EFTA00794214.pdf

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Plaintiff-Appellee, v. GHISLAINE MAXWELL, Defendant, v. No. 18-2868 SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants Appellee Maxwell's Response to Order to Show Cause EFTA00794214  Appellee Ghislaine Maxwell, through her attorneys Haddon, Morgan and Foreman, P.C., submits this Response to the Court's Order to Show Cause ("OTSC"). I. Objections to the Order to Show Cause. For the reasons stated in Ms. Maxwell's Motion to Reconsider and Vacate the Court's Order to Show Cause and March 13 Order to Produce Sealed Materials, we respectfully object to the Court's Order to Show Cause ("Motion to Reconsider"). In the event the Court finds on the merits that the district court abused its discretion in sealing or redacting summary judgment materials, the appropriate procedure is to remand the case and direct the court to exercise its sound discretion whether to seal or redact the materials "in light of the relevant facts and circumstances of the particular case," Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589, 599 (1978). II. General objections to unsealing of summary judgment materials. As an initial matter, it is essential that the v. Maxwell parties, i.e., Ms. and Ms. Maxwell, understand precisely the scope of the OTSC. As we noted in the Motion to Reconsider, the scope is not clear because of the different references to summary judgment "materials." See Mot. to Reconsider, at 18 n.4. For purposes of this Response, we assume the Court is referring to the summary judgment motion, response, reply, and all the documents and information 1 EFTA00794215 submitted in support of and opposition to the summary judgment motion (collectively "summary judgment materials" or "materials"). And we assume the Court via the OTSC is notifying the v. Maxwell parties ("parties") that they may object to the Court's public disclosure of any sealed or redacted summary judgment materials. The OTSC is, however, incomplete because the dozens of individuals who relied on the Protective Order had no notice of the Order and have had no opportunity to respond. We interpose the following general objections: 1. All sealed and redacted summary judgment materials should remain sealed and redacted with the exception of materials that also are in the public domain. 2. We respectfully object to this Court's substitution of its discretion for that of the district court in deciding whether to unseal and unredact the summary judgment materials and in deciding the extent to which, if at all, the Protective Order or the order disclosing materials should be narrowly tailored to protect the compelling interests of Ms. Maxwell and non-parties whose information is contained or referenced in the materials. The issues implicated by the decision to unseal and unredact the materials is complex and requires familiarity with, among other things, the district court's prior oral and written rulings, the parties' arguments and representations, the statements by non-parties and their counsel, the 2 EFTA00794216 interrelationship between and among factual allegations contained in the materials. We incorporate here by reference the Motion for Reconsideration. 3. We object to the disclosure of any materials or statements therein that did not constitute, reflect or result in any judicial action or that the district court did not rely on, including (a) materials that were irrelevant or otherwise were not competent/admissible evidence under the rules of evidence and Federal Rule of Civil Procedure 56, and (b) allegations not evidentially supported as required under Rule 56. 4. We object to the disclosure of any materials submitted to the district court, and any related factual allegation, without any valid Rule 56 purpose. This includes materials Ms. counsel submitted with the sole intention that they eventually would be revealed to the public to advance her non-Rule 56-related ulterior purposes, including the purpose of gaining publicity and notoriety and creating an environment in which she could continue to profit from her allegations. 5. We object to the disclosure of any materials that were inadmissible under the rules of evidence and were the subject of multiple pending and later-filed motions to exclude their use. Virtually all of the exhibits attached to the Plaintiff's Summary Judgment Response were subject to significant in limine motions and were inadmissible for any legitimate evidentiary purpose. These objections are incorporated by reference. 3 EFTA00794217  6. We object to the disclosure of any materials that were provided by parties or non-parties pursuant to the Protective Order (Jt. App. 131-36) and the district court's decisions concerning the Protective Order (collectively, "Protective Order"), pursuant to assurances or representations by the parties' counsel that these materials would be subject to the Protective Order, or pursuant to the parties' and non-parties' reliance on the Protective Order to maintain the secrecy and confidentiality of the materials. These non-parties include numerous individuals (many public figures) falsely accused by Ms. witnesses who discredit her claims, employees of businesses, and family members and friends of Ms. 7. We object to the disclosure of any materials that were provided by non- parties under the circumstances set forth in Objection No. 6 who have not been given notice of or an opportunity to participate in litigation in this Court on whether sealed and redacted materials should be unsealed and unredacted and disclosed to the public. 8. We object to the unredaction of statements by Ms. counsel referring to and misrepresenting the content of sealed and/or redacted materials. 