gov.uscourts.nysd.447706.955.0.pdf

Case 1:15-cv-07433-LAP Document 955 Filed 09/26/18 Page 1 of 43 UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK X VIRGINIA GIUFFRE, : Plaintiff, : Case No. 15-cv-7433(RWS) : against : : GHISLAINE MAXWELL, : : Defendant. X NOTICE OF APPEAL PLEASE TAKE NOTICE that Julie Brown and Miami Herald Media Company ("Miami Herald"), Intervenors in the above-captioned case, hereby appeal to the United States Court of Appeals for the Second Circuit from the Memorandum and Order dated August 24, 2018, and entered in this action on August 27, 2018. Dated: September 26, 2018 New York, New York Respectfully submitted, /s/ Christine N. Walz Sanford L. Bohrer [email protected] Christine N. Walz [email protected] Madelaine J. Harrington [email protected] HOLLAND & KNIGHT LLP 31 West 52nd Street New York, NY 10019 Telephone: 212.513.3200 Fax: 212.385.9010 Attorneys for Intervenors Julie Brown and Miami Herald Media Company Case 1:15-cv-07433-LAP Document 955 Filed 09/26/18 Page 2 of 43 Exhibit 1  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 31 of of 43 41 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x VIRGINIA GIUFFRE, Plaintiff, 15 Civ. 7433 OPINION -against- GHISLAINE MAXWELL, Defendant. ------------------------------~---------x A P P E A R A N C E S: Counsel for Intervenors Julie Brown & Miami Herald Media Company HOLLAND & KNIGHT LLP 31 West 52~ Street New York, NY 10019 By: Christine N. Walz, Esq. Sanford L. Bohrer, Esq. Counsel for Plaintiff Virginia Giuffre BOIES SCHILLER & FLEXNER LLP 401 E. Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301 By: Sigrid S. Mccawley, Esq. Meredith L. Schultz, Esq. BOIES SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 By: David Boies, Esq. EDWARDS POTTINGLER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 By: Bradley J. Edwards, Esq.  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 42 of of 43 41 S.J. QUINNEY COLLEGE OF LAW UNIVERSITY OF UTAH 1 383 University Street Salt Lake City, UT 84112 By: Paul G. Cassell, Esq. Counsel for Defendant Ghislaine Maxwell HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 By: Laura A. Menninger, Esq. Jeffrey S. Pagliuca, Esq. Ty Gee, Esq. Counsel for Intervenor Michael Cernovich RANDAZZA LEGAL GROUP, PLLC 100 Pearl Street, 14th Floor Hartford, CT 06103 By: Jay M. Wolman, Esq. Counsel for Intervenor Alan Dershowitz EMERY CELLI BRINCKERHOFF & ABADY, LLP 600 Fifth Avenue, 1Qth Floor New York, NY 10020 By: Andrew G. Celli, Jr., Esq. 1 This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation.  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 53 of of 43 41 Table of Contents I . Prior Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II.The Motion to Intervene is Granted . . . . . . . . . . . . . . . . . . . . . . . . . 11 III. The Issues and the Applicable Standards . . . . . . . . . . . . . . . . . . . 13 IV. The Motion to Unseal the Discovery Documents is Denied .... 24 V. The Summary Judgment Judicial Documents . . . . . . . . . . . . . . . . . . . . 26 VI. The Motion to Unseal the Summary Judgment Judicial Documents is Denied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 VII. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 64 of of 43 41 Sweet, D.J. Third-party proposed intervenors The Miami Herald Media Company (the "Miami Herald") and investigative journalist for the Miami Herald Julie Brown ("Brown") (collectively , the "Intervenors "), have moved pursuant to Federal Rule of Civil Procedure 24 to intervene in this defamation action brought by plaintiff Virginia Giuffre ("Giuffre" or the "Plaintiff") against defendant Ghislaine Maxwell ("Maxwell" or the "Defendant") and to unseal all of the documents previously sealed in this action. Resolution, clarity and certainty, sometimes delayed, are hallmarks of the judicial process. The present motions challenge certain resolutions of this settled and closed action and raise significant issues, the conduct of the discovery process, the enforceabili ty of confidential ity agreements and protective orders, the privacy rights of parties and witnesses, the public interest and the role of the media, and the transparency of the judicial process. This defamation action from its inception in September 2015 to its settlement in May 2017 has been bitterly contested and difficult to administer because of the truth or falsity of 1  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 75 of of 43 41 the allegations concerning the intimate, sexual, and private conduct of the parties and of third persons, some prominent, some private. The instant motions renew that pattern and require a reexamination of the effort to provide an appropriate resolution of the issues presented by the litigation. Upon this reexamination and the conclusions set forth below, the