gov.uscourts.nysd.447706.1069.0.pdf

Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 1 of 25 1 K6n1giuc 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 VIRGINIA L. GIUFFRE, 4 Plaintiff, 5 v. 19 Civ. 3377 (LAP) 6 ALAN DERSHOWITZ, 7 Defendant. Premotion Conference (Via Teleconference) 8 ------------------------------x New York, N.Y. 9 June 23, 2020 2:09 p.m. 10 Before: 11 HON. LORETTA A. PRESKA, 12 District Judge 13 APPEARANCES 14 COOPER & KIRK, PLLC 15 Attorneys for Plaintiff BY: NICOLE J. MOSS, ESQ. 16 BOIES, SCHILLER & FLEXNER LLP 17 Attorneys for Plaintiff BY: SIGRID S. McCAWLEY, ESQ. 18 ANDREW VILLACASTIN, ESQ. SABINA MARIELLA, ESQ. 19 TODD & WELD LLP 20 Attorneys for Defendant Alan Dershowitz BY: HOWARD M. COOPER, ESQ. 21 KRISTINE C. OREN, ESQ. 22 AIDALA BERTUNA & KAMINS PC Attorneys for Defendant Alan Dershowitz 23 BY: ARTHUR L. AIDALA, ESQ. IMRAN H. ANSARI, ESQ. 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 2 of 25 2 K6n1giuc 1 APPEARANCES (CONTINUED) 2 HADDON, MORGAN AND FOREMAN, P.C. 3 Attorneys for Defendant Ghislaine Maxwell (15 Civ. 7433) BY: LAURA A. MENNINGER, ESQ. 4 JEFFREY S. PAGLIUCA, ESQ. 5 HOLLAND & KNIGHT LLP Attorneys for Intervenors Miami Herald Media Company, 6 Julie K. Brown (15 Civ. 7433) BY: CYNTHIA GIERHART, ESQ. 7 KRIEGER, KIM & LEWIN LLP 8 Attorneys for Interested Party John Doe (15 Civ. 7433) BY: NICHOLAS J. LEWIN, ESQ. 9 PAUL M. KRIEGER, ESQ. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 3 of 25 3 K6n1giuc 1 THE COURT: Counsel for Ms. Giuffre, please? 2 MS. MOSS: Good morning, your Honor. This is Nicole 3 Moss with Cooper & Kirk, and we represent Ms. Giuffre in the 4 Giuffre v. Dershowitz matter. 5 THE COURT: Yes, ma'am. Good afternoon. 6 Counsel for Mr. Dershowitz? 7 MR. COOPER: Good afternoon, your Honor. Howard 8 Cooper for Professor Dershowitz, and on the line unmuted with 9 me is my colleague Kristine Oren, as is Arthur Aidala and Imran 10 Ansari. 11 THE COURT: Thank you. 12 Is counsel for Ms. Maxwell on? 13 MS. MENNINGER: Yes. Good afternoon, your Honor. 14 Laura Menninger from Haddon, Morgan and Foreman on behalf of 15 Ms. Maxwell, and I have with me Jeffrey Pagliuca. 16 THE COURT: Thank you. 17 Is counsel for Doe on? 18 MR. LEWIN: Good afternoon, Judge. This is Nick 19 Lewin. I'm joined by my partner Paul Krieger from Krieger, Kim 20 & Lewin, on behalf of nonparty John Doe. 21 THE COURT: Yes, sir. Thank you. 22 Are there any other lawyers for parties that I haven't 23 noted? 24 MS. McCAWLEY: Yes, your Honor. This is Sigrid 25 McCawley from Boies Schiller. We represent Ms. Giuffre in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 4 of 25 4 K6n1giuc 1 Maxwell matter. And I have with me my colleagues Andrew 2 Villacastin and Sabina Mariella. 3 THE COURT: Yes, ma'am. Good afternoon. 4 MS. McCAWLEY: Good afternoon. 5 THE COURT: Anyone else? 6 MS. GIERHART: Good afternoon, your Honor. This is 7 Cynthia Gierhart from Holland & Knight on behalf of Julie Brown 8 and the Miami Herald. And Christine Walz will not be joining. 9 I'll be on the call on her behalf. 10 THE COURT: Yes, ma'am. Good afternoon. 11 Who else? 12 All right. We seem to be together on this. 13 As we know, we are here on Professor Dershowitz's 14 motion to have the protective order in the Maxwell case 15 modified to permit the production of all of the information 16 that was subject to discovery in that case produced to him in 17 this case. I guess my first question is -- and this is 18 following reading Mr. Cooper's letter. Mr. Cooper has said in 19 here a couple of places that reliance on the protective order 20 was not reasonable. It seems that Judge Sweet seemed to have 21 found that it was reasonable and in fact was important to the 22 parties and nonparties who produced information and documents 23 in the case. Mr. Cooper, why shouldn't I give some weight to 24 Judge Sweet's findings that the reliance interest by those 25 parties was important? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 5 of 25 5 K6n1giuc 1 MR. COOPER: Thank you, your Honor. And I know you're 2 aware there are two Mr. Coopers in this case, but I get that 3 you're asking me. 4 THE COURT: I know. But I think Mr. Charles Cooper is 5 not on the phone. Is that right? 