EFTA00075477.pdf

Case 20-2413. Document 40. 08'20/2020. 2913550, Pagel of 74 20-2413 United States Court of Appeals for the Second Circuit Plaintlff-Appelke, —against— GHISLA1NE MAXWELL, Defendant-Appellant, SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, ALAN M. DERSHOWITZ, MICHAEL CERNOVICH, DBA CERNOVICH MEDIA Intervenors. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 15-CV-7433 (LAP) Ghislaine Maxwell's Opening Brief Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Den r 2 Tel. Attorneysfor Defendant-Appellant Ghislaine Maxwell EFTA00075477  Case 20-2413, Document 40, 08/20/2020, 2913550, Page2 of 74 Table of Contents Table of Authorities iii Introduction 1 Jurisdictional Statement 2 Issues Presented 3 Statement of the Case and the Facts 3 The defamation action and the Protective Order 3 The motion to unseal and the first appeal 6 The remand, the arrest, and the indictment. 7 The order unsealing the deposition material, including Ms. Maxwell's April 2016 deposition transcript 11 Events after the filing of the notice of appeal and the critical new information 13 Summary of the Argument 15 Argument 16 I. Even without the benefit of the critical new information, the district court abused its discretion in ordering the unsealing of the deposition material 16 A. Standard of review. 16 B. The district court erred in ordering the unsealing. 17 1. The presumption of access to the deposition material is lower than the presumption of access this Court ascribed to the summary judgment material 21 a. Ms. Maxwell's reliance interests, and those of Doe 1, outweigh any presumption of access. 23 i EFTA00075478  Case 20-2413, Document 40, 08/20/2020, 2913550, Page3 of 74 b. Ms. Maxwell's constitutional right to remain silent outweighs any presumption of access. 29 c. Ms. Maxwell's constitutional right to a fair trial by an impartial jury outweighs any presumption of access 35 d. Ms. Maxwell's privacy interests outweigh any presumption of access 39 Conclusion 41 Certificate of Compliance with Rule 32(A) 43 Certificate of Service 43 ATTACHMENT 1: July 23, 2020 Transcript Ordering Unsealing of the Deposition Material ATTACHMENT 2: July 28, 2020 Order Directing Process of Unsealing ATTACHMENT 3: July 29, 2020 Order Denying Motion to Reconsider ii EFTA00075479  Case 20-2413, Document 40, 08/20/2020, 2913550, Page4 of 74 Table of Authorities Cases Application ofNewsday, Inc., 895 F.2d 74 (2d Cir. 1990) 40 AT&T Corp. v. Sprint Corp., 407 F.3d 560 (2d Cir. 2005) 26 Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132 (2d Cir. 2016) 17 Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) passim Crescent Publ'g Grp., Inc. v. Playboy Enters., Inc., 246 F.3d 142 (2d Cir. 2001) 17 FDIC v. Ernst & Ernst, 677 F.2d 230 (2d Cir. 1982) 25 v. Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018) 6, 25, 40 In re Mazzeo, 167 F.3d 139 (2d Cir. 1999) 17 In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) 37, 40 In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011) 1 Joy v. North, 692 F.2d 880 (2d Cir. 1982) 22 Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83 (2d Cir. 2012) 34 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) 19, 21 Maldanado v. City ofNew York, Case No. 17-cv-6618 (AJN), 2018 WL 2561026 (S.D.N.Y. June 1, 2018) 35 Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) passim N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (NYCTA), 684 F.3d 286 (2d Cir. 2012) 18 Newsday LLC v. Cnoi. ofNassau, 730 F.3d 156 (2d Cir. 2013) 18, 20 iii EFTA00075480  Case 20-2413, Document 40, 08/20/2020, 2913550, Page5 of 74 Nixon a Warner Commc'ns, Inc., 435 U.S. 589 (1978) passim Nosik a Singe, 40 F.3d 592 (2d Cir. 1994) 34 Press-Enter. Co. a Superior Ct., 464 U.S. 501 (1984) 37 S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001) passim Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) 24 State a Cady, 414 P.3d 974 (Utah Ct. App. 2018) 19 United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) ("Amodeo r') 19, 22 United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) ("Amodeo II") passim United States a HSBC Bank USA, N.A., 863 F.3d 125 (2d Cir. 2017) 19, 20 United States a Juvenile Male No. 1, 47 F.3d 68 (2d Cir. 1995) 17 United States v. Nelson, 68 F.3d 583 (2d Cir. 1995) 24 Wu v. IN.S., 436 F.3d 157 (2d Cir. 2006) 28 Statutes 28 U.S.C. § 1332(a) 2 Rules Fed. R. Civ. P. 12(1) 22 Fed. R. Civ. P. 20(A)(2)(a)(ii) 22 Fed. R. Civ. P. 26(c) 28 Fed. R. Civ. P. 5.2 24 Fed. R. Evid. 615 39 S.D.N.Y. Local Criminal Rule 23.1 9 iv EFTA00075481  Case 20-2413, Document 40, 08/20/2020. 