gov.uscourts.nysd.447706.1218.14.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GIUFFRE, No. 15 Civ. 7433 (RWS) Plaintiff, -against- GHISLAINE MAXWELL, Defendant. MEMORANDUM OF LAW IN SUPPORT OF PROPOSED INTERVENOR ALAN M. DERSHOWITZ’S MOTION FOR PERMISSIVE INTERVENTION AND UNSEALING OF JUDICIAL DOCUMENTS, OR IN THE ALTERNATIVE MODIFICATION OF PROTECTIVE ORDER Emery Celli Brinckerhoff & Abady LLP 600 Fifth Avenue, 10th Floor New York, New York 10020 (212) 763-5000  TABLE OF CONTENTS PAGE NO. TABLE OF AUTHORITIES ...................................................................................................... iii-v PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL AND PROCEDURAL BACKGROUND.....................................................................4 I. MS. GIUFFRE’S ALLEGED RELATIONSHIP WITH JEFFREY EPSTEIN AND BELATED ACCUSATIONS AGAINST PROFESSOR DERSHOWITZ..............................................................4 II. MS. GIUFFRE AND HER ATTORNEYS’ CONTINUING INSISTENCE ON, AND REPETITION OF, ACCUSATIONS AGAINST PROFESSOR DERSHOWITZ..............................................................5 III. THE EXCULPATORY EMAILS, REPLY BRIEF, AND MANUSCRIPT ..............................................................................................6 IV. THE REVELATION OF THE EXCULPATORY DOCUMENTS TO PROFESSOR DERSHOWITZ ..............................................................................11 ARGUMENT .................................................................................................................................11 I. PROFESSOR DERSHOWITZ SHOULD BE PERMITTED TO INTERVENE UNDER FEDERAL RULE OF CIVIL PROCEDURE 24(B) ..............................11 A. There Is Significant Overlap Between the Subject Matter of the Original Action and This Motion ....................................................12 B. There Is No Risk of Undue Delay or Prejudice .........................................12 C. Professor Dershowitz Has a Compelling Interest in Access That Is Not Represented by Any Existing Party ........................................13 II. THE FIRST AMENDMENT AND THE COMMON LAW REQUIRE PUBLIC ACCESS TO THE REQUESTED DOCUMENTS ................................14 A. Legal Standard ...........................................................................................14 1. The Common Law Test .................................................................15 2. The First Amendment Test ............................................................15 B. The Requested Documents Are Judicial Documents .................................16 C. The Common Law Right of Access Applies to the Requested Documents .................................................................................................17 i  1. The Weight of the Presumption of Access Is Strong .....................17 2. There Are No Countervailing Interests That Outweigh the Right of Access ........................................................................19 D. The First Amendment Guarantees Access to the Requested Documents .................................................................................................20 III. ALTERNATIVELY, THE PROTECTIVE ORDER SHOULD BE MODIFIED TO PERMIT DISCLOSURE OF THE REQUESTED DOCUMENTS ................22 CONCLUSION ..............................................................................................................................26 ii  TABLE OF AUTHORITIES PAGE NO(s). Cases Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608, 2014 WL 4346174 (S.D.N.Y. Sept. 2, 2014) ...................................... 16 Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir. 1986) ................................................................................................. 16 Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir. 2001) ........................................................................................ 16 Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086, 2012 WL 6217646 (S.D.N.Y. Dec. 3, 2012)....................................... 16 Diversified Grp., Inc. v. Daugerdas, 217 F.R.D. 152 (S.D.N.Y. 2003) ...................................................................................... 11 Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004).............................................................................................. 22 Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2010 WL 1416896 (S.D.N.Y. Apr. 8, 2010) ....................................... 16 In re EPDM Antitrust Litig., 255 F.R.D. 308 (D. Conn. 2009)................................................................................. 23, 24 In re Gushlak, No. 11-MC-0218, 2012 WL 3683514 (E.D.N.Y. July 27, 2012) ............................... 17, 19 In re N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987).............................................................................................. 18 In re Newsday, Inc., 895 F.2d 74 (2d Cir. 1990)................................................................................................ 19 In re Omnicom Grp., Inc. Secs. Litig., No. 02 Civ. 4483, 2006 WL 3016311 (S.D.N.Y. Oct. 23, 2006) ............................... 17, 19 In re September 11 Litig., 262 F.R.D. 274 (S.D.N.Y. 2009) ...................................................................................... 