gov.uscourts.nysd.447706.983.0.pdf

Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 1 of 24 1 J94PGIUC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 CV 7433 (LAP) 6 GHISLAINE MAXWELL, 7 Defendant. 8 ------------------------------x New York, N.Y. 9 September 4, 2019 9:06 a.m. 10 Before: HON. LORETTA A. PRESKA, 11 District Judge 12 APPEARANCES 13 BOIES, SCHILLER & FLEXNER, LLP 14 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY 15 JOSHUA I. SCHILLER 16 HADDON MORGAN AND FOREMAN Attorneys for Defendant 17 BY: JEFFREY S. PAGLIUCA 18 EMERY CELLI BRINCKERHOFF & ABADY, LLP Attorneys for Intervenor Alan M. Dershowitz 19 BY: ANDREW G. CELLI DAVID A. LEBOWITZ 20 HOLLAND & KNIGHT 21 Attorneys for Intervenors Julie Brown and Miami Herald Media Company 22 BY: CHRISTINE WALZ 23 KRIEGER KIM & LEWIN LLP Attorneys for Anonymous Third Party, John Doe 24 BY: NICHOLAS J. LEWIN PAUL M. KRIEGER 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 2 of 24 2 J94PGIUC 1 (In open court) 2 THE COURT: Good morning, ladies and gentlemen. Won't 3 you be seated. Giuffre against Maxwell. 4 Counsel, please tell me how your client pronounces her 5 name. 6 MS. McCAWLEY: It's Giuffre, Virginia Giuffre. 7 THE COURT: Yes, ma'am. Ms. McCawley? 8 MS. McCAWLEY: Sigrid McCawley on behalf of Virginia 9 Giuffre, and I have my partner here with me Josh Schiller. 10 THE COURT: Yes, thank you. Good morning. 11 Counsel for Ms. Maxwell? 12 MR. PAGLIUCA: Good morning, your Honor. My name is 13 Jeff Pagliuca. I'm appearing on behalf of Ms. Maxwell. 14 THE COURT: Thank you. 15 Counsel for Mr. Dershowitz? Mr. Celli? 16 MR. CELLI: Good morning, your Honor. It's Andrew 17 Celli. I'm here with my colleague, David Lebowitz for Alan 18 Dershowitz. 19 THE COURT: Yes, sir. Good morning. 20 Mr. Lewin, Mr. Krieger, where are you? Good morning. 21 MR. LEWIN: Good morning, Judge. Nicholas Lewin and 22 Paul Krieger for a non-party, styled as John Doe. 23 THE COURT: Yes, sir. 24 And Ms. Walz? 25 MS. WALZ: Yes, your Honor. Christine Walz on behalf SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 3 of 24 3 J94PGIUC 1 of the Miami Herald and Julie Brown. 2 THE COURT: Yes, ma'am. Thank you. 3 Counsel, have you had a conversation about how we're 4 going to do this? 5 MS. McCAWLEY: Yes, your Honor. 6 THE COURT: Yes, ma'am. 7 MS. McCAWLEY: The parties have conferred. We had a 8 long conference call to discuss the various issues that are at 9 hand here. As the Court well knows, the Second Circuit has 10 returned this case to you for the purpose of assessing public 11 access -- 12 THE COURT: So I hear. 13 MS. McCAWLEY: -- to the docket. That's correct. 14 So we have done is we've had some dialogue about that. 15 We have some different proposals that we would like to present 16 to the Court. 17 As an initial matter, the Court will find that there 18 is some guidance that has come to the Court post the decision 19 of the Second Circuit. So your fellow judge, Judge Furman, has 20 dealt with this issue very recently in Sperion v. The City of 21 New York, a very similar issue, where he had an unsealing order 22 and in light of -- 23 THE COURT: Tell me what you people have decided you 24 want to do. 25 MS. McCAWLEY: Sure. From our perspective, from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 4 of 24 4 J94PGIUC 1 plaintiff's perspective, we proposed an unsealing that would be 2 a review of the docket in a staggered form, starting from the 3 back of the docket forward. So we have the stipulation of 4 dismissal, and what we've done is staggered it in pieces so 5 that the parties would be able to have an opportunity to review 6 that, as well as giving non-parties an opportunity to object, 7 to the extent that they're noticed in any of those filings, and 8 that we would submit -- anybody who wanted to make a proposal 9 for keeping a document sealed, would submit that to the Court. 10 So it would be a staggered form. 11 THE COURT: I mean, you saw Mr. Lewin's letter. 12 MS. McCAWLEY: Correct. 13 THE COURT: He had a very specific proposal. I'm not 14 saying they have to be that, but -- 15 MS. McCAWLEY: Yes, I can go through the -- 16 THE COURT: You don't have to do it in tranches. It 17 seems you, parties, should have already had a conversation 18 about what you agree should be unsealed. 19 MS. McCAWLEY: Well, there is a difference of opinion 20 as to that, certainly. 