gov.uscourts.nysd.447706.1328.41.pdf

Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 1 of 31 United States District Court Southern District of New York Virginia L. Giuffre, Plaintiff, Case No.: 15-cv-07433-RWS v. Ghislaine Maxwell, Defendant. ________________________________/ RESPONSE IN OPPOSITION TO MOTION TO INTERVENE (DE 362) Sigrid McCawley (Pro Hac Vice) Meredith Schultz (Pro Hac Vice) BOIES, SCHILLER & FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 2 of 31 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii I. INTRODUCTION .............................................................................................................. 1 II. FACTUAL AND PROCEDURAL BACKGROUND........................................................ 3 A. [REDACTED]........................................................................................................... 3 B. The Litigation Involving Dershowitz - The Florida Defamation Case................... 5 II. DERSHOWITZ RELEASES CONFIDENTIAL INFORMATION IN VIOLATION OF A FLORIDA COURT ORDER .................................................................................... 8 III. THE PROTECTIVE ORDER IN THIS CASE .................................................................. 9 IV. ARGUMENT.................................................................................................................... 10 A. Legal Standard ...................................................................................................... 10 B. These Are Not Judicial Documents and Therefore Should Not be Disclosed...... 11 C. Even Were the Court to Deem the Documents to be Judicial Documents, the Presumption of Access is Weak............................................................................ 15 D. No Right of Access Exists Under the First Amendment ...................................... 18 E. The Second Circuit Has a Presumption Against Modifying Protective Orders Upon Which Parties Reasonably Relied ............................................................... 20 1. The Record in this Case Shows That the Protective Order Was Not Improvidently Granted.............................................................................. 20 2. The Parties and Deponents in This Case Have Reasonably Relied Upon the Protective Order .................................................................................. 21 3. Dershowitz Seeks These Materials For an Illegitimate Purpose Which Disqualifies Him from Relief.................................................................... 22 4. Under This Court’s Order, Non-Parties Cannot Challenge Confidentiality Designations and Dershowitz has Already Agreed to be Bound by the Parties’ Confidentiality Designations ....................................................... 24 V. CONCLUSION................................................................................................................. 25 i  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 3 of 31 TABLE OF AUTHORITIES Page Cases Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608, 2014 WL 4346174 (S.D.N.Y. Sept. 2, 2014) ........................................ 15, 16 Anderson v. Cryovac, Inc., 805 F.2d 1 (1st Cir.1986).......................................................................................................... 13 Bond v. Utreras, 585 F.3d 1061 (7th Cir.2009) ................................................................................................... 13 Calloway v. Westinghouse Elec. Corp., 115 F.R.D. 73 (M.D. Ga. 1987) ................................................................................................ 24 Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304 (11th Cir.2001) ................................................................................................. 13 Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086, 2012 WL 6217646 (S.D.N.Y. Dec. 3, 2012)............................................... 15 Dorsett v. County of Nassau, 289 F.R.D. 54 (E.D.N.Y. 2012) .......................................................................................... 22, 23 Dorsett v. County of Nassau, 762 F.Supp.2d 500 (E.D.N.Y. 2011) ........................................................................................ 17 Edmondson v. State of Neb. ex. rel. Meyer, 383 F.2d 123 (8th Cir. 1967) .................................................................................................... 25 Flynn v. Hubbard, 82 F.2d 1084 (1st Cir. 1986)..................................................................................................... 25 Forsyth County v. U.S. Army Corps of Engineers, 2009 WL 1312511 (N.D. Ga. May 8, 2009)............................................................................. 25 Gosmile, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 2012 WL 1382557 (S.D.N.Y. 2012)......................................................................................... 14 In re September 11 Litigation, 262 F.R.D. 274 (S.D. N.Y. 2009) ............................................................................................. 21 In re Teligent, Inc., 640 F.3d 53 (2d Cir.2011)......................................................................................................... 21 In re Zyprexa Injunction, 474 F.Supp.2d 385 (E.D.N.Y. 2007) .................................................................................. 17, 19 ii  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 4 of 31 Iridium India Telecom Ltd. v. Motorola, Inc., 165 Fed.Appx. 878 (2d Cir.2005)............................................................................................. 