EFTA00085098.pdf

Brown v. Maxwell, — F.3d — (2019) United States District Court for the Southern 2019 WL 2814839 District of New York, Robert W. Sweet, J., Only the Westlaw citation is currently 2017 WL 1787934, 325 F.Supp.3d 428, available. granted motions to intervene, but denied United States Court of Appeals, Second requests to unseal. Intervenors appealed. Circuit. Julie BROWN, Miami Herald Company, Intervenors-Appellants, v. Holdings: The Court of Appeals, Jose A. Ghislaine MAXWELL, Cabranes, Circuit Judge, held that: Defendant-Appellee, v. ['l district court was required to review MM. Plaintiff-Appellee. documents individually and produce . r owitz, Michael specific, on-the-record findings, and Cernovich, dba Cernovich Media, Intervenors-Appellants, [21 district court abused its discretion in v. denying motion to unseal filings related to Plaintiff-Appellee, discovery motions. v. Ghislaine Maxwell, Defendant-Appellee: Pooler, Circuit Judge, dissented in part and The Clerk of Court is directed to amend the filed opinion. captions as set out above. No. 18-2868-cv, No. 16-3945-cvn No. 17-1625 (CON), No. 17-1722(CON) West Headnotes (20) August Term 2018 II Records Argued: March 6, 2019 ti-Court records Decided: July 3, 2019 When reviewing district court's decision to seal filing or maintain such seal, Court of Appeals examines court's factual findings for Synopsis Background: Alleged sexual abuse victim clear error, its legal determinations de novo, and its ultimate decision to filed defamation action against alleged seal or unseal for abuse of discretion. abuser. After suit settled, another alleged abuser, journalist and newspaper moved to intervene and to unseal documents. The Cases that cite this headnote WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00085098 Brown v. Maxwell, — F.3d — (2019) Records o-Court records Countervailing values that may 121 Records overcome First Amendment a-Court records presumption of public access to judicial records include, depending Documents submitted to court for its on circumstances, preserving consideration in summary judgment accused's right to fundamental motion are—as matter of fairness in jury selection process, law—judicial documents to which protection of attorney-client strong presumption of access privilege, danger of impairing law attaches, under both common law enforcement or judicial efficiency, and First Amendment. U.S. Const. and privacy interest of those who Amend. 1. resist disclosure. U.S. Const. Amend. 1. 1 Cases that cite this headnote Cases that cite this headnote 131 Constitutional Law a-Court documents or records 151 Records a-Court records In light of strong First Amendment presumption of public access to Presumption of public access that judicial records, continued sealing of attaches to documents filed in documents may be justified only connection with summary judgment with specific, on-the-record findings motions is not diminished by fact that sealing is necessary to preserve that motion is denied. higher values and only if sealing order is narrowly tailored to achieve that aim. U.S. Const. Amend. 1. 1 Cases that cite this headnote 3 Cases that cite this headnote 161 Records ots-Court records Hi Constitutional Law On motion to unseal documents filed a-Court documents or records in defamation action, district court WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00085099 Brown v. Maxwell, — F.3d — (2019) was required to review documents or whether document ultimately in individually and produce specific, fact influences court's decision. on-the-record findings that sealing was necessary to preserve higher values. Cases that cite this headnote 2 Cases that cite this headnote 191 Records o-Court records lin Records If court determines that documents o—Court records filed by party are not relevant to performance of judicial function, no Mere filing of paper or document presumption of public access with court is insufficient to render attaches. that paper "judicial document" subject to right of public access; instead, item filed must be relevant Cases that cite this headnote to performance of judicial function and useful in judicial process in order for it to be designated judicial document. 