2913550, Page6 of 74 Constitutional Provisions U.S. CONST. amend. V passim U.S. CONST. amend. VI 35 EFTA00075482  Case 20-2413, Document 40, 08/20/2020, 2913550, Page7 of 74 Introduction This case, 15-cv-7433 (LAP) (S.D.N.Y), began as a defamation action, though it is hardly recognizable as that anymore. The stakes are much higher now. The government has indicted Ghislaine Maxwell. The media have all but convicted her. In the criminal case, 20 Cr. 330 (AJN) (S.D.N.Y.), the government alleges, among other things, that Ms. Maxwell committed perjury during her civil deposition. But Ms. Maxwell sat for her deposition and was compelled to answer numerous personal, sensitive, and allegedly incriminatory questions only after the plaintiff and the district court, through a stipulated Protective Order, guaranteed the confidentiality of her answers. As this Court long ago recognized, and as this case shows, "witnesses might be expected frequently to refuse to testify pursuant to protective orders if their testimony were to be made available to the Government for criminal investigatory purposes in disregard of those orders."' It now appears that the district court's promise of confidentiality was dubious at best. Indeed, the promise is at risk of being broken entirely. ' Martindell v. Intl Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979), cited with approval in In re Teligent, Inc., 640 F.3d 53, 58 (2d Cir. 2011). 1 EFTA00075483  Case 20-2413, Document 40, 08/20/2020, 2913550, Page8 of 74 The government has obtained a copy of Ms. Maxwell's confidential deposition, sealed pursuant to the Protective Order entered by the district court. The criminal indictment quotes directly from it. And just three weeks ago, the district court in the civil case ordered it to be unsealed. The district court's unsealing order eviscerates the promise of confidentiality on which Ms. Maxwell and numerous third parties reasonably relied. It sanctions the perjury trap unfairly set for Ms. Maxwell, in violation of the Fifth Amendment privilege against self-incrimination, and it risks Ms. Maxwell's due process right to a fair trial by an impartial jury. If the unsealing order goes into effect, it will forever let the cat out of the bag. To vindicate Ms. Maxwell's reasonable reliance on the Protective Order, to protect her constitutional rights to remain silent and to a fair trial by an impartial jury, and for all the other reasons offered below, this Court should reverse the unsealing order. Jurisdictional Statement The district court had diversity jurisdiction under 28 U.S.C. § 1332(a). This Court has jurisdiction under the collateral order doctrine. S.E.C. v. TheStreet.Corn, 273 F.3d 222, 228 (2d Cir. 2001) (collateral order jurisdiction exists over order unsealing material within the scope of a protective order). 2 EFTA00075484  Case 20-2413, Document 40, 08/20/2020, 2913550, Page9 of 74 Issues Presented Whether the district court abused its discretion in ordering the unsealing of Ms. Maxwell's April 2016 deposition transcript, the transcript of the deposition of Doe 1, and the district court filings that quote, summarize, or characterize both transcripts. Statement of the Case and the Facts The defamation action and the Protective Order. lleged that Ms. Maxwell defamed her. App. pp 121-24. The alleged defamation centered on a statement from Ms. Maxwell's attorney- hired press agent generally denying as "untrue" and "obvious lies" plaintiff's numerous allegations, over the span of four years, that Ms. Maxwell participated in a scheme causing her to be "sexually abused and trafficked" by Jeffrey Epstein. App. p 119. Plaintiff, a public figure required to prove actual malice, litigated her defamation action by trying to transform it into a criminal or tort action for sexual abuse and sexual trafficking of minors. Her lawyers intended to prove the defamation claim solely by, in effect, "prosecuting" Ms. Maxwell as a proxy for Epstein. App. p 116, ¶ffil 8-10; p 119 9¶ 27; p 122, ¶ 12; p 123, 51114, 16; p 124,9120. 3 EFTA00075485  Case 20-2413, Document 40, 08/20/2020, 2913550, Pagel 0 of 74 Plaintiff chose this course of action because even she had to admit that numerous of her statements were false. Discovery in the case was correspondingly intrusive, hard-fought, and wide- ranging. It spanned more than a year and included voluminous document productions, numerous responses to interrogatories, and thirty-some depositions, including depositions of plaintiff and Ms. Maxwell as well as several third parties, including Doe 1. See Brown v. Maxwell, 929 F.3d 41, 46, 51 (2d Cir. 2019) (explaining that discovery was "hard-fought" and "extensive" and noting that the court file, which includes only a portion of documents created during discovery, totals in the "thousands of pages"). Plaintiff sought and obtained a wide variety of private and confidential information about Ms. Maxwell, Doe 1, and others, including information about financial and sexual matters. Brown, 929 F.3d at 48 n.22. Given the amount of personal, confidential material and information exchanged between the parties during discovery, the district court entered a stipulated Protective Order protecting from public disclosure information the parties in good faith concluded was confidential. App. pp 126-31. The Protective Order included a mechanism for one party to challenge another party's confidentiality designation (such a challenge never