21 THE COURT: There's nothing you can agree on? 22 MS. McCAWLEY: At this point, we have talked about the 23 structure and there has been no agreement as to what documents 24 would remain sealed. So what -- and I do have a specific 25 proposal, your Honor, as to which document -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 5 of 24 5 J94PGIUC 1 THE COURT: Okay. Let's hear it. 2 MS. McCAWLEY: So as an initial matter, the idea of 3 working from the back forward would be because the bulk of the 4 documents were submitted prior to trial. So we were, you know, 5 on the eve of trial at the time the stipulation of dismissal 6 was entered. 7 So we're working from docket entry 657, back to the 8 motions in limine. As the Second Circuit had noted, the 9 motions in limine, which were submitted on 3-3 of 2017, and so 10 that's docket 917 back to 657; so it's a chunk of, say, 300 or 11 so docket entries that we would have the parties submit. To 12 the extent anyone is objecting to unsealing, they would submit 13 that proposal at that time. 14 And then the next batch would be from 657 back to 287, 15 which is an order on a motion for sanctions. 16 And then the final batch would be 287 back to docket 17 entry 62, which is the day that the Court entered -- that the's 18 the docket entry that the Court entered the confidentiality 19 stipulation. 20 And to the extent that there is any concern about any 21 of the submissions that were post the dismissal of the case, 22 there was some confidential submissions in the later filings 23 with the Miami Herald and others in this case, that would be 24 reviewed at the very back end because that's the smallest 25 portion. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 6 of 24 6 J94PGIUC 1 So that's the proposal that we had. And in our view, 2 as the plaintiff has submitted to the Second Circuit 3 previously, our proposal is to redact only those items that are 4 Social Security numbers, the names of minor victims, as well as 5 any highly sensitive, personal medical information. So that is 6 the proposal we made to the Second Circuit when we handled it 7 at the summary judgement sealing of materials. 8 THE COURT: How do you people intend to address the 9 non-party claim that Mr. Lewin wrote about? 10 MS. McCAWLEY: Yes, so with respect to the non-party 11 claims, as part of this process, anybody whose information, for 12 example the deponent -- there were non-party deponents in this 13 case -- would be notified if their name appeared in the 14 grouping, to be given the opportunity to submit an objection, 15 if they had one, with respect to any of the filings within that 16 docket section. 17 THE COURT: All right. Who would like to comment on 18 that? 19 MR. PAGLIUCA: Your Honor, again, Jeff Pagliuca. 20 THE COURT: Yes. Mr. Celli. 21 MR. PAGLIUCA: This is Jeff Pagliuca on behalf of 22 Ms. Maxwell, your Honor. 23 THE COURT: Yes, sir. 24 MR. PAGLIUCA: Your Honor, I have a different process 25 in mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 7 of 24 7 J94PGIUC 1 THE COURT: Did you people not talk about this? 2 MR. PAGLIUCA: We did talk, your Honor. Like most 3 everything in this case, there's generally not been agreement 4 about how to resolve the issues, unfortunately. 5 In my view, your Honor, there should be -- the parties 6 should identify globally what I would call category one, 7 category two and category three documents. Category one would 8 be non-judicial documents; category two would be what I would 9 call negligible-role judicial documents; category three would 10 be judicial documents. 11 Those issues would be presented to the Court by the 12 parties. The Court could decide the category one, category two 13 issues. To the extent that there are any remaining judicial 14 documents, which frankly, your Honor, in my review of the 15 900-and-some-odd filings in this case, I would say most, if not 16 all, in my view, certainly post the protection order, are going 17 to be in the category one or category two documents, either 18 non-judicial documents or negligible-role judicial documents. 19 THE COURT: Give me some examples of generically 20 non-judicial documents. Motions for an extension or something 21 stupid like that? 22 MR. PAGLIUCA: Motions for extension, deposition 23 designations. So the Court knows, there were 29 depositions 24 taken in this case. The vast majority were out of state, and 25 so the trial, which was scheduled for May 15, was going to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 8 of 24 8 J94PGIUC 1 largely by video deposition. So there were literally thousands 2 of deposition designations and counter-designations and 3 objections to those designations. 