23 Jane Doe #1 v. United States of America, No. 08 Civ. 80736 (S.D. Fla.) ....................................................................................... 4, 21 Jessup v. Luther, 227 F.3d 993 (7th Cir. 2000) ............................................................................................ 12 iii Lenart v. Coach Inc., 131 F. Supp. 3d 61 (S.D.N.Y. 2015)................................................................................. 19 Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157 (3d Cir. 1993).............................................................................................. 16 Long Island Lighting Co. v. Barbash, 779 F.2d 793 (2d Cir. 1985).............................................................................................. 18 Louissier v. Universal Music Grp., Inc., 214 F.R.D. 174 (S.D.N.Y. 2003) ...................................................................................... 22 Lugosch v. Pyramid Co. of Onodaga, 435 F.3d 110 (2d Cir. 2006)....................................................................................... passim Mills v. Alabama, 384 U.S. 214 (1966) .......................................................................................................... 14 Mokhiber v. Davis, 537 A.2d 1100 (D.C. Ct. App. 1988) .......................................................................... 19, 21 Newsday LLC v. Cnty. of Nassau, 730 F.3d 156 (2d Cir. 2013).............................................................................................. 14 Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) .......................................................................................................... 13 S.E.C. v. Oakford Corp., No. 00 Civ. 2426, 2001 WL 266996 (S.D.N.Y. Mar. 16, 2010) ...................................... 17 S.E.C. v. TheStreet.com, 273 F.3d 222 (2d Cir. 2001)........................................................................................ 22, 24 Schiller v. City of N.Y., No. 04 Civ. 7922, 2006 WL 2788256 (S.D.N.Y. Sept. 27, 2006) .............................. 13, 17 Skyline Steel, LLC v. PilePro, LLC, No. 13 Civ. 8171, 2015 WL 556545 (S.D.N.Y. Feb. 9, 2015) ......................................... 19 Tradewinds Airlines, Inc. v. Soros, No. 08 Civ. 5901, 2016 WL 3951181 (S.D.N.Y. July 20, 2016) ............................... 23, 24 U.S.P.S. v. Brennan, 579 F.2d 188 (2d Cir. 1978).............................................................................................. 11 United States v. Amodeo (Amodeo I), 44 F.3d 141 (2d Cir. 1995)................................................................................................ 14 United States v. Amodeo (Amodeo II), 71 F.3d 1044 (2d Cir. 1995)........................................................................................ 14, 17 iv United States v. Bryan, 339 U.S. 323 (1950) .......................................................................................................... 18 United States v. Erie Cnty., 763 F.3d 235 (2d Cir. 2014).................................................................................. 15, 20, 21 United States v. Erie Cnty., No. 09 Civ. 849, 2013 WL 4679070 (W.D.N.Y. Aug. 30, 2103) ..................................... 12 United States v. Graham, 257 F.3d 143 (2d Cir. 2001).............................................................................................. 15 United States v. Martoma, No. S1 12 Cr. 973, 2014 WL 164181 (S.D.N.Y. Jan. 9, 2014) ........................................ 20 United States v. Sattar, 471 F. Supp. 2d 380 (S.D.N.Y. 2006)............................................................................... 16 Vazquez v. City of N.Y., No. 10 Civ. 6277, 2014 WL 11510954 (S.D.N.Y. May 2, 2014) ..................................... 22 Westmoreland v. CBS, Inc., 752 F.2d 16 (2d Cir. 1984)................................................................................................ 14 Rules & Statutes Fed. R. Civ. P. 24 .................................................................................................................... 11, 14 Fed. R. Civ. P. 26 .............................................................................................................. 22, 24, 25 Fed. R. Civ. P. 45 .......................................................................................................................... 18 Other Authorities Casey Sullivan, Alan Dershowitz Extends Truce Offer to David Boies Amid Bitter Feud, BLOOMBERG LAW (Apr. 11, 2016), https://bol.bna.com/alan-dershowitz-extends- truce-offer-to-david-boies-amid-bitter-feud/ ...................................................................... 