occurred) and expressly provided that it was not applicable to any 4 EFTA00075486  Case 20-2413, Document 40, 08/20/2020, 2913550, Pagel 1 of 74 information or material disclosed at trial. App. p 128, ¶ 8; p 129, ¶ 11; p 130, TT 12- 13. "The Protective Order, despite the angst it is now causing, is unremarkable in form and function." App. p 516. Counsel for plaintiff originally proposed protective order language that would have allowed for a "law enforcement" exception. In particular, Paragraph I(a)4 of the draft proposed that "CONFIDENTIAL information shall not be disclosed or used for any purpose except the preparation and trial of this case and any related matter, including but not limited to, investigations by law enforcement." App. p 609. This language was rejected by Ms. Maxwell because of her concerns that plaintiff and her lawyers were acting as either express or defacto agents of the government. App. p 570. In turn, the language agreed upon and made an order of the district court specifically excluded an exception for law enforcement. App. pp 126-31. Had the Protective Order included a law enforcement exception, Ms. Maxwell would have proceeded in a different fashion, including by invoking her constitutional right to remain silent. U.S. CoNsT. amend. V. App. p 570. She instead relied on this language and the protection afforded to her by this Court under established Second Circuit law, e.g., Martindell, 594 F.2d 291. 5 EFTA00075487  Case 20-2413, Document 40, 08/20/2020, 2913550, Page12 of 74 After the district court denied Ms. Maxwell's motion for summary judgment, the parties agreed to a settlement of the defamation claim, and the case was dismissed. u. Maxwell, 325 F. Supp. 3d 428,436 (S.D.N.Y. 2018), vacated and remanded sub nom. Brown, 929 F.3d 41. As the district court below found as a matter of fact, "a significant, if not determinative, factor" in reaching a settlement was its confidentiality, a feature that echoes the purpose of the Protective Order on which Ms. Maxwell and numerous third parties, including Doe 1, justifiably relied. Id. at 446. The motion to unseal and the first appeal. One year after the case was dismissed and closed, the Miami Herald sought to reopen the case and to unseal every sealed filing on the district court docket. App. pp 381-402. The district court denied the motion to unseal. a, 325 F. Supp. 3d 428. The Miami Herald appealed, and this Court vacated. Brown, 929 F.3d at 44- 45. The majority concluded that the district court erred in sealing the summary judgment materials. Id. at 47-48. Upon the issuance of the mandate, this Court unsealed the summary judgment materials to the public and the press, redacting certain sensitive and private information, including "deposition responses concerning intimate matters where the questions were likely only permitted —and 6 EFTA00075488  Case 20-2413, Document 40, 08/20/2020, 2913550, Page13 of 74 the responses only compelled —because of a strong expectation of continued confidentiality." Id at 48 n.22. It remanded the case to the district court to conduct a particularized review of the remaining records to which the Herald sought access. Id at 53-54. Judge Pooler dissented in part. Id at 54. Although she agreed the district court erred, she would have had this Court unseal only the summary judgment order while leaving "the remainder of the materials for the district court to review, redact, and unseal on remand." Id. (Pooler, J., dissenting in part). Despite the division among the judges, this Court was unanimous in its recognition of "the potential damage to privacy and reputation that may accompany public disclosure of hard-fought, sensitive litigation." Id. at 44. Finally, anticipating that the district court would not have the last word about whether certain materials should remain under seal, this Court instructed that "[i]n the interests of judicial economy, any future appeal in this matter shall be referred to this panel." Id. at 54. The remand, the arrest, and the indictment. On remand, the Miami Herald sought to unseal Ms. Maxwell's depositions (taken in April and July 2016) and the deposition of Doe 1 (taken in June 2016). Ms. Maxwell's April 2016 deposition transcript is part of the court file only because 7 EFTA00075489  Case 20-2413, Document 40, 08/20/2020, 2913550, Page14 of 74 Plaintiff submitted the entire 418-page transcript as an exhibit to a motion to exceed the presumptive ten deposition limit in Federal Rule of Civil Procedure 20(A)(2)(a)(ii). App. pp 188-215,1003-30,1214-1632. The submission of the entire deposition transcript was gratuitous and unnecessary and exactly the type of abuse of court filings this Court anticipated in Brown. 