gov.uscourts.nysd.447706.949.0.pdf

I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 1 of 31 1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 15 CV 7433 (RWS) 6 GHISLAINE MAXWELL, et al., 7 Defendants. 8 ------------------------------x New York, N.Y. 9 May 9, 2018 12:10 p.m. 10 Before: 11 HON. ROBERT W. SWEET, 12 District Judge 13 APPEARANCES 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY 16 HOLLAND & KNIGHT 17 Attorneys for Movant MIAMI HERALD MEDIA CO. BY: SANFORD L. BOHRER 18 MADELAINE J. HARRINGTON 19 HADDON MORGAN AND FOREMAN, P.C. Attorneys for Defendant Ghislaine Maxwell 20 BY: JEFFREY S. PAGLIUCA LAURA A. MENNINGER 21 EMERY CELLI BRINCKERHOFF & ABADY LLP 22 Attorneys for Intervenor Alan M. Dershowitz BY: ANDREW G. CELLI 23 RANDAZZA LEGAL GROUP PLLC 24 Attorneys for Invervenor Julie Brown BY: JAY MARSHALL WOLMAN 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 2 of 31 2 1 THE COURT: I'll hear the movant in Giuffre. 2 MR. BOHRER: Your Honor, may I deal with one 3 preliminary thing first? 4 THE COURT: Sure. 5 MR. BOHRER: My assistant working with me, 6 Ms. Harrington -- she's done everything to get admitted. She 7 has an admission date in July, but she's not actually admitted 8 to the court. 9 Is it okay if she sits here with me? 10 THE COURT: Of course. Delighted to have you. 11 MR. BOHRER: Are you allowed to admit her? 12 THE COURT: Certainly I'll admit her pro hac vice. 13 MR. BOHRER: Thank you, your Honor. 14 Your Honor, my name is Sandy Bohrer with the law firm 15 of Holland & Knight. We represent the Miami Herald. We're 16 seeking to intervene. We're the third party that's sought to 17 intervene. 18 The Miami Herald does investigative reporting. My 19 reporter is an award-winning investigative reporter. We're 20 seeking access to the entire file. I realize that before us, 21 two people came in and sought access to different portions of 22 the file. But I think the circumstances have changed now and 23 the situation has changed now such that the Court should be in 24 a position where it should look favorably on our motion. 25 First, your Honor, one of the things that's changed is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 3 of 31 3 1 there is no impending trial. If the Court recalls, in your 2 order -- 3 THE COURT: I do recall. 4 MR. BOHRER: The case has been settled. 5 The second one is the Court was concerned about the 6 revelation of embarrassing information or, worse perhaps I 7 suppose, private information, about the plaintiff. But the 8 plaintiff now, with regard to my motion -- and obviously her 9 counsel can speak for herself -- has agreed to our motion if it 10 results in opening the whole file. So I think that the 11 underpinnings for the last order are not there anymore and we 12 have to find another way, if this motion to unseal is to be 13 denied. 14 My clients aren't here for prurient interest, and of 15 course we would agree to things like redacting names and 16 substituting initials and things like that. They don't 17 identify the names of victims of sexual assaults. 18 But the law is such that we have to decide what 19 standard applies. But in any event, a standard applies. In 20 the Court's original order, the confidentiality order, it gave 21 the parties a lot of latitude to determine something to be 22 confidential, and then it could be challenged later. 23 And then subsequently after, it looked to us from an 24 incomplete view of the record, 35 motions, the Court said that 25 basically the parties no longer have to send a letter to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 4 of 31 4 1 Court, and that left to the parties the discretion to 2 determine -- 3 THE COURT: No. I don't think that's quite right. I 4 think the order said you could proceed by letter rather than my 5 motion. That's all. 6 MR. BOHRER: Yes. 7 THE COURT: But the same provisions applied. It was, 8 in effect, a you-had-to-be-there. The motions, to say the 9 least, were multitudinous. 10 MR. BOHRER: We got a taste of that, your Honor. 11 There are two ways of looking at judicial access in our federal 12 court system. One is the common law right of access to 13 documents, and the other is the First Amendment. 14 I'll go into it in a minute. Either way, there was to 15 be a showing by the party seeking to seal that a particular 16 test has been met with regard to the document at issue. 17 The courts have held pretty strictly, according to our 18 appellate courts, that it's a document-by-document basis. I 19 understand from what the Court just said that a 20 document-by-document basis is kind of a problem in this file, 21 but that is the law. 22 So if it is a judicial document, then the common law 23 right applies and we have a certain standard. If it's a 24 document recognized by the First Amendment as a judicial 25 document, then we have a different test. So, if it's not a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 5 of 31 5 1 judicial document, for example, you still have to show a good 2 cause, "you" being the party seeking to seal, not the party in 3 my position. 