gov.uscourts.nysd.447706.1050.0.pdf

Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 1 of 12 1 K3VQgiuC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 Civ. 7433 (LAP) Telephone Conference 6 GHISLAINE MAXWELL, et al, 7 Defendants. 8 ------------------------------x New York, N.Y. 9 March 31, 2020 1:00 p.m. 10 Before: 11 HON. LORETTA A. PRESKA, 12 District Judge 13 APPEARANCES 14 BOIES SCHILLER & FLEXNER 15 Attorneys for Plaintiff Giuffre BY: SIGRID S. McCAWLEY 16 ANDREW VILLACASTIN SABINA MARIELLA 17 HADDON MORGAN & FOREMAN PC 18 Attorney for Defendant Maxwell BY: LAURA A. MENNINGER 19 HOLLAND & KNIGHT LLP 20 Attorney for Intervenors Julie Brown and Miami Herald BY: CHRISTINE WALZ 21 22 KRIEGER KIM & LEWIN Attorney for Non-Party John Doe 23 BY: NICHOLAS J. LEWIN PAUL M. KRIEGER 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 2 of 12 2 K3VQgiuC 1 (The Court and all parties appearing telephonically) 2 THE COURT: Who is on for the plaintiff, please? 3 MS. McCAWLEY: Yes, your Honor. it's Sigrid McCawley 4 from Boies Schiller & Flexner. I have with me my colleague 5 Andrew Villacastin and Sabina Mariella. 6 THE COURT: Thank you. 7 For Ms. Maxwell, please. 8 MS. MENNINGER: Good morning, your Honor. Laura 9 Menninger on behalf of Ms. Maxwell. 10 THE COURT: Good morning. 11 Ms. Walz, for the Miami Herald, let's hear your voice, 12 please. 13 MS. WALZ: Yes, your Honor. Christine Walz from 14 Holland & Knight on behalf of Intervenors Julie Brown and Miami 15 Herald. 16 THE COURT: Thank you. 17 How about Non-Party John Doe? 18 MR. LEWIN: Yes, your Honor. Good afternoon. I hope 19 you and everyone are doing well. 20 This is Nick Lewin on behalf of John Doe. And Paul 21 Krieger is also on the line from Krieger Kim & Lewin. 22 THE COURT: Yes, sir. Good afternoon. 23 MR. KRIEGER: Good afternoon, Judge. 24 THE COURT: Is there any party or non-party who I have 25 missed who wishes to identify himself or herself? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 3 of 12 3 K3VQgiuC 1 All right, friends, I will ask you, please, when you 2 speak to say your name first so that the court reporter is able 3 to do a good transcript. 4 We have looked at your various letters regarding the 5 protocol, and with respect to paragraph 2(f), the right of 6 reply, that's fine, we will adopt that. 7 With respect to paragraph 3(e), that paragraph will 8 remain in the interest of access and transparency. The upshot 9 of that, as you all know, is that the Non-Parties will 10 initially file their objection under seal. The Court then, 11 sometimes with information from the Original parties, will 12 prepare a redacted copy of those filings so that those can be 13 docketed. 14 With respect to filing objections by email, we're 15 going to include that to give the Non-Parties the greatest 16 opportunity of methods of filing their objections. 17 We had earlier asked the parties to agree on a list of 18 decided motions, and you will recall that we added two motions 19 that were in controversy. 20 Are we pretty much prepared to file that list of 21 decided motions, counsel? 22 MS. McCAWLEY: Your Honor, this is Sigrid McCawley. 23 I'm sorry, Laura, go ahead. 24 MS. MENNINGER: This is Laura Menninger for Ms. 25 Maxwell. We are pretty close. I have received from Ms. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 4 of 12 4 K3VQgiuC 1 McCawley the redactions that she proposes, and I think we are 2 similar, so I would expect within the next day we could agree 3 on the redacted version of that decided motions list which 4 would have the two motions that your Honor had ruled were 5 decided over our objection. We put those back into our list 6 and have redacted ones almost ready to go. 7 THE COURT: Wonderful. That sounds great. 8 Working off the Non-Party's list, I have been looking 9 at the list that has the Doe I, Doe II identifiers down the 10 right-hand side, and our proposal is that we begin with Doe I 11 and II together because they are mentioned in the same item. 12 My proposal would be for the Original parties to confer and to 13 propose five motions or so, whatever you think is a reasonable 14 number, that pertain to Doe I and Doe II for us to begin our 15 review with. 16 Is that something that sounds reasonable to you folks? 17 MS. McCAWLEY: This is Sigrid for plaintiff. And that 18 sounds reasonable to me. 19 THE COURT: Ms. Menninger? 20 MS. MENNINGER: Yes, this is Laura Menninger. That 21 sounds reasonable to me. I'm not sure that I have the list 22 with the Doe I and II down the side. Maybe I missed that. 23 THE COURT: Let me just see. Will you recall the date 24 on the letter that that came in with? 25 MR. LEWIN: Judge, I believe it was February 4. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 5 of 12 5 K3VQgiuC 1 THE COURT: So you will be able to find that on the 2 February 4 letter. 3 MS. MENNINGER: I will. 4 THE COURT: I think it is the same list, it only has 5 the additional column of Doe identifiers on the right-hand 6 side. 7 So, would you people be able to tell us by the end of 8 the week what motions you will want to begin with? 9 MS. MENNINGER: This is Laura Menninger. Yes, your 10 Honor. 