929 F.3d at 51-52.2 While the entire transcript of the Doe 1 deposition was not filed with the district court, those excerpts that were filed likewise were gratuitous to the plaintiff's requested relief. Ms. Maxwell accordingly filed an objection to the unsealing request, plaintiff and the Herald each filed a response, and Ms. Maxwell filed a reply. App. pp 403- 22,480-513,527-66. On July 2,2020, one day after Ms. Maxwell filed her reply, the government staged a dramatic, forced entry at dawn into her home and arrested her. App. p 569. Immediately after Ms. Maxwell's arrest, Acting U.S. Attorney Audrey Strauss held a press conference and made numerous comments attacking Ms. Maxwell's credibility and expressing her opinion of Ms. Maxwell's guilt, e.g., that 2 The transcript of Ms. Maxwell's April 2016 deposition is contained at App. pp 1214-1632, filed under seal with this Court. This Court, however, is already aware of the nature of some of its contents, because it redacted statements made by Ms. Maxwell from the July 2016 deposition when it released the summary judgment material to the public, some of which included excerpts of the July transcript. Brown, 929 F.3d at 48 n.22. 8 EFTA00075490  Case 20-2413, Document 40, 08/20/2020, 2913550, Page15 of 74 she was guilty of "l[ying]" in her deposition "because the truth, as alleged, was almost unspeakable." App. p 569. Plaintiff's counsel piled on, offering their own opinions about Ms. Maxwell's guilt. For example, Bradley Edwards opined that Ms. Maxwell was "a main facilitator" of Epstein's crimes who "started the whole thing." App. p 569. And Sigrid McCawley praised the prosecutors: "[They] have done an incredible job and they're being very meticulous, they want to make sure that the Indictments stick. . . . They took a lot of time to be very careful and thoughtful and that gives me a lot of hope that [Ms. Maxwell] will remain in prison for the remainder of her life. . . . [Ms. Maxwell] was really the central figure. . . ." App. p 569. Ms. Maxwell's motion for an order barring such extrajudicial comments led Judge Nathan (S.D.N.Y.), who is presiding over the criminal case, to admonish "counsel for all involved parties [to] exercise great care to ensure compliance with this Court's local rules, including Local Criminal Rule 23.1, and the rules of professional responsibility." App. p 586. Judge Nathan further " warn[ed] counsel and agents for the parties and counsel for potential witnesses that going forward [the court] will not hesitate to take appropriate action in the face of violations of any relevant rules." App. p 586. Judge Nathan said she would ensure "strict 9 EFTA00075491  Case 20-2413, Document 40, 08/20/2020, 2913550, Page16 of 74 compliance" with the rules and "ensure that the Defendant's right to a fair trial will be safeguarded." App. p 586. On July 8, the government filed a superseding indictment alleging that Ms. Maxwell "assisted, facilitated, and contributed" to Epstein's abuse of minors. App. p 588. The indictment turned to and relied on this civil action, alleging that in 2016 Ms. Maxwell made "efforts to conceal her conduct" by "repeatedly provid[ing] false and perjurious statements" in deposition testimony. App. p 596. Quoting verbatim from Ms. Maxwell's April 2016 deposition transcript, the indictment alleges that Ms. Maxwell gave false testimony (a) when she testified "I don't know what you're talking about" in response to a question whether Epstein "ha[d] a scheme to recruit underage girls for sexual massages . . . [i]f you know"; and (b) when she testified, "I'm not aware of anybody that I interacted with [other than plaintiff] who was 17 at this point." App. pp 602-03. None of these questions and answers was used in the summary judgment materials released by this Court in Brown. The transcript containing this testimony is sealed. Only two parties —plaintiff and Ms. Maxwell —and their counsel had proper access to the transcripts of Ms. Maxwell's depositions. The transcripts, which were designated "confidential" under the Protective Order, could only be disclosed to 10 EFTA00075492  Case 20-2413, Document 40, 08/20/2020, 2913550, Page17 of 74 "attorneys actively working on this case" and "persons regularly employed or associated with the attorneys who are working on this case." App. p 127. As explained above, supra at 5, this language was negotiated by the parties specifically to exclude an exception for investigations by law enforcement. From Ms. Maxwell's indictment and arrest, two things are plain. One, as the indictment and superseding indictment establish, the government has a copy of the transcripts from Ms. Maxwell's April and July 2016 depositions, both of which were designated "Confidential." Two, the government did not obtain a copy of the deposition transcripts from Ms. Maxwell or her counsel. The order unsealing the deposition material, including Ms. Maxwell's April 2016 deposition transcript. On July 23, over Ms. Maxwell's objection, Judge Preska —who is presiding over the civil case and the litigation about the unsealing of the district court filings —ordered the complete unsealing of Ms. Maxwell's April 2016 deposition transcript and Doe 1's deposition transcript as well as numerous sealed or redacted orders and papers that quote from or disclose