4 And in the Fournier case which we cite in our 5 papers -- that case says you can't just simply do it. You're 6 going to have to show on a case-by-case, document-by-document 7 basis to the trial court that there is a basis for it. So 8 what's a judicial document, and everybody seems to have their 9 idea about what it is. 10 In Lugosch, if I'm pronouncing that correctly, the 11 Second Circuit says it's "a document relevant to performance of 12 judicial function and useful in judicial process." I want to 13 stress, your Honor, that I understand that documents can be 14 filed for purposes that lawyers shouldn't file them. 15 Someone could file a complaint making a bunch of 16 allegations just to get it in a newspaper and the allegations 17 aren't true and they take a dismissal after the newspaper 18 humiliates a defendant. But that's not where we are, and 19 that's not what we're looking for. 20 We're looking for papers, for example, relating to 21 summary judgment, after we've gotten past the what's 22 frivolous/what's meritless basis, what is an issue of fact for 23 trial or not. So relevant to performance judicial function and 24 useful in judicial process is a good standard, and it's a 25 Second Circuit standard. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 6 of 31 6 1 The Second Circuit's decision in the Under Seal 2 case -- these are all cases cited in our papers -- says there 3 is a presumption of access to all filed documents, and I 4 understand that lawyers, although not necessarily in this case, 5 can file documents for inappropriate purposes, not to be 6 judicially resolved. But clearly dispositive motions have a 7 presumption of access and are judicial documents. 8 There's Logosch and a bunch of other cases we cited, 9 including the Second Circuit's decision Joy. The Lytle case we 10 cite makes it a point that there is no question that those are 11 judicial documents. 12 We've also asked for, because we don't know exactly 13 what else is in the record, for things like motions to compel 14 or motions for a protective order, the other side of that. Not 15 knowing what's in them, we can't be sure that there is not a 16 basis in a particular paper for sealing or redacting a portion 17 of that paper. We don't know because none of it is public. 18 But there are cased that cited -- Alexander 19 Interactive is one of them -- that say there is a presumption 20 of access to those papers too because there is a judicial 21 function associated with every one of those motions, every 22 single one of them. 23 Again, we assume -- and Logosch made a point of 24 this -- that lawyers, when they file papers, know that Rule 11 25 means you don't file papers that are irrelevant to the issue SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 7 of 31 7 1 before the court for some improper purpose. 2 So we're assuming everything in this file was filed -- 3 THE COURT: My mentor in this business was J. Edward 4 Lumbard. When I was an assistant United States attorney, 5 Lumbard would have meetings of the office and try to educate us 6 on appropriate conduct and rules and whatever. One of J. 7 Edward's rules was never assume a God damn thing. I make that 8 comment because of your assumptions. 9 MR. BOHRER: Well, I'm trying to -- 10 THE COURT: I understand your problem. Because of the 11 record here, clearly I do understand. But I couldn't resist. 12 I apologize. 13 MR. BOHRER: I accept, your Honor. 14 The only opposition at this point at this stage is by 15 Defendant Maxwell. Defendant Maxwell has a slim set of papers 16 in opposition, and they don't really dispute any of the basic 17 principles I've just gone over. 18 If you find that a document is a judicial record, 19 according to Logosch, you can only seal those records based on 20 findings made in the public record demonstrating that closure 21 is essential to preserve higher values and is narrowly tailored 22 to that interest. That comes from Supreme Court decisions. 23 So we're at a point where, had my client been looking 24 at this issue earlier, it would be easier to do. But the fact 25 is all of the records that were sealed in this file were sealed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 8 of 31 8 1 without a determination by the Court that met the standard in 2 Logosch or met the standard I noted in Fournier, the good-cause 3 standard where the Court has to make a finding. 4 Ms. Maxwell's lawyers do point out that there are 5 documents in the file that won't qualify for access or won't 6 require redaction. For example, it could be an attorney-client 7 privilege document. It could be something that's embarrassing 8 that's irrelevant to the proceedings. 9 Again, I can't assume whether that's right or wrong, 10 but I noted that of the two examples she gave, one of them had 11 to do with plaintiff and plaintiff's passport information, and 12 plaintiff has agreed to open the whole file up. 13 Now, maybe they'll have some things they'll want to 14 redact -- we don't have a problem with those -- Social Security 15 numbers, that sort of thing. My client and my reporter write 16 about those things all the time. She writes about children. 