oral argument will an necessarily be granted) Vas argument date of appeal been set? El Yes[] No If yea, enter date: March 6, 2019 Signature of SIovlag Attorney: /s/ Kerrie L. Campbell nate:03.19.19 Service by: InCM/ECF LIGther (Attach proof of service *Motion Information Statement only; Motions to be filed ex parte with Court. under seal, for in camera review Form T-I080 (rev.12-13) EFTA00792255  Case 18-2868, Document 153-1, 03/19/2019, 2521600, Pagel of 6 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 2124574500 MOTION INFORMATION STATEMENT Docket Number(s): 18-2888 Caption kne short tike/ Morton for. Leave to File Brief as Amicus Curiae in Support of Defendant-Appellee Maxwell's Objections to The Court's March 11, 2019 Order to Show Cause Set forth below precise. complete statement of relief sought: Amicus respectfully requests leave to file the v. Maxwell attached amicus brief. MO PARTY: Amicus Curiae John Doe OPPOSINGPARTY: " DPLaintiff (Defendant DAppellant Petitioner EAppelee Respcadent MOVING ATTORNEY: Nicholas Lewin OPPOSING ATTORNEY: N/A [name of attorney. with Inn, address. phone number and e-mail Krieger Kim and Lewin LLP, 500 Fifth Avenue, 34th Floor New York, New York 10110 212390.9550 Cow_ Judge:' Agency appealed from, U.S. District Court for the Southern District of New Yak - Judge Robed W. Sweet Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUCTIONS PENDINGAPPEAL: Has movant notified kg cannel (requited by Local Rule 27.1): Has this request for relief been made below? Dyes No (explaii): NiA Has this relief been preciously sought in this court? Requested return date and explanation of emergency: Opposing el's position on motion: nopposed DOpposedDDon't Know Does opl poI e counsel intend • ti a response: Yes DNo IL on't Know Is oral argument on motion requested? El Yes (requests for oral argument wil not necessarily be granted) Has argument date of appeal been set? Ekes EINci If yes. enter date: Signature of Moving Attorney: Is/ Nicholas Lewin Date: 3/19/2019 Service by. EICMECF DOther [Attach proof of senicej Form T-1080 (rev.12-13) EFTA00792256  Case 18-2868. Document 153-1, 03/19/2019. 2521600, Paget of 6 18-2868 IN THE Zfriniteb tecto Court of Appeat FOR THE SECOND CIRCUIT -0181.111. L. Plaintiff:Appellee, ---against--- GHISLAME MAXWELL, Defendant-Appellee, (Caption continued on inside cover) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK MOTION OF JOHN DOE FOR LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLEE MAXWELL'S OBJECTIONS TO THE COURT'S MARCH 11, 2019 ORDER TO SHOW CAUSE Nicholas J. Lewin Paul M. Krieger Jonathan F. Bolz KRIEGER KIM & LEWIN LLP 500 Fifth Avenue, 34th Floor New York, New York 10110 Tel.: (212) 390-9550 Attorneysfor Amicus Curiae John Doe EFTA00792257 Case 18-2868, Document 153-1, 03/19/2019, 2521600, Page3 of 6 --against--- SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants. EFTA00792258  Case 18-2868, Document 153-1, 03/19/2019, 2521600, Page4 of 6 Pursuant to Federal Rule of Appellate Procedure 29(a)(3) and Second Circuit Local Rule 29.1(b), John Doe respectfully requests leave of this Court to file the attached brief as amicus curiae in support of Defendant-Appellee Maxwell's ("Maxwell") objections to this Court's March 11, 2019 Order to Show Cause (the "Order to Show Cause"). The Order to Show Cause directs the parties to show cause why the underlying summary judgment motion, any materials filed in connection with that motion, and the District Court's decision (collectively the "Summary Judgment Materials") should not be unsealed. Amicus is not a party and is not otherwise affiliated or associated with a party to the underlying litigation.' Amicus was not a participant in, or otherwise privy to, what the District Court describes as "vigorous litigation" and a "lengthy and tumultuous discovery process." R-953, at 4. Similarly, Amicus is not, and has never been, a party in any judicial proceeding involving Maxwell, involving Plaintiff- Appellee ("M'), or otherwise relating to allegation that Respondent Epstein ("Epstein") sexually abused her. Nor is Amicus aware of any legal proceeding or law enforcement reports in which identified Amicus as a co-conspirator of Epstein or a person with whom she had sexual relations. Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Second Circuit Local Rule 29.1(b), the undersigned counsel states: (a) that no party's counsel authored this brief in whole or in part; (b) that no party or his/her counsel contributed money that was intended to fund the preparation and submission of this filing; and (c) no person, other than Amicus, contributed money that was intended for the preparation or submission of this brief. EFTA00792259  Case 18-2868. Document 153-1, 03/19/2019. 