EFTA00074941.pdf

Case 20-2413, Document 10-9, 07/30/2020, 2896538, Paget of 17 K7N9GIUD 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 4 Plaintiff, 5 v. 15 CV 7433 (LAP) Remote Zoom Conference 6 GHISLAINE MAXWELL, 7 Defendant. 8 x 9 New York, N.Y. July 23, 2020 10 11:30 a.m. 11 Before: 12 HON. LORETTA A. PRESKA, 13 District Judge 14 APPEARANCES 15 BOIES, SCHILLER & FLEXNER, LLP Attorney for Plaintiff 16 BY: SIGRID S. MCCAWLEY 17 HADDON, MORGAN, AND FOREMAN, P.C. Attorney for Defendant 18 BY: LAURA A. MENNINGER 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074941  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page2 of 17 K7N9GIUD (The Court and all parties appearing via Zoom) THE COURT: Are we ready to begin or is there anyone else we're waiting for? OK. 4 So let's begin. I wanted to start out by thanking 5 counsel for organizing the docket entries by motion, by Doe, by 6 pinpointing the references to the Does and the like. It was 7 exceedingly helpful to the Court and really a model of making 8 it easy for the Court. 9 My law clerk is on the call and I'm going to invite 10 him to correct me if I make any mistakes in going over charts 11 when we go document by document. 12 To remind us where we are in the process of unsealing 13 materials from v Maxwell, the Court is to: 14 One, evaluate the weight of the presumption of public 15 access to the materials; 16 Two, identify and evaluate the weight of any 17 countervailing interests; and 18 Three, determine whether the countervailing interests 19 rebut the presumption. 20 The Court acknowledges that the presumption of public 21 access attaches to judicial documents, that is, to documents 22 filed in connection with a decided motion or to papers that are 23 relevant to the Court's exercise of its inherent supervisory 24 powers. The documents at issue here relate to discovery 25 motions previously decided by Judge Sweet, and so the Court SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074942  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page3 of 17 K7N9GIUD concludes that they are judicial documents to which the presumption of public access attaches. Because the motions are discovery motions, the presumption is somewhat less weighty 4 than on a dispositive motion but is nevertheless important to 5 the public's interest in monitoring federal courts' exercise of 6 their Article III powers. 7 The motions at issue today mention Does 1 and 2, the 8 first long line of nonparties mentioned throughout the sealed 9 materials. Pursuant to the protocol set out in docket 10 no. 1044, these individuals were given notice of the motion to 11 unseal and given the opportunity to request the material that 12 pertains to them and to object to its unsealing. Neither Doe 13 requested the material or lodged an objection to unsealing. 14 The Court notes that the names of Does 1 and 2, portions of 15 their deposition transcripts, and portions of the Palm Beach 16 police report ascribed to them have already been made public. 17 Also, Doe 1 gave a press interview about the subject matter of 18 this action. 19 Also pursuant to the protocol, the parties were 20 permitted to comment on the motion to unseal, and defendant 21 Maxwell has lodged objections to unsealing. In her objections, 22 Ms. Maxwell relies on several countervailing interests, the 23 most weighty of which are that the material concerns personal 24 matters that, if released, might lead to annoyance or 25 embarrassment, that the material was abusively filed or is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074943  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page4 of 17 K7N9GIUD untrustworthy, and that the material concerns the subject of z, criminal investigation. With respect to the argument that the material 4 constitutes personal information which might lead to annoyance 5 or embarrassment if unsealed, Ms. Maxwell proffers little more 6 than her ipsi dixit; she provides no specifics as to these 7 conclusions. In her first deposition, which is among the 8 documents being considered on this motion, Ms. Maxwell refused 9 to testify as to any consensual adult behavior and generally 10 disclaimed any knowledge of underage activity. In the context 11 of this case, especially its allegations of sex trafficking of 12 young girls, the Court finds that any minor embarrassment or 13 annoyance resulting from disclosure of Ms. Maxwell's mostly 14 nontestimony about behavior that has been widely reported in 15 the press is far outweighed by the presumption of public 16 access. 