17 She writes about public officials whose information needs to be 18 redacted for safety purposes. 19 But the bottom line, your Honor, is without 20 on-the-record findings meeting one test or the other, good 21 cause if it's not a judicial document or the higher standard if 22 it is, the record must be open. The and truth is that 23 Ms. Maxwell has not asserted that there is anything in the 24 record to support that. 25 The truth also is that something, for example, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 9 of 31 9 1 motion for summary judgment -- and I have read the redacted 2 order granting the motion for summary judgment -- without such 3 a showing all has to be opened up. The motions to compel would 4 have to be opened up. Yes, there might be redactions, and my 5 client is willing to cooperate in all regards to that. We do 6 this all the time. I do other public records and judicial 7 records access. But the bottom line is that this has to be 8 done, or the records have to be open entirely. 9 Now, there are a couple little points, whether our 10 motion is timely. The law is pretty clear that it was timely. 11 We cited a whole series of decisions. One of them is the 12 Pineapple Antitrust case. There is no deadline for filing a 13 motion such as my client's. 14 The second one is there is the argument that, well, 15 there may be some people who relied on the order, provided 16 information with a confidentiality notation of some kind, and 17 what about them. 18 I think there are a few things to say about that: 19 First, if the confidentiality order was not entered and the 20 confidentiality determination not made in accordance with the 21 law, the order is not valid. And it's unfortunate, but it 22 still gets opened up. 23 The second thing is -- and Logosch makes this point -- 24 with even the confidentiality the Court entered, which seemed 25 to me, the initial one, the standard one that lawyers use all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 10 of 31 10 1 over the United States, it provides for people coming back in 2 and saying, I challenge it. I want to open it up. I want to 3 unseal it. 4 So no one, as the Second Circuit said, should assume 5 it's closed forever once it gets in a court record. We're not 6 seeking things that were never filed. We're not seeking 7 records that could have been filed but weren't filed. We're 8 just seeking access to this court file. 9 My client is doing a report, which unfortunately is 10 all too timely today, about a sexual predator and a sexual 11 trafficking scheme, and this case relates very much to it. 12 We have a lot of information in Florida where 13 Mr. Epstein committed his crimes, but when she learned about 14 this case, we realized that there is more there. 15 Our purpose is not prurient. It is to inform the 16 public. It is to prevent things like this from happening and 17 to prevent such abuses. This is the purpose of the press in 18 America. 19 We're the watchdogs. We make sure things don't slip 20 by. We make sure things are done right. We make sure that 21 people like Mr. Epstein and people associated with him, 22 allegedly including Ms. Maxwell, are held up to public scrutiny 23 such that other people won't do it in the future and the right 24 gets done. 25 So, your Honor, we ask that the motion be granted; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 11 of 31 11 1 that the file be unsealed. Thank you. 2 MS. McCAWLEY: Your Honor, may I be heard on behalf of 3 the plaintiff? Just briefly. Our position is very simple here 4 with respect to Virginia. 5 Our position is if one docket entry is opened, all 6 must be opened. There can be nothing in between because what 7 would happen is if, for example, as what was presented to the 8 Court previously, only a few documents were unsealed, only a 9 partial piece of testimony was unsealed, that would create an 10 incomplete record. 11 Virginia is prepared to stand up to her abusers, but 12 she can't do so with her hands tied behind her back. She has 13 to have the entire record available. It's either all or 14 nothing. Anything less than that would be inherently unfair to 15 her because obviously we have operated under the confines of 16 this protective order throughout the case. So while we do 17 oppose a selective disclosure, we don't contest, as long as 18 there is an entire disclosure. 19 What that means, your Honor, is with respect to all of 20 the record entries -- so, for example, the summary judgment, 21 while that had certain information that was presented to the 22 Court, it didn't have everything. 23 So after the summary judgment, your Honor will 24 remember there was other witness testimony that was presented 25 and put in the court record. There were designations for trial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 12 of 31 12 1 that were put in the court record that tell the story of the 2 abuse. 