23 Jane Doe No. 2 v. Epstein, No. 9:08-cv-80119-cv-KAM (S.D. Fla. Sept. 8, 2009) .............................................................. 4 Joy v. North, 692 F.2d 880 (2d Cir.1982)....................................................................................................... 17 Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) .................................................................................................. 12 Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir. 1993)...................................................................................................... 13 Levin v. U.S., 633 Fed. Appx. 69 (2nd Cir. 2016)....................................................................................... 1, 10 LiButti v. United States, 107 F.3d 110 (2d Cir. 1997)........................................................................................................ 5 Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc., 1996 WL 346352 (S.D.N.Y. June 26, 1996) ........................................................................ 1, 10 Louis Vuitton Malletier, S.A. v. My Other Bag, Inc., 156 F.Supp.3d 425 (S.D.N.Y. 2016)......................................................................................... 17 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006)...................................................................................................... 15 Martindell v. International Telephone & Telegraph Corp., 594 F.2d 291 (2d Cir.1979)....................................................................................................... 22 MasterCard Intern. Inc. v. Visa Intern. Service Ass'n, Inc., 471 F.3d 377 (2d Cir. 2006)...................................................................................................... 11 Medical Diagnostic Imaging, PLLC v. Carecore Nat., LLC, 2009 WL 2135294 (S.D.N.Y. 2009)......................................................................................... 23 Newsday LLC v. County of Nassau, 730 F.3d 156 (2d Cir. 2013)................................................................................................ 19, 20 Nixon v. Warner Communications, Inc., 98 S.Ct. 1306, 435 U.S. 589 (1978).......................................................................................... 24 S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001)...................................................................................................... 14 iii  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 5 of 31 Stern v. Cosby, 529 F.Supp.2d 417 (S.D.N.Y. 2007)......................................................................................... 16 U.S. v. Amodeo ("Amodeo I"), 44 F.3d 141 (2d Cir. 1995)................................................................................................. passim U.S. v. Amodeo ("Amodeo II"), 71 F.3d 1044 (2d Cir. 1995)............................................................................................... passim Rules Fed. R. Civ. P. 24(b)(3)............................................................................................................. 1, 10 Other Authorities 8A Richard L. Marcus, Federal Practice and Procedure § 2044.1 (3d ed. Westlaw 2012) ............................................ 21 ALAN DERSHOWITZ, TAKING THE STAND: MY LIFE IN THE LAW (2013) ....................................... 24 "Did Dershowitz Shell Out Big Bucks to Get Settlement in Sex Case?" by Vivia Chen, April 12, 2016.................................................................................................... 9 Federal Practice and Procedure § 2044.1 (3d ed. Westlaw 2012) ................................................ 21 How Alan Dershowitz Bullied Rape Victims to Protect a Serial Child Molester,” by Rania Khalek, January 10, 2015 ............................................................................................ 5 The Talented Mr. Epstein, by Vicky Ward, in Vanity Fair (Jan. 2005) ......................................... 3 Vanity Fair Reminds Us When Jeffrey Epstein Wasn’t a Creep, by Ray Gustini, in The Wire (June 21, 2011) ............................................................................. 3 iv  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 6 of 31 I. INTRODUCTION The Court has before it a request from a non-party (Alan Dershowitz) to intervene in this case for the purpose of extracting and publicizing several emails and a draft manuscript from the Protective Order that has long been entered in this case. Dershowitz does not seek public access of these documents for the legitimate purpose of informing the public on this Court’s adjudication of its Article III powers. Instead, Dershowitz make clear that his purpose is to advance his own agenda, and continue to wage his media war on Ms. Giuffre, as he has already appeared on national news calling her a “prostitute” and a “bad mother.”1 This is not the typical intervention case where a non-party seeks documents it lacks access to, or where a news organization seeks to inform the public on court proceedings. Here, Alan Dershowitz seeks to inject himself into this litigation for the wrongful purpose of conducting a public smear campaign of Ms. Giuffre. He has no interests beyond his own. And, he has already violated another court order directing him to stop wrongfully leaking confidential information to the media. Unsurprisingly, Dershowitz’s motion fails to cite a single case in which a court granted a non-party, who already possessed the sealed documents in dispute, the right to freely disseminate those documents in the public domain for self-serving purposes. His motion for permissive intervention is committed to the discretion of the Court, and the Court should deny it. Fed. R. Civ. P. 24(b)(3); Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc., 1996 WL 346352, at *4 (S.D.N.Y. June 26, 1996) (Sweet, J.) (denying leave to intervene); Levin v. U.S., 633 Fed. Appx. 69, 70 (2nd Cir. 2016) (affirming denial of motion to intervene, “[b]ecause of the fact-intensive nature of an intervention decision, we review for ‘abuse of discretion’ a district court's order denying intervention . . . by permission.”) 