4 That motion -- that motion practice, with the 5 designation, counter-designations and objections, were never 6 ruled on by Judge Sweet in advance of trial. And I think it's 7 important also for this Court to understand that on the eve of 8 trial, one week before trial, when this case settled, there 9 were 50 -- five-O -- motions pending in this case. Five-O 10 motions pending that had not been ruled on by the Court. 11 The majority of those were either 702 challenges to 12 experts, motions in limine, or the deposition designation 13 issues. I can't imagine that a deposition designation would be 14 a judicial document. It is simply a party giving notice that 15 I'm going to play this portion of a deposition at trial. It 16 requires no action by the Court, absent an objection. 17 Similarly, the counter-designation requires no action 18 by the Court, absent an objection. And I follow that up with 19 the objections, which were never considered by Judge Sweet, I 20 think would also fall in either the non-judicial document 21 category or the negligible judicial document category because, 22 really, what the Court is doing is ruling on an objection, and 23 if a designation is not a judicial document, I can't imagine 24 that a Court ruling on a hearsay objection in advance of trial, 25 meaning that the testimony would not be played to the jury or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 9 of 24 9 J94PGIUC 1 made public, in the event that the objection is sustained, I 2 can't imagine, frankly, that that is a judicial document, but 3 if it is, it is a negligible judicial document, in my view. 4 THE COURT: I thought the Second Circuit was of the 5 view that the Court's ruling on the evidence that's coming in 6 to trial is a core judicial function. I hear you that Judge 7 Sweet didn't get to that before the people settled, but... 8 MR. PAGLIUCA: I think -- 9 THE COURT: Kind of weigh those two. 10 MR. PAGLIUCA: I think that they are discovery 11 documents, your Honor, because -- 12 THE COURT: They're not discovery documents. It's not 13 like you took the deposition and you just filed it. As we 14 know, we don't do that in this district. 15 But my question is, how do we weigh the designation of 16 trial evidence, even though not ruled on, against the Circuit 17 saying that running trial evidence is a core judicial function? 18 MR. PAGLIUCA: I don't see this as a core judicial 19 function, your Honor, because we don't know how this was going 20 to play out, frankly. These things were submitted to the Court 21 and nothing happened to them. Judge Sweet could have said, I'm 22 just going to wait, and if this gets played at trial, I'll make 23 these rulings as they come. I don't know. 24 The same as with the 702 issues, your Honor. These 25 are discovery documents that are being objected to, and by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 10 of 24 10 J94PGIUC 1 necessity, we have to place the issue before the Court. But 2 something that is inadmissible should not become a core 3 judicial document by virtue of the fact that one party 4 inappropriately is trying to submit evidence to a jury that 5 shouldn't be allowed. 6 THE COURT: All right. 7 MR. PAGLIUCA: So those are the kinds of things that I 8 think need to be addressed first. What is a non-judicial 9 document? What is a non -- 10 THE COURT: Okay. But here's the question: How are 11 we going to minimize everybody's work? From what you're 12 saying, there would have to be a bunch of rulings upfront, 13 document by document, about non-judicial, negligibly judicial, 14 and judicial documents. And then probably we'd have to go back 15 again, right, and weigh, for example, the negligibly judicial 16 documents? 17 MR. PAGLIUCA: Well, I think, your Honor, yes, there 18 is some work involved in this. 19 THE COURT: Yes. 20 MR. PAGLIUCA: Yes, I agree, but I think, fairly 21 quickly, we will get to a point where the Court is going to 22 decide, you know, are these categories, I will say simple 23 designations, are they judicial documents or not. If the Court 24 says they're not, we move on. 25 Okay. Now, we have the next, which are objections to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 11 of 24 11 J94PGIUC 1 designations, deposition designations. The Court then says, 2 well, I'm going to decide that they are in one of these 3 categories, and then we move on. 4 The reason I'm proposing this, your Honor, is I will 5 skip to the end, which is, frankly, I agree with the submission 6 by Mr. Krieger and Mr. Lewin. I think it was very well thought 7 out. I think it's the appropriate way to notify non-parties. 