Giuffre v. Maxwell, No. 115-cv-07433 (S.D.N.Y. 2015)/994.pdf

HOLLAND & KNIGHT LLP Sanford L. Bohrer Christine N. Walz 31 West 52nd Street New York, NY 10019 Telephone: 212.513.3200 Fax: 212.385.9010 Attorneys for Intervenors Julie Brown and Miami Herald Media Company UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA L. GIUFFRE, Plaintiff, - against - GHISLAINE MAXWELL, Defendant. : : : : : : : : : : : Case No. 15-cv-7433 (RWS) RESPONSE OF INTERVENOR MIAMI HERALD REGARDING SEALING OF COURT FILINGS Intervenors Julie Brown and the Miami Herald Media Company (the “Miami Herald”) respectfully submit this response to the briefs filed by Defendant Ghislaine Maxwell (“Ms. Maxwell”) and non-party J. Doe 1 regarding the sealing of court filings, Dkt. 990 and 991. 1 Counsel for non-party J. Doe argues that certain categories of documents should remain sealed. J. Doe has not filed a motion to intervene in this matter, nor has he filed a motion to proceed anonymously. He lacks standing to participate, and his filing should not be considered for that reason alone. See Dkt. 225, Brown v. Maxwell, Case No. 18-2868 (2d. Cir. 2019) (denying J. Doe motion to intervene). Case 1:15-cv-07433-LAP Document 994 Filed 10/02/19 Page 1 of 14 2 PRELIMINARY STATEMENT Notwithstanding the Second Circuit’s instructions, Ms. Maxwell and J. Doe continue to argue that hundreds of documents should remain under seal in their entirety as either non-judicial documents or negligibly judicial documents. In so doing, they mischaracterize the Second Circuit’s ruling in Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) and other case law that is directly on point. Accordingly, as set forth in detail below, the Miami Herald respectfully requests that the Court enter an order identifying each of these documents as judicial documents subject to both the First Amendment right of access and the common law right of access. 2 Given the presumption of access to these documents, the Court should also find that Ms. Maxwell and J. Doe have failed to identify any non-generalized, non-speculative interest that would outweigh these First Amendment and common law rights of access. Therefore, the remaining documents should be immediately unsealed with only very limited exceptions and minor redactions for social security numbers, the names of alleged minor victims and their relations, and other personal identifying information (addresses, dates of birth, phone numbers) of the same. ARGUMENT The Governing Law Establishes a Substantial Presumption of Access to All of the Documents at Issue Both Ms. Maxwell and J. Doe selectively quote from the Second Circuit’s ruling in Brown v. Maxwell in an attempt to minimize the right of access that attaches to all judicial documents. In 2 At the outset, the Miami Herald notes that neither it, nor its counsel, has access to the remaining sealed documents. For this briefing then, it is relying on the Parties’ categorizations and characterizations of these documents for purposes of this briefing. The descriptions and categorizations contained in Ms. Maxwell’s filing appear designed to obfuscate the issues in order to establish any possible basis for further review, creating an endless briefing loop. This delay tactic should not be countenanced. Case 1:15-cv-07433-LAP Document 994 Filed 10/02/19 Page 2 of 14 3 fact, the Second Circuit makes clear, a judicial document is a document that is “relevant to the performance of the judicial function and useful in the judicial process.” Id. at 50. The required inquiry then is whether the documents “would reasonably have the tendency to influence a district court's ruling on a motion or in the exercise of its supervisory powers, without regard to which way the court ultimately rules, or whether the document ultimately in fact influences the court's decision.” Id. (emphasis in the original). The Second Circuit described the remaining sealed documents at issue here as “filings related to, inter alia, motions to compel testimony, to quash trial subpoenas, and to exclude certain deposition testimony” and said that “[a]ll such motions, at least on their face, call upon the court to exercise its Article III powers.” Ms. Maxwell and J. Doe’s repeated assertion that these documents are entitled to only a “slight presumption of access” is directly contradicted by the Second Circuit’s conclusion that “the presumption of access to “materials submitted in connection with, and relevant to, discovery motions, motions in limine, and other non-dispositive motions,” while less than strong presumption afforded summary judgment filings, is nonetheless “substantial.” Where there is a substantial presumption of access, that presumption can be overcome only where the party seeking to seal the documents identifies with specificity competing and compelling interests in closure, and the court determines that those interests outweigh the presumption of access. See Lytle v. JPMorgan Chase, 810 F. Supp. 2d 616, 621 (S.D.N.Y. 2011) (denying requests to seal after balancing competing interests in third-party privacy and law enforcement efforts). Ms. Maxwell and J. Doe have entirely failed to meet that burden. Case 1:15-cv-07433-LAP Document 994 Filed 10/02/19 Page 3 of 14 4 Category 1: Motions to Compel and Related Motions for Protective Orders Ms. Maxwell makes two arguments that some of the 132 documents in this category would not be entitled to a substantial presumption of access. The first concerns a very limited exception to the right of access for “material that is submitted to the court solely so that the court may decide whether that same material must be disclosed in the discovery process or shielded by a Protective Order” See Maxwell Brief (Dkt. 991 at 5 (citing Brown, n.33). This exception is extremely limited and applies only to documents submitted to the court for an in camera review to determine whether they must be disclosed in discovery: it does not apply to all of the motion practice around the motion for a protective order. The only document that Ms. Maxwell claims actually falls within this exception is Document 370, which is a motion for a protective order regarding Ms. Maxwell’s personal financial information. Even with respect to Document 370, however, only Ms. Maxwell’s personal financial information itself may fall within this exception. The motion and its supporting memoranda of law, affidavits, and other exhibits would not fall within the exception. If one of the exhibits to this motion was submitted under seal for the purpose of an in camera review and the Court granted the motion for a protective order, then the Miami Herald agrees that the exhibit alone would fall within this exception. Maxwell’s argument concerning the remaining 131 documents in this category is that “they concerned issues wholly collateral to the lawsuit’s merits” because they addressed whether material was discoverable under Rule 26’s relevancy standard. She provides no factual detail to support this position, and, as a matter of law, this argument is wholly without merit. It is well-established that motions to compel and their accompanying exhibits are judicial documents. See Brown v. Maxwell, 929 F.3d 41, 50 (2d Cir. 2019) (motions concerning discovery disputes are relevant to court’s authority to oversee discovery); VR Optics, LLC v. Peloton Case 1:15-cv-07433-LAP Document 994 Filed 10/02/19 Page 4 of 14 5 Interactive, Inc., No. 16-CV-6392 (JPO), 2019 WL 2121690, at *8 (S.D.N.Y. May 15, 2019) (motions to compel and attached exhibits are judicial documents to which