6 v  PRELIMINARY STATEMENT At nearly 78 years of age, Alan M. Dershowitz, the highly regarded Harvard Law professor, criminal defense lawyer, and author, is entitled to enjoy the reputation for strict personal rectitude that he has earned. Unfortunately, however, over the course of the last year and a half, that reputation has been unfairly sullied, tainted by false and grotesque allegations of pedophilia and rape peddled to the press by Virginia Giuffre, the plaintiff in this lawsuit, and republished all over the world. Professor Dershowitz has done everything in his power to combat this assault on his reputation, from proclaiming his innocence in public, to marshalling every bit of information within his control to demonstrate that the allegations cannot be true, to submitting to a full investigation of the charges by former federal judge and FBI Director Louis Freeh, who exonerated him. And still the stories keep coming. Now, having been named as a witness in this action by both plaintiff and defendant, Professor Dershowitz has been granted access to certain materials subject to this Court’s stipulated Protective Order and filed under seal—and those materials, some of them in Ms. Giuffre’s own words, confirm his absolute innocence. They demonstrate that Ms. Giuffre did not accuse Professor Dershowitz of sexual misconduct until years after she first named other prominent men who she claimed had abused her; that there was “no proof” that Professor Dershowitz had ever done anything wrong; and that Ms. Giuffre concocted her malicious allegations against Professor Dershowitz, and used his name in her statements and book proposal, not because he abused her—he didn’t—but because he is famous and she believed that his name would help sell the book. In this application, Professor Dershowitz seeks to intervene in this case for the limited purpose of obtaining relief that is modest and narrowly tailored: the unsealing of portions of a brief filed in connection with a motion to quash a subpoena (“Reply Brief”), and certain emails 1 submitted as part of that same motion (“Emails”), as well as a draft of Ms. Giuffre’s memoir (“Manuscript”) that was filed in connection with a motion to extend the parties’ deadline for deposition discovery. Unsealing of these three documents (the “Requested Documents”) is required because they are all judicial documents to which a presumption of public access applies. In the alternative, if the Court declines to unseal the Requested Documents on the basis that they are judicial documents, Professor Dershowitz seeks modification of the Court’s March 18, 2016 stipulated Protective Order to permit the dissemination of the Requested Documents. The Requested Documents concern allegations by Ms. Giuffre whose substance has already been widely aired in public—including, apparently, on camera to ABC News—and which have been widely circulated for sale to publishers and journalists. Ms. Giuffre’s efforts to gain publicity and a book deal based on public interest in her claims should forfeit any asserted right to maintain the confidentiality of these documents. Separately and together, the Requested Documents demonstrate that the allegations of sexual misconduct against Professor Dershowitz—which were lodged by Ms. Giuffre in public court filings and repeated worldwide in the press—are nothing more than a recent fabrication, a made up story designed to increase commercial interest in Ms. Giuffre’s book and promote its sale to a publisher and eventually to readers. Accessing these materials without restriction, and making them public, is essential to Professor Dershowitz’s ability to defend himself. There is no basis for the Requested Documents to remain secret, much less for their secrecy to be maintained by court order. Ms. Giuffre has done everything in her power to publicize her false allegations against Professor Dershowitz: through her lawyers, she publicly filed the accusations in a federal court proceeding; she and her lawyers stood by her claims, in both court filings and public statements to the media, even after her lawyers had issued a public statement acknowledging that filing them had been a “mistake;” she shopped a book manuscript 2 to agents, publishers, and the press with the goal of maximizing the public attention paid to her slanderous story; and she even sought and obtained a lengthy interview with ABC News with the intent that it be broadcast on national television news programs. Ms. Giuffre and her attorneys cannot credibly argue that documentary evidence undermining the accusations she has spent years working to make public are “secret” and should be kept so under the authority of this Court. Disclosing the Requested Documents would violate no right of privacy. By publicly leveling false accusations against Professor Dershowitz in graphic detail and seeking to publicize those accusations in the media, Ms. Giuffre has forfeited any claim that her own (defamatory) words are somehow confidential. Indeed, what Ms. Giuffre’s own counsel have referred to as the “strong current media interest in the case”—which Ms. Giuffre has worked to sustain, including by selling her story—bolsters the public’s right to access the Requested Documents. Were Ms. Giuffre to prevail in her efforts to suppress these documents of high public interest, the result would be absurd and unfair: Ms. Giuffre’s false allegations would remain in the public record, while the innocent victim of her slanders would be barred from using her own words to disprove them. No one should be permitted to game the legal system so perversely. The law recognizes Professor Dershowitz’s right to the Requested Documents under the First Amendment, the common-law right of access to judicial documents, and governing Second Circuit jurisprudence, which forbids sealing and secrecy for their own sake. Here, having waived any privacy interest she may have had by both disseminating the allegations against Professor Dershowitz and by filing this lawsuit against Ghislaine Maxwell, Ms. Giuffre should not be heard to say that her own words, and the words of those with whom she communicated, are somehow “confidential.” They are not. This Court should grant Professor Dershowitz the right to intervene in this action and unseal the Requested Documents. 