motion to intervene is granted, and the motion to unseal is denied as to the documents produced in the discovery process and as to the summary judgment judicial documents based on the difficult balancing of the conflicting principles described below. I. Prior Proceedings In early 2011 Giuffre, in an interview with journalist Sharon Churcher ("Churcher") which was published in two British tabloids, described Maxwell's alleged role as someone who recruited or facilitated the recruitment of young females for sexual activity with Jeffrey Epstein ("Epstein"), that she, Giuffre, had been interviewed by the Federal Bureau of Investigation ("FBI") in 2011, and that she had discussed Maxwell's involvement in the described sexual abuse. Maxwell issued a statement denying this account on March 9, 2011. 2  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 86 of of 43 41 On January 1, 2015, Giuffre moved to join two alleged victims of Epstein who had initiated an action under the Crime Victims' Rights Act against the United States, purporting to challenge Epstein's plea agreement. Giuffre's joinder motion (the "Joinder Motion") included numerous details about Giuffre's sexual abuse and listed the perpetrators of her abuse. Giuffre repeatedly named Maxwell in the Joinder Motion as being personally involved in the sexual abuse and sex trafficking scheme created by Epstein. On January 3, 2015, Maxwell again issued a statement, responding to the allegations made in connection with Giuffre's Joinder Motion. Maxwell stated that Giuffre's allegations "against Ghislaine Maxwell are untrue" and that Giuffre's "claims are obvious lies" (the "January 3 Statement"). Giuffre filed her complaint in this action on September 21, 2015 (the "Complaint"), setting forth her claim of defamation by Maxwell arising out of the Maxwell January 3 Statement. Giuffre alleged she was the "victim of sexual trafficking and abuse while she was a minor child" and that Maxwell "facilitated" Giuffre's sexual abuse and "wrongfully" subjected Giuffre to "public ridicule, contempt and disgrace" by denying Giuffre's allegations. Giuffre further alleged that over 3  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 97 of of 43 41 the course of a decade she had been sexually abused at "numerous locations" around the world with prominent and politically powerful men. Vigorous litigation was undertaken by the parties, as demonstrated by the 950 docket entries as of August 27, 2018, including a motion to dismiss the Complaint which was denied by opinion of February 29, 2016 (the "February 29 Opinion"). The primary issue presented was the truth or falsity of the January 3 statement issued by Maxwell, which in turn challenged all the previous statements made to the press by Giuffre and in Giuffre's Joinder Motion. This resulted, understandably, in a lengthy and tumultuous discovery process resulting in 18 hearings and 15 decisions. After hearing counsel, it was determined that fact discovery would be completed on July 29, 2016, 2 see Proposed Discovery and Case Management Plan, Aug. 1, 2016, ECF No. 317. Both parties early on recognized the extreme sensitivities and privacy interests arising out of an effective discovery process involving the truth or falsity of the allegations at issue. The 2 The parties reserved the right to extend this deadline where the parties so agreed, or for good cause shown. See Proposed Discovery and Case Management Plan, Aug. 1, 2016, ECF No. 317. 4  Case Case 1:15-cv-07433-LAP 1:15-cv-07433-RWS Document Document955 953 Filed Filed09/26/18 08/27/18 Page Page10 of 41 8 of 43 consequent protective order was entered into by the parties on agreement, and endorsed by the Court on March 17, 2016 (the "Protective Order"), and the sealing order was ordered by the Court on August 9, 2016 (the "Sealing Order"), for the purpose of protecting the discovery and dissemination of confidential information to be exchanged in this action. See Protective Order, ECF No. 62. This Protective Order allowed the parties to provide discovery on highly private and sensitive subjects without it being disclosed to the public, absent an additional order of this Court. The Protective Order served "to protect the discovery and dissemination of confidential information or information which will properly annoy, embarrass, or oppress any party, witness, or person providing discovery in this case." ECF Dkt. 62. The Protective Order applied broadly "to all documents, materials, and information, including without limitation, documents produced, answers to interrogator ies, responses to requests for admission, deposition testimony, and other information disclosed pursuant to the disclosure or discovery duties created by the Federal Rules of Civil Procedure." Id. 