1101 Records o-Court records 1 Cases that cite this headnote Once item is deemed relevant to exercise of judicial power, weight to be given presumption of public access must be governed by role of PH Records material at issue in exercise of o-Court records Article III judicial power and resultant value of such information Document is relevant to performance to those monitoring federal courts. of judicial function, and thus is U.S. Const. art. 3, § 1 et seq. "judicial document" to which presumption of public access attaches, if it would reasonably have Cases that cite this headnote tendency to influence district court's ruling on motion or in exercise of its supervisory powers, without regard to which way court ultimately rules WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00085100 Brown v. Maxwell, — F.3d — (2019) Records to at least some presumption of s-Court records public access. While evidence introduced at trial or in connection with summary Cases that cite this headnote judgment enjoys strong presumption of public access, documents that play only negligible role in performance of Article III duties are nil accorded only low presumption that Records amounts to little more than -Court records prediction of public access absent countervailing reason. U.S. Const. Presumption of public access in art. 3, § 1 et seq. filings submitted in connection with discovery disputes or motions in limine is generally somewhat lower Cases that cite this headnote than presumption applied to material introduced at trial, or in connection with dispositive motions such as motions for dismissal or summary judgment, and thus, while court must [12] Records still articulate specific and v-Court records substantial reasons for sealing such material, reasons usually need not be Documents that are never filed with as compelling as those required to court, but simply passed between seal summary judgment filings. parties in discovery, lie entirely beyond reach of presumption of public access accorded to judicial Cases that cite this headnote documents. Cases that cite this headnote 1151 Records 4-Court records District court abused its discretion in 1131 Records denying motion to unseal filings 4-Court records related to motions to compel testimony, to quash trial subpoenae, All documents submitted to court in and to exclude certain deposition connection with, and relevant to, testimony in defamation action on judicial decision-making are subject ground that privacy interests WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00085101 Brown v. Maxwell, — F.3d — (2019) outweighed presumption of public presumption of public access. Fed. access, even if court did not rely on R. Civ. P. 12(4 materials in adjudicating motions, where court did not conduct individualized review of sealed Cases that cite this headnote materials to determine whether presumption of public access outweighed any countervailing privacy interests. Its' Federal Civil Procedure 4-Impertinent or scandalous matter Cases that cite this headnote Although motions to strike material solely on ground that matter is impertinent and immaterial are disfavored, when material is also 1161 Courts scandalous, no such presumption 4—Making and custody applies. Fed. R. Civ. P. 12(0. Every court has supervisory power over its own records and files to Cases that cite this headnote ensure they are not used to gratify private spite or promote public scandal or serve as reservoirs of libelous statements for press 1191 consumption. Libel and Slander 4—.Judicial Proceedings Cases that cite this headnote Under New York law, absolute immunity from liability for defamation exists for oral or written statements made in connection with proceeding before court. 1111 Records 4-Court records Cases that cite this headnote Because material that is rejected or stricken by district court as redundant, immaterial, impertinent, or scandalous is not relevant to 1201 performance of judicial function, it Libel and Slander is not considered "judicial 6—Exceeding privilege or right document" and enjoys no Libel and Slander WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00085102 Brown v. Maxwell, — F.3d — (2019) 6-Statements made in judicial and Abady LLP, New York, NY, for official proceedings Intervenor-Appellant Alan M. Dershowitz. Under New York law, immaterial Marc Randazza (Jay Marshall Wolman, Las and impertinent statements in court Vegas, NV, on the brief), Randazza Legal filings are—at least Group, PLLC, Hartford, CT, for nominally—actionable, particularly Intervenor-Appellant Michael Cernovich. when they are so needlessly defamatory as to warrant inference Before: CABRANES, POOLER, and of express malice. DRONEY, Circuit Judges. Opinion Cases that cite this headnote Jose A. Cabranes, Circuit Judge: *1 Intervenors-Appellants Alan M. On Appeal from the United States District Dershowitz ("Dershowitz"), Michael Court for the Southern District of New York Cernovich ("Cernovich"), and the Miami (Robert W. Sweet, Judge). Herald Company (with reporter Julie Brown, jointly the "Herald") appeal from certain Attorneys and Law Firms orders of the United States District Court for the Southern District of New York (Robert Sanford L. Bohrer (Christine N. Walz, W. Sweet, Judge) denying their respective Madelaine J. Harrington, New York, NY, on motions to unseal filings in a defamation the brief), Holland & Knight LLP, Miami, suit. We conclude that the District Court FL, for Intervenors-Appellants Julie Brown failed to conduct the requisite particularized and Miami Herald. review when ordering the sealing of the