3  FACTUAL AND PROCEDURAL BACKGROUND I. MS. GIUFFRE’S ALLEGED RELATIONSHIP WITH JEFFREY EPSTEIN AND BELATED ACCUSATIONS AGAINST PROFESSOR DERSHOWITZ In 2006, Professor Dershowitz was retained by financier Jeffrey Epstein to join a team of lawyers hired to defend Epstein against accusations that he had solicited sex workers and had inappropriate sexual encounters with underage girls.1 Declaration of Alan M. Dershowitz (“Dershowitz Decl.”) ¶¶ 6-7. In 2008, Epstein pleaded guilty to certain offenses involving sex with minors. Id. ¶ 7. Ms. Giuffre has alleged that she was one of Epstein’s victims, although Epstein was neither charged nor convicted of any conduct toward her. Id. ¶ 8. Ms. Giuffre claims that she was held as a “sex slave” and trafficked by Epstein, who she alleges facilitated sexual encounters with a number of men. Id. In the period from 2006 through 2014, Ms. Giuffre submitted to interviews with law enforcement, told her story to the media, drafted a tell-all memoir, and filed a lawsuit alleging that Mr. Epstein had trafficked her to many of his prominent associates. Id. ¶¶ 10-14. During this period, Ms. Giuffre never once claimed to have had any sexual contact with Professor Dershowitz, much less that he had sexually abused her. Id. Then, in December 2014, Ms. Giuffre—represented by attorneys Bradley Edwards and Paul Cassell—filed a motion to join an action (the “CVRA Action”) that had been initially filed in the United States District Court for the Southern District of Florida in 2008 by another of Mr. Epstein’s alleged victims, who was designated as “Jane Doe.” Jane Doe #1 v. United States of America, No. 08 Civ. 80736 (S.D. Fla.) (hereinafter, Doe v. USA); Dershowitz Decl. ¶ 16. In late 2014 and early 2015, Ms. Giuffre’s lawyers alleged in public court filings in the CVRA Action that Mr. Dershowitz had had sex with Ms. Giuffre on numerous occasions while she was a minor, including in Florida, on 1 Professor Dershowitz had been acquainted with Mr. Epstein through academic events for a number of years prior to his retention as Mr. Epstein’s counsel, but had neither witnessed nor heard about allegations of sexual misconduct by Mr. Epstein before being hired to represent him. Dershowitz Decl. ¶ 6. 4 Mr. Epstein’s private planes, in the British Virgin Islands, in New Mexico, and in New York. Dershowitz Decl. ¶ 17. Unlike much of the record in the CVRA Action, these allegations were not sealed; instead, they were filed publicly without any evidence to support them and without affording Professor Dershowitz an opportunity to dispute them. Id. Although Ms. Giuffre elaborated these false allegations in subsequent filings, eventually, the presiding judge in the CRVA Action struck them as a sanction against the lawyers who had filed them. But the damage to Professor Dershowitz’s reputation had been done—and it would persist. Id. ¶¶ 18-19. In the wake of the grotesque allegation that he is a pedophile and a sex criminal, Professor Dershowitz loudly and publicly defended himself. In January 2015, Ms. Giuffre’s attorneys, Mr. Edwards and Mr. Cassell, sued Professor Dershowitz for defamation, citing comments he made in his own defense. Id. ¶ 21. During discovery in that action, Ms. Giuffre never produced the Emails or the Manuscript despite a court order requiring her to provide all statements referencing Professor Dershowitz by name; she also falsely testified under oath in her deposition that she never exchanged emails with Sharon Churcher or other members of the press about Professor Dershowitz. Id. ¶¶ 22-23. The defamation action ultimately settled in April 2016, and the parties released a joint statement in which attorneys Cassell and Edwards admitted that it was a mistake to accuse Professor Dershowitz of sexual misconduct in their filings in the CVRA Action and withdrew those allegations. Id. ¶ 24 & Ex. H. Also in April 2016, Professor Dershowitz released the results of a thorough investigation led by former FBI Director and federal judge Louis Freeh, which found that “the totality of the evidence” “refutes the allegations made against” Professor Dershowitz by Ms. Giuffre. Id. ¶ 25 & Ex. I. II. MS. GIUFFRE AND HER ATTORNEYS’ CONTINUING INSISTENCE ON, AND REPETITION OF, ACCUSATIONS AGAINST PROFESSOR DERSHOWITZ Despite the settlement of the defamation case and the resulting joint statement, the court order striking the “lurid” allegations against Professor Dershowitz in the CVRA Action, and the 5 results of Judge Freeh’s investigation, Ms. Giuffre and her counsel have republished Ms. Giuffre’s allegations against Professor Dershowitz. Id. ¶ 26. For example, on April 8, 2016, just after the settlement of the defamation case, Mr. Cassell and Mr. Edwards made a court filing that stated that Ms. Giuffre “reaffirms” her allegations against him, and that their mistake in filing those allegations in the CVRA Action was merely “tactical.” Id. ¶ 26 & Ex. J. David Boies, another of Ms. Giuffre’s attorneys in this case, was described as saying that Ms. Giuffre “stands by her allegations” against Professor Dershowitz. See Casey Sullivan, Alan Dershowitz Extends Truce Offer to David Boies Amid Bitter Feud, BLOOMBERG LAW (Apr. 11, 2016), https://bol.bna.com/alan-dershowitz-extends-truce-offer-to-david-boies-amid-bitter-feud/. These statements—which falsely imply that Professor