11 MS. McCAWLEY: Yes, your Honor. 12 THE COURT: Good. Our thought was also following this 13 call, we should docket the final protocol and the forms that we 14 have come up with so that it's out there for everyone to see. 15 Is there any objection to that? 16 MS. McCAWLEY: This is Sigrid for the plaintiff. No, 17 your Honor. 18 MS. MENNINGER: For Ms. Maxwell, no, your Honor. 19 Thank you. 20 THE COURT: Terrific. What else do you people want to 21 discuss? 22 MS. MENNINGER: Your Honor, I think there was a 23 proposal to change the -- this is Laura Menninger again, I'm 24 sorry -- to change the length of time from 14 days to 30 days 25 just in the interest of the current challenges posed by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 6 of 12 6 K3VQgiuC 1 crisis. I don't know if your Honor had a position, but I would 2 say that was again set forth by a Non-Party participant. 3 THE COURT: Indeed, I saw that in Mr. Lewin's letter. 4 Although I certainly am ambivalent about it, I'm not sure if 5 that is going to help us a lot. If somebody says to us "give 6 me some more time," fine; but to allow 30 days does seem to be 7 a bit excessive. We have a lot of work to do here, and we 8 wanted to undertake it on a rolling basis so it does seem to be 9 the sooner, the better. 10 If someone feels strongly about it, I'm happy to hear 11 you. Does anyone want to add anything? 12 MR. LEWIN: Judge, this is Nick Lewin. With your 13 Honor's permission, I would like to please, Judge. 14 THE COURT: Yes, sir. 15 MR. LEWIN: So, we fully understand that your Honor 16 wants to keep this going and that there's a massive task ahead, 17 but we just point out that as it stands right now, a Non-Party 18 has 14 days from service, which could mean as little as ten 19 days when they get a legal notice out of the blue. Right now, 20 given what's happening, people have a limited ability to check 21 their mail, to receive their mail and, frankly, not every 22 recipient of these notices is the kind of person that has a 23 lawyer on speed dial. 24 We also think that it can be hard to -- communications 25 are more difficult now. So we certainly recognize and share SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 7 of 12 7 K3VQgiuC 1 the desire to move through this but suggest that at least with 2 respect to the amount of time between receiving the initial 3 notice and having to put in a request for excerpts and make all 4 the decisions that go along with that, that extending that time 5 to 30 days under these circumstances really does make sense and 6 does not delay in a really substantial way this important 7 process from going forward. 8 So we would urge your Honor to consider the breadth of 9 people who will be notified and the amount of time that could 10 be really limited. It could be nine or ten days to make that 11 request, and therefore renew the request to extend it just 12 briefly as set forth in our letter. 13 THE COURT: Yes, sir. Who else? 14 MS. McCAWLEY: This is Christine Walz on behalf of the 15 Intervenors. 16 We think that the proposal would in fact actually 17 extend the process into a month-long endeavor without any 18 reasonable tie to any COVID slowdown. And this has already 19 been quite a lengthy process, and it is already going to 20 continue to be a lengthy process. So, we object to any 21 extension along the lines of what has been proposed. 22 THE COURT: Who else, please? 23 MS. McCAWLEY: Thank you. Your Honor, this is Sigrid 24 McCawley on behalf of the plaintiff. 25 While we certainly appreciate the current environment SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 8 of 12 8 K3VQgiuC 1 we are in, the protocol as you set it up will have us notifying 2 two individuals at a time, at least as of this moment. So we 3 think it is perfectly reasonable the amount of time you've 4 built in. And the John Does proposal was not for a limited 5 period of time. It was for the entire term that this process 6 goes forward, which would extenuate it significantly, so we 7 disagree with any extension of those time frames. 8 THE COURT: Anyone else? 9 OK. I certainly appreciate what Mr. Lewin has said 10 here. On the other hand, the decision to ask for the excerpts 11 is not a particularly complicated one in contrast, for example, 12 to the decision to file objections. All the Non-Party is doing 13 is asking to see materials in which he or she is mentioned. At 14 this point I think 14 days is certainly adequate. Again, if 15 someone asks for an extension, I'm sure it will be granted. So 16 for now I will leave it as it is. 17 What else, gentlemen, ladies and gentlemen? 18 MS. McCAWLEY: Your Honor, this is Sigrid McCawley. I 19 apologize if you addressed this and I missed it, but in the 20 defendant's proposal, they proposed additional language to be 21 added to the notice of Non-Parties of possible unsealing of the 22 sealed documents, so one of the attachments. 