9. We object to the unredaction and circulation of Ms. numerous defamatory claims under the cloak of a "litigation" or "judicial privilege," thereby de facto immunizing the statements and insulating them from tort liability. 4 EFTA00794218  III. Specific objections to unsealing of summary judgment materials. DOCKET EXHIBIT OBJECTION OBJECTIONS/ # # PLEADINGS in v. Proposed redactions to Def. Statement of Undisputed 537 Facts: Numbered paragraphs 11-17, 35, 37-52 Proposed redactions: Numbered paragraphs 11-17, 35, 37- 541 52; Section 6(A) (pp. 40 et seq.); Section 6(E) (pp. 56-68) Document titles redacted consistent with Appellee's 542 objections herein Not a judicial document, not relied upon by Court; 5424 D Florida Order portions stricken by Judge Marra I Not a judicial document, not relied upon by Court Not a judicial document, not relied upon by Court; 3rd ECF 566 at 6-7, L Party Confidentiality; repeats previously unpublicized 826 at 6-7; defamatory hearsay from Plaintiff M Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented, no notice of N proceedings); contains defamatory statements about previously undisclosed 3rd parties accused of sex trafficking; repeats material stricken by Judge Marra O Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 3rd ECF 566 at 32- Party Confidentiality (unrepresented); inadmissible P 39; 633 at 4; evidence contained within transcript; repeats defamatory 826 at 32-39 hearsay from Plaintiff Q Not a judicial document, not relied upon by Court; R Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; S numerous non-parties' employment records; counsel not given notice of these proceedings Not a judicial document, not relied upon by Court; 3rd ECF 566 at 57; T Party Confidentiality (unrepresented); inadmissible 633 at 12; 826 at evidence contained within transcript 57 5 EFTA00794219  Not a judicial document, not relied upon by Court; U contains proprietary employee handbook; counsel not given notice of these proceedings V Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; W contains proprietary employee information; counsel not given notice of proceedings X Not a judicial document, not relied upon by Court; Y Not a judicial document, not relied upon by Court; Z Not a judicial document, not relied upon by Court AA Not a judicial document, not relied upon by Court Not a judicial document, not relied upon by Court; 3rd BB Party Confidentiality (counsel) Not a judicial document, not relied upon by Court; 3rd CC Party Confidentiality (counsel) EE Not a judicial document, not relied upon by Court FF Not a judicial document, not relied upon by Court ECF 677, 693, Not a judicial document, not relied upon by Court; 3rd 566 at 49; 633 at C'C' Party Confidentiality; Inadmissible, Motions in Limine II; 826 at 49 HH Not a judicial document, not relied upon by Court Not a judicial document, not relied upon by Court; Deposition taken in another matter (Maxwell did not participate or cross-examine); 3rd Party Confidentiality II (some represented by counsel, no notice of proceedings); contains defamatory accusations re previously undisclosed 3rd parties; repeats material stricken by Marra Not a judicial document, not relied upon by Court; Deposition taken in another matter (Maxwell did not JJ participate or cross-examine); 3rd Party Confidentiality (some represented by counsel, no notice); contains defamatory accusations re previously undisclosed 3rd parties; repeats material stricken by Judge Marra 6 EFTA00794220  Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; contains defamatory statements KK about previously undisclosed 3rd parties accusing of sex trafficking; repeats material stricken by Judge Marra 542-9 MM Not a judicial document, not relied upon by Court Proposed redactions: pp. 1-27 up to III (not addressing any summary judgment issues); p. 44 ("for example" 586 through end of paragraph); p. 48-49 (to end of section); p. 53-54 (last paragraph continued to next page); p. 56 ("In sum" thru 57 1g paragraph); p.57-67 (Sections 8(A)-(F)) Proposed redactions: Statement of Undisputed Facts paragraphs 11-17 and 35-52; all of "Plaintiff's Undisputed 586- I Facts," paragraphs 55-74 (p. 62-65) (nothing in rules permits non-movant to submit undisputed facts) Document titles redacted consistent with Appellee's 586-2 objections herein ECF 566 at 2, Not a judicial document, not relied upon by Court; 3rd 586-3 1 633 at 2, and Party Confidentiality (unrepresented, no notice) 826 at 2 Not a judicial document, not relied upon by Court; 3rd ECF 566 at 6-7, 2 Party Confidentiality; repeats previously unpublicized 826 at 6-7; defamatory hearsay from Plaintiff; inadmissible hearsay Not a judicial document, not relied upon by Court; 3rd 3 Party Confidentiality (represented, no notice). The ECF 567 at 5 transcript was inadmissible and not relied on by the Court. Not a judicial document, not relied upon by Court; 3rd ECF 566 at 32- 4 Party Confidentiality (unrepresented, no notice); 39; 633 at 4; inadmissible evidence; defamatory hearsay from Plaintiff 826 at 32-39 5 Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 3rd ECF 567 at 12; 7 Party Confidentiality (represented). The transcript is 566 at 44, 833 at inadmissible 44; Not a judicial document, not relied upon by Court; 3rd 8 Party Confidentiality (represented). The transcript is ECF 673, 674-1 inadmissible 9 Not a judicial document, not relied upon by Court Not a judicial document, not relied upon by Court; 3rd 10 Party Confidentiality (represented, no notice of these ECF 673, 674-1 proceedings). The transcript is inadmissible 7 EFTA00794221  Not a judicial document, not relied upon by Court; 3rd 11 Party Confidentiality; Right to Privacy Not a judicial document, not relied upon by Court; 3rd 12 ECF 