1 McCawley Dec. at Exhibit 1, Local 10 News, January 22, 2015. 1  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 7 of 31 Indeed, the documents in question could hardly “confirm his absolute innocence.” DE - 364 at 1. The documents do not directly bear on Ms. Giuffre’s sworn and detailed statements about how Dershowitz sexually abused her, statements that are corroborated by a mountain of supporting evidence.2 Instead, according to Dershowitz, these materials create some sort of a web of circumstantial inferences suggesting his innocence. His attenuated reasoning hardly provides the kind of compelling reason needed to pierce the Protective Order. Instead, Dershowitz seeks these documents for the primary purpose of conducting a media blitz against Ms. Giuffre in advance of trial – clearly to assist his joint defense partner, Defendant Maxwell, by poisoning the jury pool in this case. Dershowitz has no legal basis for his request. The documents in questions are not judicial documents, and thus neither a First Amendment nor common law right of access applies. Moreover, both the parties in this case have long reasonably relied on the existing Protective Order. Under that order, numerous documents involving child sex abuse and other sensitive subjects have been placed under seal. If Dershowitz is permitted to cherry pick the documents that he finds favorable and extract them from the protective order to serve his purposes, it would seem only fair that Ms. Giuffre be permitted to lift the protective order from currently- confidential documents and testimony in the court file which would support her position. This Court entered the Protective Order “upon a showing of good cause.” Dershowitz is not a party to this litigation and provides no sound reason for modification. Accordingly, this Court should deny Dershowitz’s motion in its entirety. 2 As an overview, Dershowitz, who touted Epstein as a close friend, flew on Jeffrey Epstein’s private jet 15 times from 1996 through 2006, which was during the time period that Jeffrey was actively assaulting a number of minor children. Twice Dershowitz flew with Sarah Kellen, who was Defendant’s right hand recruiter of these underage girls. McCawley Dec at 2, Dershowitz Flights. While Dershowitz said he was “never” in the places where Virginia was during the period of 2000 – 2002, public records directly contradict this statement and show that he actually had an apartment in New York not far from Epstein’s home for a year from 2000 – 2001. McCawley Dec. at 3. While there is mounting evidence to support Ms. Giuffre’s allegations of Dershowitz’s involvement, that issue is not something the Court needs to decide because this case is about Defendant Maxwell’s conduct, not Dershowitz. 2  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 8 of 31 II. FACTUAL AND PROCEDURAL BACKGROUND A. Abundant Evidence Supports Ms. Giuffre’s Sworn Testimony That Alan Dershowitz Sexually Abused Her Dershowitz says he needs to see several documents because they will somehow “demonstrate that the allegations of sexual misconduct . . . are nothing more than a recent fabrication . . . .” DE 364 at 2. To the contrary, they will in no way prove the allegations are a “fabrication,” given the mountain of evidence supporting Ms. Giuffre’s sworn testimony. Ms. Giuffre has not made vague assertions, but described in detail what Dershowitz did to her and where.3 In response to Ms. Giuffre’s sworn testimony, Dershowitz does not argue that any witnesses will be able to prove his innocence. Instead, he tries to build a circumstantial case that he could not have committed the sexual abuse. Dershowitz now claims, for example, that at the time of the abuse, he was merely “acquainted with Mr. Epstein through academic events . . ..” DE 364 at 4.4 But in 2005 (before news of Epstein’s criminal prosecution broke), Dershowitz stated “I’m on my 20th book … The only person outside of my immediate family that I send drafts to is Jeffrey.”5 Dershowitz has also been quoted as saying that, even if Epstein went bankrupt, “I would be as interested in him as a friend if we had hamburgers on the boardwalk in Coney Island and talked about his ideas.”6 Dershowitz also claims that he never saw “Epstein in the presence of underage girls.” DE 364 at 3.7 This lack of observation is remarkable given that Epstein brazenly and repeatedly 3 Id. at 88-91, McCawley Dec at Exhibit 4, describing Dershowitz’s abuse of her in Epstein’s New York mansion. 4 In earlier media statements, Dershowitz took an even more extreme position, stating that “I have never been alone with . . . Jeffrey Epstein.” UMAR News, Jan. 5, 2015. https://www.youtube.com/watch?v=KXzcxsiQv7Q. And yet (among other occasions), a flight log shows Epstein and Dershowitz traveling together—alone. 5 The Talented Mr. Epstein, by Vicky Ward, in Vanity Fair (Jan. 2005). 6 Vanity Fair Reminds Us When Jeffrey Epstein Wasn’t a Creep, by Ray Gustini, in The Wire (June 21, 2011). 7 While Dershowitz swore under oath that he never saw any naked photos at Epstein’s Palm Beach mansion, the recently released video taken by the Palm Beach Police department during its investigation, reveals naked photos in a number of the common areas of Epstein’s Palm Beach home. McCawley Dec. at Exhibit 5. 