3 So in order for her to be able to respond to public 4 attacks on her, she has to have the information available to 5 her. If it's sealed, she has to abide by that seal. So she 6 would be in a terrible position if she wasn't able to defend 7 and support her own position with the testimony of those others 8 who echoed her position. 9 So, your Honor, that's where we stand on this. We 10 firmly believe that in order for the complete story to be told 11 and to be public, if that's what's going to happen, it has to 12 be the entire record. Anything less than that would be 13 inherently unfair to the plaintiff. Thank you. 14 MR. PAGLIUCA: Good afternoon, your Honor. 15 THE COURT: Welcome back. 16 MR. PAGLIUCA: Thank you. It's good to see you again. 17 Your Honor, as unpleasant as this may be, I think it's 18 important to go back over the history of the protective order 19 in this case and some of the many squabbles and disputes -- and 20 I emphasize the word "many" -- that the parties had in 21 connection with the discovery in this case. 22 The Court may recall that about two years ago, 23 March 17, 2016, Ms. McCawley, Ms. Menninger, and I were in the 24 courtroom. At that point in time, Ms. McCawley was very 25 anxious to depose my client in a very short period of time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 13 of 31 13 1 The position of the parties then was we'll sit for a 2 deposition, but we need a protection order in place before we 3 do that, and it has to be agreed upon and ordered by the Court. 4 I mention this, your Honor, because throughout the 5 history of this case, the protection order has played a central 6 part and has been relied on by the parties, the Court, and the 7 witnesses and relied on in a way that I believe, frankly, that 8 Ms. McCawley's position is not well-founded here because indeed 9 there are many judicial admissions by the parties to this case 10 during the course of the case where they relied on and asked 11 the Court to endorse and protect the parties and the witnesses 12 under the protection order. 13 So the first example of this, your Honor, which I 14 think is important with regard to the reliance issue is that 15 March 17, 2016, hearing before your Honor. 16 Ms. McCawley was pressing hard for a deposition date, 17 and we hadn't gotten all of the documents, and we hadn't had a 18 protective order. And Ms. McCawley says -- and this is at page 19 9 of that transcript, your Honor, dated March 17, 2016 -- 20 "Your Honor, if I can have the deposition of the defendant in 21 this case and move this case forward, I will agree to their 22 protective order. I just want that deposition." 23 And the Court says: "Yes." 24 Then Ms. McCawley says: "It is that important to me." 25 Then she says: "Your Honor, you can today enter the protective SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 14 of 31 14 1 order that they submit. I will disregard my objections if I 2 get the deposition." 3 The Court: "You will agree now to the protective 4 order?" 5 Ms. McCawley: "Yes. If it means I can get her 6 deposition, yes, I will do that." 7 The Court: "oh, okay. Good. Well, that's solved 8 then." 9 Well, that solved it for the course of this case, 10 your Honor, and it should solve it now. 11 The Court may then recall that we sat for that 12 deposition, and we disagreed about many of the questions that 13 were asked to our client because of her privacy concerns. 14 Ms. Maxwell has and had a constitutional right of 15 privacy and, on my advice, refused to answer a number of 16 questions related to what I will loosely characterize as her 17 "adult sexual conduct." 18 We were back in front of the Court on a plaintiff's 19 motion to compel answers to those questions where we asserted 20 Ms. Maxwell's privacy interest in not responding to those 21 questions. 22 We cited to the Court a number of cases, including Doe 23 v. Bolton, a U.S. Supreme Court case, which holds: "Personal 24 sexual conduct is a fundamental right protected by the right to 25 privacy." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 15 of 31 15 1 In response to that, the plaintiffs said to the Court: 2 "well, your Honor, we have a protective order in place, and 3 that assures Ms. Maxwell's right to privacy in answering those 4 kinds of questions." And that was their response in docket 5 number 152 which was filed with the Court on May 11, 2016. 6 And the Court accepted that response and held, in 7 compelling Ms. Maxwell to answer those questions, her private 8 questions about her own life -- the Court ruled that: "The 9 privacy concerns are alleviated by the protection order in this 10 case drafted by the defendant." 11 So we lived with the protection order, and we answered 12 those questions. And that order was entered by the Court on 13 June 20, 2016. 