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Brown v. Maxwell

United States Court of Appeals, Second Circuit

July 3, 2019

Julie Brown, Miami Herald Company, Intervenors-Appellants,
v.
Ghislaine Maxwell, Defendant-Appellee,
v.
Virginia L. Giuffre, Plaintiff-Appellee. Alan M. Dershowitz, Michael Cernovich, DBA Cernovich Media, Intervenors-Appellants,
v.
Virginia L. Giuffre, Plaintiff-Appellee,
v.
Ghislaine Maxwell, Defendant-Appellee.

          Argued: March 6, 2019

          On Appeal from the United States District Court for the Southern District of New York No. 16-3945-cv(L), 17-1625 (CON), 17-1722(CON)

         Intervenors-Appellants Alan Dershowitz, Michael Cernovich, and the Miami Herald Company (with reporter Julie Brown) appeal from certain orders of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) denying their respective motions to unseal filings in a defamation suit. We conclude that the District Court failed to conduct the requisite particularized review when ordering the sealing of the materials at issue. At the same time, we recognize the potential damage to privacy and reputation that may accompany public disclosure of hard-fought, sensitive litigation. We therefore clarify the legal tools that district courts should use in safeguarding the integrity of their dockets. Accordingly, we VACATE the District Court's orders entered on November 2, 2016, May 3, 2017, and August 27, 2018, ORDER the unsealing of the summary judgment record as described further herein, and REMAND the cause to the District Court for particularized review of the remaining sealed materials.

         Judge Pooler concurs in this opinion except insofar as it orders the immediate unsealing of the summary judgment record without a remand.

          Sanford L. Bohrer (Christine N. Walz, Madelaine J. Harrington, New York, NY, on the brief), Holland & Knight LLP, Miami, FL, for Intervenors-Appellants Julie Brown and Miami Herald.

          Ty Gee (Adam Mueller, on the brief), Haddon, Morgan and Foreman, P.C., Denver, CO, for Defendant-Appellee Ghislaine Maxwell.

          Paul G. Cassell (Sigrid S. McCawley, Boies Schiller Flexner LLP, Ft. Lauderdale, FL, on the brief), S.J Quinney College of Law, University of Utah, Salt Lake City, UT, for Plaintiff-Appellee Virginia L. Giuffre.

          Andrew G. Celli Jr. (David A. Lebowitz, on the brief), Emery, Celli, Brinckerhoff & Abady LLP, New York, NY, for Intervenor- Appellant Alan M. Dershowitz.

          Marc Randazza (Jay Marshall Wolman, Las Vegas, NV, on the brief), Randazza Legal Group, PLLC, Hartford, CT, for Intervenor- Appellant Michael Cernovich.

          Before: Cabranes, Pooler, and Droney, Circuit Judges.

          JOSÉ A. CABRANES, CIRCUIT JUDGE

         Intervenors-Appellants Alan M. Dershowitz ("Dershowitz"), Michael Cernovich ("Cernovich"), and the Miami Herald Company (with reporter Julie Brown, jointly the "Herald") appeal from certain orders of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge) denying their respective motions to unseal filings in a defamation suit. We conclude that the District Court failed to conduct the requisite particularized review when ordering the sealing of the materials at issue. At the same time, we recognize the potential damage to privacy and reputation that may accompany public disclosure of hard-fought, sensitive litigation. We therefore clarify the legal tools that district courts should use in safeguarding the integrity of their dockets. Accordingly, we VACATE the District Court's orders entered on November 2, 2016, May 3, 2017, and August 27, 2018, ORDER the unsealing of the summary judgment record as described further herein, and REMAND the cause to the District Court for particularized review of the remaining sealed materials.

         I. BACKGROUND

         A. Jeffrey Epstein's Conviction and the CVRA Suit

         The origins of this case lie in a decade-old criminal proceeding against financier Jeffrey Epstein ("Epstein"). On June 30, 2008, Epstein pleaded guilty to Florida state charges of soliciting, and procuring a person under the age of eighteen for, prostitution. The charges stemmed from sexual activity with privately hired "masseuses," some of whom were under eighteen, Florida's age of consent. Pursuant to an agreement with state and federal prosecutors, Epstein pleaded to 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 federal charges.

         Shortly after Epstein entered his plea, two of his victims, proceeding as "Jane Doe 1" and "Jane Doe 2," filed suit against the Government in the Southern District of Florida under the Crime Victims' Rights Act ("CVRA"). The victims sought to nullify the plea agreement, alleging that the Government failed to fulfill its legal obligations to inform and consult with them in the process leading up to Epstein's plea deal.[1]

         On December 30, 2014, two additional unnamed victims-one of whom has now self-identified as Plaintiff-Appellee Virginia Giuffre ("Giuffre")-petitioned to join in the CVRA case. These petitioners included in their filings not only descriptions of sexual abuse by Epstein, but also new allegations of sexual abuse by several other prominent individuals, "including numerous prominent American politicians, powerful business executives, foreign presidents, a well- known Prime Minister, and other world leaders," as well as Dershowitz (a long-time member of the Harvard Law School faculty who had worked on Epstein's legal defense) and Defendant-Appellee Ghislaine Maxwell ("Maxwell").[2]

         Dershowitz moved to intervene, seeking to "strike the outrageous and impertinent allegations made against him and to request a show cause order to the attorneys that have made them."[3]Exercising its authority to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter . . . on its own, "[4] the Florida District Court (Kenneth A. Marra, Judge) sua sponte struck all allegations against additional parties from the pleadings, including those against Dershowitz, and therefore denied Dershowitz's motion as moot.[5]