3  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 9 of 31 abused numerous underage girls in his Florida mansion, his New York mansion, and several other places that Dershowitz apparently admits he visited on multiple occasions. In 2009, one of Epstein’s household employees, Juan Alessi, testified about the parade of young “massage therapists” entering Epstein’s Palm Beach mansion, and that Ms. Giuffre was one of the girls who came to Epstein’s mansion.8 Alessi also saw many celebrities came to the Florida mansion, including “a very famous lawyer that I’m sure you know, Alan Dershowitz.” Id. at 70:9-25. Alessi testified that Dershowitz came to the mansion “pretty often . . . at least four or five times a year” and would stay overnight “two [or] three days.” Id. at 73:22-25. Ms. Giuffre came to the house when Dershowitz was there. Id. at 73:18-20. And, importantly, Dershowitz got massages while he was visiting Epstein’s home. Id. at 74:1-4.9 The private, upstairs room where Dershowitz got his “massages” was the room where Defendant Maxwell had “a laundry basket . . . full of those toys.” Id. at 76:11-15. In 2009, Epstein’s butler, Alfredo Rodriguez, testified that Dershowitz was at Epstein’s mansion when underage girls were there to give massages.10 Rodriguez also testified that Dershowitz was present alone at the home of Jeffery Epstein, without his family, in the presence of young girls.11 It also appears that Rodriguez would later circle Dershowitz’s name in Epstein’s address book as among the people with important information for the FBI to collect regarding sex trafficking. In addition, Sarah Kellen, Nadia Marcinkova, and Adrianna Mucinska all 8 Juan Alessi Depo. at 46:21- 47:4, 48:18-25, Jane Doe No. 2 v. Epstein, No. 9:08-cv-80119-cv-KAM (S.D. Fla. Sept. 8, 2009), McCawley Dec at Exhibit 6. 9 While Dershowitz loudly proclaimed to the media that he had “never” received a massage at Jeffrey Epstein’s home, he later retracted that knowingly false statement and admitted to having a massage. McCawley Dec at Exhibit 7. 10 Alfredo Rodriguez Depo. at 278:13-25, 279:9-280:2, Jane Doe No. 2 v. Epstein (excerpts attached as Exhibit 8). 11 Id. at 199:12-13, 279:9-12, 426:16-25, 427:1. 4  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 10 of 31 implicated Dershowitz by invoking their Fifth Amendment right against self-incrimination12 when asked questions about Dershowitz’s connection to Epstein’s abuse, including a specific question about whether Dershowitz had been involved with massages by young girls. McCawley Dec., Composite Ex. 9.13 Finally, in Dershowitz’s vociferous attacks on Ms. Giuffre here, the Court will see an eerie parallel to the Jeffrey Epstein criminal investigation. Back in 2005, when the Palm Beach Police Department was first investigating Epstein’s sexual abuse, the Department accumulated overwhelming evidence placing underage girls at Epstein’s residence who gave statements that they were being sexually abused, the accounts bearing chillingly similar details. As he did to Ms. Giuffre, Dershowitz called those girls liars and defamed them as prostitutes,14 in an effort to convince the State Attorney that these girls could not even believably establish that they had ever even gone to Epstein’s mansion. Later, Dershowitz would remarkably write to tell the Justice Department that “Epstein never targeted minors.” B. The Litigation Involving Dershowitz - The Florida Defamation Case15 12 In a civil proceeding such as this one, Ms. Giuffre is entitled to an inference in her favor when a witness takes the Fifth Amendment rather than answer a relevant question where that witness is associated with the other side of the case or otherwise in an adverse position to the victims. LiButti v. United States, 107 F.3d 110, 124 (2d Cir. 1997). 13 Dershowitz also refers to an “investigation” he paid for by former FBI Director Louis Freeh in an effort to proclaim his innocence. DE 364 at 5. Interestingly, while Dershowitz has provided a one-paragraph summary of the investigation to the press, he has not chosen to make the specifics of the investigation public, including what Freeh learned about Defendant Maxwell’s involvement in Jeffrey Epstein’s sex trafficking organization. 14 “How Alan Dershowitz Bullied Rape Victims to Protect a Serial Child Molester,” by Rania Khalek, January 10, 2015, https://electronicintifada.net/blogs/rania-khalek/how-alan-dershowitz-bullied-rape-victims-protect-serial- child-molester; see also McCawley Dec. at Exhibit 10, Recarey Dep. Tr. at 109:13-110:3 (“Q. What -- what types of persuasions did Alan DERSHOWITZ use in an attempt to dissuade the prosecution of Alan DERSHOWITZ [sic] or his associates? THE WITNESS: Let’s see. He not only had -- when they went out and badgered the victims, they went through all social media, found photographs of these victims either holding an alcoholic beverage and calling them -- you see they're not saints. You know, they're consuming alcohol under the age of 21. Basically trying to dirty the victim as much as possible.” 