6 MR. COOPER: That is true. So -- 7 THE COURT: Okay. So it's you, Mr. Cooper. You can't 8 hide. 9 MR. COOPER: Your Honor, nor would I want to. 10 Your question, of course, needs to be directed at the 11 precise context here. First, this is not an issue of public 12 disclosure as to which an expectation of reasonable reliance 13 might apply. First, Professor Dershowitz has offered 14 unequivocally -- and subject only to rights he would enjoy 15 anyway, to get the Court to issue a further order changing the 16 status quo, but -- to join the protective order. 17 But secondly, with all respect to Judge Sweet, his was 18 not the final word with regard to the protective order at issue 19 here, and I have studied as best I can, as someone without 20 access to the entirety of the record in Giuffre v. Maxwell, the 21 procedural history, but when the Second Circuit spoke with 22 regard to this issue, it was very clear that there had been no 23 effective individualized or particularized assessment of any 24 particular discovery item, deposition testimony, and the like 25 prior to its being allowed to enjoy the full protection of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 6 of 25 6 K6n1giuc 1 order. And I would respectfully submit, under those 2 circumstances, your Honor, that someone who comes forward and 3 testifies with a concern about publication to the public 4 generally would not have had a reasonable expectation that 5 there couldn't be modification of the order to a private 6 individual who will agree to continue to abide by it and 7 that -- 8 THE COURT: Oh, except that the protective order 9 stipulated that the materials would be used in connection with 10 that lawsuit only. 11 MR. COOPER: I do understand, your Honor, and I can 12 tell you that while I understand the literal language, we now 13 have Ms. Giuffre having brought claims that highly and 14 substantially overlap between the Maxwell case and the case now 15 brought against Professor Dershowitz. 16 But before I get to that, your Honor, I'm really 17 commenting on the issue of what someone could reasonably have 18 relied upon, and the issue that someone would have thought of 19 at that point in time was public disclosure, and then, of 20 course, your Honor, we get into the issue of -- assuming that 21 I'm correct, and I'm happy to argue it to you paragraphs 22 cited -- that there is substantial overlap between the cases, 23 and Ms. Giuffre has put at issue a conspiracy here between, 24 allegedly, Ms. Maxwell, Mr. Epstein, and Professor Dershowitz 25 that she put pretty much at issue in the Maxwell case that she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 7 of 25 7 K6n1giuc 1 brought, that we are going to be seeking these materials 2 anyway, and I would imagine that there can't be an expectation, 3 a reasonable expectation under this protective order that there 4 could be no further discovery if something already deemed 5 discoverable per se -- and by logic, since it happened in the 6 Maxwell case, it's going to be undertaken here -- and courts, 7 including the Second Circuit, your Honor, have addressed this. 8 In terms of judicial economy, the EPDM case speaks directly 9 about whether there is a right inevitably to discover the same 10 information. And so I don't think it would be reasonable for a 11 party who is a witness in both cases to expect that their 12 discovery materials, their deposition testimony, somehow would 13 be immune from discovery in a further lawsuit. 14 THE COURT: All right. Who wants to speak on the 15 other side of that, please? 16 MS. MENNINGER: Your Honor, this is Laura Menninger on 17 behalf of Ms. Maxwell. 18 I would strongly dispute that the parties, including 19 Ms. Maxwell particularly but also any of the third parties from 20 whom discovery was sought and obtained in the Maxwell matter, 21 didn't rely on the promises made in the protective order that 22 the materials would be destroyed or returned at the conclusion 23 of that case. It was expressly -- 24 THE COURT: But may I interrupt you, Ms. Menninger. 25 What happened to that provision? What happened to that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 8 of 25 8 K6n1giuc 1 provision? Why wasn't that done at the end of the case? 2 MS. MENNINGER: Your Honor, we attempted to enforce 3 that provision, especially with regard to Ms. Giuffre's counsel 4 at the time, and we had a hearing in front of Judge Sweet where 5 it was determined that because there was still ongoing 6 litigation with the third-party intervenors and appeal on the 7 Second Circuit, that it was not yet ripe to be resolved. 