information from the transcripts 11 EFTA00075493  Case 20-2413, Document 40, 08/20/2020, 2913550, Page18 of 74 (collectively, the "deposition material").3 App. pp 835-51. That Ms. Maxwell was under criminal investigation and had been indicted, the court ruled, "is not entitled to much weight" in determining whether the deposition material should be unsealed. App. p 839. The court did not address Ms. Maxwell's argument that she relied on the Protective Order, let alone explain why that reliance was "unreasonable." App. pp 836-49. On July 28, the district court entered an order directing the public release of the deposition material on July 30. App. p 567. Ms. Maxwell filed a motion to reconsider on July 29. App. pp 568-76. The motion asked the district court, should it deny the motion to reconsider, for a two- business-day stay of its order to permit Ms. Maxwell an opportunity to seek relief in this Court. App. p 568. The court denied the motion to reconsider but stayed the unsealing until August 3. App. pp 779-80. 3The district court is poised next to consider whether Ms. Maxwell's July 2016 deposition transcript should also be unsealed. What this brief refers to as the "deposition material" is included in Appendix Vol. V -VIII, filed under seal with this Court, and includes District Court docket entries: 143,144-1,144-2,144-4,144-5,144-6,144-7,149,150-1,152, 153-1,172,173-6,184,203,211,224, and 228. 12 EFTA00075494  Case 20-2413, Document 40, 08/20/2020, 2913550, Page19 of 74 On July 29, Ms. Maxwell filed a notice of appeal from the district court's unsealing order. App. p 781. Ms. Maxwell also filed an emergency motion with this Court to stay the unsealing order pending appeal. This Court granted the motion to stay and, accepting Ms. Maxwell's suggestion, ordered expedited briefing. Events after the filing of the notice of appeal and the critical new information. On August 5, just days after Ms. Maxwell filed the notice of appeal and this Court stayed the unsealing order pending appeal, the government in the criminal case produced discovery to Ms. Maxwell that revealed critical new information. This information bears directly on the merits of this appeal, namely whether it was proper for the district court to unseal the depositions, and it supports a stay of the civil case until the resolution of the criminal case. App. pp 787-89. Ms. Maxwell on August 7 reviewed the government's disclosure and on August 10 informed Judge Preska about the existence of the critical new information. App. p 787. At the time, however, a protective order in the criminal case, entered by Judge Nathan, prevented Ms. Maxwell from informing Judge Preska about the nature of the new information. App. pp 787,791-802. The same protective order now prevents Ms. Maxwell from disclosing to this Court the nature of the new information. App. pp 791-802. 13 EFTA00075495  Case 20-2413, Document 40, 08/20/2020, 2913550, Page20 of 74 On August 12, after learning that new information existed but unaware of what the new information was, Judge Preska took no action. App. pp 803-04. Judge Preska said she would reevaluate the matter should Judge Nathan modify the criminal protective order to allow Ms. Maxwell to share with her and this Court the nature of the new information. App. p 804. On August 17, Ms. Maxwell filed a motion with Judge Nathan to modify the criminal protective order to allow her in sealed submissions to inform Judge Preska and this Court about the new information.4 As of the filing of this brief, Judge Nathan has not yet ruled on that request. Judge Nathan has ordered the government to respond to Ms. Maxwell's motion by noon August 21. App. p 852. Ms. Maxwell's reply is due at noon on August 24. App. p 852. If Judge Nathan grants the motion to modify the criminal protective order, Ms. Maxwell intends to ask this Court for a limited remand to permit Judge Preska to reevaluate her unsealing order based on the information previously kept from her. Because of the protective order entered by Judge Nathan in the criminal 4 case, Ms. Maxwell's motion to modify the protective order was itself filed under seal. 14 EFTA00075496  Case 20-2413, Document 40, 08/20/2020, 2913550, Page21 of 74 If Judge Nathan denies the motion to modify, Ms. Maxwell intends to file a notice of appeal from the order denying modification and to consolidate that appeal with this one. As explained below, however, even without the benefit of this critical new information, Judge Preska abused her discretion in ordering the unsealing of the deposition material. Summary of the Argument The district court erred in ordering the unsealing of the deposition material. First, the district court failed to address or even acknowledge the reliance interests of those who, like Ms. Maxwell, sat for a deposition confident in the guarantee of confidentiality provided by the Protective Order. The district court's failure to acknowledge or address Ms. Maxwell's or Doe l's reliance interest is itself an abuse of