Dershowitz is guilty of sexual misconduct—are highly injurious to his reputation, especially when they come from otherwise-credible lawyers. Id. ¶ 26. The claim that Professor Dershowitz engaged in sexual misconduct with Ms. Giuffre has also continued to receive attention in the press. See id. ¶ 27 & Ex. K. Professor Dershowitz has learned that Ms. Giuffre sat for an interview with ABC News, presumably as part of her efforts to increase public interest in (and the commercial value of) her “story.” Id. ¶ 27. The interview was announced on social media by an organization with which Mr. Edwards is associated and was said to be slated to appear on ABC’s Good Morning America, World News Tonight, and Nightline programs. Id. While the ABC News interview apparently has not yet run, there is no assurance that it will not run in the future. Id. III. THE EXCULPATORY EMAILS, REPLY BRIEF, AND MANUSCRIPT Each of the Requested Documents corroborates Professor Dershowitz’s claims of innocence and undermines both Ms. Giuffre’s credibility generally and the veracity of her accusations against Professor Dershowitz specifically. 6  First, the Emails, consisting of one exchange dated May 10-11, 2011 and another dated June 8, 2011, discuss, among other topics, Ms. Giuffre’s Manuscript, which purports to recount her experiences with Epstein and other prominent people. Id. ¶ 34. Within the May 2011 exchange, Ms. Giuffre writes to Ms. Churcher on May 10, 2011: “Hello gorgeous, I hope this message comes to you on a bright, sunny day!!! I took your advice about what to offer Sandra and she accepted. Were drawing up a contract through her agent right now and getting busy to meet my deadline. Just wondering if you have any information on you from when you and I were doing interviews about the J.E. story. I wanted to put the names of these assholes, oops, I meant to say, pedo’s, that J.E. sent me to. With everything going on my brain feels like mush and it would be a great deal of help!...” Dershowitz Decl., Ex. A at GIUFFRE004096-97. In an e-mail dated May 11, 2011, Ms. Churcher replies to Mrs. Giuffre, urging her to use Professor Dershowitz’s name in her book proposal despite the lack of any evidence of his involvement in wrongdoing: Don't forget Alan Dershowitz...JE’s buddy and lawyer..good name for your pitch as he repped Claus von Bulow and a movie was made about that case...title was Reversal of Fortune. We all suspect Alan is a pedo and tho no proof of that, you probably met him when he was hanging put [sic] w JE.” Id. at GIUFFRE004096.2 The June 8, 2011 exchange shows Ms. Churcher corresponding with a book agent to promote Ms. Giuffre’s book; Ms. Giuffre is copied on the message. Ms. Churcher mentions Professor Dershowitz as one of Epstein’s lawyers, together with Kenneth Starr, but not as an abuser: Hi Jarred Hopefully you have Virginia' s book pitch by now. She has some amazing names which she can share with you in confidence and I think she also has a human interest story that 2 The relevant excerpts of the Requested Documents are reproduced herein without any alterations or corrections to spelling, grammar, or typographical errors. 7  could appeal to the Oprah/female set as well as the Wall Streeters who follow Epstein — a hedge fund king. Here are a few of our stories about Virginia, plus some examples of the massive US and other international media pickup. Vanity Fair are doing a piece I believe in their August issue. The FBI have reopened the Epstein case due to Virginia’s revelations. I also am attaching a link to a NY Magazine profile of Epstein.....written before his world combusted. The FBI believe he was essentially running a private — and mobile -- brothel for some of the world’s richestand most influential men. He got off the first time round after retaining Kenneth Starr (who witchhunted ) and Alan Dershowitz (von Bulow's appeal lawyer, who inspired the movie Reversal of Fortune). The US Justice Dept is investigating corruption allegations against at least one prosecutor involved in the case. Best regards, Sharon Id. at GIUFFRE004028-29. The Emails were filed under seal in connection with Ms. Churcher’s motion to quash her deposition subpoena. Dershowitz Decl. ¶ 38. The Reply Brief, also filed under seal in pertinent part, characterizes these emails from Ms. Churcher’s perspective, asserting as follows: Churcher makes no suggestion that [Ms. Giuffre] had sexual contact with Dershowitz. To the contrary, she states that there was ‘no proof’ that he was a ‘pedo’—which directly contradicts such a suggestion in itself—but only that [Ms. Giuffre] ‘probably met him when he was hanging out with [Jeffrey Epstein]’. Dershowitz Decl., Ex. M at 8. Finally, the Manuscript—which was filed in connection with Ms. Maxwell’s opposition to Ms. Giuffre’s request for an extension of the deposition discovery deadline—further corroborates that Ms. Giuffre’s allegations against Professor Dershowitz are a recent fabrication. The draft mentions Professor Dershowitz only once, claiming, falsely, that he once walked into a room while Ms. Giuffre was in bed after a sexual encounter with Jeffrey Epstein: 8  Jeffrey’s business was running well from the looks of his attentiveness the office he owned in the Upper East Side of Manhattan. Alan Dershowitz, his colleague in finances and personal solicitor, a bird of the same feather, I had seen hanging around the island and Jeffrey’s Manhattan