14 I don't agree with the movant's counsel, and I don't 15 assume, your Honor, that the documents in this case were filed 16 for a good purpose. I complained early and often to this Court 17 about statements made by opposing counsel and documents filed 18 with the Court which I viewed to be not judicial documents, not 19 necessary for the determination of any issue in this case, but 20 simply filed in some effort to try to get the story that they 21 were promoting out to the Court. 22 There is virtually no document that was presented to 23 this Court that, in my view, throughout the majority of this 24 case, had a legitimate function other than to advance the 25 agenda of the plaintiff in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 16 of 31 16 1 I move on to the witnesses in this case who relied on 2 this protection order, your Honor. There were 29 depositions 3 taken in connection with this case. Many of these witnesses 4 were represented by lawyers. Many of these witnesses did not 5 want to be deposed, and the Court may recall that the Court had 6 to issue a number of orders compelling the deposition testimony 7 of many of the witnesses. 8 The Court's protection order was a significant factor 9 in securing the testimony of these witnesses. Counsel for both 10 parties would get contacted by either the deponent or the 11 lawyer for the deponent. And they would raise concerns about 12 what's going to happen to my testimony? Who is going to get 13 access to it? You are asking me about many private issues. 14 And this would include alleged victims of Mr. Epstein 15 who did not want to testify in deposition who were represented 16 by lawyers. It would include other people who were accused by 17 plaintiff's counsel as participants with Mr. Epstein. 18 I will give one example to the Court. I will refer to 19 this witness only as Nadia. She was deposed, compelled to be 20 deposed, after much litigation. She was represented by a 21 lawyer here, Erica Dubno. 22 We start the record in that deposition with Ms. Dubno 23 saying: "We believe this deposition is pursuant to a 24 protective order. We want to ensure the confidentiality of 25 everything that occurs during this deposition and that all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 17 of 31 17 1 parties agree to a protective order for confidentiality of this 2 deposition." That's at page 6 of Nadia's transcript. 3 Mr. Edwards was in attendance at that deposition, 4 your Honor, and assured the witness and her lawyer: "This and 5 the other depositions that are designated as confidential are 6 being treated as confidential by the Court." That's what 7 Mr. Edwards, plaintiff's counsel, tells the witness and her 8 lawyer. 9 I indicated: "I have no objection to this deposition 10 being deemed confidential and subject to the protection order," 11 And Mr. Edwards agree, "No objection." That occurred a number 12 of times during the course of this case. 13 So we have these third parties who, through no fault 14 of their own, are being questioned about extremely sensitive 15 personal matters and are doing so under compulsion and with the 16 understanding that they are protected by this Court's 17 protective order. 18 So the fact that the plaintiff is somewhat 19 flip-flopping here on this issue I think is really of no 20 consequence because it is the Court's order. It is not 21 Ms. McCawley's order. It's not my order. It's the Court's 22 order. 23 It was stipulated to by the plaintiff, and the 24 plaintiff relied on it. And in my view, these are judicial 25 admissions that can't be taken back at this point because they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 18 of 31 18 1 were relied on to advance their position during the course of 2 the litigation, and you can't change that now because there is 3 some other agenda here. 4 The other thing that I think is interesting, if you 5 read carefully the plaintiff's papers, is they're not really 6 agreeing to really anything. What they're agreeing to is maybe 7 it's okay if the entire record gets unsealed, but, gee. There 8 are things in there that we think probably shouldn't be 9 unsealed anyway, and we're going to need to talk about that 10 down the road, which I think leads to then a discussion of kind 11 of what we're talking about in the universe of documents here 12 that the Court has to consider. 13 The Court is well aware that there are over 900 14 filings in this case, and I would group those into largely two 15 categories. The first would be discovery squabbles by the 16 parties, and then the second would be the flurry of pretrial 17 motions that the Court was deluged with shortly before trial a 18 year ago and then the summary judgment motion. 19 The Court did not rule on, I would say, the vast 20 majority of the pretrial motions that were pending when the 21 parties settled the case. I don't recall, frankly, how many of 22 those that there were, but I know that there were banker's 23 boxes of papers that the Court had that were under 24 consideration for those motions. 