8 THE COURT: Thank you. I will share Mr. Cooper's 9 failure to memorize every docket entry in the case. Thank you. 10 Go ahead, ma'am. 11 MS. MENNINGER: And your Honor, I would note a couple 12 of other concerns we have on this reliance point. 13 For example, the protective order provided that the 14 only attorneys who would be given access to the confidential 15 materials were attorneys actively working on the Maxwell case. 16 I was troubled, when I reviewed some of the discovery responses 17 that were attached to Mr. Cooper's letter, that it appears that 18 Ms. Giuffre's current counsel, which is new and different 19 counsel at Cooper & Kirk, appear to have access to the 20 confidential materials even though they were never actively 21 working on the Maxwell case. They may promise to produce 22 Ms. Maxwell's production in Maxwell in the Dershowitz case if 23 this Court so orders, and it also appears that they have 24 produced all of Ms. Giuffre's depositions and productions in 25 the Maxwell case over into the Dershowitz case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 9 of 25 9 K6n1giuc 1 So the leakage concern that we have, the reliance that 2 we have on the protective order is coextensive with the third 3 parties' reliance but certainly no less diminished. When our 4 client was ordered to submit to second and third depositions, 5 that was, Judge Sweet found expressly, based on the promise of 6 the protection of the protective order, and so to now say that 7 no one could reasonably have relied on a protective order which 8 expressly provided that those materials would be destroyed or 9 returned at the conclusion of the case I think is not supported 10 by the plain language of the protective order and the rulings 11 of Judge Sweet. 12 THE COURT: Ms. Moss, is it the fact that you and your 13 colleagues have access to those materials from the Maxwell 14 case? 15 MS. MOSS: Your Honor, when we were retained by 16 Ms. Giuffre, she retained us both to represent her in this case 17 and to represent her in conjunction with the Boies Schiller 18 firm in the Maxwell case, so yes, we do have access to those 19 materials. And as I think we made clear in our responses to 20 defendant Dershowitz, the reason we could not produce them is 21 because of the protective order. 22 But I would remind your Honor that when it comes to 23 Ms. Giuffre's depositions from the Maxwell case and her own 24 production in that matter, at our initial status conference 25 with you, you directed us to provide those, so we of course did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 10 of 25 10 K6n1giuc 1 follow that directive. 2 THE COURT: Yes, ma'am. 3 Who else wants to be heard on reliance? 4 MR. COOPER: Your Honor, this is Mr. Cooper again. I 5 do want to respond to what was just said, but I don't want to 6 go out of turn. 7 THE COURT: Go ahead. 8 MR. COOPER: Thank you, your Honor. 9 I would just ask your Honor to consider the piece of 10 information that you've just learned, which is, frankly, news 11 to me and other counsel for Professor Dershowitz, and that is 12 that Cooper & Kirk have access, in terms of prosecuting the 13 case against Professor Dershowitz and defending against his 14 claims, to all of the Maxwell materials, while we do not. And 15 with respect, I understand how that seems to have come about by 16 a coincidence or perhaps an intentional representation in both 17 cases, but that situation is unfair and inequitable, and I 18 can't imagine that anybody reasonably relying on a protective 19 order would ever have foresaw that could be achieved by virtue 20 of the protective order. That's not what it's intended for, to 21 give a side a completely unfair tactical advantage in a piece 22 of litigation, especially like this. 23 THE COURT: Could not have foreseen, counsel. 24 MR. COOPER: Correct, your Honor. 25 THE COURT: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 11 of 25 11 K6n1giuc 1 MR. COOPER: Would not have been reasonable. 2 THE COURT: Thank you. 3 Who else wants to be heard on reliance? 4 All right. The next question I have is: How are we 5 to protect the interests of the nonparties or third parties who 6 either produced materials or were mentioned in the materials? 