'IT 1. The Protective Order also provided the procedures to designate any such material as confidential , and to challenge such designations . Id. '!['![ 8-10. Upon review by an attorney 5  Case Case 1:15-cv-07433-LAP 1:15-cv-07433-RWS Document Document955 953 Filed Filed09/26/18 08/27/18 Page Page11 of 41 9 of 43 acting in good faith, the designating party was to designate certain confidential information as "CONFIDENTIA L," triggering a set of protections as to that document for the duration of the action. Id. I 8. When a party filed material designated as confidential with the Court, it was to additionally file a Motion to Seal pursuant to Section 6.2 of the Electronic Case Filing Rules & Instructions for the Southern District of New York. Id. I 10. Absent consent of the producing party, designated documents "shall not . be disclosed." 3 Id. I 5. At the conclusion of the case, the parties could elect either to return the confidential material to the designating party or destroy the documents. Id. I 12. The Protective Order 3 The necessary exceptions to this rule are as follows: [S]uch information may be disclosed to: a) attorneys actively working on this case; b) persons regularly employed or associated with the attorneys actively working on this case whose assistance is required by said attorneys in the preparation for trial, at trial, or at other proceedings in this case; c) the parties; d) expert witnesses and consultants retained in connection with this proceeding, to the extent such disclosure is necessary for preparation, trial or other proceedings in this case; e) the Court and its employees . . in this case; f) stenographic reporters who are engaged in proceedings necessarily incident to the conduct of this action; g) deponents, witnesses, or potential witnesses; and h) other persons by written agreement of the parties. Id. I 5. 6  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 12 10 of of 43 41 specified that it "shall have no force and effect on the use of any CONFIDENTIAL INFORMATION at trial." Id. From March 17, 2016 to August 9, 2016, 26 motions to seal were filed with the Court pursuant to the Protective Order, each of which were granted. On August 9, 2016, an order amended the Protective Order as follows: To reduce unnecessary filings and delay, it is hereby ordered that letter motions to file submissions under seal pursuant to the Court's Protective Order, ECF No. 62, are granted. The Protective Order is amended accordingly such that filing a letter motion seeking sealing for each submission is no longer necessary. A party wishing to challenge the sealing of any particular submission may do so by motion. Sealing Order, ECF No. 348. One hundred sixty-seven documents were sealed pursuant to the Sealing Order. On August 11, 2016, Intervenor Alan Dershowitz ("Dershowitz" or "Intervenor Dershowitz") moved to unseal three documents: (1) portions of a Reply Brief submitted by Churcher in support of her motion to quash the subpoena served on her; (2) emails between Churcher and Giuffre submitted in connection with the same motion; and (3) a draft of a manuscript prepared by Giuffre submitted in connection with a motion to extend a time deadline. See Dershowitz Motion to Intervene, Aug. 11, 2016, ECF Nos. 362-64. Other than the requested documents which 7  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 13 11 of of 43 41 he sought in order to make a public statement, Dershowitz agreed to be bound by the Protective Order. See Dershowitz Deel., ECF No. 363 ~ 30. On November 2, 2016, the motion was denied on the basis that these documents "were submitted with respect to the discovery process rather than in connection with the disposition of any substantive issue, and therefore are not judicial documents" such that no presumption of access exists. Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y. Nov. 2, 2016), ECF No. 496. Appeal has been filed on that decision. Pursuant to several amendments, a trial date of May 25, 2017 was determined. See Order, Oct. 30, 2015, ECF No. 13; Amended Proposed Discovery and Case Management Plan, Sept. 30, 2016, ECF No. 451; Amended Second Discovery and Case Management Plan, Feb. 27, 2017, ECF No. 648; Joint Letter, May 8, 2017, ECF No. 912. Expert discovery was completed on November 30, 2016. See id. Twenty-nine motions in limine were filed by the parties between January 5, 2017 and May 1, 2017, on which decision was reserved. See ECF Nos. 520, 522, 524, 526, 528, 8  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 14 12 of of 43 41 530, 533, 535, 561, 563, 567' 608, 663-667' 669, 671, 673, 675, 677' 679, 681, 683, 685-86, 689, 691. Maxwell filed a motion for summary judgment on January 6, 2017, which was heard on February 16, 2017 and denied by an opinion filed on March 22, 2017. See Sealed Document, March 24, 2017, ECF