25 I break these categories out because indeed the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 19 of 31 19 1 overwhelming record in this case is that these are not judicial 2 documents, and in fact, the Court didn't rule on a huge number 3 of the filings that were before the Court. So I don't see how 4 anyone could consider these to be judicial documents because I 5 don't believe that they were considered by the Court, given the 6 settlement of the parties. So that's the universe of what 7 we're talking about here. 8 The Lugosch case -- the subject matter of that is a 9 motion to intervene with regard to a summary judgment motion. 10 Here we have a different situation. The intervenor, late to 11 the party by three years at this point, asks to unseal 900 12 filings with this Court. 13 So I don't understand how you can sit on your hands 14 for three years and then come in and say, well, there's this 15 enormous public interest in this case which, by the way, the 16 Miami Herald has not published one article about this case, 17 your Honor. Not one. So there is no interest in this case. 18 They may be interested in Mr. Epstein, but I'm not here 19 representing Mr. Epstein. 20 We know -- and the Court knows this -- that just 21 because something gets filed, it's not a judicial document, and 22 it's not entitled to any sort of access presumptively. 23 So let's assume for a moment that there is something 24 that the Court considers a judicial document in this pile. We 25 first to have to look at has the movant established that this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 20 of 31 20 1 is a judicial document. 2 I don't have the burden of establishing whether these 3 are judicial documents or not, and the Court is in a position 4 of determining whether these are judicial documents, not me and 5 not the movant. 6 Then we talk about the weight of presumption of 7 access. And, again, the vast majority of all of the papers 8 before the Court were not germane, in my view, to any of the 9 Court's determinations here. They were, in my view, simply 10 added for effect and had really no purpose in connection with 11 the pleadings. 12 The Court has to do a balancing test. This is a 13 nonexclusive list of factors, but two of the factors that are 14 discussed in Lugosch are the privacy interests of those 15 resisting discovery, judicial efficiency, and then there is a 16 discussion about reliance on the protection order. The Court 17 can use any of those factors to find that any of these 18 documents should not be disclosed or not accessible by the 19 public or the media. 20 Judicial economy was in fact advanced, your Honor, by 21 the way that these documents were handled and should be 22 handled. The Court addressed this issue in its opinion I think 23 issued on June 20 -- let me find the date. Sorry. November 2, 24 2016, your Honor. 25 I think sort of presaging some of these issues, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 21 of 31 21 1 quote the Court to the Court: "By the very nature of this 2 action, issues of credibility and reputation abound concerning 3 sensitive personal conduct." 4 The parties and the Court recognized early on the good 5 cause for the protective order which was entered "to protect 6 the discovery and dissemination of confidential information or 7 information which improperly annoy, embarrass, or oppress any 8 party, witness, or person providing discovery in this case." 9 The Court went on to say that there is no dispute that 10 the documents, at least with regard to this order, were 11 confidential and that they were, the Court found, properly 12 designated as such. 13 All of the documents that have been submitted in 14 connection with this case are highly sensitive confidential 15 documents that relate to very private matters of many 16 individuals. 17 Everyone associated with this case relied heavily on 18 this protection order throughout the conduct of this case, and 19 that includes the Court, the witnesses, and the parties. 20 I think that the Court has, at least twice now, found 21 that this protection order should remain in effect. And it 22 should continue the protection order because the privacy 23 interests and the reliance, certainly of Ms. Maxwell, on the 24 protection order outweigh any need or presumption of 25 disclosure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 22 of 31 22 1 Thank you, your Honor. 2 MR. WOLMAN: Your Honor, my name is Jay Wolman. I 3 represent Intervenor Michael Cernovich. 4 May I be heard for a minute? 5 THE COURT: Sure. 6 MR. WOLMAN: My brother at the bar mentioned the 7 changing positions of plaintiff in this matter, but let's first 8 focus on the changing position of the defendant. 9 We moved for unsealing the summary judgment motion, 10 all the attachments, all the opposition, the order that would 11 be forthcoming. At that time Ms. Maxwell did not oppose, but 12 now, only after settlement, only after a year, do we have her 13 finally coming in to say, well, now it should be remaining 14 sealed. 