17 With respect to the argument that the material was 18 abusively filed or is untrustworthy, again, Ms. Maxwell 19 proffers few specifics. That some of the exhibits to the 20 motion papers might not have been technically required on the 21 motion does not make the papers abusively filed. That 22 Ms. Maxwell's lawyers did not cross-examine some of the 23 witnesses relied on does not make the witnesses' testimony too 24 unreliable to be unsealed. In any event, the Court is dubious 25 that such a fine-toothed comb review is required to evaluate SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074944  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page5 of 17 5 K7N9GIUD the public interest in access to these papers. Thus, the Court finds that these interests are entitled to little weight under the facts of this case. 4 Finally, that the material relates to a person now 5 known to be under criminal investigation, Ms. Maxwell, is not 6 entitled to much weight here. Again, Ms. Maxwell has relied on 7 ipsi dixits and has not explained how the sealed material, if 8 released, could, as she posits, "inappropriately influence 9 potential witnesses or victims." Again, the Court finds that 10 this interest is entitled to little weight under the facts of 11 this case. 12 As should be clear from the above, the Court finds 13 that the countervailing interests identified fail to rebut the 14 presumption of public access to the motions at issue and the 15 documents filed in connection with those motions. Accordingly, 16 those papers shall be unsealed. 17 The Court also notes that several of the documents 18 sealed on these motion papers have already been made public, 19 and so those documents will not be discussed. 20 Also, personal identifying information as to any 21 person mentioned in the documents and the names of nonparties 22 other than Does 1 and 2 and other portions related to such 23 nonparties' specific conduct will be redacted from the 24 materials being unsealed. Disclosure of the additional 25 nonparty names will await notice to those parties and an SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074945  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page6 of 17 K7N9GIUD opportunity for them to be heard. I won't repeat this caveat as to each document but will only comment when it is not applicable. So unless there's 4 a specific comment, personal identifying information should be 5 redacted and the names of the other Does not yet identified. 6 Consistent with the protocol, the Court will now 7 announce its findings with respect to the sealed documents 8 relating to Does 1 and 2 that are the subject of this motion to 9 unseal. For ease of reference, as counsel knows, the Court 10 will proceed in the order of the documents listed on Exhibit A, 11 that is docket no. 1068-1. 12 Docket entry 143. Plaintiff's motion to compel 13 defendant to answer deposition questions. Unseal subject to 14 the caveat which I won't keep saying. 15 144. Plaintiff's declaration of Ms. McCawley in 16 support of the motion. Unseal. 17 144-1. Exhibit 1. Page 21 of Ms. Maxwell's April 22, 18 2016 deposition. Unseal. 19 144-2. Additional pages of Ms. Maxwell's April 22, 20 2016 deposition. Unseal. 21 Same thing for 144-4. 22 Same thing for 144-5. 23 Same thing for 144-6. 24 Same thing for 144-7. 25 149. Defendant's response to the motion. Unseal. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074946  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page7 of 17 K7N9GIUD 150. Declaration of Mister -- how does he say it, Mr. Pagliuca? Say it again. MS. MENNINGER: Pagliuca. 4 THE COURT: Mr. Pagliuca in opposition to the motion 5 to compel. Unseal. 6 150-1. Additional pages from Ms. Maxwell's April 22, 7 2016 deposition. Unseal. 8 152. Plaintiff's reply memorandum of law on the 9 motion. Unseal. 10 153. Ms. McCawley's declaration in support of the 11 motion to compel. Unseal. 12 I'm sorry. I'm going to go back to 152 for a minute. 13 Unseal the portions summarizing Doe l's public statements. 14 Those appear on page 6. Unseal portions summarizing deceased 15 nonparties' public statements. Page 6. OK. 16 Continuing on. 153-1. Additional deposition 17 excerpts. Unseal. 18 164. Defendant's motion to compel all attorney-client 19 communications and work product put at issue by plaintiff and 20 her attorneys. Unseal. 21 165. Declaration of Ms. Menninger in support of that. 22 That can be unsealed in full because there are no -- there is 23 no material within the caveat in the document. 