No. 779 (the "Summary Judgment Opinion"). The parties, in accordance with the agreed upon procedures, were directed to jointly file a proposed redacted version of the Summary Judgment Opinion consistent with the Protective Order. The agreed upon redacted opinion was filed with the Court and made public on the docket on April 27, 2017 (the "Redacted Opinion"). See Redacted Opinion, April 27, 2017, ECF No. 872. On January 19, 2017, Intervenor Michael Cernovich ("Cernovich" or "Intervenor Cernovich") made a motion to unseal the materials submitted in connection with Maxwell's motion for summary judgment, which the Court denied on May 3, 2017 (the "May 3 Opinion") on the basis that Cernovich "ha[d] not established a compelling need for the documents obtained in discovery which undergird the summary judgment decision." Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y. May 3, 2017), ECF No. 892. "This action is currently scheduled for 9  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 15 13 of of 43 41 trial in mid-May and a release of contested confidential discovery materials could conceivably taint the jury pool." Id. The parties arrived at a settlement and jointly stipulated to dismiss this action on May 24, 2017. See Stipulation of Voluntary Dismissal, ECF No. 916; Joint Stipulation for Dismissal, ECF No. 919. The settlement presumably is pursuant to the Protective Order and remains confidential with terms known only to the parties. This case was closed on May 25, 2017. On April 9, 2018, the Miami Herald filed the instant motion, contending that all sealed documents in this action are presumptively public under both common law principles and the First Amendment to the U.S. Constitution, and were sealed pursuant to an improvidently granted protective order, which allowed the parties to designate information as confidential without the particularized judicial scrutiny required by the law prior to sealing. See ECF No. 62. The motion was joined by Intervenor Dershowitz, who requested that he be advised of any documents unsealed in order to request unsealing of additional documents to protect his interests, and by Intervenor Cernovich. Argument was heard on May 9, 2018, at which time this motion was considered fully submitted. 10  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 16 14 of of 43 41 II. The Motion to Intervene is Granted Federal Rule of Civil Procedure 24 provides intervention of right under Rule 24(a) to anyone who "claims an interest relating to the property or transaction that is the subject of the action, and is so s.ituated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a). Permissive intervention may be granted to anyone "who has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b). Because courts, including this one, "have repeatedly recognized that members of the press (and other non-parties) may seek to pursue modification of confidential ity orders that have led to sealing of documents filed with the court," and since "the appropriate procedural mechanism to do so is a motion to intervene," the motion of Brown and the Miami Herald to intervene is granted. See In re Pineapple Antitrust Litig., No. 04 Md. 1628 (RMB) (MHD), 2015 WL 5439090, at *2 (S.D.N.Y. Aug. 10, 2015); Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) (S.D.N.Y. Nov. 2, 2016), ECF No. 496 (Opinion Granting Dershowitz Motion to Intervene); Giuffre v. Maxwell, No. 15 Civ. 7433 (RWS) 11  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 17 15 of of 43 41 (S.D.N.Y. May 3, 2017), ECF No. 892 (Opinion Granting Cernovich Motion to Intervene) . Although the case was closed by the Clerk of Court on May 25, 2017 pursuant to the settlement agreement, "intervention for the purpose of challenging confidentiality orders is permissible even years after a case is closed." United States v. Erie Cnty., N.Y., No. 09 Civ. 8493, 2013 WL 4679070, at *6 (W.D.N.Y. Aug. 30, 2013), rev'd on other gds., 763 F.3d 235 (2d Cir. 2014); see also In re Pineapple Antitrust Litig., 2015 WL 5439090, at *2 ("[T]here is no implication in the caselaw or in common sense why the passage of more than three years should disable a journalist from seeking unsealing."). Moreover, "[w]hether deemed an intervention as of right under Rule 24(a) or a permissive intervention under Rule 24(b), intervention by the press-a step preliminary to determining whether any sealed documents should be disclosed-should be granted absent some compelling justification for a contrary result." In re Pineapple Antitrust Litig., 2015 WL 5439090, at *2 (footnote omitted). Accordingly, the motion to intervene is granted, and it is appropriate to reopen the case for the disposition of the instant motion. 