15 Similarly, as your Honor is probably aware, we have 16 appealed your Honor's order to the Second Circuit. Ms. Giuffre 17 has appeared to argue against it, but Ms. Maxwell hasn't. 18 So right now with Ms. Giuffre's position, if she's 19 saying you can release summary judgment materials but we want 20 other things released as well, then really there is no barrier 21 to the Second Circuit reversing your Honor's order at this 22 point and at least, at a minimum, releasing the summary 23 judgment materials because Ms. Maxwell certainly hasn't argued 24 that that should be prohibited. Only now has she changed her 25 position. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 23 of 31 23 1 As to Ms. Giuffre, when we were here previously, 2 your Honor, the plaintiff was arguing that there were privacy 3 interests and reasons why it should not be released. She's not 4 arguing that anymore. All she's saying now is that there is 5 secondary gain. She wants a secondary use to be able to 6 release the rest. And certainly we don't object to releasing 7 the rest of the materials. 8 But at least as to the summary judgment materials, 9 there is no basis to keep X under seal because Y is also kept 10 under seal. That is not a rule. That's not a thing under the 11 law. There is not a single precedence cited for that 12 proposition because every document is considered in its 13 individuality. 14 I want to address one other point here that seems to 15 get conflated. It was conflated in the prior arguments. It's 16 conflated here. It was conflated, unfortunately, I believe in 17 your Honor's prior order. 18 There is the protective order issued under Rule 26(c) 19 that provided for confidentiality designations. We're not here 20 about that. We are here about the sealing order under 21 Rule 5.2, and that has its own separate standard for sealing, 22 documents that may or may not have been designated confidential 23 under a Rule 26(c) order, but findings as to 5.2 individually 24 need to be made, and they were not made here. 25 There may be grounds why something that's designated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 24 of 31 24 1 confidential may need to be sealed under 5.2, but it's not 2 automatic. And in fact, your Honor started out by saying that 3 the parties still had to submit letters at one point. 4 Your Honor changed that requirement and allowed the 5 parties to just submit filings under seal. They had to publish 6 redacted versions, but they were able to submit unredacted 7 under seal with public redactions, which is why even last night 8 Professor Dershowitz's counsel was still filing something 9 automatically with redactions, because that order is still in 10 place. 11 So we need to bifurcate the issues of what is proper 12 to be sealed under 5.2, and certainly the summary judgment 13 materials should not have been sealed and should be unsealed 14 right now. 15 It is not too late for the news to be interested. It 16 was not late a year ago when we were interested, and certainly 17 we would have that access, should the Second Circuit grant it 18 to us anyhow. 19 So now under 5.2, we need to look at it. And even to 20 the summary judgment materials Ms. Maxwell argued in her papers 21 that there are some documents that may need certain redactions 22 or were irrelevant. 23 If they were irrelevant in her motion for summary 24 judgment, why was she attaching them to her summary judgment 25 motion. They certainly need to be relevant to the judicial SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 25 of 31 25 1 function of this Court. 2 The Court may consider Alexander Interactive for why 3 everything else are judicial documents and should be unsealed. 4 Thank you, your Honor. 5 MR. CELLI: Your Honor, may I be heard? I'm Andrew 6 Celli for Alan Dershowitz. Good afternoon. 7 Very briefly, your Honor, as your Honor is aware, Alan 8 Dershowitz is an intervenor in this case. We have been 9 litigating for nearly two years to unseal portions of this 10 record. And our appeal, along with Mr. Cernovich's appeal, is 11 pending in the Second Circuit as we speak. 12 We just want to say that we generally support the 13 application of the Miami Herald. We filed a letter along these 14 lines last night, and that letter directs the Court's attention 15 to document number 902 on the docket which was a letter that we 16 wrote to your Honor in June of 2017 more or less predicting 17 this exact turn of events and calling for -- this may be the 18 only time we agree with Ms. Giuffre's counsel on virtually 19 anything -- a fulsome release of information if there is going 20 to be any release at all. 21 So I just wanted to make that point orally. It's in 22 our letter, and we appreciate the Court's consideration. 23 THE COURT: I've read it. 24 MR. CELLI: Thank you, sir. 25 MR. BOHRER: Your Honor, might I be heard briefly in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 26 of 31 26 1 reply? 2 THE COURT: Of course. 