2521600, Page5 of 6 The proposed brief supports the objections of Maxwell insofar as she objects to the unsealing of the Summary Judgment Materials until appropriate protections are imposed (specifically, the redactions of names and personal identifying information) to protect third persons whose privacy and reputations may be jeopardized by the release and publication of unadjudicated allegations. The release of unredacted Summary Judgment Materials may well substantially infringe the privacy and reputational interests of many third persons, potentially including Amicus, who have never been charged with a crime, have never been subject to civil proceedings, and have never been publicly identified by Amicus seeks to file the proposed brief as "John Doe" due to the aforementioned third-party privacy concerns. Raising these concerns as a "John Doe" amicus is appropriate under these circumstances — indeed, it is the only viable option for Amicus to seek protection of these interests. To proceed otherwise would be to forfeit the very privacy rights which are the object of the attached brief See United States v. Silver, No. 15 Cr. 93 (VEC), 2016 WL 1572993, at *2 & *2 n.1 (S.D.N.Y. Apr. 14, 2016) (allowing two non-parties to file anonymous briefs as "Jane Does" to challenge the disclosure of materials containing their identities); Torah Soft Ltd. v. Drosnin, No. 00 Civ. 0676 (JCF), 2001 WL 1425381, at *2 (S.D.N.Y. Nov. 14, 2001) (permitting "John Doe" to challenge disclosure of materials containing his identity). 2 EFTA00792260  Case 18-2868, Document 153-1, 03/19/2019, 2521600, Page6 of 6 Accordingly, Amicus respectfully submits that this Motion satisfies the mandates of Federal Rule of Appellate Procedure 29 and Local Rule 29.1(b), and requests that the Court therefore grant its motion for leave to file a brief contemporaneously with this motion as amicus curiae in support of Maxwell's objections to the Order to Show Cause. Dated: March 19, 2019 New York, New York Respectfully submitted, By LAAAA, N holas J. in Paul M. ICri ger Jonathan F. Bolz KRIEGER KIM & LEWIN LLP 500 Fifth Avenue, 34th Floor New York, New York 10110 Tel.: (212) 390-9550 Attorneysfor Amicus Curiae John Doe 3 EFTA00792261  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Pagel of 13 18-2868 IN THE ZEIniteb A§Itate5 Court of Zippeat5 FOR THE SECOND CIRCUIT L. Plaintiff:Appellee, ---against--- GHISLAME MAXWELL, Defendant-Appellee, (Caption continued on inside cover) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK BRIEF OF AMICUS CURIAE JOHN DOE IN SUPPORT OF DEFENDANT-APPELLEE MAXWELL'S OBJECTIONS TO THE COURT'S MARCH 11, 2019 ORDER TO SHOW CAUSE Nicholas J. Lewin Paul M. Krieger Jonathan F. Bolz KRIEGER KIM & LEWIN LLP 500 Fifth Avenue, 34th Floor New York, New York 10110 Tel.: (212) 390-9550 Attorneysfor Amicus Curiae John Doe EFTA00792262 Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page2 of 13 --against--- SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants. EFTA00792263  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page3 of 13 TABLE OF CONTENTS INTRODUCTION AND AMICUS STATEMENT OF INTEREST 1 ARGUMENT 4 CONCLUSION 9 EFTA00792264  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page4 of 13 TABLE OF AUTHORITIES Cases Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132 (2d Cir. 2016) 7 Douglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211 (1979) 7 Gardner v. Newsday, Inc., 895 F.2d 74 (2d Cir. 1990) 5 In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) 4, 5, 8 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) 4 Miller v. City of Ithaca, No. 10 Civ. 597 (TJM), 2013 WL 12310711 (N.D.N.Y. May 8, 2013) 6 Nixon v. Warner Commc 'us, Inc., 435 U.S. 589 (1978) 4, 5, 6 Scott v. Graham, No. 16 Civ. 2372 (KPF) (JLC), 2016 WL 6804999 (S.D.N Y. Nov. 17, 2016) 8 United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) 5, 6 United States v. Cohen, 18 Cr. 602 (WHP), 2019 WL 472577 (S.D.N.Y. Feb. 7, 2019) 8 United States v. Silver, No. 15 Cr. 93 (VEC), 2016 WL 1572993 (S.D.N.Y. Apr. 14, 2016) 6, 8 United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) 7 United States v. Smith, 985 F. Supp. 2d 506 (S.D.N.Y. 2013) 7 Rules Fed. R. App. P. 29 1 L.R. 29.1(b) 1 EFTA00792265  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page5 of 13 INTRODUCTION AND AMICUS STATEMENT OF INTEREST Amicus John Doe submits this Brief in support of Defendant-Appellee Maxwell's ("Maxwell") objections to the Court's March 11, 2019 Order requiring the parties to show cause why the underlying summary judgment motion, any materials filed in connection with said motion, and the District Court's decision (collectively the "Summary Judgment Materials") should not be unsealed (the "Order to Show Cause"). Amicus objects to the unsealing of the Summary Judgment Materials until appropriate protections are imposed (specifically, the redactions of names and personal identifying information) to protect third persons whose privacy and reputations are jeopardized by the release and publication of unadjudicated allegations — allegations that will never be resolved in the instant case in light of the