24 165-3. Exhibit C. This is a copy of a motion to join 25 in Jane Doe 1 and Jane Doe 2 files in court. That document is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074947  Case 20-2413, Document 10-9,07/30/2020, 2896538, Page8 of 17 K7N9GIUD already public. 165-8. Excerpts from Ms. deposition taken in the Dershowitz matter on January 16, 2016. Unseal. 4 165-10. Copy of e-mail correspondence. Unseal. 5 165-11. Excerpts from Ms. deposition, 6 May 3, 2016. Unseal. 7 184. Plaintiff's response in opposition to the 8 motion. Unseal the portions relating to Does 1 and 2 which 9 appears on page 3. 10 185. Ms. McCawley's declaration in opposition. That 11 can be unsealed in full because there is no material included 12 in the caveats in the document. 13 185-2. Copy of Jane Doe's no. 3 and 4 corrected 14 joinder motion. Already filed in public. 15 185-3. Response to the motion to intervene. Already 16 filed in public. 17 185-11. Various deposition excerpts from 18 Ms. deposition. The pages unsealed by the Second 19 Circuit should, of course, remain unsealed. 20 185-13. It's a copy of Ms. I II May 30, 2016 21 affidavit. That can be unsealed in full. 22 185-14. Copy of deposition excerpts from Mr. Cassell. 23 Unseal. 24 185-15. Copy of a transcript of the Scarola/Edwards 25 interview of April 7, 2011. Unseal in full. The document is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074948  Case 20-2413, Document 10-9, 07/30/2020, 2896538, Page9 of 17 K7N9GIUD already public 185-16. Copy of common interests agreement. Unseal. 194. Ms. Menninger's declaration in support of the 4 motion to compel. Unseal in full. 5 194-3. Excerpts of Ms. May 3, 2016 6 deposition. Unseal. 7 172. Plaintiff's motion to exceed the presumptive ten 8 deposition limit. That may be unsealed. Obviously subject to 9 the caveat. 10 173. Ms. McCawley's declaration in support. Unseal 11 173-5. May 18, 2016 deposition transcript of Doe 162. 12 Pages released by the Second Circuit, of course, will remain 13 sealed -- will remain unsealed. Let me say it again. The 14 pages unsealed by the Second Circuit, of course, remain 15 unsealed and further unsealing awaits notice. 16 173-6. Excerpts from Ms. Maxwell's April 22, 2016 17 deposition. Same thing. Pages unsealed by the Second Circuit 18 remain unsealed. The portions of the deposition relating to 19 Does 1 and 2 which appear pages 71, 72, 73, and 218 shall be 20 unsealed. 21 189. Response in opposition to the motion. Unseal 22 everything except for the reaction I'm sorry, the redaction 23 on page 5 pending further nonparty notice. 24 190. Ms. Menninger's declaration in opposition. That 25 can be unsealed in full. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074949  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Pagel° of 17 IC K7N9GIUD 190-1. Excerpts from Ms. taken IIIIIIIII deposition on May 3, 2016. Unseal everything except for the inadvertently included letter on page 2. 4 203. Response in support of the motion. The portions 5 relating to Does 1 and 2 which appear at pages 2, 5, and 6 may 6 be unsealed. 7 204. Ms. McCawley's declaration in support. Unseal. 8 204-1. Doe no. 162's deposition transcript. The 9 pages unsealed by the Second Circuit will, of course, remain 10 unsealed and the remainder of the document remains sealed until 11 notice to the nonparty. 12 204-2. It's Doe no. 151's rough deposition transcript 13 excerpts. The pages unsealed by the Circuit will remain 14 unsealed. The remainder will await notice to that Doe. 15 204-3. Deposition of John Doe 1. Unseal in full. 16 211. That's the reply to the motion. The portions 17 mentioning Does 1 and 2 which appear at pages 2, 5, and 6 may 18 be unsealed. 19 212. Ms. Schultz's declaration in support of the 20 motion. The portions mentioning John Does 1 and 2 which appear 21 at page 2 may be unsealed. 22 212-1. Doe no. 162's deposition transcript excerpts, 23 pages unsealed by the Circuit will remain unsealed. 24 212-2. Doe 151's final deposition transcript 25 excerpts. The pages unsealed by the Circuit will remain SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074950  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Pagel 1 of 17 K7N9GIUD unsealed 212-3. Doe 1's deposition transcript excerpt. Unseal in full 4 222 -- I'm sorry. 224. It's the reply on the motion. 5 The portions relating to Does 1 and 2 which appear at page 2 6 may be unsealed. 7 199. That's a motion for an extension of time to 8 complete depositions. That's open in any event. 9 228. The response in opposition to the motion. 10 Unseal. 11 229. Ms. Menninger's declaration in opposition. 12 Unseal. 