8 The thing that they don't know is that under their 9 proposal, there are probably hundreds of people that would need 10 to be designated, and I am suggesting that we do a review of 11 core, you know, category one, two, three. 12 THE COURT: I see. You want to do the categories 13 first, so that if a big category involving the non-parties is 14 ruled out, then we don't have to bother all the non-parties? 15 MR. PAGLIUCA: Correct, your Honor. Because in these 16 29 depositions, there are dozens, if not hundreds, of names of 17 other people. In the documents that were attached to various 18 pleadings, there are literally hundreds of pages of 19 investigative reports that mention hundreds of people. 20 There is a piece of evidence that I will generically 21 refer to as "an address book" that has a thousand names in it 22 probably, and so, you know, if we are going to notify people 23 who may have -- 24 THE COURT: I understand. 25 MR. PAGLIUCA: That's the problem. That's what I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 12 of 24 12 J94PGIUC 1 proposing, your Honor. I don't think it's that onerous, 2 frankly, given that most of these documents fall into either 3 discovery dispute documents, motion in limine documents, or 4 deposition designation documents. So I think it would be a 5 fairly easy task for everyone to go through those. 6 THE COURT: Says you. Let me just hear from anyone, 7 and then we'll go back to Ms. McCawley. Yes, ma'am. 8 MS. WALZ: I think that counsel is mistaken that this 9 is going to be an easy task and that these documents are not 10 going to be judicial documents. I think that, for the most 11 part, everything -- 12 THE COURT: The question is only how are we going to 13 do it more easily, most easily, and I agree with you, counsel 14 is mistaken, it's not going to be easy. The question is what 15 is the most easy way? 16 MS. WALZ: So we think that having some guidance from 17 the Court upfront about what documents are going to be judicial 18 documents would be very helpful. 19 THE COURT: Okay. So you're with him. 20 MS. WALZ: Judicial documents, yes, but not having the 21 parties decide amongst themselves whether they are judicial 22 documents or not. Obviously, the intervenors would want to be 23 involved in any further discussion about that, and we think 24 that having -- 25 THE COURT: But if the parties agree, which it sounds SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 13 of 24 13 J94PGIUC 1 unlikely, but of course, they have to try to do it themselves 2 first. 3 MS. WALZ: If they agree that it's a non-judicial 4 document. 5 THE COURT: They agree whatever category it's in. 6 MS. WALZ: We think that -- 7 THE COURT: As a category. 8 MS. WALZ: As to the category, I think it's unlikely 9 that the parties are going to agree; so I think setting up a 10 schedule where we can get guidance from the Court as to that, 11 where there's briefing from the parties and having that occur 12 on a very -- 13 THE COURT: Expedited. 14 MS. WALZ: -- expedited basis is the best way of 15 approaching that for now. 16 THE COURT: And you don't disagree with counsel's 17 three categories. 18 MS. WALZ: Judicial documents, non-judicial documents. 19 THE COURT: And negligibly judicial documents. 20 MS. WALZ: I disagree with the assertion that anything 21 is negligibly a judicial document. 22 THE COURT: I think the Court of Appeals did give 23 counsel a little support on this one. 24 MS. WALZ: A middle ground in between the two, we 25 would agree to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 14 of 24 14 J94PGIUC 1 THE COURT: Okay. Who else wants to be heard before 2 we go back to Ms. McCawley? 3 MR. CELLI: Your Honor, Andrew Celli for Alan 4 Dershowitz. I don't have much to add, except to say that 5 Mr. Dershowitz's position is that there should be maximum 6 disclosure with maximum speed. 7 THE COURT: I don't care. Do you disagree with what 8 counsel has just said? 9 MR. CELLI: We agree with the Herald. We think that 10 procedure makes sense, and we would want to, obviously, 11 participate as intervenors in the case. We are the ones who 12 originally brought the matter for an application for openness; 13 so we want to participate as well. 14 THE COURT: Yeah, yeah, yeah. 15 Mr. Lewin? 