discretion, particularly because, had the district court addressed the issue, it would have seen this Court's longstanding commitment to vindicating reasonable reliance on Protective Orders. Second, the district court erred in dismissing outright the fact of the criminal indictment of Ms. Maxwell as a relevant consideration. In fact, the pending indictment of Ms. Maxwell —based in part on the government's possession of her sealed and confidential deposition —provides compelling reasons to keep the 15 EFTA00075497  Case 20-2413, Document 40, 08/20/2020, 2913550, Page22 of 74 deposition material under seal. Unsealing the deposition would prejudice (or at least prejudge) Ms. Maxwell's argument in the criminal case that the government improperly obtained her sealed and confidential deposition. Releasing the deposition material also would lead to prejudicial and unconstitutional pretrial publicity while also undermining the truth-seeking function of the criminal trial by leading witnesses to conform their testimony and recast their memories of events from decades ago. Finally, the district court did not give adequate weight to the privacy interests of those, including Ms. Maxwell and Doe 1, about whom intimate, sensitive, and personal information is about to be spread like wildfire across the Internet. To be sure, the district court intends to release information of the type this Court itself declined on privacy grounds to release in the first appeal when it redacted certain deposition answers from the summary judgment material. The court abused its discretion on this basis as well. Argument I. Even without the benefit of the critical new information, the district court abused its discretion in ordering the unsealing of the deposition material. A. Standard of review. When reviewing a decision to unseal, this Court examines the district court's factual findings for clear error, its legal determinations de novo, and its ultimate 16 EFTA00075498  Case 20-2413, Document 40, 08/20/2020, 2913550, Page23 of 74 decision to seal or unseal for abuse of discretion. Brown, 929 F.3d at 47 & n.11 (quoting Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132,139 (2d Cir. 2016)). A district court "necessarily abuses its discretion if its conclusions are based on an erroneous determination of law." TheStreet.Com, 273 F.3d at 229 (quoting Crescent Publ'g Op., Inc. v. Playboy Enters., Inc., 246 F.3d 142,146 (2d Cir. 2001)). "Reviewable-for-abuse-of-discretion, however, does not mean unreviewable." In re Mazzeo, 167 F.3d 139,142 (2d Cir. 1999). To the contrary, the district court must address the relevant legal principles and arguments of the parties and it must explain its reasoning to permit meaningful appellate review. Id. ("A principal purpose of the requirement for specific factual findings is to inform the appellate court of the basis of the decision and to permit effective appellate review."). "An abuse of discretion occurs if the district court fails to make the required factual findings, or if those factual findings are clearly erroneous." United States v. Juvenile Male No. 1, 47 F.3d 68,71 (2d Cir. 1995) (citation omitted). B. The district court erred in ordering the unsealing. There are "two related but distinct presumptions in favor of public access to court proceedings and records: a strong form rooted in the First Amendment and a slightly weaker form based in federal common law." Newsday LLC v. Cny. of 17 EFTA00075499  Case 20-2413, Document 40, 08/20/2020, 2913550, Page24 of 74 Nassau, 730 F.3d 156,163 (2d Cir. 2013); see Brown, 929 F.3d at 47. These presumptions exist because of 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." United States v. Amodeo, 71 F.3d 1044,1048 (2d Cir. 1995) ("Amodeo Zr'). A presumption of access, however, is just that: a presumption. Brown, 929 F.3d at 49-50. There is no absolute right of access, and the presumption, where it applies, can always be overcome. Id; Newsday, 730 F.3d at 164. "What offends the First Amendment is the attempt to [exclude the public] without sufficient justification," not the act of exclusion itself. N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. (NYCTA), 684 F.3d 286,296 (2d Cir. 2012); see Brown, 929 F.3d at 48-51; Newsday, 730 F.3d at 165. That's because every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not used to gratify private spite or promote public scandal and when its files serve as reservoirs of libelous statements for press consumption. 