materials at issue. At the same time, we Ty Gee (Adam Mueller, on the brief), recognize the potential damage to privacy Haddon, Morgan and Foreman, P.C., and reputation that may accompany public Denver, CO, for Defendant-Appellee disclosure of hard-fought, sensitive Ghislaine Maxwell. litigation. We therefore clarify the legal tools that district courts should use in Paul G. Cassell (Sigrid S. McCawley, Boies safeguarding the integrity of their dockets. Schiller Flexner LLP, Ft. Lauderdale, FL, on Accordingly, we VACATE the District the brief), S.J Quinney College of Law, Court's orders entered on November 2, University of Uta • T, for 2016, May 3, 2017, and August 27, 2018, Plaintiff-Appellee ORDER the unsealing of the summary judgment record as described further herein, Andrew G. Celli Jr. (David A. Lebowitz, on and REMAND the cause to the District the brief), Emery, Celli, Brinckerhoff & WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00085103 Brown v. Maxwell, — F.3d — (2019) Court for particularized review of the On February 21, 2019, the Florida District Court ruled remaining sealed materials. that federal prosecutors had violated the CVRA by failing to adequately notify the two victims-plaintiffs of the plea deal. The District Court has not yet determined the appropriate remedy. See Doe 1 v. United States, 359 F. Supp. 3d 1201, 1204-17 (S.D. Fla. 2019). On December 30, 2014, two additional I. BACKGROUND unnamed victims—one of whom has now self-identified as Plaintiff-Appellee petitioned to join in t e case. ese petitioners included in their filings not only descriptions of A. Jeffrey Epstein's Conviction and the sexual abuse by Epstein, but also new CVRA Suit allegations of sexual abuse by several other The origins of this case lie in a decade-old prominent individuals, "including numerous criminal proceeding against financier Jeffrey prominent American politicians, powerful Epstein ("Epstein"). On June 30, 2008, business executives, foreign presidents, a Epstein pleaded guilty to Florida state well-known Prime Minister, and other world charges of soliciting, and procuring a person leaders," as well as Dershowitz (a long-time under the age of eighteen for, prostitution. member of the Harvard Law School faculty The charges stemmed from sexual activity who had worked on Epstein's legal defense) with privately hired "masseuses," some of and Defendant-Appellee Ghislaine Maxwell whom were under eighteen, Florida's age of ("Maxwell").2 consent. Pursuant to an agreement with state 2 Doe I v. United States, No. 08-CV-80736-1CAM, 2015 and federal prosecutors, Epstein pleaded to WL 11254692, at "2 (S.D. Fla. Apr. 7, 2015) (internal quotation marks omitted). the state charges. He received limited jail-time, registered as a sex offender, and agreed to pay compensation to his victims. In return, prosecutors declined to bring *2 Dershowitz moved to intervene, seeking federal charges. to "strike the outrageous and impertinent allegations made against him and to request Shortly after Epstein entered his plea, two of a show cause order to the attorneys that have his victims, proceeding as "Jane Doe 1" and made them."3 Exercising its authority to "Jane Doe 2," filed suit against the "strike from a pleading an insufficient Government in the Southern District of defense or any redundant, immaterial, Florida under the Crime Victims' Rights Act impertinent, or scandalous matter ... on its ("CVRA"). The victims sought to nullify the own,"" the Florida District Court (Kenneth plea agreement, alleging that the A. Marra, Judge) sua sponte struck all Government failed to fulfill its legal allegations against additional parties from obligations to inform and consult with them the pleadings, including those against in the process leading up to Epstein's plea Dershowitz, and therefore denied deal.' Dershowitz's motion as moots WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00085104 Brown v. Maxwell, — F.3d — (2019) 3 Id. (internal quotation marks and brackets omitted). prospectively granted all of the parties' future sealing requests. In total, 167 documents—nearly one-fifth of the docket—were filed under seal. These sealed 4 Fed. R. Civ. P. 12(0. documents include, inter alia, motions to compel discovery, motions for sanctions and adverse inferences, motions in limine, and 5 Doe I, 2015 WL 11254692, at "2-3. similar material. On January 6, 2017, Maxwell filed a motion for summary judgment. The parties The stricken allegations, however, quickly submitted their memoranda of law and found their way into the press, and several supporting exhibits contesting this motion m is utlets published articles repeating under seal. On March 22, 2017, the District accusations. In response to the Court denied the motion in a heavily allegations, on January 3, 2015, Maxwell's redacted 76-page opinion. Once again, the publiSid a press statement declaring entire summary judgment