16 MR. LEWIN: Thank you, your Honor. If anything, this 17 entire discussion illustrates why the protocol we proposed is 18 right. If there are areas where the parties can agree, that 19 makes it easy. Moreover, we agree with three -- sort of ideas 20 that there are three categories. Of course, that's a 21 simplification. The Second Circuit has said there are 22 continuum of documents. 23 THE COURT: Yes, yes, yes. 24 MR. LEWIN: Right? So there has to be some way to 25 sort of categorize things. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 15 of 24 15 J94PGIUC 1 THE COURT: Okay. But here's the question that 2 counsel raised. In some of these documents, there are 3 literally a thousand people, and I think what they're trying to 4 do is to minimize the efforts they have to go through to notify 5 people and the effort which the non-parties might have to go 6 through which, at the end of the day, might turn out to be for 7 nothing. What do you say to that? 8 MR. LEWIN: Judge, it's never great to be in a 9 position of saying this is the judge's issue, but this is 10 precisely why the Second Circuit, since at least 1987, has said 11 this responsibility rests heavily on the shoulders of the 12 district judge because it is -- 13 THE COURT: Of course, the district judge always asks 14 the lawyers what they think. 15 MR. LEWIN: Of course. 16 THE COURT: What do you think? 17 MR. LEWIN: Of course, Judge. But again, I will point 18 out Judge Kaplan, just yesterday, issued an opinion, which we 19 can hand up, in United States v. Gatto, which is 17 CR 686, in 20 which he reviews a series of documents that were of great 21 public interest that intervenors requested. The Judge assesses 22 the extraordinary privacy interest of non-parties -- well, 23 Judge, if you let me finish -- 24 THE COURT: Did you hear me say anything? 25 MR. LEWIN: -- that the documents should remain under SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 16 of 24 16 J94PGIUC 1 seal. It may well be the case, especially after this triaging 2 of the documents, that the Court is able to wholesale knock out 3 documents and maintain them under seal because the privacy 4 interests of the subject matter in this case are -- 5 THE COURT: Of course, but you say you want to be 6 heard, and I don't -- I mean, one thing we might do is, if we 7 go down this road, is go ahead and do all the briefing 8 expeditiously, and then to the extent that we think perhaps 9 some of it should be unsealed, then worry about giving notice. 10 MR. LEWIN: That is precisely what we proposed in our 11 protocol, Judge, which is that the first step, the parties 12 identify and agree on the issues. 13 THE COURT: I hear you. 14 Ms. McCawley. 15 MS. McCAWLEY: Yes, your Honor. The efficiency that I 16 see in the proposal of starting from the back forward, in that 17 sense, is that the bulk of what we're talking about here is in 18 that back half of the docket; so the depositions, which I do 19 believe are judicial documents -- and we submitted 20 designations -- for all the reasons your Honor just said, those 21 get considered; the motions in limine, which the Second Circuit 22 has already said weigh in the favor of judicial documents; the 23 motions to compel -- 24 THE COURT: I don't understand why we do don't it all 25 at once. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 17 of 24 17 J94PGIUC 1 MS. McCAWLEY: That's what I'm saying. So we do that 2 at once in that one batch, that implicates the earlier 3 documents because there are only pieces of those -- 4 THE COURT: I'm only do this one time. 5 MS. McCAWLEY: Exactly. 6 THE COURT: Why wouldn't we adopt counsel's suggestion 7 of putting the documents in categories, but do them all? I 8 mean, they're all going to -- 9 MS. McCAWLEY: I see what you're say. 10 THE COURT: -- be put into categories. 11 MS. McCAWLEY: I understand what you're saying. So 12 it's twofold. I just believe that the first piece would be 13 more efficient because you would not be dealing with judicial, 14 non-judicial, et cetera, because you're dealing with the back 15 half when those objections can be raised. 16 THE COURT: Yes. You guys disagree as to whether 17 those are judicial or not. 18 MS. McCAWLEY: It sounds like there is some 19 disagreement, your Honor. 20 THE COURT: No kidding. 