7 MR. COOPER: And your Honor, again -- 8 THE COURT: And I'm sorry. And one more thing. 9 Related to that, obviously, are the concerns I have about 10 avoiding the unsealing process in Maxwell. I think I do count 11 this as Professor Dershowitz's third try at that. 12 But go ahead, counsel. Mr. Cooper, did you want to 13 talk? 14 MR. COOPER: Your Honor, I assume you were directing 15 that question at me as well, so I'm happy to. 16 The short answer is that Professor Dershowitz has 17 agreed unequivocally to sign on to the protective order in the 18 case, which means that his lawyers with appearances in the 19 matter of Giuffre v. Dershowitz, the client himself, their 20 experts, and those listed in the protective order will be the 21 only ones with access to the materials, and they will be used 22 solely for purposes of the case. There will be an ability -- 23 and I don't know this, but logic dictates that much of the 24 materials have already been designated as confidential, if not 25 all of them, except those published by the Second Circuit, or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 12 of 25 12 K6n1giuc 1 ordered published, and so the net effect will be that for 2 purposes of this litigation, an additional set of lawyers and 3 their clients will have access. 4 And further, your Honor, paragraph 14 of the existing 5 protective order invites the parties to seek further order of 6 the Court if there is an unforeseen issue that needs to be 7 dealt with, so I would imagine if there is some additional 8 concern that the producing party, or the subject party, more 9 accurately, could raise it with the Court, and, in turn, to the 10 extent that the protective order was improvidently granted in 11 terms of covering certain items -- for example, that may 12 already be in the public domain -- there would be a 13 corresponding right to seek leave of court for a further order 14 to address that circumstance. 15 THE COURT: I don't think that's improvidently 16 granted. At the time, there weren't specific documents 17 enumerated as being subject to the protective order. The fact 18 that some document that was designated as confidential pursuant 19 to the protective order later became public doesn't mean that 20 the protective order was improvidently granted at the outset. 21 So I don't think that's a fair comparison. 22 While we're talking about improvidently granted, as 23 you know, the general requirements for talking about whether 24 the Court should modify the order is absent a showing of 25 improvidence in the grant of the order or some extraordinary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 13 of 25 13 K6n1giuc 1 circumstance or compelling need. I don't think there's anyone 2 here who's arguing that the order was initially granted 3 improvidently. So the question on the table is whether this is 4 an extraordinary circumstance or a compelling need. Is that 5 right? 6 MR. COOPER: Well, your Honor, I think that there are 7 four factors to be taken into account, but those are definitely 8 two of them, and I used the words "improvidently granted" 9 perhaps inartfully, but only to highlight the fact that the 10 documents and materials that are now the subject matter we're 11 talking about weren't given the particularized analysis that 12 the Second Circuit's decision calls for. 13 THE COURT: That's in hindsight, counsel. Very few 14 protective orders detail specifically each document that is 15 covered by it at the outset. That's apples and oranges. 16 And the four factors you're talking about are the 17 factors that the Court considers in determining whether 18 extraordinary circumstances exist, right? 19 MR. COOPER: That is true, your Honor. 20 THE COURT: Okay. 21 MR. COOPER: And in addition, the compelling -- 22 THE COURT: Compelling circumstance, need, right. 