gov.uscourts.nysd.447706.965.0.pdf

Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 1 of 9 1 J265giuC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, New York, N.Y. 5 v. 15 Civ. 7433 (RWS) 6 GHISLAINE MAXWELL, 7 Defendant. 8 ------------------------------x 9 February 6, 2019 12:15 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 14 APPEARANCES 15 16 BOIES, SCHILLER & FLEXNER, LLP Attorneys for Plaintiff 17 BY: SIGRID S. McCAWLEY 18 HADDON, MORGAN & FOREMAN, P.C. Attorneys for Defendant Maxwell 19 BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER 20 EMERY CELLI BRINCKERHOFF & ABADY, LLP 21 Attorneys for Intervenor Dershowitz BY: ANDREW G. CELLI 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 2 of 9 2 J265giuC conference 1 (Case called) 2 THE COURT: How nice to see you all again. 3 MR. PAGLIUCA: Good afternoon, your Honor. 4 THE COURT: I have the sense that somehow this 5 litigation will never die. However, we will see. 6 Yes. I will hear from the movant. 7 MR. PAGLIUCA: Good afternoon, your Honor. Jeff 8 Pagliuca and Laura Menninger appearing on behalf of Defendant 9 Maxwell. This is our request for the Court's help in 10 implementing paragraph 12 of the protective order entered by 11 this Court March 17, 2016. 12 This case settled, as the Court may remember, in May 13 of 2017, much to everyone's happiness, including the Court's, 14 and was dismissed shortly thereafter. Two times since May we 15 have asked for agreed upon protocol with the plaintiff's 16 counsel to finish up destroying or exchanging-back confidential 17 documents. The first request was shortly after the case was 18 dismissed in July of 2017. That request was rejected by 19 plaintiff's counsel. We asked again about a year later, that 20 was also rejected. 21 The plaintiffs offer three reasons why they don't 22 believe they should have to comply with the Court's order. The 23 first is according to plaintiffs the case is not concluded. 24 This Court has held the case concluded, the case has been 25 dismissed with prejudice, and really the only thing left to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 3 of 9 3 J265giuC conference 1 is to implement paragraph 12 of the protective order. 2 The plaintiffs also argue the Court doesn't have 3 jurisdiction to hear this matter. Clearly, it does. This is 4 an order of the Court that the Court retains jurisdiction over 5 to implement and there is no merit to that argument. 6 The third argument, as I understand it from the 7 plaintiff, is that there is really no prejudice and we can sort 8 of let this linger in limbo. I think that is a fallacy, your 9 Honor, in that the longer this case goes on, in my view, the 10 more likely it is that we are going to have some disclosure of 11 protected information in violation of this Court's order. I 12 don't have control over anyone that the plaintiff has 13 disseminated this information to pursuant to the protection 14 order, and the longer this goes on the more likely it is that 15 either inadvertently or overtly this information will get 16 disclosed. 17 It is time to end this litigation with finality and 18 this is the last thing left to do. We would ask that the Court 19 enter an order directing that all counsel in this case comply 20 with the Court's orders entered almost three years ago and that 21 we begin the protest of either exchanging or destroying these 22 confidential materials. We have proposed that the information 23 simply be destroyed and documented by affidavit which seems to 24 me to be the most expeditious way to deal with it. 25 I guess finally, your Honor, the claim I think is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 4 of 9 4 J265giuC conference 1 because there are three appeals related to documents that were 2 filed with the Court that somehow they need to hold on to these 3 documents and I guess I haven't heard any reason why documents 4 in the possession of the parties and witnesses have anything to 5 do with the discrete issues that are currently on appeal in the 6 Second Circuit, and so I think at this point Court should 7 simply direct that everyone follow Court's order. 8 Thank you. 9 MS. McCAWLEY: Good afternoon, your Honor. Sigrid 10 McCawley on behalf of Virginia Giuffre. 11 Your Honor, Ms. Giuffre's position is simple and is 12 supported by law. It is that the protective order in this 13 case, while it stands, should not be altered to enforce 14 destruction of evidence when there are three appeals pending 15 with respect to the documents at issue in this case. As your 16 Honor knows there are three appeals; Mr. Cernovich has one, 17 Mr. Dershowitz; and then the Miami Herald has an appeal. They 18 all relate to the underlying documents in this case that were 19 marked at issue under the protective order. So, that is our 20 position. 21 There are cases that we have cited to you in the 22 Southern District of New York, for example, the Standard 23 Charter case which is a 2008 case, Westlaw 199537. That case 24 had the exact issue. One of the parties was moving to enforce 25 the protective order and saying that the documents needed to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 5 of 9 5 J265giuC conference 1 destroyed and there were appeals pending and the Court said 2 simply that in the Southern District of New York, when there 3 are appeals pending and there is a protective order, it is 4 prudent to wait until the appeal has completed before requiring 5 the destruction of evidence in the case. 6 So, that is all that we are asking, your Honor. We, 7 as you know, Ms. Giuffre produced thousands and thousands of 8 pages of documents in this case and also had non-parties 9 produce documents as well that were marked confidential. 10 Ms. Maxwell comes to the Court, while she has not herself 11 returned or destroyed any of Ms. Giuffre's documents, 12 requesting a motion and sanctions against us for not doing the 13 same. We simply had meet and confers with them saying that we 14 would follow the order. We thought it was prudent to wait 15 until the appeals were resolved because once something is 16 destroyed you cannot recreate it. 17 So, that was our position, your Honor, that's still 18 our position, we believe it is the prudent course for this 19 Court. 