12  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 18 16 of of 43 41 III. The Issues and the Applicable Standards The issues presented by the parties engage vital societal concepts, the privacy rights of individuals, the judicial process to establish truth or falsity, the transparency of that process, and freedom of information and of the press. On these concepts our Circuit has rendered helpful guidance. 4 4 See United States v. HSBC Bank USA, N.A., 863 F.3d 125 (2d Cir. 2017) (noting discovery documents lie beyond the presumption of public access); Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132 (2d Cir. 2016) (weighing value of public disclosure of complaint against privacy interests in favor of access); Newsday LLC v. Cnty. of Nassau, 730 F.3d 156 (2d Cir. 2013) (finding First Amendment right of access to contempt proceeding); N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286 (2d Cir. 2012) (qualified First Amendment right of public access attached to TAB hearings conducted by New York City Transit Authority); United States v. Aref, 533 F.3d 72 (2d Cir. 2008) (finding that where classified information presented at trial, if disclosed, would jeopardize national security weighed against public access); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (existence of confidentiality order alone did not defeat presumption of public access); Hartford Courant Co. v. Pellegrino, 380 F.3d 83 ( 2d Cir. 2004) (establishing qualified First Amendment right of access to sealed docket sheets); Sec. Exch. Comm'n v. TheStreet. com, 273 F. 3d 222 (2d Cir. 2001) (holding pretrial deposition testimony were not "judicial documents"); DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818 (2d Cir. 1997) (sealing file pursuant to confidentiality agreement between parties was not abuse of discretion); United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) ("Amodeo I") (finding it proper for district court to edit and redact judicial document to allow access to appropriate portions after weighing competing interests); United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) ("Amodeo II") (presumption of access afforded to particular document filed with court varies with document's relevance to exercise of Article I I I functions); Gardner v. Newsday, 895 F.2d 74, 79 (2d Cir. 1990) (balancing newspaper's common law right of access 13  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 19 17 of of 43 41 Because of the nature of this defamation action, the particular allegations at issue involving sexual conduct, and the need to be able to rely on court determinations, this motion presents a unique pattern for decision. Legal scholars and jurists have long sought to refine the boundaries of privacy, or "the right to be let alone,n but the result remains a mosaic, the development of which can be traced more to the unraveling of case law than the priority of certain rights over others. See Louis Menand, Why Do We Care So Much About Privacy?, THE NEW YORKER, June 18, 2018. The legal implications of privacy have been considered in relation to "telegraphy, telephony, instantaneous photography (snapshots), dactyloscopy (fingerprinting), Social Security numbers, suburbanization, the Minnesota Multiphasic Personality Inventory, Fourth Amendment jurisprudence, abortion rights, gay liberation, human-subject research, the Family Educational Rights and Privacy Act, '60 Minutes,' Betty Ford, the 1973 PBS documentary 'An American Family,' the Starr Report, the memoir craze, blogging, and social media.n Id. at 6; see e.g., Smith v. with defendant's privacy rights); Joy v. North, 692 F.2d 880 (2d Cir. 1982) (distinguishing between documents obtained in discovery from those filed pursuant to an adjudication for purposes of the "judicial documentn determination). 14  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 20 18 of of 43 41 Maryland, 442 U.S. 735 (1979) (holding no reasonable expectation of privacy in phone numbers dialed); Assoc. Press v. U.S. Dep't of Defense, 554 F.3d 274 (2009) (finding Guantanamo detainees enjoy a privacy interest in the nondisclosure of their names and identifying information in records containing allegations of abuse by military personnel and by other detainees); Nat'l Archives & Records Adinin. v. Favish, 541 U.S. 157 (2004) (holding Freedom of Information Act ("FOIA") recognizes surviving family members' right to personal privacy with respect to their close relative's death-scene images). Privacy has also been "associated with privilege (private roads and private sales)," see United States v. Knotts, 460 U.S. 276, 282 (1983) (holding that defendant enjoyed a reasonable expectation of privacy when driving on his premises, but that no such expectation extended to his travel on public thoroughfares), "with confidentiality (private conversations)," see Katz v. United States, 389 U.S. 347, 351 (1967) (holding