record, including that allegations "against Ghislaine the unredacted version of the District Court Maxwell are untrue" and that her "claims opinion denying summary judgment, are obvious lies."6 remained under seal. On May 24, 2017, 6 SeMIEv. Maxwell, 325 F. Supp. 3d 428, 434 Maxwell and executed a settlement (S.D.N.Y. 2018). agreement, and the case was closed the next day. BM Sues Maxwell C. Motions to Intervene and Unseal On September 21, 2015, filed the underlying action against Maxwell in the Over the course of the litigation before Judge Sweet, three outside parties attempted Southern District of New York. to unseal some or all of the sealed material. alleged that Maxwell had defamed her On August 11, 2016, Dershowitz moved to through this and other public statements. intervene, seeking to unseal three dol. Extensive and hard-fought discovery that, he argues, demonstrate that followed. Due to the volume of sealing invented the accusations against him. On requests filed during discovery, on August 9, January 19, 2017, Cernovich, an 2016, the District Court entered a Sealing independent blogger and self-described Order that effectively ceded control of the "popular political journalist,"7 moved to sealing process to the parties themselves. intervene, seeking to unseal the summary The Sealing Order disposed of the judgment record, and Dershowitz joined his requirement that the parties file individual motion. On April 6, 2018, after the case had letter briefs to request sealing and WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00085105 Brown v. Maxwell, — F.3d — (2019) settled, the Herald moved to intervene and of undisputed facts, and incorporated unseal the entire docket. The District Court exhibits; and (2) court filings made in the granted each of these motions to intervene, course of the discovery process and with but denied the related requests to unseal in respect to motions in limine. In this Opinion, orders entered November 2, 2016, May 3, we explain that our law requires the 2017, and August 27, 2018, respectively. unsealing of the summary judgment 7 Br. Appellant (Cemovich) 4. materials and individualized review of the remaining sealed materials. While the law governing public access to The Appellants timely appealed from each these materials is largely settled, we have of the orders denying their respective not yet adequately addressed the potential motions to unseal. Although each Appellant harms that often accompany such access. seeks the release of a different set of These harms are apparent. Over forty years documents, all argue that the District Court ago, the Supreme Court observed that, failed to analyze the documents individually without vigilance, courts' files might or properly apply the presumption of public "become a vehicle for improper purposes."9 access to court documents. We therefore Our legal process is already susceptible to ordered that the appeals be heard in tandem abuse. Unscrupulous litigants can weaponize and held argument on March 6, 2019. the discovery process to humiliate and embarrass their adversaries. Shielded by the *3 On March 11, 2019, we issued an order "litigation privilege,"I0 bad actors can to show cause why we "should not unseal defame opponents in court pleadings or the summary judgment motion, including depositions without fear of lawsuit and any materials filed in connection with this liability. Unfortunately, the presumption of motion, and the District Court's summary public access to court documents has the judgment decision."s The parties timely filed potential to exacerbate these harms to their responses. privacy and reputation by ensuring that 8 v. Maxwell, No. 18-2868-cv, Docket No. 138. damaging material irrevocably enters the public record. 9 Nixon v. Inisner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). 10 See notes 46-47 and accompanying text, post. II. DISCUSSION There are two categories of sealed material We therefore take the opportunity to at issue in these appeals: (1) the summary describe the tools available to district courts judgment record, which includes the parties' in protecting the integrity of the judicial summary judgment briefs, their statements process, and emphasize the courts' responsibility to exercise these powerful WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00085106 Brown v. Maxwell, — F.3d — (2019) tools. We also caution the public to critically filing, specifically found that assumption inapplicable, assess allegations contained in judicial the categorical rule in Lugosch may not apply. See notes 42-43 and accompanying text, post. pleadings. 