15 Dershowitz says that he “loudly” proclaimed his innocence, but he also attacked Professor Cassell and Ms. Edwards. Dershowitz also repeatedly and publicly attacked Ms. Giuffre, as discussed as greater length below. At no point did Cassell and Edwards ever agree that their client, Ms. Giuffre, was mistaken in her allegations against Dershowitz. See generally, Cassell Dec. 5  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 11 of 31 Dershowitz also misleadingly describes the Florida defamation action16 between himself and Cassell and Edwards. Remarkably, Dershowitz fails to note that same documents he seeks here (to use in the next installment of his media campaign) are the exact type of documents that Judge Lynch quashed from Dershowitz’s subpoena he served on Ms. Giuffre in the Florida Action. In short, a judge has already ruled that Dershowitz should be denied access to these documents. This baseless motion is nothing more than an attempt to make an end-run around Judge Lynch’s Order, by coming to this Court, and asking for what he was denied by another court. Indeed, Dershowitz fails to reveal three significant facts to this Court. First, Dershowitz fails to reveal to this Court is that he has already been sharply rebuked by a Florida judge for his efforts to take confidential materials to the media. Second, Dershowitz fails to tell this Court that the only ongoing component to his Florida Action concerns sanctions against him for violating that Court’s Order by his continuing to reveal confidential materials.17 Third, Dershowitz fails to I tell this Court that the judge in the Florida Action already denied his request to access these materials.18 The parties to the Florida Action have settled all claims. Accordingly, there is no “compelling need” to reveal these documents to the media as they are wholly immaterial to whether Dershowitz should be sanctioned for violating Judge Lynch’s order, as it pertained to non-party Ms. Giuffre. In other words, the content of these confidential documents has no bearing on the disposition of the Florida Appeal, and Dershowitz cannot claim otherwise. Ms. Giuffre was not a party to the litigation between the attorneys in the Florida Action. During the course of the litigation, however, Dershowitz subpoenaed discovery from Ms. 16 Edwards and Cassell v. Dershowitz, Case No. CACE 15-000072, in the Circuit Court of the 17th Judicial circuit in and for Broward County, Florida (the “Florida Action”), presided over by Judge Lynch. 17 McCawley Dec. at Exhibit 11, June 2, 2016 Notice of Appeal. 18 McCawley Dec. at Exhibit 12, November 12, 2015 Order on Motion to Quash. 6  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 12 of 31 Giuffre. In particular, Dershowitz sought to obtain from Ms. Giuffre (a non-party to the action) all of her emails with the media. The Court granted in part Ms. Giuffre’s Motion to Quash and, among other things, denied Dershowitz’s discovery request relating to communications with media and denied Dershowitz’s request for “manuscripts or writings.”19 Dershowitz produced many documents in the course of discovery in that case – ironically, documents that he quickly placed under a protective order in Florida. Id. Dershowitz claims that the Churcher email somehow exonerates him, but the brief mention does no such thing. Indeed, while asserting that there is no “proof” that Dershowitz is a pedophile, Ms. Churcher also stated that “[w]e all suspect Alan is a pedo[phile].”20 21 Similarly, Dershowitz believes that an excerpt from Ms. Giuffre’s manuscript she was somehow suggests his innocence, even though the passage in question recounts Dershowitz intruding on Epstein while he was sexually abusing Ms. Giuffre. DE 364 at 9. Apparently Dershowitz believes that because he is not described more often and prominently in the manuscript, that is proof of her 19 Judge Lynch Quashed discovery from non-party Virginia Giuffre on the Following: (1) Request 9 – “All documents concerning any communications by Jane Doe #3 or on Jane Doe #3’s behalf with any media outlet concerning Dershowitz or the Federal Action whether or not such communications were “on the record” or “off the record;” (2) Request 17 “All documents concerning any actual or potential book, television or movie contracts or deals concerning Jane Doe #3’s allegations about being a sex slave;” (3) Request 18 “All documents concerning any monetary payments or other consideration received by Jane Doe #3 from any media outlet in exchange for her statements whether ‘on the record’ or ‘off the record’ regarding Epstein, Dershowitz, Prince Andrew, Duke of York, and/or being a sex slave;” (4) Request 20 “All documents showing any payments or renumeration of any kind made by Epstein or any of his agents or associates to you from January 1, 1999 through December 31, 2002;” and (4) Request 23: “All manuscripts and/or other writings whether published or unpublished, created in whole or in part by Jane Doe #3 concerning Epstein and any of his agents or associates.” 20 Dershowitz asserts that before this May 11, 2011, email was sent by Ms. Churcher, that Ms. Giuffre “did not in any way accuse Professor Dershowitz of sexual abuse . . . .” DE 364 at 9-10. But the support for this assertion appears to be a statement from Asst. U.S. Attorney Jeff Sloman that Dershowitz’s name had not come up in 2006 to 2008 when Dershowitz was helping to negotiate Jeffrey Epstein’s plea deal. Dershowitz Dec., ¶ 5 (referring to unnamed Asst. U.S. Attorney). However, because of Dershowitz’s penchant for twisting words, Mr. Sloman has sent a corrective note that he left the U.S. Attorney’s Office in 2008 and does not know what the investigation of Epstein revealed after that time. Also, Dershowitz does not recount in his statement of facts that in March 2011, two months before Ms. Churcher sent the email in question to Ms. Giuffre, Ms. Giuffre had told attorney Jack Scarola in a recorded interview that Dershowitz has relevant information about Epstein’s sexual abuse. 