13 221 -- 229-1. Excerpts of the deposition of Doe 14 no. 151. Hold until notice to that Doe. 15 229-2. The billionaire playboy's club book 16 manuscript. The pages unsealed by the Circuit will remain 17 unsealed. 18 229-4. Excerpts of plaintiff's deposition of May 3, 19 2016. Unseal the pages released by the Circuit. 20 229-10. This is correspondence released in the case 21 between Ms. Maxwell and Jeffrey Epstein from January 2015. 22 Unseal in full. 23 229-11. Notices of deposition and a subpoena for Doe 24 84 -- Will, I can say these two names, right? 25 THE LAW CLERK: Yes, Judge. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074951  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Page12 of 17 12 K7N9GIUD THE COURT: Joe Recarey and Michael Reiter together with a letter of production from Ms. McCawley. Unseal in full. 248. Reply memorandum of law in support of the 4 motion. We're going to await the notice to the Doe on that 5 one. 6 249. Ms. McCawley's declaration in support of the 7 motion. Unseal in full. 8 249-4. Ms. McCawley's correspondence with opposing 9 counsel. The portions relating to Does 1 and 2 which appears 10 at pages 4 and 5 can be unsealed. 11 249-13. Defendant's Rule 26 disclosures. The 12 portions relating to Does 1 and 2 shall be unsealed. 13 249-14. Ms. Schultz's correspondence with opposing 14 counsel. Unseal. 15 249-15. Same. Same. 16 230. Defendant's motion to reopen the deposition of 17 plaintiff It may be unsealed. However, the 18 information currently redacted in the document relating to 19 plaintiff's medical history shall remain redacted for obvious 20 reasons. 21 235. Ms. Menninger's declaration in support of the 22 motion. Unseal. 23 235-4. The deposition of Ms. The pages 24 released by the Second Circuit of course remain unsealed. The 25 portions relating to Doe 1 and 2 which appears -- which appear SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074952  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Page13 of 17 K7N9GIUD at pages 122, 126, 134, and 138 shall be unsealed. 235-5. Ms. Menninger's declaration. The medical records on pages 5 to 12 should remain sealed; otherwise, 4 unseal. 5 235-6 are medical records. They shall remain sealed. 6 235-7. Excerpts from the -- a deposition of Doe 7 no. 131. That will remain sealed pending notice to the Doe. 8 235-8. Production letters from Ms. Schultz to 9 Ms. Menninger. The exhibits will remain sealed. 10 235 -- and they are medical records. 11 235-9. Excerpts from the May 26, 2016 deposition of 12 Dr. Stephen Olsen. The material relating to plaintiff's 13 medical issues shall remain sealed. The other material in the 14 deposition, for example, how the doctor takes notes, how the 15 doctor gets new patients, how the doctor writes prescriptions 16 and that sort of thing may be unsealed. 17 235-10. Production letters from Ms. McCawley to 18 Ms. Menninger. Unseal. 19 235-12. The June 1, 2016 errata sheet relating to 20 m-. deposition. Unseal. 21 235-13. Plaintiff's third revised disclosure pursuant 22 to Federal Rule 26. Unseal. 23 260. Ms. McCawley's declaration in opposition to the 24 motion. The redactions which are medical information will 25 remain. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074953  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Page14 of 17 K7N9GIUD 260-1. Will, is this only the authorization or is it the authorization plus material? THE LAW CLERK: Judge, I believe it's the 4 authorization on the first two pages and then the medical 5 records on subsequent pages. 6 THE COURT: Thank you. The medical record 7 authorization may be unsealed. The subsequent pages which 8 constitute medical records will remain sealed. 9 260-2. Dr. Lightfoot's June 27, 2016 correspondence. 10 That may be unsealed. 11 267. The reply on the motion. The information 12 relating to plaintiff's medical history shall remain sealed. 13 268. Ms. Menninger's declaration in support of the 14 motion. Unseal. 15 268-1. Pages from plaintiff's medical records. They 16 shall remain sealed. 17 268-2. Excerpts from the deposition of Doe no. 67. 