18 EFTA00075500  Case 20-2413, Document 40, 08/20/2020, 2913550, Page25 of 74 Nixon a Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978) (cleaned up), quoted in Brown, 929 F.3d at 51.5 When a nonparty seeks access to records in possession of a court pursuant either to the common law or the First Amendment, the threshold question is whether the records qualify as "judicial documents." United States v. HSBC Bank USA, N.A., 863 F.3d 125, 134 (2d Cir. 2017) ("The threshold merits question in this case is whether the Monitor's Report is a judicial document, as only judicial documents are subject to a presumptive right of public access, whether on common law or First Amendment grounds."). This Court has made clear 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." Brown, 929 F.3d at 49 (quoting United States v. Amodeo, 44 F.3d 141,145 (2d Cir. 1995) ("Amodeo P'). In order to be designated a judicial document, "the item filed must be relevant to the performance of the judicial function and useful in the judicial process." Id. (quoting Amodeo I, 44 F.3d at 145); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110,119 (2d Cir. 2006) (same). 5 "The parenthetical `cleaned up,' while perhaps unfamiliar, is being used with increasing frequency to indicate that internal quotation marks, alterations, and/or citations have been omitted from a quotation." State v. Cady, 414 P.3d 974, 977 (Utah Ct. App. 2018). 19 EFTA00075501  Case 20-2413, Document 40, 08/20/2020, 2913550, Page26 of 74 In considering whether a record qualifies as a "judicial document," this Court must "determine the degree of judicial reliance on the document in question and the relevance of the document's specific contents to the nature of the proceeding." Newsday, 730 F.3d at 166-67. The filing with the court of "deposition transcripts, interrogatories, and documents exchanged in discovery" does not, from that fact of filing alone, convert the transcripts, interrogatories, and discovery documents into "judicial documents" for purposes of the right to access. HSBC, 863 F.3d at 139. Nor does the "mere fact that a dispute exists about whether a document should be sealed or disclosed" render the disputed document a judicial document. Newsday, 730 F.3d at 167. Were the rule otherwise, it "would bootstrap materials that are not closely related to judicial proceedings into judicial documents." Id. If a filing qualifies as a judicial document triggering the presumptive right of access, the court must determine the weight to be afforded to the presumption and then balance the interest in access against competing considerations. Amodeo II, 71 F.3d at 1050. Competing considerations include, but are not limited to, the reliance interests of those resisting disclosure, the constitutional rights attendant a criminal trial, and the right to privacy. TheStreet.Com, 273 F.3d at 229-31 (reliance); 20 EFTA00075502  Case 20-2413, Document 40, 08/20/2020, 2913550, Page27 of 74 Martindell, 594 F.2d at 293 (constitutional rights); Amodeo II, 71 F.3d at 1150 (privacy); see Brown, 929 F.3d at 47 n.13. 1. The presumption of access to the deposition material is lower than the presumption of access this Court ascribed to the summary judgment material. In Brown v. Maxwell, this Court directly released to the public the summary judgment order and material submitted in connection with the summary judgment briefing, subject to minimal redactions. 929 F.3d at 53. This Court concluded that the minimally redacted material was subject to a "strong presumption" of access under the First Amendment and the common law. Id. at 47 & n.12 (citing Lugosch, 435 F.3d at 121-22). The deposition material at issue here, however, was not submitted to the district court in connection with summary judgment briefing. Thus, as this Court found in Brown, the presumption of access attached to it is "somewhat lower than the presumption applied to material introduced at trial, or in connection with dispositive motions such as motions for dismissal or summary judgment." See id. at 50. Take Ms. Maxwell's April 2016 deposition. Plaintiff filed with the district court the entire 418-page transcript as an exhibit in support of her motion to exceed the presumptive ten deposition limit in Federal Rule of Civil Procedure 21 EFTA00075503  Case 20-2413, Document 40, 08/20/2020, 2913550, Page28 of 74 20(A)(2)(a)(ii). Doing so was unnecessary and gratuitous. See Brown, 929 F.3d at 51-52 & n.42 (recognizing that court files should not "serve as reservoirs of libelous statements for press consumption" or of "redundant, immaterial, impertinent, or scandalous" material (quoting, among others, Nixon, 435 U.S. at 598; Fed. R. Civ. P. 12(0)). The deposition transcript (certainly in its entirety) was irrelevant to plaintiff's request to exceed the presumptive ten deposition limit. See Joy a North, 692 F.2d 880,893 (2d Cir. 1982) ("We do not say that every piece of evidence, no matter how tangentially related to the issue or how damaging to a party disclosure might be, must invariably be subject to public scrutiny."). Yet, by filing the deposition transcript in its entirety, plaintiff improperly attempted to transform it into a "judicial document." See Amodeo I, 44 F.3d at 145 (" [T]he 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."). Plaintiff accomplished this even though ordinarily the deposition would never be "filed with the court, but simply passed between the parties in discovery," and therefore would "lie entirely beyond the . . . reach" of the presumption of