mansion, more and more these days. Alan’s taste for the young and beautiful was a bias for a blooming business relationship between him and Jeffrey. After an explicit session of Jeffrey’s vulgar pilgrimage into my body, we were interrupted by a knock at the door by Jeffrey’s good friend, Alan. I wrapped myself up in Jeffrey’s pink bed sheets, which is the color preference he chose to sleep in because it reminded him of the same color of his own words " Pussy", and covered my face from the unexpected intrusion. Jeffrey got up and wrapped a towel around his loins and answered the door completely calm. Opening the bedroom door and letting Alan inside they began to converse about business immediately, right in front of me. Jeffrey started to tell Alan what needed to be done while he jostled some notes down quickly. I peeked my head from underneath the covers thinking they were too wrapped up in their work to notice me get up and dressed, and Jeffrey turned back to me and told me to just stay there this would only take a second. Going back to Alan he turned his focus back into work and hustled out a few more orders before letting Alan out of the door and returning his attention to me. Dershowitz Decl., Ex. B at 112. Putting aside that this account is a complete fabrication— Professor Dershowitz had no business dealings with Mr. Epstein and was not his lawyer at the time in question—the Manuscript contains no mention anywhere of any sexual contact between Professor Dershowitz and Ms. Giuffre, or between Professor Dershowitz and any other person. Indeed, though the Manuscript describes sexual encounters Ms. Giuffre allegedly had with a different member of the Harvard faculty—whom she identifies by name and physical characteristics—it levels no such accusation against Professor Dershowitz. Dershowitz Decl. ¶ 37. The Requested Documents, taken together with other evidence currently in the public record, prove the following:  Before her email correspondence with Sharon Churcher in 2011, Ms. Giuffre did not in any way accuse Professor Dershowitz of sexual abuse, 9  even though she had accused other prominent people of abusing her and had plenty of opportunity to do so.  In an exchange of emails in 2011, Ms. Churcher, who was advising Ms. Giuffre about how to maximize her payments for selling her story, first raised the idea of mentioning Professor Dershowitz in connection with the alleged abuse, despite the fact that there was “no proof” that he was involved.  After receiving this email, Ms. Giuffre did in fact put Mr. Dershowitz in her book draft, but she conspicuously did not accuse him of sexual abuse or even any sexual contact, even though she explicitly named others who she claimed had abused her.  In a subsequent email exchange between Ms. Churcher, Ms. Giuffre, and Mr. Weisfeld, Ms. Churcher described several categories of prominent individuals with whom Ms. Giuffre claimed to have had sexual encounters. Professor Dershowitz’s name, along with that of Kenneth Starr, is mentioned in the email, but only as one of the lawyers who negotiated Mr. Epstein’s plea agreement, not as one the “amazing names” of those who allegedly abused Ms. Giuffre.  Ms. Giuffre lied during her deposition in the defamation case brought by her lawyers against Professor Dershowitz, testifying that there were no emails between herself and Ms. Churcher that mentioned Professor Dershowitz by name. Her lawyers did not correct this testimony.  In her Reply Brief, Ms. Churcher has confirmed that Professor Dershowitz was not among the prominent individuals that Ms. Giuffre was accusing of sexual misconduct. The Reply Brief affirmatively argues that Ms. Churcher was “not suggesting” that Professor Dershowitz had sex with Ms. Giuffre, but merely mentioned him to remind Ms. Giuffre that Epstein and Professor Dershowitz knew each other. Id. ¶ 43. The Requested Documents strongly corroborate Professor Dershowitz’s denials of Ms. Giuffre’s malicious and false allegations against him, and undermine her credibility by showing that she has lied under oath about him before. Id. ¶ 44. Because Ms. Giuffre and her lawyers continue to publicly stand by Ms. Giuffre’s accusations against Professor Dershowitz, he has a compelling need to use the Requested Documents in defending his reputation. Id. ¶ 47. 10 IV. THE REVELATION OF THE EXCULPATORY DOCUMENTS TO PROFESSOR DERSHOWITZ In or about May 2016, Professor Dershowitz was named as a witness in this case by both plaintiff and defendant. Id. ¶ 29. Thereafter, he was contacted by defense counsel Ms. Laura Menninger, in anticipation of his possible future testimony. Id. ¶ 30. After Professor Dershowitz agreed to abide by the terms of the stipulated Protective Order in this case (the “Protective Order”), Ms. Menninger sent Professor Dershowitz the Requested Documents to review pursuant to a provision permitting documents produced confidentially in discovery to be shown to potential witnesses. See id. ¶¶ 30, 32; Ex. L. Professor Dershowitz was previously unaware that the Requested Documents existed. Id. ¶¶ 40-41. ARGUMENT I. PROFESSOR DERSHOWITZ SHOULD BE PERMITTED TO INTERVENE UNDER FEDERAL RULE OF CIVIL PROCEDURE 24(B) “On timely motion, the court may permit anyone to intervene,” Fed. R. Civ. P. 24(b)(1), provided the proposed intervenor “has a claim or defense that shares with the main action a common question of law or fact,” id. R. 24(b)(1)(B). The decision to permit