18 The pages unsealed by the Second Circuit will remain sealed - 19 I'm sorry, will remain unsealed and the remainder of the 20 document will remain sealed pending notice to the relevant 21 Does. 22 Counsel, I will ask you to confer and to prepare the 23 documents for unsealing pursuant to this order and post the 24 documents within a week on the docket sheet as documents 25 unsealed pursuant to the Court's order of July 23 or something SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074954  Case20-2413,Document10-9,07/30/2020,2896538,Pagel5of17 15 K7N9GIUD like that. Counsel, do you have any questions? MS. MENNINGER: Your Honor, on behalf of Ms. Maxwell I 4 would ask if we could have the opportunity for a brief stay in 5 order to seek relief in the Second Circuit. There is not a 6 certain mechanism for doing that in an unsealing context but 7 know that the Brown Court at the conclusion of their opinion 8 stated their intent for that panel to maintain jurisdiction 9 over this case for purposes of any appeals taken from an 10 unsealing order and so we would ask for two weeks, if we could, 11 to seek relief in the Second Circuit. 12 THE COURT: Ms. McCawley. 13 MS. McCAWLEY: Yes, your Honor. We obviously believe 14 that the material should be unsealed as quickly as possible so 15 we would prefer to obviously have the material unsealed. 16 MS. MENNINGER: Your Honor, if I may briefly, to add 17 to my record. While I understand and respect the Court's 18 ruling, there have been some significant changes with respect 19 to my client's position since we concluded briefing. In 20 particular, and perhaps known to everyone listening to this, 21 while we were speaking about a potential ongoing criminal 22 investigation at the time we submitted our brief, since that 23 time Ms. Maxwell has been indicted and a trial has been 24 scheduled for next July in another courtroom in the Southern 25 District. So while we were not able to provide specifics SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074955  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Page16 of 17 16 K7N9GIUD necessarily with regard to what witnesses might be relevant to any such criminal trial, now we are in a vastly different position and certainly have great concerns about our client's 4 ability to seek and receive an impartial and fair trial and 5 jury given the intense media scrutiny around anything that is 6 unsealed or anything that happens in this or any of the related 7 cases. So while we -- your Honor had mentioned at the 8 beginning of this ruling that there was a lack of specifics on 9 the front of the pending criminal investigation, I think there 10 may be the ability to provide a lot more specifics about that 11 at this time and certainly I think it's an issue that we would 12 like to, if we may, have a brief amount of time to submit. It 13 is important either to this Court's analysis or to the Second 14 Circuit. 15 THE COURT: So what are you asking me for? 16 MS. MENNINGER: Your Honor, I ask for two weeks if we 17 could to file an emergency appellate motion in the Second 18 Circuit and ask them to stay any further release. 19 THE COURT: I will give you a week to file the motion. 20 In the meantime I will still ask counsel to confer and to 21 prepare the papers for release. If the Court of Appeals has 22 not ruled on your motion in a week, then you can let me know. 23 (Court reporter dropped off the call; called back in 24 and read record to the point where call dropped) 25 THE COURT: After that, I asked counsel to confer SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074956  Case 20-2413, Document 10-9, 07/30/2020. 2896538. Page17 of 17 17 K7N9GIUD generally along the outlines of the proposal in Ms. Maxwell's letter of April 3, docket no. 1045 to propose the next chronological set of motions to be considered for unsealing. i 4 also asked counsel to confer on ways to make the process more 5 efficient, less time consuming, and to make it stretch out or 6 over a shorter time period. For example, it occurs to me we 7 could shorten the briefing time. We could reduce the number of 8 pages of briefing, for example, to ten pages each side total or 9 something like that. I'll ask counsel to confer and to report 10 back within a week. 11 Finally, going forward, as you all saw, Exhibit A to 12 Ms. motion -- I said the number of it earlier but 13 that was exceedingly helpful. If you would like to propose a 14 joint exhibit similar to that as we go forward with everybody's 15 positions, I would welcome it. 16 Is there anything else you want to ask, counsel? 17 MS. McCAWLEY: No, your Honor. 18 MS. MENNINGER: No, your Honor. Not from Ms. Maxwell. 19 Thank you. 20 THE COURT: Thank you and I'll just tell you lawyers 21 again how useful the work you did in organizing the docket 22 entries was. Thank you for it again. 23 MS. MENNINGER: Thank you, your Honor. 24 THE COURT: Good afternoon, counsel. Thank you. 25 MS. McCAWLEY: Good afternoon. Thank you. (Adjourned) SOUTHERN DISTRICT REPORTERS, P.C. EFTA00074957