parties' settlement; allegations that are not believed to be pending for adjudication in any other forum; and allegations that presumably will never be litigated in the future, as the underlying events occurred more than sixteen years ago. R-1, Compl. ¶9. Amicus is, of course, not a party and is not otherwise affiliated or associated with a party to the underlying litigation.' Amicus was not a participant in, or Pursuant to Rule 29 of the Federal Rules of Appellate Procedure and Second Circuit Local Rule 29.1(b), the undersigned counsel states: (a) that no party's counsel authored this brief in whole or in part; (b) that no party or his/her counsel contributed money that was intended to fund the preparation and submission of this filing; and (c) no person, other than Amicus, contributed money that was intended for the preparation or submission of this brief. EFTA00792266  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page6 of 13 otherwise privy to, what the District Court describes as "vigorous litigation" and a "lengthy and tumultuous discovery process." R-953, at 4. Similarly, Amicus is not, and has never been, a party in any judicial proceeding involving Maxwell, involving Plaintiff-Appellee ("M"), or otherwise relating to allegation that Respondent Epstein ("Epstein") sexually abused her. Nor is Amicus aware of any legal proceeding or law enforcement reports in which identified Amicus as a co-conspirator of Epstein or a person with whom she had sexual relations. Amicus, thus, admittedly lacks any specific knowledge of the contents of the sealed Summary Judgment Materials. But the record below is clear that the contents pertain to, and otherwise directly implicate, the privacy and reputational interests of persons other than the two primary parties, and Maxwell, and Respondent Epstein. As described by the District Court's own summary of the allegations and filings under seal, the Summary Judgment Materials pertain to numerous non-parties on matters of private interest: 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. * * Documents designated confidential included a range of allegations of sexual acts involving Plaintiff and non- parties to this litigation, some famous, some not; the 2 EFTA00792267  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Pagel of 13 identities of non-parties who either allegedly engaged in sexual acts with Plaintiff or who allegedly facilitated such acts[.] R-953, at 1-2, 24 (emphasis added). Accordingly, wholesale unsealing of the Summary Judgment Materials will almost certainly disclose unadjudicated allegations against third persons allegations that may be the product of false statements or, perhaps, simply mistake, confusion, or failing memories of events alleged to have occurred over a decade and half ago. No court has adjudicated the identities of third persons who allegedly participated in sexual acts with , or may otherwise be identified in connection with that conduct. In fact, save for proceedings involving Epstein and the underlying proceeding involving Maxwell, Amicus is unaware of any legal proceedings initiated by , any governmental agency, or any other alleged victim against the unnamed third persons referenced in the District Court's summary. The release of unredacted Summary Judgment Materials will thus substantially infringe the privacy and reputational interests of many third persons, potentially including Amicus, who have never been charged with a crime, have never been subject to civil proceedings, and have never been publicly identified by Lacking knowledge as to who precisely is implicated in the Summary Judgment Materials, such invasion of privacy would occur without fair notice and the 3 EFTA00792268  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page8 of 13 opportunity to be heard. Indeed, the presently unidentified persons would receive notice only after the harm resulting from publication had already occurred. At that point, the harm occasioned is irreparable. ARGUMENT It is hard to conceive of a case in which the privacy interests of third parties is more pointedly threatened: the Summary Judgment Materials, according to the District Court, "concern[] the intimate, sexual, and private conduct of . . . third persons, some prominent, some private." R-953, at 2. Long-established precedent requires courts to diligently and carefully protect these interests of non-parties. Indeed, if the courts do not, who will? In the event that this Court ultimately determines that the District Court erred in denying the motions to unseal the record below, Amicus respectfully submits that the appropriate remedy would be to remand proceedings for an expeditious document-by-document review. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978) (observing that decisions regarding the appropriateness of sealing the record are "best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case"); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126 (2d Cir. 2006) (remanding to the district court for "specific, on-the-record findings"); In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) (observing that "[t]he job of protecting 4 EFTA00792269  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page9 of 13 [privacy rights] rests heavily upon the shoulders of the trial judge, since all the parties who may be harmed by disclosure are typically not before the court"). Because of the District Court's familiarity with this case, it is in the best position to balance the interests of the public with the interests of non-parties, such as Amicus, whose privacy and reputational interests may be impacted by blanket disclosure. See Nixon, 435 U.S. 589; United States v. Amodeo, 71 F.3d 1044, 1053 (2d Cir. 1995) ("Amodeo 11") (observing that the district court was "in the best position" to conduct a sealing analysis). Nevertheless, whether or not this Court remands this matter, the Summary Judgment Materials must not be released without proper redactions — at a minimum, redactions protecting the privacy interests of non-parties. As this Court has long recognized, both the common law and First Amendment rights of access can be overcome by legitimate competing interests like privacy. See Gardner v. Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990) ("[T]he common law right of access is qualified by recognition of the privacy rights of the persons whose intimate relations may thereby be disclosed . ."); In re New York Times, 828 F.2d at 116 ("Certainly, the privacy interests of innocent third parties . . . should weigh heavily in a court's balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted."). If the identities of non-parties are not adequately protected, the release of the 5 EFTA00792270  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page10 of 13 Summary Judgment Materials in this case would likely cause severe and irreparable harm to a wide variety of non-parties, including those implicated in the conduct and those potentially victimized by it. Courts routinely protect the identities of non-parties who are subject to unproven allegations of impropriety. See Nixon, 435 U.S. at 598 ("[C]ourts have refused to permit their files to serve as reservoirs of libelous statements for press consumption . . . ."); Amodeo II, 71 F.3d at 1051 ("Raw, unverified information should not be as readily disclosed as matters that are verified. Similarly, a court may consider whether the nature of the materials is such that there is a fair opportunity for the subject to respond to any accusations contained therein."). This is particularly true where the alleged impropriety is sexual in nature. See, e.g., United States v. Silver, No. 15 Cr. 93 (VEC), 2016 WL 1572993, at *6 n.5 & *7 (S.D.N.Y. Apr. 14, 2016) (permitting redaction of the names of two women with whom the defendant had allegedly had extramarital affairs, despite the fact that — in the court's view — the women were "not entirely `innocent' third parties");2 cf. Amodeo II, 71 F.3d at 1051 ("In determining 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 2 Courts have even redacted allegations of sexual misconduct involving parties from judicial documents. See, e.g., Miller v. City of Ithaca, No. 10 Civ. 597 (TJM), 2013 WL 12310711, at *1-2 (N.D.N.Y. May 8, 2013). 6 EFTA00792271  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page11 of 13 considered private rather than public. . . . The nature and degree of injury must also be weighed."). Whereas named parties can avail themselves of the litigation process to refute false accusations, see, e.g., Bernstein v. Bernstein Litowitz Berger & Grossman UP, 814 F.3d 132, 143-144 (2d Cir. 2016) (affirming denial of defendants' application to seal a civil complaint), non-parties whose names become associated with misconduct can suffer the "unfairness of being stigmatized from sensationalized and potentially out-of-context insinuations of wrongdoing." United States v. Smith, 985 F. Supp. 2d 506, 526 (S.D.N.Y. 2013). As the Third Circuit has explained in declining to publicize a list of unindicted co-conspirators in a criminal case: The individuals on the sealed list are faced with more than mere embarrassment. It is no exaggeration to suggest that publication of the list might be career ending for some. Clearly, it will inflict serious injury on the reputations of all. In some instances, there may be truth to the prosecutor's accusation. On the other hand . . . it is virtually certain that serious injury will be inflicted upon innocent individuals as well. In these circumstances, we have no hesitancy in holding that the trial court had a compelling governmental interest in making sure its own process was not utilized to unnecessarily jeopardize the privacy and reputational interests of the named individuals. United States v. Smith, 776 F.2d 1104, 1114 (3d Cir. 1985); cf. Douglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211, 