23 Okay. 24 MR. COOPER: And I would argue, your Honor, that there 25 is a compelling need here. And without repeating it, the first SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 14 of 25 14 K6n1giuc 1 is for Professor Dershowitz to not be materially disadvantaged 2 in his defense and prosecution of this case while facing an 3 adversary who has in her custody, possession, or control all of 4 the materials that he seeks. So that is the first of 5 compelling need. 6 Secondly, your Honor, especially with regard to the 7 more recent discovery standard related to proportionality, 8 there really is a compelling need for efficiency here, which 9 again, I won't repeat, but Professor Dershowitz has to defend 10 himself, and he will defend himself, by proving the truth of 11 what it is that he is alleged to have defamed Ms. Giuffre 12 about. And if one were to look at paragraphs 14, 17, 18, and 13 53, just by way of example, Ms. Giuffre alleges that Professor 14 Dershowitz has defamed her by calling her a serial liar who's 15 committed perjury as part of an extortion scheme against 16 multiple wealthy third parties and individuals. She uses those 17 words throughout. Paragraph 53, she accuses Professor 18 Dershowitz of being in a conspiracy with Ms. Maxwell and 19 Jeffrey Epstein in order to conceal their sex trafficking 20 organization. In light of those allegations, and in light of 21 the testimony already given directly on those points that have 22 been injected into this lawsuit by Ms. Giuffre, and 23 Mr. Dershowitz's, frankly, constitutional right to prove that 24 his speech is protected because it's true, he has a compelling 25 need for access to all of these materials. It is, we believe, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 15 of 25 15 K6n1giuc 1 based -- and we are looking, frankly, at the summary judgment 2 record that is public record to gather a list of approximately 3 13 or 14 names of people that we are able to discern were 4 deposed in the Maxwell case. They are likely all to have 5 information that is relevant to Professor Dershowitz's defense 6 and counterclaims here, and that includes Ms. Maxwell, who, at 7 least according to the publicly available records, appears to 8 have been deposed at length. And the idea that Ms. Giuffre 9 would go forward in this case with Ms. Maxwell's deposition 10 transcript available to her while we must depose her anew 11 strikes me as inconsistent with the purpose of discovery, 12 fairness, due process, and the like, and I would respectfully 13 submit, your Honor, that all of that constitutes not just a 14 compelling need but a need to consider judicial efficiency and 15 proportionality over form in this instance. 16 THE COURT: It might be efficiency, but I'm not sure 17 it's proportionality, but okay. 18 Who else wants to be heard, please? 19 MS. MENNINGER: Your Honor, this is Laura Menninger 20 again on behalf of Ms. Maxwell. 21 THE COURT: Yes, ma'am. 22 MS. MENNINGER: We were unaware that Ms. Giuffre's 23 current counsel had access to this confidential information, 24 and frankly, in my opinion, they do not have it properly under 25 the protective order because they were not actively litigating SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 16 of 25 16 K6n1giuc 1 the case when it was a case, which is what the protective order 2 covered, and I believe that the appropriate remedy for that 3 problem is that they return to Boies Schiller any materials 4 that they improperly had access to, we object strongly to their 5 current access, and I think that would cure the inequity that 6 Mr. Cooper has just described in one party having access to the 7 records while the other does not. 8 Moreover, your Honor, some of the points that 9 Mr. Lewin made in his very carefully thought-through letter I 10 would just reraise at this point, which include the fact that 11 even though Mr. Dershowitz is stating that he will abide by the 12 protective order, as we all understand, the point at which he 13 attaches one of those documents to a pleading, it then is 14 transformed into a judicial document, most likely, and loses 15 its confidential status. So in my opinion, it appears the fox 16 would be guarding the henhouse with respect to whether these 17 materials remain confidential or don't. 18 And finally, I did not hear anything in Mr. Cooper's 19 response that addressed the Court's question with regard to the 20 rights of the third parties or the nonparties from whom this 21 discovery was taken. I think it is speculative to suggest that 22 the issues in the Maxwell case are coextensive with those that 23 are present in the Dershowitz case. It is speculative to 24 believe that the parties were even asked about Mr. Dershowitz, 25 or Professor Dershowitz, in those depositions. And without SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 17 of 25 17 K6n1giuc 1 going into the