13 Id. at 124. Examples of such countervailing values may include, depending on the circumstances, preserving "the right of an accused to fundamental fairness in the jury selection process," Press-Enter. Co. v. Superior Court of California. Riverside Cry., 464 U.S. 501, 510, A. Standard of Review 104 S.Ct. 819, 78 L.Ed.2d 629 (1984); the protection of 111When reviewing a district court's decision attorney-client privilege, Lugosch, 435 F.3d at 125; "the danger of impairing law enforcement or judicial to seal a filing or maintain such a seal, "we efficiency," SEC. v. TheStreet.Com, 273 F.3d 222, 232 examine the court's factual findings for clear (2d Cir. 2001); and "the privacy interest of those who resist disclosure," id. error, its legal determinations de novo, and its ultimate decision to seal or unseal for abuse of discretion."11 *4 151In this case, the District Court erred in I I Bernstein v. Bernstein Dimwits Berger & Grossmann LLP, 814 F.3d 132, 139 (2c1Cir. 2016). several respects.14 First, it failed to give proper weight to the presumption of access that attaches to documents filed in connection with summary judgment motions. The District Court reasoned that the summary judgment materials were "entitled to a lesser presumption of access" B. The Summary Judgment Materials because "summary judgment was denied by 121 131 I4IWith respect to the first category of the Court."Is In assigning a "lesser materials, it is well-settled that "documents presumption" to such materials, the District submitted to a court for its consideration in a Court relied on a single sentence of dicta summary judgment motion are—as a matter from our decision in United States v. of law—judicial documents to which a Amodeois We have since clarified, however, strong presumption of access attaches, under that this sentence was based on a "quotation both the common law and the First from a partial concurrence and partial Amendment."12 In light of this strong First dissent in the D.C. Circuit ... [and] is thus Amendment presumption, "continued not the considered decision of either this sealing of the documents may be justified court or the D.C. Circuit."17 In fact, we have only with specific, on-the-record findings expressly rejected the proposition that that sealing is necessary to preserve higher "different types of documents might receive values and only if the sealing order is different weights of presumption based on narrowly tailored to achieve that aim."I3 the extent to which they were relied upon in 12 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, resolving [a] motion [for summary 121 (2d Cir. 2006). We observe that our holding in Lugosch relies on the general principle that parties may judgment]."ig "be assumed to have supported their papers with 14 Our discussion here focuses specifically on the District admissible evidence and non-frivolous arguments." Id. Court's denial of the Herald's motion to unseal the at 122. Insofar as a district court has, through striking a entire record. Because this decision grants relief to all WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00085107 Brown v. Maxwell, — F.3d — (2019) Appellants, we need not discuss any separate, judgment materials in connection with this additional error in the District Court's denial of the appeal, we find that there is no earlier motions to unseal. countervailing privacy interest sufficient to justify their continued sealing. Remand with IS 25 F. Supp. 3d at 444. respect to these documents is thus unnecessary. Accordingly, and to avoid any further delay,31 we order that the summary judgment documents (with minimal 16 71 F.3d 1044, 1049 (2d Cir. 1995)("Amodeo If') ("One redactions) be unsealed upon issuance of our judge [in the District of Columbia Circuit] has pointed mandate.22 out, for example, that where a district court denied the summary judgment motion, essentially postponing a 21 Cf. Lugosch, 435 F.3d at 127 (ordering that "the final determination of substantive legal rights, the mandate shall issue forthwith" to expedite the unsealing public interest in access is not as pressing." (internal process). quotation marks omitted; emphasis in original)). 22 Upon issuance of our mandate, a minimally redacted 17 Lugosch, 435 F.3d at 121. version of the summary judgment record will be made accessible on the Court of Appeals docket. We have implemented minimal redactions to protect personally identifying information such as personal phone numbers, contact lists, birth dates, and social security IS Id. at 123. numbers. We have also redacted the names of alleged minor victims of sexual abuse from deposition testimony and police reports, as well as deposition responses concerning intimate matters where the questions were likely only permitted—and the responses only compelled—because of a strong 161Second, in contravention of our precedent, expectation of continued confidentiality. See Fed. R. the District Court failed to review the Civ. P. 5.2. While we appreciate the views expressed in documents individually and produce Judge Pooler's separate opinion, the panel majority believes that the efforts invested by three former district "specific, on-the-record findings that sealing judges in reviewing these materials adequately address is necessary to preserve higher values."i0 those concerns. Instead, the District Court made generalized statements about the record as a whole.30 This too was legal error. 