566 Party Confidentiality (represented, no notice) Not a judicial document, not relied upon by Court; 3rd 13 Party Confidentiality (represented, no notice). The ECF 677, 678 testimony is inadmissible and not relied on by Court Not a judicial document, not relied upon by Court; 3rd ECF 566, 693, 14 Party Confidentiality (represented, no notice). The 694, 694-1 testimony is inadmissible. Not a judicial document, not relied upon by Court; 3rd 15 Party Confidentiality (represented by Counsel, no notice). ECF 566 The testimony is inadmissible and not relied on by Court Not a judicial document, not relied upon by Court; 3rd 16 Party Confidentiality (represented by counsel, no notice); ECF 566 at 64- Right to privacy; Transcript contains inadmissible 65; 826 at 64-65 evidence Not a judicial document, not relied upon by Court; 3rd ECF 566 at 57; 17 Party Confidentiality (unrepresented, no notice); 633 at 12; 826 at inadmissible evidence contained within transcript 57 Not a judicial document; Deposition taken in another 18 case, Maxwell did not participate or cross exam. The ECF 566 testimony is inadmissible and was not relied on by Court Not a judicial document; Deposition taken in unrelated 19 case, Maxwell did not participate or cross exam); The ECF 567 testimony is inadmissible and was not relied on by Court Not a judicial document; Deposition taken in unrelated 20 case, Maxwell did not participate or cross exam) The ECF 567 testimony is inadmissible and was not relied on by Court Not a judicial document; Deposition taken in unrelated 21 case, Maxwell did not participate or cross exam; The ECF 567, 646 testimony is inadmissible and was not relied on by Court ri Not a Judicial Document; Attorney Client Privilege. The document was not relied on by the Court Not a judicial document; the document is an inadmissible 23 ECF 524, 525-1 opinion, FRE 702, not relied on by the Court Not a judicial document; This document is inadmissible, ECF 528, 786, 24 FRE 702, and was not relied on by the Court 787, 788 25 Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 27 FERPA protected 8 EFTA00794222  Not a judicial document; The compilation document is 28 ECF 677 inadmissible and was not relied on by the Court 19 Not a judicial document; This document is inadmissible ECF 679, 680 and was not relied on by the Court Not a judicial document; This document is inadmissible 30 ECF 681 and was not relied on by the Court Not a judicial document; This document is inadmissible 31 ECF 667, 783 and was not relied on by the Court Not a judicial document; This document is inadmissible 32 hearsay without foundation and was not relied on by ECF 677, 693 Court 33 Not a judicial document, not relied upon by Court; 34 Not a judicial document, not relied upon by Court; 35 Not a judicial document, not relied upon by Court; 36 Not a judicial document, not relied upon by Court; 37 Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; repeats 38 defamatory hearsay of Plaintiff 39 Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; The 40 document is inadmissible and was not relied on by the ECF 677 Court Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice of these 41 proceedings). The document was not relied on by the Court 42 Not a judicial document, not relied upon by Court; 43 Not a judicial document, not relied upon by Court Not a judicial document, not relied upon by Court; 44 Inadmissible Not a judicial document; The document is inadmissible 45 ECF 677 and was not relied on by the Court 9 EFTA00794223  46 Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 47 contains proprietary employee information; counsel not given notice of proceedings Not a judicial document, not relied upon by Court; 49 numerous non-parties' employment records; counsel not given notice of these proceedings Not a judicial document, not relied upon by Court; 50 Florida Order stricken by Judge Marra; 51 Not a judicial document, not relied upon by Court; Proposed redactions: p. 26, last paragraph thru end of p. 620 27; p. 28 last paragraph thru conclusion on top of p. 29 620-1 Proposed redactions: numbered paragraphs 11-17, 35-52 Document titles redacted consistent with Appellee's 621 objections herein 621-1 NN Not a judicial document, not relied upon by Court 621-2 OO Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented by counsel, no 611-3 PP notice); contains defamatory statements re previously undisclosed 3rd parties accused of sex trafficking; repeats material stricken by Judge Marra 621-4 QQ Not a judicial document, not relied upon by Court; Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented by counsel, no 621-5 RR notice); contains defamatory statements about previously undisclosed 3rd parties accusing of sex trafficking; repeats material stricken by Judge Marra /172 Proposed Redactions: Statement of Undisputed Facts 11- 17 and 35-52 10 EFTA00794224 Respectfully submitted, s/ Ty Gee Ty Gee Laura Menninger Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel 303.831.7364 [email protected]; [email protected]; [email protected] Attorneys for Defendant Ghislaine Maxwell 11 EFTA00794225  Certificate of Service I certify that on March 19, 2019, I served via CM/ECF a copy of this Appellee Maxwell's Response to Order to Show Cause on the following persons: The Hon. Robert W. Sweet Paul G. Cassell District Judge ([email protected]) United States District Court for the Sigrid S. McCawley Southern District of New York ([email protected]) (via United States mail) Christine N. Walz Andrew G. Celli ([email protected]) ([email protected]) Madelaine J. Harrington David Lebowitz ([email protected]) ([email protected]) Sanford L. Bohrer ([email protected]) Jay M. Wolman [email protected]) s/ Nicole Simmons 12 EFTA00794226