content of all the sealed materials, I can 2 represent that that is far from the case. 3 I did not hear anything truly compelling beyond the 4 fact that Professor Dershowitz's current counsel does not want 5 to undertake the same types of discovery efforts that 6 Ms. Maxwell had to do in order to defend herself. They have 7 the names of the witnesses, they've just told you, they have 8 all of Ms. Giuffre's production from the Maxwell case, and so 9 they have access to any other witnesses that were mentioned at 10 any of those discovery items, and they could undertake the same 11 efforts but tailored to the needs of their particular case, 12 which are not the same as those that were present in the 13 Maxwell case. 14 THE COURT: Thank you. 15 Who else wants to be heard, please? 16 MR. LEWIN: Judge, this is Nick Lewin on behalf of the 17 nonparties. May I be heard at this point? 18 THE COURT: Yes, sir. 19 MR. LEWIN: Judge, to pick up on where I believe 20 Ms. Menninger left off, actually where your Honor left off, you 21 suggested, Judge, that it may be efficient but is not 22 proportional, and we would submit it's neither. Mr. Cooper is 23 attempting to sort of merge these issues together. First he 24 suggests that all they're asking is that Mr. Dershowitz "sign 25 on to" the existing protective order. Well, there's no such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 18 of 25 18 K6n1giuc 1 thing, Judge. The protective order related to a different 2 case, involving different parties, from a different time, with 3 different lawyers, and different negotiations. That's not how 4 protective orders work. These are distinct cases. John Doe 5 obviously is not a party in either case, so we don't have a 6 sense of overlap. But it is, frankly, hard to imagine that the 7 overlap is so significant that every single piece of paper, 8 every single filing, every single page of discovery material is 9 relevant in one case simply because it exists in the other 10 case. In fact, every indication is, Judge, that that is just 11 not true. 12 And the point we tried to make, Judge, is not just 13 about no further briefing; we think your Honor should deny 14 Mr. Dershowitz's application now and not permit further 15 briefing. And the reason is not only that it would not be a 16 good use of this Court's time to entertain further briefing on 17 this issue, but that denial now would substantially protect the 18 ongoing unsealing review being conducted pursuant to the 19 protocol. To allow this litigation now to continue casts a 20 substantial shadow over the unsealing process your Honor has 21 put into place with respect to the Maxwell documents; it raises 22 real and significant questions about whether and how a nonparty 23 would want to participate in that process, and whether any 24 participation would be undermined or influenced by the fact 25 that there is still active litigation over whether SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 19 of 25 19 K6n1giuc 1 Mr. Dershowitz is going to be able to import them. 2 Also, the last point I'd make, Judge, is that it's a 3 non sequitur really to suggest that Mr. Dershowitz's 4 constitutional rights would be prejudiced. This is not about 5 whether or not Mr. Dershowitz has access to discovery. He has 6 every mechanism available to every party in every federal case 7 available to him in the context of his own case. The question 8 is whether it makes sense for this Court to import en masse all 9 the filings and discovery materials that your Honor is 10 confronting the challenges about now into a second case. And I 11 think when you look through, in order to do that, your Honor 12 would have to revise, substantially revise the protective order 13 and the four factors that guide it. None of them, none of them 14 in this case favor that kind of revision. 15 The reliance here was reasonable. Judge Sweet found 16 it, and your Honor should find it, and that should end the 17 story and allow these cases to proceed on parallel tracks, to 18 allow the protocol to continue to function in this case, and 19 allow Mr. Dershowitz to do whatever he would do in the normal 20 course to gain discovery in his case. 21 THE COURT: What do you say, Mr. Lewin, to 22 Mr. Dershowitz's suggestion that he ought to have, for example, 23 Ms. Giuffre's depositions in the Maxwell case, at the very 24 least in order to gauge her credibility with respect to her 25 upcoming testimony in this case? What do you say to that, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 20 of 25 20 K6n1giuc 1 an example? 