19 Id. at 124. C. The Remaining Sealed Materials 20 See. e.g., Giuffre, 325 F. Supp. 3d at 445 (summarily PiThe law governing disclosure of the concluding that all "[t]he Summary Judgment Judicial remaining sealed material in this case is only Documents openly refer to and discuss these allegations [of sexual assault and sexual trafficking] in slightly more complex. The Supreme Court comprehensive detail, and that those allegations has recognized a qualified right "to inspect 'establish( J a strong privacy interest here')". and copy judicial records and documents."23 In defining "judicial records and documents," we have emphasized that "the Finally, upon reviewing the summary mere filing of a paper or document with the WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00085108 Brown v. Maxwell, — F.3d — (2019) court is insufficient to render that paper a the Monitor's Report would quite obviously be relevant judicial document subject to the right of to the performance of the judicial function and useful in the judicial process" (internal quotation marks public access."24 Instead, "the item filed omitted)). Whether a specific judicial decision must be relevant to the performance of the constitutes a "performance of the judicial function" is a question of law. Accordingly, we review such judicial function and useful in the judicial determinations de novo. Id. at 134. process in order for it to be designated a judicial document."28 23 Nixon, 435 U.S. at 597-98, 98 S.Ct. 1306. 27 Amodeo 1, 44 F.3d at 145-46 (concluding that documents were relevant to the performance of a judicial function because they would have "informed" the district court's decision whether to discharge or retain a Receiver); see also FTC. v. Standard Fin. 24 United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987) (citing 1995)("Amodeo 1"). Federal Rule of Evidence 401's "having any tendency" definition of relevance in determining whether documents were "judicial documents"). 25 Id. 28 As we explain below, there are several (often preferable) tools beyond sealing that district courts can use to protect their dockets from becoming a vehicle for *5 181 I9IAs our precedent makes clear, a irrelevant—and potentially defamatory—accusations. See Section D,post. court "perform[s] the judicial function" not only when it rules on motions currently before it, but also when properly exercising 1101 1111 11~1Once an item is deemed relevant to its inherent "supervisory powers."26 A the exercise of judicial power, "the weight to document is thus "relevant to the performance of the judicial function" if it be given the presumption of access must be governed by the role of the material at issue would reasonably have the tendency to in the exercise of Article III judicial power influence a district court's ruling on a and the resultant value of such information motion or in the exercise of its supervisory to those monitoring the federal courts."29 powers, without regard to which way the Thus, while evidence introduced at trial or in court ultimately rules or whether the connection with summary judgment enjoys a document ultimately in fact influences the strong presumption of public access, court's decision.72 Accordingly, if in documents that "play only a negligible role applying these standards, a court determines in the performance of Article III duties" are that documents filed by a party are not relevant to the performance of a judicial accorded only a low presumption that "amounts to little more than a prediction of function, no presumption of public access public access absent a countervailing attaches.28 reason."30 Documents that are never filed 26 CI United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017) (explaining that, in considering with the court, but simply "passed between whether the report of a monitor charged with assessing the parties in discovery, lie entirely beyond compliance with a deferred prosecution agreement is a judicial document, illy the district court's conception the presumption's reach."3] of its supervisory power in this context were correct, 29 Amodeo II, 71 F.3d at 1049. WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00085109 Brown v. Maxwell, — F.3d — (2019) in adjudicating a case. Accordingly, the presumption of public access in filings submitted in connection with discovery 30 Id. at 1050. disputes or motions in limine is generally somewhat lower than the presumption applied to material introduced at trial, or in 31 Id. connection with dispositive motions such as motions for dismissal or summary judgment?' Thus, while a court must still articulate specific and substantial reasons for 1131The remaining sealed