intervention under Rule 24(b) is discretionary, U.S.P.S. v. Brennan, 579 F.2d 188, 191 (2d Cir. 1978), though the Court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights,” Fed. R. Civ. P. 24(b)(3). “Additional relevant factors include the nature and extent of the intervenors’ interests, the degree to which those interests are adequately represented by other parties, and whether parties seeking intervention will significantly contribute to the full development of the underlying factual issues in the suit and to the just and equitable adjudication of the legal questions presented.” Diversified Grp., Inc. v. Daugerdas, 217 F.R.D. 152, 157 (S.D.N.Y. 2003) (internal quotation marks and alteration omitted). “It is well-settled that intervention pursuant to Rule 24(b) is the proper procedure for a third party to seek to modify a protective order in a private suit.” Id. (collecting authorities). 11 Likewise, permissive intervention “has generally been found to be most appropriate for a non- party to intervene in order to assert the right to public access” for judicial documents. United States v. Erie Cnty., No. 09 Civ. 849, 2013 WL 4679070, at *5 (W.D.N.Y. Aug. 30, 2103) (collecting authorities), rev’d on other grounds, 763 F.3d 235 (2d Cir. 2014). Here, all relevant considerations support granting Professor Dershowitz’s motion for permissive intervention. A. There Is Significant Overlap Between the Subject Matter of the Original Action and This Motion Many courts have held that a non-party’s assertion of a right to access sealed or confidential litigation materials itself presents a question of law common among the parties and the proposed intervenor, satisfying the prerequisites for permissive intervention. “[W]hen a district court enters a closure order, the public’s interest in open access is at issue and that interest serves as the necessary legal predicate for intervention.” Jessup v. Luther, 227 F.3d 993, 998 (7th Cir. 2000). “Because an intervenor asserting the right of public access is not becoming a party to the underlying merits of a case, further specificity is not required.” Erie Cnty., 2013 WL 4679070, at *5. Even if a more particularized showing of factual or legal commonality were needed, Professor Dershowitz could easily make it. This lawsuit concerns the veracity of Ms. Giuffre’s allegations of sexual abuse—allegations of which Professor Dershowitz has been a repeated target. The Requested Documents are relevant to the credibility both of Ms. Giuffre’s claims generally and of her allegations against Professor Dershowitz specifically. Both parties have listed Professor Dershowitz as a key witness in this case, Dershowitz Decl. ¶ 29, and he is likely to provide testimony as the litigation proceeds. B. There Is No Risk of Undue Delay or Prejudice Professor Dershowitz’s motion seeks extremely narrow and tailored relief: the unsealing of a small number of already-filed documents or the modification of a blanket Protective Order as to one discovery document. Dershowitz Decl. ¶ 3. In the context of this complex case, where 12 a number of discovery disputes and other applications have been submitted to the Court in just the last few weeks, this modest request is unlikely to appreciably affect the schedule of the litigation or to delay its ultimate disposition. See Schiller v. City of N.Y., No. 04 Civ. 7922, 2006 WL 2788256, at *3 (S.D.N.Y. Sept. 27, 2006) (noting that intervention “for the limited purpose of challenging strictures on the dissemination of information should not impede the progress of the litigation”). C. Professor Dershowitz Has a Compelling Interest in Access That Is Not Represented by Any Existing Party As the Supreme Court has recognized, the public’s right to access judicial proceedings and documents extends well beyond those with direct interests in the subject matter of the litigation at issue: “American decisions generally do not condition enforcement of this right on a proprietary interest in the document or upon a need for it as evidence in a lawsuit.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (noting that “the citizen’s desire to keep a watchful eye on the workings of public agencies” is a sufficient basis to compel access). Even if a more concrete stake were needed, Professor Dershowitz has a compelling interest in obtaining and disclosing the Requested Documents, which corroborate his denials of Ms. Giuffre’s heinous allegations against him and undermine her credibility. He also plans to rely on them to defend against a request for sanctions against him that is pending on appeal in a Florida court. Dershowitz Decl. ¶ 46. Although Professor Dershowitz has valiantly fought to clear his name—by, among other efforts, marshaling incontrovertible proof of his innocence, asserting defamation claims in court, and commissioning a thorough investigation led by a respected former federal judge that exonerated him—he has found himself unable to stem the tide of media reports and public statements by Ms. Giuffre and her lawyers labeling him a pedophile and sexual abuser. Professor Dershowitz seeks to intervene here to assert his First Amendment and 13 federal common-law rights to access information he needs to defend his hard-earned reputation. That interest is more than a sufficient basis to permit intervention under Rule 24(b). II. THE FIRST AMENDMENT AND THE COMMON LAW REQUIRE PUBLIC ACCESS TO THE REQUESTED DOCUMENTS A. Legal Standard “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.” Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013). “Underlying that First Amendment right of access is the common understanding that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Westmoreland v. CBS, Inc., 752 F.2d 16, 22 (2d Cir. 1984) (quoting Mills v. Alabama, 384 U.S. 214, 218 (1966)). Similarly, the common law right of access, which “is said to predate the Constitution,” United States v. Amodeo (Amodeo I), 44 F.3d 141, 145 (2d Cir. 1995), rests on “the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice,” United States v. Amodeo (Amodeo II), 71 F.3d 1044, 1048 (2d Cir. 1995). Both the First Amendment and common law rights of access create a presumption against secrecy for “judicial documents.” See Newsday, 730 F.3d at 164 (First Amendment); Amodeo I, 44 F.3d at 145-46 (common law). The Second Circuit has explained that “the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.” Amodeo I, 44 F.3d at 145. Once an item’s status as a “judicial document” has been established, the common law and the First Amendment demand distinct analyses to determine whether the presumption of access is overcome. 14  1. The Common Law Test In determining the applicability of the common-law right of access to a given document, courts are charged with determining the weight of the presumption of access under the particular circumstances presented. The presumption applies to all judicial documents, but the strength of the presumption varies according to the importance of a given document in the judicial process. The weight afforded to the presumption of access is “governed by 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.” Lugosch v. Pyramid Co. of Onodaga, 435 F.3d 110, 119 (2d Cir. 2006). The Second Circuit has explained that “documents that directly affect an adjudication and play a significant role in determining litigants’ substantive rights receive the benefit of a relatively strong presumption, while the public interest in other documents is not as pressing.” United States v. Graham, 257 F.3d 143, 153 (2d Cir. 2001) (internal quotation marks and citations omitted). “Finally, after determining the weight of the presumption of access, the court must balance competing considerations against it.” Lugosch, 435 F.3d at 120 (internal quotation marks omitted). “Such countervailing factors include but are not limited to the danger of impairing law enforcement or judicial efficiency and the privacy interests of those resisting disclosure.” Id. (internal quotation marks omitted). 2. The First Amendment Test Even where the common law right of access is found to be inapplicable, the First Amendment may still require disclosure of judicial documents. The First Amendment right of access is “stronger than its common law ancestor and counterpart.” United States v. Erie Cnty., 763 F.3d 235, 239 (2d Cir. 2014). In deciding First Amendment access claims, the Second Circuit considers “(a) whether the documents have historically been open to the press and general public (experience) and (b) whether public access plays a significant positive role in the 15 functioning of the particular process in question (logic).” Id. (internal quotation marks omitted). “Once a First Amendment right of access to judicial documents is found, the documents may be sealed only if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. (internal quotation marks and alteration omitted). B. The Requested Documents Are Judicial Documents For a document to appropriately be deemed a “judicial document,” “[i]t is sufficient that the document was submitted to the Court for purposes of seeking or opposing an adjudication.” United States v. Sattar, 471 F. Supp. 2d 380, 385 (S.D.N.Y. 2006). Here, the Emails and the Reply Brief have been submitted to the Court in connection with Ms. Churcher’s efforts to quash her deposition subpoena and Defendant’s opposition to those efforts, while the Manuscript was submitted to the Court in connection with a motion to extend the deposition discovery deadline. Accordingly, all qualify as “judicial documents.” Courts in this district3 have repeatedly held that documents submitted in support of or opposition to a discovery motion are judicial documents. See, e.g., Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608, 2014 WL 4346174, at *2 (S.D.N.Y. Sept. 2, 2014) (“Here, the documents to be submitted are in support of a motion to compel discovery and presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents.”); Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086, 2012 WL 6217646, at *2 (S.D.N.Y. Dec. 3, 2012) (applying presumption of public access to papers filed in connection with a motion for reconsideration of a discovery order); Gucci Am., Inc. v. Guess?, Inc., No. 09 Civ. 4373, 2010 WL 1416896, at *2 (S.D.N.Y. Apr. 8, 2010) (holding that “declarations and a 3 Some federal Courts of Appeals have suggested that the presumption of access does not apply to documents filed in connection with discovery motions. See, e.g., Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312-13 (11th Cir. 2001); Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 165 (3d Cir. 1993); Anderson v. Cryovac, Inc., 805 F.2d 1, 11 (1st Cir. 1986). But the Second Circuit has never adopted such a rule, and the weight of district court authority in the Southern District of New York rejects this approac