20 With respect to jurisdiction, we cited to you the 21 Shapiro case which is one of your prior cases that simply says 22 that when there is an appeal pending and the underlying issue 23 comes again before the Court, the Court does not have 24 jurisdiction to hear that appeal. Whether or not that is the 25 case, we believe that it is prudent in this circumstance to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 6 of 9 6 J265giuC conference 1 wait until the Court of Appeals in the Second Circuit has ruled 2 on whether or not those documents, whether or not there is 3 going to be a change to the status of those documents, whether 4 or not they're unsealed or kept confidential, etc. 5 Your Honor, I note that Mr. Dershowitz's counsel is 6 here as well. I am happy to address the letter submitted if 7 you want me to. That was not noticed for today but I can do 8 that, if your Honor wants me to. 9 Thank you, your Honor. 10 MR. CELLI: Good afternoon, your Honor. I am Andrew 11 Celli, I represent Alan Dershowitz. 12 We are here today to continue the position that 13 Mr. Dershowitz has always had in this case which is the 14 position in favor of transparency and openness. We are 15 intervenors in the case, we are appellants in the case and, you 16 know, life makes strange bedfellows, we actually are in 17 agreement with Ms. Giuffre's counsel that the case is ongoing 18 and we don't believe there ought to be destruction order at 19 this point. 20 I want to be available for the Court for questions 21 about our appeal. I think the Court is aware we initially are 22 seeking unsealing of three unique categories of records. We 23 subsequently filed a second appeal that relates to the entire 24 summary judgment record which that lines up with 25 Mr. Cernovich's application and appeal, and then of course the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 7 of 9 7 J265giuC conference 1 Miami Herald has an application to unseal the entire record of 2 materials that have been filed with the Court. 3 Just so the Court knows, at last, the Circuit has set 4 this down for argument; it will be argued on March 6th, your 5 Honor. 6 Thank you. 7 MR. PAGLIUCA: Your Honor, would I like to just 8 respond briefly with regard to the appellate issue. 9 THE COURT: Sure. 10 MR. PAGLIUCA: The three appeals deal solely with 11 documents filed with the Court. The three appeals do not deal 12 with documents maintained by the parties. 13 THE COURT: I'm not sure that -- one might have 14 thought that every piece of paper in this case would be 15 indelibly etched in my mind but since there were thousands of 16 pieces of paper that's not true and I don't know now and I, in 17 a sense, do not want to be forced to look but perhaps I will 18 have to. 19 My best recollection is that the summary judgment 20 briefing included reference to papers other than just the 21 summary judgment papers but also depositions, etc., etc., that 22 supported the two parties, the different positions that the 23 parties had. 24 MR. PAGLIUCA: That is true, your Honor. 25 THE COURT: That's what I thought. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 8 of 9 8 J265giuC conference 1 MR. PAGLIUCA: All of those papers were attached or 2 submitted in connection with the summary judgment filings; they 3 weren't, oh, somebody has it in their office. 4 THE COURT: So, it seems to me -- well, that raises 5 for me the question about the decision of the Court of Appeals 6 with respect to the validity of my sealing order. 7 MR. PAGLIUCA: I think what is -- 8 THE COURT: I mean the extent of it. 9 MR. PAGLIUCA: Yes. I understand, your Honor. But 10 assume for a moment that the Court of Appeals disagree with 11 your Honor and I think it would -- the only appeal that would 12 really have impact would be the Miami Herald appeal which deals 13 with a larger volume of documents than the other appeals. 14 THE COURT: Well, except to the extent that for the 15 reasons we just mentioned, the Dershowitz appeal and the other 16 one on the summary judgment may also deal with the larger group 17 of documents. 18 MR. PAGLIUCA: True. All of those documents, however, 19 were submitted to the Court as part of any of some argument or 20 pleading and so what we are asking you to do, your Honor, is to 21 direct the parties, pursuant to paragraph 12, to destroy the 22 documents that we have in our possession. Certainly it would 23 not be difficult, frankly, to carve out whatever is at issue 24 and is maintained by the Court because we know what we 25 submitted to the Court. The parties know that. And there is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-RWS Document 965 Filed 02/26/19 Page 9 of 9 9 J265giuC conference 1 large volume of other material that has not been submitted to 2 the Court in any fashion and is not a part of any appeal in 3 this case and so we understand that -- 4 THE COURT: But would be covered by -- 5 MR. PAGLIUCA: Paragraph 12 of the protective order, 6 correct. 7 THE COURT: Yes, but also be part of the scope of the 8 Miami Herald decision in the Court of Appeals. 9 MR. PAGLIUCA: I don't believe so, your Honor, because 10 I believe that appeal as well as the Cernovich appeal simply 11 relate to an issue of whether or not the Court files would be 12 maintained, sealed, not the parties' files which are two 13 different things. So, those appeals deal with what was 14 submitted to the Court, not as what is maintained by the 15 parties and that's a significant distinction, your Honor. 16 THE COURT: I hear you. Thank you, all. I will 17 reserve decision. 18 Anything further? 19 MS. McCAWLEY: No, that's fine, your Honor. 20 MR. CELLI: No, your Honor. 21 THE COURT: Thank you very much. I will reserve 22 decision. 23 o0o 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300