21 Dershowitz wrongly suggests to this Court that Ms. Giuffre answered questions incorrectly in her deposition. Ms. Giuffre answered questions to the best of her recollection. Ms. Giuffre had never sent an email to Ms. Churcher with Dershowitz’s name in it – instead, as Dershowitz recounts, Ms. Churcher turns out to have sent one email to Ms. Giuffre with Dershowitz’s name in it. 7  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 13 of 31 innocence. But this inference is inconsistent with Ms. Giuffre’s description of the manuscript, in which she explained “[n]ot everything in it is – not everything is in there . . ..” McCawley Dec. at 13, Giuffre Dep. Tr. at 41. II. DERSHOWITZ RELEASES CONFIDENTIAL INFORMATION IN VIOLATION OF A FLORIDA COURT ORDER The pending sanction motion in the Florida Court is an illustrative example of how Dershowitz willingly violates Court orders. On December 11, 2015, in a transparent attempt to play his case to the media rather than try it before the court, Dershowitz filed a false affidavit with the Florida court purporting to describe confidential settlement communications with Giuffre’s counsel and attempting to discredit Giuffre. He filed his affidavit in the public court file, despite knowing Ms. Giuffre’s standing objections. He then alerted the media (specifically the New York Times) to these statements. After Giuffre filed an emergency motion to seal the affidavit, the court found in favor of Ms. Giuffre that the communications in the affidavit were in fact confidential settlement negotiations that should not have been disclosed and granted Giuffre’s motion. McCawley Dec., Ex. 15. During the hearing, the Florida court admonished Dershowitz not to reveal any other confidential settlement negations: MS. MCCAWLEY: Your Honor, if the intent here is to continue to spew the confidential settlement negotiations and have Dershowitz go to New York or other locations to say these things again, I would object to that. I think this Court needs to be very stern in its response that these are not appropriate to be disclosed. THE COURT: Well, I think he is aware of that. MR. SAFRA [Dershowitz’s attorney]: I'm aware, and I will convey to my client. . .22 Ms. Giuffre had a pending motion for sanctions against Dershowitz for his conduct in wrongfully revealing and flatly mischaracterizing these settlement disclosures. McCawley Dec. 22 McCawley Dec. at Exhibit 14, December 18, 2015, Emergency Motion to Seal Hr. Tr. at 25:23-26:9 (emphasis added). 8  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 14 of 31 Sealed Ex. 16, Motion for Sanctions. Before that motion was heard, Dershowitz willfully violated the court’s order and again disclosed the confidential settlement communications, for which Giuffre again sought sanctions. McCawley Dec. Sealed Ex. 17, Supplement to Motion for Sanctions. However, before the sanction motions were heard, Dershowitz settled the underlying litigation. Dershowitz has insisted upon keeping confidential the monetary settlement that resolved the claims against him.23 The trial court declined to retain jurisdiction to hear Ms. Giuffre’s sanctions claims after the settlement. Ms. Giuffre’s attorneys have appealed the ruling to the Florida Court of Appeals and filed an opening brief on August 25, 2016. III. THE PROTECTIVE ORDER IN THIS CASE This is a case concerning sex abuse of minors, brought by a woman who was herself a minor victim of sex abuse. Accordingly, this Court has recognized from the outset the paramount importance of a protective order in this case, announcing at one of the first hearings in the case that that “of course there should be a protective order in this case.”24 Thereafter, on March 18, 2016, “[u]pon a showing of good cause,” the Protective Order was entered (DE 62 at p.1). The following month, this Court sought even greater strictures regarding the Protective Order.25 Furthermore, as this Court will remember, it twice allowed the parties to submit suggested redactions to the public versions of its Orders (DE 135; June 20, 2016, Order26). While 23 “Did Dershowitz Shell Out Big Bucks to Get Settlement in Sex Case?” by Vivia Chen, April 12, 2016 at http://thecareerist.typepad.com/thecareerist/2016/04/did-dershowitz-shell-out-money-for-settlement-in-case- sex.html 24 March 17, 2016, Hearing Transcript at 4:25-5:1. McCawley Dec. at Exhibit 18. 25 “However, I’m also going to ask the parties to agree upon an order that would expand the confidentiality agreement to this extent to this extent, to require the plaintiff to indicate to me and to the defense if there is anyone else who is going to be active in this litigation. I’ll tell you why I feel this way. I want to be sure that we can enforce the confidential aspect of that agreement, and I think that could be critical down the line. That’s the reason for those requests.” April 21, 2016, Hearing Transcript at 6:24-7:6. McCawley Dec. at Exhibit 19. 26 “This matter being subject to a Protective Order, the parties are directed to meet and confer regarding redactions to this Opinion consistent with that Order. The parties are further directed to jointly file a proposed redacted version of this Opinion or Notify the Court that none are necessary within two weeks of the date of receipt of this Opinion.” June 20, 2016, Sealed Order at p. 19. 