2 MR. LEWIN: Judge, I say a few things. The first is, 3 I don't know what's in the deposition transcript and so it's 4 impossible for me to look at that deposition transcript and 5 answer that question. I would assume, though I don't know, 6 that both Ms. Maxwell and Ms. Giuffre designated a portion of 7 that transcript as confidential, and were I the lawyer -- and 8 again, your Honor, I'm disadvantaged by not knowing what's in 9 the transcript or what was asked -- the questions that I would 10 ask Ms. Giuffre in the context of a deposition if I were 11 Maxwell's counsel might differ based on whether I had 12 reasonably relied on the deposition transcript being designated 13 confidential and subject to the protective order. So it's not 14 simply that that transcript should be released. I think there 15 are real privacy interests. And again, I don't represent and 16 have not communicated with Ms. Maxwell's counsel, but 17 presumably both parties operated in reasonable reliance on the 18 protective order in fashioning the decision to participate in, 19 the decision to object to, and the progress of those 20 depositions, Judge, and the transcripts that resulted. 21 THE COURT: Okay. I guess I'm not asking you about so 22 much the substance. Needless to say, I have not read or 23 memorized those depositions either. But shouldn't, in the 24 normal course, a litigant be able to get an adversary's prior 25 sworn testimony on the same subject matter? So that's really SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 21 of 25 21 K6n1giuc 1 the question I'm asking. Why shouldn't that be the case here? 2 MR. COOPER: Your Honor, if I may, this is Mr. Cooper. 3 Forgive me for interrupting, but I just wanted to point out 4 that at the initial status conference, we raised this issue, 5 and you ordered Ms. Giuffre to turn over her deposition 6 transcript in the Maxwell case as part of initial discovery and 7 she has done so, and -- 8 THE COURT: Okay. Then let's do a different example. 9 My real question is: Isn't there some kind of more narrowly 10 targeted way -- and, you know, Mr. Cooper, maybe you're the guy 11 to ask this to -- isn't there some more narrowly targeted way 12 to do this? Mr. Lewin and Ms. Menninger are probably correct 13 that not every document or every deposition in the Maxwell case 14 is relevant here. For example, why wouldn't you say, produce 15 all testimony with respect to Mr. Dershowitz, or documents with 16 respect to Mr. Dershowitz? Why isn't that more narrowly 17 tailored than every single piece of discovery in the Maxwell 18 case? 19 MR. COOPER: So let me answer that by making the 20 following points, your Honor: 21 First, as I know the Court recognizes, because I said 22 it, Professor Dershowitz obviously wants all information to be 23 out there, to be public, etc., because he believes it 24 exonerates him, and that's the truth. 25 THE COURT: Thank you for that, counsel, but let's get SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 22 of 25 22 K6n1giuc 1 on to what we're talking about. 2 MR. COOPER: Secondly, your Honor, again, I go back to 3 what Ms. Giuffre has placed at issue in this case and, frankly, 4 what she's already testified to in a deposition that I'm not 5 allowed to talk about, and certainly will do on a public 6 record. But her central assertion -- and this is public 7 record -- is that Professor Dershowitz conspired with Maxwell 8 and with Epstein to conceal their sex trafficking operations 9 and that she is suing Professor Dershowitz for falsely stating: 10 (1) that she had sex with Professor Dershowitz, or saying that 11 she didn't have sex, but it goes beyond that; she is also suing 12 Professor Dershowitz and saying he was untruthful when he 13 contended publicly and stated that what she was doing, along 14 with her lawyers, was an effort to extort Leslie Wexner and 15 other wealthy third parties. She has placed at issue whether 16 there is any truth or not to all of that, and as a result, 17 Professor Dershowitz, who is at this moment -- and as his 18 counsel at this moment does not have access to the materials 19 beyond seeing the names of