23 THE COURT: Correct. 24 MS. McCAWLEY: We object to that language. I just 25 want to make sure that the Court has an opportunity to address SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 9 of 12 9 K3VQgiuC 1 that. 2 THE COURT: You're right. Forgive me. I missed it on 3 my notes. It was for material relating to what's publicly 4 available, that's right. 5 MS. McCAWLEY: It was the statement that was going to 6 be added to the notice that says, "Once the materials are made 7 publicly available, the media entities to have sought the 8 unsealing will gain access to these materials including your 9 name and the other references to you contained in the sealed 10 materials, and they will be free thereafter to publish any such 11 information." And that's in bold. 12 THE COURT: Yes, ma'am. 13 Who wishes to be heard on that? 14 MS. MENNINGER: Your Honor, Laura Menninger for 15 Ms. Maxwell. 16 My concern, as I set forth in my letter, but I wanted 17 to just expound upon it a little bit, is that in the normal 18 case the fact that a document is available on a court database 19 may not then give rise to publication. I would point out that 20 some of the Non-Parties do not have residences in the U.S. 21 There are international persons who are listed as Non-Parties, 22 and I think they may not be aware of necessarily what may come 23 of the unsealing. I think in fact what I would predict is a 24 likely outcome. 25 And so I felt in order for a Non-Party to fully SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 10 of 12 10 K3VQgiuC 1 understand whether or not they want to participate, they should 2 have a little more fulsome explanation as to what this 3 unsealing process might mean, especially for those who aren't 4 necessarily familiar with our court system. And as Mr. Lewin 5 earlier pointed out, not all of these individuals have lawyers. 6 Certainly most of them probably do not, and I think that a 7 little wider explanation would be appropriate for them in the 8 notice. 9 THE COURT: Yes, ma'am. Thank you. 10 Who else? 11 MS. WALZ: Your Honor, Christine Walz on behalf of 12 Intervenors. There is no difference between public access to 13 court filings and media access. The Intervenor's role in this 14 case is to advocate for the public right of access, which is 15 protected by the First Amendment and the common law. And 16 Ms. Maxwell's supposed language mischaracterizes that role in 17 an effort to -- 18 THE COURT: Ms. Walz, you need to slow down if you 19 want the court reporter to take this. 20 MS. WALZ: I'm sorry, your Honor. Ms. Maxwell's 21 proposed language mischaracterizes the media's role in an 22 effort to encourage objections for Non-Parties. We object to 23 the change in the language especially at this late date. 24 THE COURT: Anyone else? 25 MS. McCAWLEY: Your Honor, this is Sigrid McCawley on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 11 of 12 11 K3VQgiuC 1 behalf of the plaintiff. 2 We similarly object to the language as we put forth in 3 our letter to you. First, the Court has already included in 4 that notice that bolded statement about the information 5 becoming public. So the added language is simply intended in 6 my view to scare a Non-Party and is unnecessary and 7 inappropriate for a filing like this. 8 THE COURT: Anyone else? 9 Thank you, counsel. I agree that the proposed 10 additional language is not necessary, and in fact does sound 11 terribly scary. On the other hand, if it is available, it is 12 publicly available and that means publicly available to anyone. 13 Accordingly, the proposed language is denied. 14 Anything else, counsel? 15 MR. LEWIN: Judge, this is Nick Lewin. Just a 16 clarifying question. 17 THE COURT: Yes, sir. 18 MR. OIFMENT: One of the proposed changes by the 19 defendant here related to paragraph 2(d). It appears to us to 20 have just been a typographical error, but the defendant 21 Ms. Maxwell requested that in the penultimate, or maybe third 22 from final sentence, that there be a small change made to make 23 clear that Original parties that would be filing an opposition 24 to a Non-Party objection to unsealing would be arguing for sort 25 of for unsealing, and we just wanted to confirm that your Honor SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1050 Filed 04/15/20 Page 12 of 12 12 K3VQgiuC 1 was planning to make that change suggested by 2(d). 2 THE COURT: It looks appropriate to me. I'm sorry I 3 missed it in my list. 4 MR. LEWIN: Thank you, Judge. 5 THE COURT: Thank you. 6 Anyone else? 7 All right, counsel. We will try to do a brief order 8 reflecting what we've done here today, and we will look forward 9 to your filing the agreed list of decided motions so that that 10 is on the docket sheet within the next day or two. We will put 11 up the amended protocol and the forms so that those are 12 publicly available as well. 13 Anything else? 14 Counsel, good afternoon, and thank you. 15 (Adjourned) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300