9  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 15 of 31 the redactions were agreed to by the parties, they were solely at Defendant’s request.27 Indeed, this Court temporarily placed the entire docket under seal. June 23, 2016, Order. DE 251. Under these rulings, both parties designated hundreds of pages of materials confidential under the Court’s Order. IV. ARGUMENT A. Legal Standard The Court may deny Dershowitz’s motion without even reaching the merits of whether the contested documents are judicial documents, which they absolutely are not. Fed. R. Civ. P. 24(b)(3); Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc., 1996 WL 346352, at *4 (S.D.N.Y. June 26, 1996) (Sweet, J.) (denying leave to intervene); Levin v. U.S., 633 Fed. Appx. 69, 70 (2nd Cir. 2016) (affirming district court’s denial of motion to intervene, explaining “[b]ecause of the fact-intensive nature of an intervention decision, we review for ‘abuse of discretion’ a district court's order denying intervention . . . by permission.”). Accordingly, this Court can deny Dershowitz’s motion on the grounds that taking these documents to the media would prejudice - Ms. Giuffre and because, having sat on the documents for months, the motion is untimely.28 Dershowitz ’s motion mentions, then proceeds to ignore, the policy rationale that underlies both the First Amendment and common law right of access to judicial documents. Both 27 Without a good faith basis, Defendant proposed redacting this Court’s reference to Jeffrey Epstein’s name (44 times) and the Court’s reference to Alan Dershowitz’s name (10 times) from this Court’s Order. DE 135 Ms. Giuffre made no objection to Defendant’s self-serving maneuver to avoid being closely associated with Epstein and Dershowitz in the public eye. 28 The Court should not even reach the substance of Dershowitz’s motion, as he has failed to meet the requirements for permissive intervention, which, as Dershowitz admits, include timeliness. MasterCard Intern. Inc. v. Visa Intern. Service Ass'n, Inc., 471 F.3d 377, 390 (2d Cir. 2006). In MasterCard the Second Circuit affirmed the district court’s denial of a motion for permissive intervention on timeliness grounds. That decision is highly persuasive here. First, Dershowitz has known of his potential “interest” in this case long before it was filed in September of 2015, as evidenced by the email communications between Dershowtiz and Defendant the Court reviewed in its in camera review before ordering Defendant to produce them. Yet Dershowitz waited until after discovery closed and until after he was safe from receiving a notice of deposition in this matter, before he filed his intervention motion. Unsurprisingly, his motion is devoid of any claim that his motion is timely, because such an argument could never succeed given Dershowitz ’s long-held knowledge of Ms. Giuffre and her allegations, the disposition of this case, and the fact that he sat on these documents for months before seeking relief. 10  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 16 of 31 legal principles exist so that courts may have accountability to the public; they do not exist to enable individuals on a personal vendetta to advance a public smear campaign against a victim of childhood sexual abuse. U.S. v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (“Amodeo II”) (“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 accountability and for the public to have confidence in the administration of justice.”). Indeed, the motion to intervene is devoid of any citations to precedent that allows an individual to exploit these bedrock legal principles solely for his personal benefit, rather than the public at large. Furthermore, the Court should not overlook the fact that that Dershowitz already possesses these documents because they were sent to him by Maxwell’s counsel who has named him as a witness, and, as demonstrated below, the Second Circuit does not provide a right of access to protected material when an individual seeks to use it solely for harm. B. These Are Not Judicial Documents and Therefore Should Not be Disclosed The Court can end its legal analysis of this motion quickly, as, contrary to Dershowitz’s suggestion, the documents in question are not judicial documents. This fact is fatal to the motion, as neither the First Amendment nor the common law right of access applies in a scenario where the materials in question are not judicial documents. U.S. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”) (noting material must be a “judicial document” to be “accessible to the public”). Dershowitz only became aware of the documents he now seeks because Ms. Giuffre produced them in discovery. It is established law in the Second Circuit that documents simply exchanged in the civil discovery context do not come within the purview of the First Amendment or the common law right of access. “Documents that play no role in the performance of Article III functions, such as those passed between the parties in discovery, lie entirely beyond the 11  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 17 of 31 presumption’s reach…” Amodeo II, 71 F.3d at 1050. Dershowitz suggests that because a subpoenaed third party filed one of the documents as an attachment to a motion to quash, and because Defendant filed the others as an exhibit to an opposition to extend discovery, that converts them into judicial documents and triggers the presumption of access. This argument is unavailing. The Second Circuit has held that the “mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access. We think that the item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.” Amodeo I, 44 F.3d at 145. A review of the case law reveals that every circuit to have directly addressed this point has found that documents filed as exhibits to non-dispositive discovery motions do not qualify as judicial documents. Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1179 (9th Cir. 2006) (“We have, however, carved out an exception to the presumption of access to judicial records for a sealed discovery document [attached] to a non-dispositive motion, such that the usual presumption of the public's right of access is rebutted”) (internal citation and quotations omitted); Bond v. Utreras, 585 F.3d 1061, 1075 n. 8 (7th Cir.2009); Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1312–13 (11th Cir.2001) (holding that “material filed with discovery motions is not subject to the common-law right of access, whereas discovery material filed in connection with pretrial motions that require judicial resolution of the merits is subject to the common-law right”); Anderson v. Cryovac, Inc., 805 F.2d 1, 10 (1st Cir.1986) (“Although we agree that the public has a right of access to some parts of the judicial process, we conclude that this right does not extend to documents submitted to a court in connection with discovery proceedings.”); Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157, 12  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 18 of 31 164 (3d Cir. 1993) (“holding that discovery motions and supporting materials are subject to a presumptive right of access would make raw discovery, ordinarily inaccessible to the public, accessible merely because it had to be included in motions precipitated by inadequate discovery responses or overly aggressive discovery demands. This would be a holding based more on expediency than principle.”). Therefore, five federal appellate courts have already rejected the argument that Dershowitz advances here. Dershowitz acknowledges that the Second Circuit has not yet reached this specific issue, but the holdings in Amodeo I and Amodeo II demonstrate that when the Second Circuit reaches this issue, it will reach exactly the same result. In Amodeo II the Second Circuit held that documents “passed between the parties in discovery, lie entirely beyond the presumption’s reach…” Amodeo II, 71 F.3d at 1050. In Amodeo I the Second Circuit noted the “mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access.” Amodeo I, 44 F.3d at 145. Additionally, in the case cited by Dershowitz, S.E.C. v. TheStreet.Com, 273 F.3d 222, 233 (2d Cir. 2001), the Second Circuit rejected an argument that would “transform every document that a court reviews into a ‘judicial document’ presumptively open to the public, despite well-settled law to the contrary.” The Second Circuit has held (1) discovery materials are not judicial documents; (2) the mere filing of a document with the court does not render it a judicial document; and (3) a court simply reviewing a piece of discovery material does not make the document a “judicial document.” Therefore, there is no question that the Second Circuit would resolve the issue at hand in exactly the same way that every other circuit to address the issue has. This Court should follow every other circuit, and the guidance from the Second Circuit, and find that the mere 13  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 19 of 31 filing of a piece of discovery material as part of a non-dispositive discovery motion does not convert the material into a judicial document. Finally, the Churcher emails cannot qualify as “judicial documents” on the separate and independent basis that the Court has not considered them, as the motion to which they are attached is still pending.29 Here again, Dershowitz’s motion misses the point of the First Amendment and common law rights of access. It is not the filing of a piece of discovery that makes it a judicial document, it is the Court’s review and consideration of that document that converts the document’s status. Gosmile, Inc. v. Dr. Jonathan Levine, D.M.D. P.C., 2012 WL 1382557, at *1 (S.D.N.Y. 2012) (“Court did not weigh these documents [attached as exhibits] in its review of the parties' motions, considers them immaterial to the motions, and therefore does not consider them to be judicial documents.”). As Ms. Giuffre has shown, these principles exist for the accountability of the courts to the public, not for the personal benefit of an individual. In the face of this uniform precedent from the courts of appeal, Dershowitz cites only to a handful of district court opinions, many of which do not support the relief he seeks. For example, in Dershowitz’s first-cited case, Alexander Interactive, Inc. v. Adorama, Inc., No. 12 Civ. 6608, 2014 WL 4346174, at *2 (S.D.N.Y. Sept. 2, 2014), the Court proceeded to deny access and instead sealed the materials at issue. In Dandong v. Pinnacle Performance Ltd., No. 10 Civ. 8086, 2012 WL 6217646, at *2 (S.D.N.Y. Dec. 3, 2012) the court noted the materials at issue were nothing more than legal argument, and it gave the parties time to show “good cause” for keeping the documents sealed. The Court can reject these outlier opinions out of hand, as they do not comport with the holdings of the First, Third, Seventh, Ninth and Eleventh Circuits, nor are they in-line with the Second Circuit’s case law in Amodeo I, Amodeo II and TheStreet.Com. 29 It may well be the case that the Court never considered Ms. Giuffre’s draft manuscript in ruling on the motion for extension of time in relation to the opposition motion to which it was attached. The Order makes no mention of it. DE June 20, 2016, Order. If the Court did not consider those exhibits, they do not qualify as judicial documents. 14  Case 1:15-cv-07433-LAP Document 1328-41 Filed 01/05/24 Page 20 of 31 There simply is no legal basis for this Court to find that the documents Dershowitz seeks qualify as “judicial documents.” First, it is not clear that this Court has even reviewed or considered them, and if it has not, that fact alone is dispositive. Second, the law throughout the country is clear that routine, raw discovery materials submitted as exhibits to non-dispositive discovery motions do not convert into “judicial documents” and trigger a right of public access. The Court should find that these documents are not “judicial documents” and summarily deny Dershowitz’s motion. C. Even Were the Court to Deem the Documents to be Ju