21 MS. McCAWLEY: So I do think that another alternative 22 is to do the entire docket, separating those out. The only 23 problem there is you're layering it twice, right? So you're 24 going to have the debate over judicial, non-judicial, 25 et cetera, and then the notification period, and then the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 18 of 24 18 J94PGIUC 1 review of the documents. 2 So it seems that that's what I was doing, the bulk in 3 the first part of the most significant documents, to try to 4 move it forward in a more expeditious manner. But we're open, 5 if the Court feels it would be better to do a layer of 6 judicial, non-judicial first, before the notification, that's 7 certainly something it's amenable to. 8 THE COURT: I think we may as well do that. I mean, 9 the suggestion of notifying a thousand people on something that 10 may ultimately easily be determined to be non-judicial -- 11 MS. McCAWLEY: Sure. I just, for the record, in my 12 view, knowing the documents, I don't believe that's an accurate 13 statement of the amount of people that would be notified in 14 these materials, but setting that aside -- 15 THE COURT: In the generically described documents, 16 that's about the number. 17 MS. McCAWLEY: Well, in that generically described 18 document, that document is already public; so there's that 19 issue, as well. 20 THE COURT: What about that? Do we think that the 21 other documents will implicate that number of people? 22 MS. McCAWLEY: The other documents, for example -- 23 THE COURT: I'm sorry. I was asking Mr. Pagliuca. 24 MS. McCAWLEY: I'm sorry. 25 MR. PAGLIUCA: There are hundreds of other people SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 19 of 24 19 J94PGIUC 1 implicated in the other documents, your Honor, and the Second 2 Circuit has already redacted some of that from the summary 3 judgement material, which would then, I think, have to be 4 redacted if it were, in fact, a judicial document, from those 5 documents. So that may take care of some of that problem, 6 but -- 7 THE COURT: So do I. 8 MR. PAGLIUCA: -- there are a large body of names that 9 haven't been redacted. There are a lot of people, your Honor. 10 THE COURT: Okay. Did you want to add anything else? 11 MS. McCAWLEY: No, your Honor. 12 THE COURT: Anybody else? 13 All right. Would you folks get together. Let's do 14 expedited briefing on what is or is not in any of the three 15 categories. To the extent you can, it's, obviously, going to 16 be helpful to be able to group the documents. 17 How are we going to keep this under control in terms 18 of the length of briefing? Anybody? 19 MS. McCAWLEY: Well, your Honor -- 20 THE COURT: Go ahead. 21 MS. McCAWLEY: Excuse me. This is Sigrid McCawley. 22 One option would be, obviously, we're grouping, as I've gone 23 through, and we have the docket itself. One idea would be to 24 just have that as an exhibit and group -- mark those so that 25 the legal briefing is limited to referring to what's in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 20 of 24 20 J94PGIUC 1 exhibit. So in other words, there's a regular, normal-size 2 brief of, you know, 20 pages. 3 THE COURT: There is not going to be a normal-size 4 brief on each one of these things, at all. 5 MS. McCAWLEY: I'm sorry, I meant on the categories 6 you're suggesting, and then referring to the exhibit. 7 THE COURT: I don't care if you refer to the exhibits, 8 and you probably have to, but the titles of the categories, you 9 know, deposition designations, and objections, probably, right? 10 Are they the same category? Documents otherwise just attached 11 to pleadings. What else? Motions in limine documents? 12 MS. McCAWLEY: Yes, correct. Motions to compel. 13 THE COURT: What else? Motions to compel documents. 14 What else? 15 MS. McCAWLEY: There were also some discovery 16 disputes, adverse inferences, things of that nature that had 17 things attached. 18 THE COURT: Okay. 19 MS. McCAWLEY: So there are logical categories within 20 the -- 21 THE COURT: All right. But let's say we end up with 22 ten or fewer. Five pages, four, five pages against; three 23 pages in reply for each of those categories. This is not hard 24 stuff, right? 25 MS. McCAWLEY: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 21 of 24 21 J94PGIUC 1 THE COURT: Sir? 2 MR. PAGLIUCA: I think that's fine, your Honor. I'm 3 trying to envision, though, when we are talking about the 4 category two documents. There is -- I suppose if it's simply 5 the designations that these fall into that category, that's one 6 thing, but if we are arguing about the balancing that the Court 7 has to do about sealing or unsealing, that's way more 8 complicated. 