3 MR. BOHRER: Thank you. 4 Your Honor, I don't think I need to add anything to 5 what the plaintiff said. 6 Defendants' counsel -- they filed a response, but 7 nothing he said today was in the response. Basically he's 8 saying, take my word for it. Everything should stay sealed, 9 and that's exactly what the courts say you cannot do. 10 So he talks about reliance on the order and reliance 11 by witnesses. We don't have anything in the record to indicate 12 what witnesses relied on what, but I will say this: 13 Depositions are not judicial records. Filed depositions, if 14 filed for a proper purpose, are. 15 I don't know what was told to these witnesses or not 16 told to them. I do know that we can protect them by 17 eliminating their names and substituting some kind of 18 initialing system that doesn't identify them. This is just the 19 point. They need to come in and show you. 20 It struck me that when they talk about reliance on the 21 order, your order, it says: "This protective order may be 22 modified by the Court at any time for good cause." 23 So everyone looking at it knows just what the Court in 24 Lugosch was saying. You can't rely on a confidentiality order 25 to be forever. Once a document gets filed, it's at risk of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 27 of 31 27 1 being disclosed, even if it was filed under seal and even if 2 the sealing was appropriate in the circumstances but later 3 becomes inappropriate. 4 So the Lugosch case again at 126 makes it quite clear 5 that you can't just rely on a confidentiality order which 6 actually isn't designed for this purpose. 7 The Court will recall your initial order said if you 8 want to seal something, confidential is one category. If you 9 want to seal something, as counsel just said, you have to file 10 a motion under seal. There is a local rule on sealing. 11 Counsel for Ms. Maxwell suggested that there are 12 documents that were filed that were relevant. I won't assume 13 what he said was correct because I can't assume one way or the 14 other, but basically he said over and over again, take my word 15 for it. Everything should stay sealed. 16 And I say over and over again that's not what the 17 Second Circuit and, indeed, the Supreme Court of the 18 United States will permit. It has to be done on a 19 document-by-document basis. 20 Whatever he said, there is a way to do that on the 21 record. Whatever he said should be sealed. There is a way to 22 handle that on the record. I'm not asking this Court to do 23 that, but in Florida where I practice more, most of the time, 24 judges routinely allow me to participate in in-camera 25 examinations -- videos, documents, hearings, testimony -- to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 28 of 31 28 1 help the Court determine whether something should be kept out 2 of the public eye. 3 I do that with an agreement to never reveal to my 4 client anything that I saw, observed, heard, learned during 5 that process. The reason for that is it speeds it up. It 6 speeds it up because it helps keep the lawyers honest. 7 Counsel said there are 900 filings. Okay. We aren't 8 even able to see what a bunch of these documents are by name. 9 More importantly, Ms. Maxwell does not say anything about how 10 the law actually applies here. 11 And I want to just stress that on judicial documents, 12 recognizing that this case is settled and it's not pending for 13 a jury trial anymore. In Lugosch they talk about how access 14 should be generally speaking, always permitted when it's a 15 case-dispositive motion. 16 When I get to the conclusion -- I don't know how there 17 is any way to read Lugosch as anything but supporting our 18 position -- the court says, the Second Circuit, the 19 United States Court of Appeals says: "We hold that documents 20 submitted to a court in support of or in opposition to a motion 21 for a summary judgment are judicial documents to which a 22 presumption of immediate public access attaches under both the 23 common law and the First Amendment." 24 And they talk about the higher burden. If it's a 25 First Amendment covered document, it can only be overcome by a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  I59YGIUC Case 1:15-cv-07433-LAP Document 949 Filed 06/01/18 Page 29 of 31 29 1 specific on-the-record finding that higher values necessitate a 2 narrowly tailored sealing. None of that was done here, and 3 they're not urging it. 4 They're continuing to urge wholesale sealing. That's 5 wrong. The Second Circuit actually said it could go back to 6 the district court, and if these folks want to push the issue 7 on what should be sealed and what shouldn't, they should do it. 8 But then the Second Circuit said: "We take this 9 opportunity to emphasize that the district court must make its 10 findings quickly." 11 And they go into, word after word and sentence after 12 sentence, about how important it is that public access, if it's 13 to be there, not be delayed any further. The decision in the 14 case is inescapable. Their ruling, at least as it goes to 15 anything that's case dispositive, is inescapable. 16 The authorities we cited for other acts of the 17 judiciary, judicial acts that relate to documents, are 18 unrebutted. Ms. Maxwell's lawyers, neither here today orally 19 nor in their papers, sai