219 (1979) (observing that grand jury secrecy is designed in part to "assure that persons who are accused but exonerated by the 7 EFTA00792272  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page12 of 13 grand jury will not be held up to public ridicule"). Similar considerations recently motivated Judge Pauley to order the redaction of the names of non-parties from warrant materials filed in connection with the Michael Cohen case. See United States v. Cohen, 18 Cr. 602 (WHP), 2019 WL 472577, at *7 (S.D.N.Y. Feb. 7, 2019) ("[R]eferences to those around Cohen from which the public might infer criminal complicity . . . should also be redacted."). While generalized assertions of privacy cannot justify the wholesale sealing of judicial documents, see In re New York Times, 828 F.2d at 116, the redaction of names and identifying information is an appropriate and narrowly tailored means of balancing the public's interest in disclosure with individuals' privacy interests. See, e.g., Scott v. Graham, No. 16 Civ. 2372 (KPF) (JLC), 2016 WL 6804999, at *2 (S.D.N.Y. Nov. 17, 2016) ("The Court further concludes that respondents' request to redact the names of the victim and her mother (as opposed to requesting that the Court seal this entire proceeding) is `narrowly tailored' to serve the higher value of safeguarding the victim's identity."); Silver, 2016 WL 1572993, at *7 ("The Court's redactions are narrowly tailored to obscure the identities of the Jane Does while simultaneously disclosing the nature of the evidence that the Government sought to admit as rebuttal evidence, the arguments for and against admitting that evidence, the Court's ruling on the Motion, and the reasons for sealing the Motion during trial." (footnotes omitted)). Thus, before any of the Summary Judgment Materials become 8 EFTA00792273  Case 18-2868, Document 153-2, 03/19/2019, 2521600, Page13 of 13 public, this Court or the District Court should redact the names and identifying information of non-parties who are victims or whose privacy and reputational interests might otherwise be harmed. CONCLUSION For these reasons, this matter should be remanded with instructions to redact the names and personal identifying information of non-parties whose privacy and reputational interests are endangered by a blanket release and publication of the Summary Judgment Materials. In the alternative, if this Court decides to release and publish the Summary Judgment Materials, this Court should similarly redact the names and personal identifying information of non-parties. Dated: March 19, 2019 New York, New York Respectfully submitted, By: holas ewin Paul M. Krieger Jonathan F. Bolz KRIEGER KIM & LEWIN LLP 500 Fifth Avenue, 34th Floor New York, New York 10110 Tel.: (212) 390-9550 Attorneysfor Amicus Curiae John Doe 9 EFTA00792274  Case 18-2868, Document 154, 03/19/2019, 2521601, Pagel of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood arshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 2 I 2-857-8500 MOTION INFORMATION STATEMENT Docket :Number( s): 18-2868 Caotkin lust short Ilk Alan ,r. Leave for Non-Party Limited Intervenor to Proceed Under Pseudonym J. Doe Set forth below precise. complete statement of relief sought: For the same reasons innocent third-party Doe v. Maxwell seeks to intervene for the limited purpose of objecting to public disclosure of specific content pertaining to Doe to protect compelling personal privacy interests, Doe seeks leave to proceed proceed under the pseudonym J. Doe. MOVING PARTY:J• Doe. Non-Party Limited Intervenor OPPOSING PARIS • Plaintiff-Appellee Ephimiff EiDefendent DAppillant/Pctitiever OAppckciftespondcat MOVING ATTORNEY:Kerrie L. Campbell OPPOSING AygoRNEy: Sigrid McCawley [name of attorney. with firm, address, phone number and e•maa) KCampbell-Law, PUS BOLES SCHILLER FLEXNER LLP 1629 K St., NW. Suite 300, Washington, DC 20006 401 E. Las Olas Blvd. Suite 1200 Fort Lauderdale, FL, 33301 202.681-5432; [email protected] 954 377 4223; [email protected] Court- Judge/ Agency appealed front Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUCTIONS PENDING APPEAL: ..--. Has movant notificelarosing counsel (required by Local Rule 27.1): [ayes I 1Notexpbing .Has this request for relief been made bebw? las this relief been previously sought ki this cote? Requested return date and expbnation of emergency: _Yes es No 0 Opposing I's position on motion: Unopposed Ca s daon't Know Does opposjs counsLintendito clk a rcsponse: LINo D_CIDon't Know Is oral argument on motion requested? Ekes ao (requests for oral argument wit not necessarily be granted) I las argument date of appeal been set? Yes DNo If yes, enter date: March 6, 2019 Signature of Moving .Attorney: 1S/ Kerrie L. Campbell Date:03.19.19 Service by: ✓ F DOther [Attach proof of service] * Motion informaiton Statement only: Motions to be filed under seal for in camera review Rona T-I.80 (rev.12-13) EFTA00792275