         The stricken allegations, however, quickly found their way into the press, and several media outlets published articles repeating Giuffre's accusations. In response to the allegations, on January 3, 2015, Maxwell's publicist issued a press statement declaring that Giuffre's allegations "against Ghislaine Maxwell are untrue" and that her "claims are obvious lies."[6]

         B. Giuffre Sues Maxwell

         On September 21, 2015, Giuffre filed the underlying action against Maxwell in the Southern District of New York. Giuffre alleged that Maxwell had defamed her through this and other public statements. Extensive and hard-fought discovery followed. Due to the volume of sealing requests filed during discovery, on August 9, 2016, the District Court entered a Sealing Order that effectively ceded control of the sealing process to the parties themselves. The Sealing Order disposed of the requirement that the parties file individual letter briefs to request sealing and 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 documents include, inter alia, motions to compel discovery, motions for sanctions and adverse inferences, motions in limine, and similar material.

         On January 6, 2017, Maxwell filed a motion for summary judgment. The parties submitted their memoranda of law and supporting exhibits contesting this motion under seal. On March 22, 2017, the District Court denied the motion in a heavily redacted 76- page opinion. Once again, the entire summary judgment record, including the unredacted version of the District Court opinion denying summary judgment, remained under seal. On May 24, 2017, Maxwell and Giuffre executed a settlement agreement, and the case was closed the next day.

         C. Motions to Intervene and Unseal

         Over the course of the litigation before Judge Sweet, three outside parties attempted to unseal some or all of the sealed material. On August 11, 2016, Dershowitz moved to intervene, seeking to unseal three documents that, he argues, demonstrate that Giuffre invented the accusations against him. On January 19, 2017, Cernovich, an independent blogger and self-described "popular political journalist, "[7] moved to intervene, seeking to unseal the summary judgment record, and Dershowitz joined his motion. On April 6, 2018, after the case had settled, the Herald moved to intervene and unseal the entire docket. The District Court granted each of these motions to intervene, but denied the related requests to unseal in orders entered November 2, 2016, May 3, 2017, and August 27, 2018, respectively.

         The Appellants timely appealed from each of the orders denying their respective motions to unseal. Although each Appellant seeks the release of a different set of documents, all argue that the District Court failed to analyze the documents individually or properly apply the presumption of public access to court documents. We therefore ordered that the appeals be heard in tandem and held argument on March 6, 2019.

         On March 11, 2019, we issued an order to show cause why we "should not unseal the summary judgment motion, including any materials filed in connection with this motion, and the District Court's summary judgment decision."[8] The parties timely filed their responses.

         II. DISCUSSION

         There are two categories of sealed material at issue in these appeals: (1) the summary judgment record, which includes the parties' summary judgment briefs, their statements of undisputed facts, and incorporated exhibits; and (2) court filings made in the course of the discovery process and with respect to motions in limine. In this Opinion, we explain that our law requires the unsealing of the summary judgment materials and individualized review of the remaining sealed materials.

         While the law governing public access to these materials is largely settled, we have not yet adequately addressed the potential harms that often accompany such access. These harms are apparent. Over forty years ago, the Supreme Court observed that, without vigilance, courts' files might "become a vehicle for improper purposes."[9] Our legal process is already susceptible to abuse. Unscrupulous litigants can weaponize the discovery process to humiliate and embarrass their adversaries. Shielded by the "litigation privilege, "[10] bad actors can defame opponents in court pleadings or depositions without fear of lawsuit and liability. Unfortunately, the presumption of public access to court documents has the potential to exacerbate these harms to privacy and reputation by ensuring that damaging material irrevocably enters the public record.

         We therefore take the opportunity to describe the tools available to district courts in protecting the integrity of the judicial process, and emphasize the courts' responsibility to exercise these powerful tools. We also caution the public to critically assess allegations contained in judicial pleadings.

         A. Standard of Review

         When reviewing a district court's decision to seal a filing or maintain such a seal, "we examine the court's factual findings for clear error, its legal determinations de novo, and its ultimate decision to seal or unseal for abuse of discretion."[11]

         B. The Summary Judgment Materials

         With respect to the first category of materials, it is well-settled that "documents submitted to a court for its consideration in a summary judgment motion are-as a matter of law-judicial documents to which a strong presumption of access attaches, under both the common law and the First Amendment."[12] In light of this strong First Amendment presumption, "continued sealing of the documents may be justified only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim."[13]

         In this case, the District Court erred in 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" because "summary judgment was denied by the Court."[15] In assigning a "lesser presumption" to such materials, the District Court relied on a single sentence of dicta from our decision in United States v. Amodeo.[16] We have since clarified, however, that this sentence was based on a "quotation from a partial concurrence and partial dissent in the D.C. Circuit . . . [and] is thus not the considered decision of either this court or the D.C. Circuit."[17] In fact, we have expressly rejected the proposition that "different types of documents might receive different weights of presumption based on the extent to which they were relied upon in resolving [a] motion [for summary judgment]."[18]

         Second, in contravention of our precedent, the District Court failed to review the documents individually and produce "specific, on- the-record findings that sealing is necessary to preserve higher values."[19] Instead, the District Court made generalized statements about the record as a whole.[20] This too was legal error.

         Finally, upon reviewing the summary judgment materials in connection with this appeal, we find that there is no countervailing privacy interest sufficient to justify their continued sealing. Remand with respect to these documents is thus unnecessary. Accordingly, and to avoid any further delay, [21] we order that the summary ...


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