individuals whose testimony was 20 cited in the summary judgment record. But by virtue of lining 21 up the allegations in the Maxwell case with the allegations in 22 the Dershowitz case and noting that literally in well over a 23 dozen paragraphs -- they are verbatim with each other, because 24 they refer to the same alleged conspiracy, the same quality and 25 type of alleged defamation -- it goes way beyond simply the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 23 of 25 23 K6n1giuc 1 issue of any contact between Ms. Giuffre and Professor 2 Dershowitz. So that suggested tailoring is, respectfully, your 3 Honor, so narrow that it would preclude Professor Dershowitz 4 from establishing the truth of the defamations as to which he's 5 being sued. 6 I would offer, your Honor, that there be entered an 7 order that Professor Dershowitz -- and your Honor can construct 8 the order, the Court has complete discretion to order that 9 Professor Dershowitz abide by the Maxwell protective order, as 10 his counsel will do as well, but that the materials 11 presumptively to be identified and turned over that are in the 12 hands of -- right now we're talking about a motion to compel 13 materials from Ms. Giuffre, but that are in her hands, and to 14 the extent that someone like John Doe's counsel is aware of a 15 particular issue applicable to his client, that it be raised 16 with the Court and we be allowed to respond to it. 17 THE COURT: How is he going to know? How is he going 18 to know? 19 MR. COOPER: Because counsel for John Doe, as we sit 20 here today, is already aware of what materials related to his 21 client exist that are going to be turned over because 22 presumably they were the ones that designated them 23 confidential. 24 MR. LEWIN: Judge, this is Nick Lewin. You make the 25 exact right point. There is a reason we have this enormously SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 24 of 25 24 K6n1giuc 1 complicated unsealing protocol in the Maxwell case. And 2 Mr. Cooper's assertion is actually wrong. And I only represent 3 one party that may or may not be identified in these materials, 4 and as your Honor knows better than I do -- in fact, literally 5 better than I do -- there are dozens. 6 I think it's important, Judge, if I may have just a 7 minute to make a point, that, let's be clear, Mr. Dershowitz's 8 application is to permit him to make a motion to compel Giuffre 9 and others to produce to him "all filings and discovery 10 materials, including third-party discovery." It literally 11 encompasses every page from the Maxwell case. Your Honor asked 12 about one potential document, which is Ms. Giuffre's 13 deposition, which, again, I don't have access to, I have not 14 read. First of all, I don't know, Judge, if in the ordinary 15 course a litigant in a different case would have access to 16 prior statements of an opposing party that are under seal, but 17 what this all tells us, Judge, and all the complexity and the 18 months your Honor has spent fashioning the protocol, is that 19 your Honor should deny this motion, deny it now, deny 20 Mr. Dershowitz's motion now, and then deal with applications to 21 the extent they can't be resolved by the parties in the 22 Dershowitz case on an individualized basis. It's how cases 23 work. And the idea that in a case -- it's ironic that in a 24 case with this many issues, the Maxwell case, regarding 25 third-party rights, that we would seek to simply import them en SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300  Case 1:15-cv-07433-LAP Document 1069 Filed 06/26/20 Page 25 of 25 25 K6n1giuc 1 masse into another case, it just doesn't make sense, Judge, and 2 there is no adequate way to protect nonparties. And there was 3 reasonable reliance, as we set out in our letter, which I won't 4 repeat here. 5 And thank you, Judge, for allowing me that time to 6 speak. 7 THE COURT: Yes, sir. 8 Who else? 9 All right, counsel. I think we've probably exhausted 10 ourselves. 11 I will reserve decision and be back to you very 12 promptly. Thank you for being available on the phone and for 13 speaking so graciously so as not to speak over each other. 14 Thank you, counsel. 15 May I ask my law clerks and interns to call in, 16 please. 17 Thank you, folks. 18 ALL COUNSEL: Thank you, your Honor. 19 o0o 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300