that defendant did not shed his reasonable expectation of privacy in holding a private conversation in a public phone booth), "with noncomformity and dissent," see Warden v. Hayden, 387 U.S. 295, 323 (1967) (Douglas, J., dissenting) ("Those who wrote the Bill of Rights believed that every individual needs both to communicate with others and to keep his affairs to 15  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 21 19 of of 43 41 himself. That dual aspect of privacy means that the individual should have the freedom to select for himself the time and circumstance s when he will share his secrets with others and decide the extent of that sharing."), "with shame and embarrassmen t," see Perlman v. U.S. Dep't of Justice, 312 F.3d 100, 106 (2d Cir. 2002), vacated and remanded, 541 U.S. 970 (2004), aff'd, 380 F.3d 110 (2d Cir. 2004) (per curiam) (witnesses and third parties "possess strong privacy interests, because being identified as part of a law enforcement investigation could subject them to 'embarrassme nts and harassment'" ), "with the deviant and the taboo . .,"see Lawrence v. Texas, 539 U.S. 558, 573 (2003) (holding that persons in a homosexual relationship may seek autonomy in their consensual sexual conduct in the home just as heterosexual persons do), "and with subterfuge and concealment, " see U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 763 (1989) (holding that an individual's interest in nondisclosure of an FBI rap sheet was the sort of personal privacy interest that Congress intended FOIA law enforcement exemption to protect); see Menand, supra at 6. In the law, "privacy functions as a kind of default right when an injury has been inflicted and no other right seems to suit the case." Menand, supra at 6. The right to privacy 16  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 22 20 of of 43 41 might emanate from one or many Amendments to the Constitution . For example, the right prohibiting the government from obtaining heat wave information from within one's home by way of sense- enhancing technology not in general public use arises from notions of privacy rooted in Fourth Amendment jurisprudenc e, see Kyllo v. United States, 533 U.S. 27, 34 (2001), while the right of a woman, with certain exceptions, to pursue an abortion beyond the state's police powers exists in the zones of privacy arising from the First, Fourth, Fifth, Ninth and Fourteenth Amendments, see Roe v. Wade, 410 U.S. 113, (1973) (holding that constitution al right of privacy is broad enough to encompass woman's decision whether or not to terminate her pregnancy, but that this right is not absolute in that the state may properly assert important interests in safeguarding health, in maintaining medical standards and in protecting potential life). The montage of privacy law that has developed around these disparate concepts does not lend itself to easy determination s of privacy rights. Nevertheless , certain things enjoy an undisputed right to privacy: trade secrets, see Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475-76 (1974) (the holder of a trade secret is protected against the disclosure or unauthorized use of the trade secret); sexual activity (although of what kind it remains to be determined), compare Lawrence, 539 17  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 23 21 of of 43 41 U.S. 558 (making it unconstitutio nal to criminalize homosexual relations) with Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding unconstitutio nal Massachusett s statute permitting married persons to obtain contraceptiv es but prohibiting distribution of contraceptiv es to single persons); and personal characteristi cs-such as the radiation of heat from one's home, Kyllo, 533 U.S. 27, and the unamplified sound of one's voice, Katz, 389 U.S. 347-which make up Fourth Amendment jurisprudenc e. These privacy rights, in the context of this action, are balanced against the public's right to access rooted in First Amendment and common law jurisprudenc e. There are two "related but distinct presumptions in favor of public access to court . . 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). Generally, the public holds an affirmative, enforceable right of access to judicial records under both the common law and the First Amendment to the U.S. Constitution . "The presumption of access is based on the need for federal courts, although independent- indeed, particularly because they are independent- to have a measure of accountabili ty and for the public to have confidence in the administratio n of justice." United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 18  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 24 22 of of 43 41 1995) ("Amodeo II"). However, "the right to inspect . judicial records is not absolute. Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes" such as using records "to gratify spite or promote scandals" or where files might serve "as reservoirs of libelous statements for press consumption." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); see also Amodeo II, 71 F.3d at 1051 (internal quotation marks and citation omitted} ("Courts have long declined to allow public access simply to cater to a morbid craving for that which is sensational and impure."}. Pretrial discovery is intended to aid the parties in their search for truth. See Hickman v. Taylor, 329 U.S. 495, 501 (1947) (celebrating that "[t]he deposition-discove ry regime set out by the Federal Rules of Civil Procedure is an extremely permissive one to which courts have long 'accorded a broad and liberal treatment to effectuate their purpose that civil trials in the federal courts [need not] be carried on in the dark,'" and that discovery is a powerful tool for "the parties to obtain the fullest possible knowledge of the issues and facts before trial."}. It is presumed that the trial itself will make the final determination of truth or falsity. The boundary between 19  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 25 23 of of 43 41 discovery and trial is sometimes, as here, blurred. The effort is assisted by the definition of "judicial documents." Whether discovery or trial, "a court must first conclude that the documents at issue are indeed 'judicial documents.'" Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006); see also id. (noting that "only judicial documents are subject to a presumptive right of public access, whether on common law or Fist Amendment grounds."). If the document is a judicial document, courts next ask whether the presumption of access is a product of the common law right of access, or of the more robust First Amendment right to access certain judicial documents. Id. at 119-20. It is a given accepted by the Protective Order that the trial and all trial documents are accessible and public absent special circumstances. Under the common law approach, once a document is classified as a judicial document, the presumption of access attaches. Id. at 119. The court must then determine the weight of the presumption of access, which is a function of "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." See id.; Stern v. Cosby, 529 F. 20  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 26 24 of of 43 41 Supp. 2d 417, 420 (S.D.N.Y. 2007) (internal citations omitted) ("the court must determine the weight of the presumption, that is, whether the presumption is an especially strong one that can be overcome only by extraordinary circumstances or whether the presumption is a low one that amounts to little more than a prediction of public access absent a countervailing reason or whether the presumption is somewhere in between."). Documents traditionally fall somewhere on a continuum "from matters that directly affect an adjudication to matters that come within a court's purview solely to ensure their irrelevance." Amodeo II, 71 F.3d at 1049. Such a presumption under the common law may be overcome by demonstrating that sealing serves to further other "substantial interests," such as "a third party's personal privacy interests, the public's safety, or preservation of attorney-client privilege." Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017) (collecting cases). However, the First Amendment "provides the public and the press a constitutional right of access to all trials, criminal or civil." Id. at 468 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 (1980)) (internal citation omitted) . This right applies specifically to "related proceedings and records" and "protects the public against the government's arbitrary interference with access to important 21  Case 1:15-cv-07433-RWS Case 1:15-cv-07433-LAP Document Document 955 953 Filed Filed 09/26/18 08/27/18 Page Page 27 25 of of 43 41 information. " N.Y. Civil Liberties Union v. N.Y.C. Transit Auth., 684 F.3d 286, 298 (2d Cir. 2012) (citations omitted). As noted above, the Protective Order specified that confidential material would not be protected with respect to any document proffered at trial. The Second Circuit has recognized two approaches for determining whether the First Amendment right of access extends to particular judicial records. Lugosch, 435 F.3d at 120. In the first approach, the "logic and experience" test, a court evaluates whether the documents are those that "have historically been open to the press and general public" and for which "public access plays a significant positive role in the functioning of the particular process in question." Id. Courts applying the "logic and experience" test have generally found a presumption of openness, based on the common law approach. Hart