access. Brown, 929 F.3d at 50 & n.31 (quotations omitted). A judicial document that "play[s] only a negligible role in the performance of Article III duties" warrants "little more than a prediction of public access absent a 22 EFTA00075504  Case 20-2413, Document 40, 08/20/2020, 2913550, Page29 of 74 countervailing reason." Id. at 49-50 (quoting Amodeo II, 71 F.3d at 1050). Thus, while a motion filed by a party necessarily calls for the court to exercise its judicial powers, the same cannot be said of a gratuitously filed exhibit attached to the motion, irrelevant to the question presented and offered merely to "humiliate and embarrass [an] adversar[y]." See id. at 47. Here, the transcript of Ms. Maxwell's April 2016 deposition falls into the latter category. Attaching the entire deposition to a routine discovery motion was improper and a plain effort to "weaponize the discovery process" against Ms. Maxwell. Id. at 47. This Court, therefore, should afford it nothing but a limited presumption of access. In turn, as explained below, several countervailing interests rebut this minimal presumption of access. a. Ms. Maxwell's reliance interests, and those of Doe 1, outweigh any presumption of access. To begin with, the deposition material should remain sealed to vindicate Ms. Maxwell and other individuals' reasonable reliance on the judicial promise of confidentiality. See TheStreet.Corn, 273 F.3d at 229-31 (recognizing the importance of reliance interests in assessing whether to allow access to sealed documents (citing Martindell, 594 F.2d at 296); see also Brown, 929 F.3d at 48 n.22 (recognizing the propriety of sealing deposition material "concerning intimate matters where 23 EFTA00075505  Case 20-2413, Document 40, 08/20/2020, 2913550, Page30 of 74 the questions were likely only permitted —and the responses only compelled — because of a strong expectation of continued confidentiality" (citing Fed. R. Civ. P. 5.2)). That is the very purpose of protective orders. Seattle Times Co. v. Rhinelzart, 467 U.S. 20, 35-36 (1984) ("The prevention of the abuse that can attend the coerced production of information under a State's discovery rule is sufficient justification for the authorization of protective orders."). The district court thought otherwise. But in ruling as it did, the district court failed even to acknowledge, let alone address, the reliance interests of those who sat for depositions only because of the security the Protective Order afforded. App. pp 836-49. Failing to address this countervailing interest and make the required findings is itself an abuse of discretion. United States v. Nelson, 68 F.3d 583, 588 (2d Cir. 1995) ("A district court is said to abuse its discretion when it fails to make the required factual findings or where the findings it does make are clearly erroneous."); see Brown, 929 F.3d at 48 (concluding, in the first appeal in this case, that the discretion court committed "legal error" by failing to make "specific, on- the-record findings" in support of its decision). Had the district court actually considered reasonable reliance, it would have seen that this Court's decisions support Ms. Maxwell's argument to keep the deposition material sealed. In S.E.C. v. TheStreet.Corn, this Court held that 24 EFTA00075506  Case 20-2413, Document 40, 08/20/2020, 2913550, Page31 of 74 "[w]here there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c) `absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need." 273 F.3d at 229 (quoting Martindell, 594 F.2d at 296; citing FDIC v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982)). The deponents in TheStreet. Corn, however, could not have reasonably relied on the confidentiality provisions of a January 2001 protective order, because they "had provided Confidential Testimony at least a month before the entry of that order." Id. at 234. The opposite is true in this case because Ms. Maxwell and numerous third parties, including Doe 1, unquestionably relied on the Protective Order in offering their deposition testimony. Indeed, many of the approximately thirty depositions in this case were made possible only because of the Protective Order. The district court had to issue numerous orders compelling deposition testimony of third parties, which depositions took place only after everyone agreed on the record that the testimony would be confidential and sealed pursuant to the Protective Order. Judge Sweet made factual findings on exactly this point, which this Court never questioned in Brown.M325 F. Supp. 3d at 445, 446 (recognizing that Ms. Maxwell "as well as dozens of third persons" all "relied upon the promise of 25 EFTA00075507  Case 20-2413, Document 40, 08/20/2020, 2913550, Page32 of 74 secrecy outlined in the Protective Order and enforced by the Court" and that there were "dozens of non-parties who provided highly confidential information relating to their own stories . . . . in reliance on the Protective Order and the understanding that it would continue to protect everyt