9 THE COURT: I thought we were going to first consider 10 which category the documents went into. Then, let's say, 11 there's a ruling on that. Judicial, we know what we have to 12 do. Non-judicial, we know what we have to do. It then seems 13 to me, much as it pains me to say it, you probably get a second 14 shot at the medium category. 15 MR. PAGLIUCA: I think that's right, your Honor, and 16 I'm going to suggest now, we're going to revisit this if we get 17 there, but it's likely more of a conversation and an argument 18 about those, than doing that in writing because there's quite a 19 bit to each of those different pieces. 20 THE COURT: All right. We can get to that when we get 21 to that and see how much it is. 22 MR. PAGLIUCA: And can you repeat for me, your Honor, 23 the page limitations? 24 THE COURT: I was thinking five pages for sealing, 25 five pages against sealing, and three pages in reply. Double SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 22 of 24 22 J94PGIUC 1 spaced. 2 And, Mr. Lewin, do not write those teeny, little 3 footnotes. The rules say 12 point-type text in footnotes. I 4 can't read those teeny, little footnotes. 5 MR. PAGLIUCA: And, your Honor, that is per category? 6 So if we have ten categories, we are going to -- 7 THE COURT: Yes, sir. Don't expand it past ten, 8 though; you'll be killed. What else? 9 MR. PAGLIUCA: That's all for me, your Honor. 10 THE COURT: Now, the non-parties might want to be 11 heard on these things, right? What do you want to do? The 12 original parties, do you want to agree on your categories, and 13 then to the extent that the non-party wishes to be heard on a 14 category, you get to weigh in as well? Any reason not to do 15 that? 16 MR. PAGLIUCA: Here's what I see the practical problem 17 with that, your Honor, is that they don't know what are in 18 these documents. 19 THE COURT: Absolutely. 20 MR. PAGLIUCA: So it's going to be difficult. 21 THE COURT: Well, but perhaps they want to say 22 something. 23 MR. PAGLIUCA: That's fine, but -- 24 THE COURT: And Ms. Walz is going to say unseal the 25 whole thing, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 23 of 24 23 J94PGIUC 1 MR. PAGLIUCA: Right, of course. I don't see the 2 efficacy of having non-parties involved in this initial -- 3 THE COURT: Well, what I'm saying is you people get 4 your categories together. You people say whatever you want to 5 say, and to the extent any of them wishes to be heard, they can 6 put five pages in too. 7 MR. PAGLIUCA: That's fine, your Honor. I don't have 8 a problem with that. 9 THE COURT: All right? And presumably, you would do 10 it at the time of the response, the response that says 11 unsealed; so that the proponent of sealing would have the 12 opportunity, in the reply, to reply to the non-party as well. 13 Is that all right with you people? 14 MR. CELLI: That's fine, your Honor. 15 THE COURT: Okay. What else, friends? Can we have 16 the -- 17 MR. CELLI: Just to be clear, your Honor? 18 THE COURT: Yes, sir. 19 MR. CELLI: I'm sorry. That's five pages per category 20 for each of the -- 21 THE COURT: Yes, sir. 22 MR. CELLI: Thank you. 23 THE COURT: May we have the categories in a week? And 24 the first round a week after that? A week, a week, a week, can 25 we do that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 983 Filed 09/11/19 Page 24 of 24 24 J94PGIUC 1 MR. PAGLIUCA: I think that's going to be very 2 difficult for me, your Honor, given my schedule. 3 THE COURT: What's the issue? 4 MR. PAGLIUCA: I have multiple hearings and trials 5 over the next two weeks. 6 THE COURT: Who's working with you on this? 7 MR. CELLI: Mr. Gee and Ms. Menninger, who I also know 8 are very busy right now. 9 THE COURT: You know, we've got to get this done. 10 MR. PAGLIUCA: I understand, your Honor, but I was 11 going to suggest 30 days for the initial round. 12 THE COURT: No, no. We're going to do it -- what's 13 the word? 14 MS. WALZ: Expedited. 15 THE COURT: Thank you, ma'am. 16 Two weeks for the categories, and then a week, a week, 17 a week. 18 Anything else, friends? Thank you. Nice to see you 19 all. 20 MS. McCAWLEY: Thank you, your Honor. 21 MR. LEWIN: Thank you, Judge. 22 THE COURT: Morning. 23 (Adjourned) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300