Giuffre v. Maxwell

325 F.Supp.3d 428

Virginia GIUFFRE, Plaintiff,

v.Ghislaine MAXWELL, Defendant.

15 Civ. 7433

United States District Court, S.D. New York.

Signed August 27, 2018

Counsel for Interveners Julie Brown & Miami Herald Media Company: HOLLAND & KNIGHT LLP, 31 West 52^nd Street, New York, NY 10019, By: Christine N. Walz, Esq., Sanford L. Bohrer, Esq.

Counsel for Plaintiff Virginia Giuffre: BOIES SCHILLER & FLEXNER LLP, 401 E. Las Olas Boulevard, Suite 1200, Fort Lauderdale, FL 33301, By: Sigrid S. McCawley, Esq., Meredith L. Schultz, Esq., BOIES SCHILLER & FLEXNER LLP, 333 Main Street, Armonk, NY 10504, By: David Boies, Esq., EDWARDS POTTINGLER LLC, 425 North Andrews Avenue, Suite 2, Fort Lauderdale, FL 33301, By: Bradley J. Edwards, Esq., S.J. QUINNEY COLLEGE OF LAW, UNIVERSITY OF UTAH,¹ 383 University Street, Salt Lake City, UT 84112, By: Paul G. Cassell, Esq.

Counsel for Defendant Ghislaine Maxwell: HADDON, MORGAN AND FOREMAN, P.C., 150 East 10th Avenue, Denver, CO 80203, By: Laura A. Menninger, Esq., Jeffrey S. Pagliuca, Esq., Ty Gee, Esq.

Counsel for Intervenor Michael Cernovich: RANDAZZA LEGAL GROUP, PLLC, 100 Pearl Street, 14^th Floor, Hartford, CT 06103, By: Jay M. Wolman, Esq.

Counsel for Intervenor Alan Dershowitz: EMERY CELLI BRINCKERHOFF & ABADY, LLP, 600 Fifth Avenue, 10^th Floor, New York, NY 10020, By: Andrew G. Celli, Jr., Esq.

OPINION

Sweet, D.J.

Table of Contents

I. Prior Proceedings...433

II. The Motion to Intervene is Granted...437

III. The Issues and the Applicable Standards...437

IV. The Motion to Unseal the Discovery Documents is Denied...442

V. The Summary Judgment Judicial Documents...442

VI. The Motion to Unseal the Summary Judgment Judicial Documents is Denied...444

VII. Conclusion...447

Third-party proposed intervenors The Miami Herald Media Company (the "Miami Herald") and investigative journalist for the Miami Herald Julie Brown ("Brown") (collectively, the "Intervenors"), have moved pursuant to Federal Rule of Civil Procedure 24 to intervene in this defamation action brought by plaintiff Virginia Giuffre ("Giuffre" or the "Plaintiff") against defendant Ghislaine Maxwell ("Maxwell" or the "Defendant") and to unseal all of the documents previously sealed in this action.

Resolution, clarity and certainty, sometimes delayed, are hallmarks of the judicial process. The present motions challenge certain resolutions of this settled and closed action and raise significant issues, the conduct of the discovery process, the enforceability of confidentiality agreements and protective orders, the privacy rights of parties and witnesses, the public interest and the role of the media, and the transparency of the judicial process.

This defamation action from its inception in September 2015 to its settlement in May 2017 has been bitterly contested and difficult to administer because of the truth or falsity of the allegations concerning the intimate, sexual, and private conduct of the parties and of third persons, some prominent, some private. The instant motions renew that pattern and require a reexamination of the effort to provide an appropriate resolution of the issues presented by the litigation.

Upon this reexamination and the conclusions set forth below, the motion to intervene is granted, and the motion to unseal is denied as to the documents produced in the discovery process and as to the summary judgment judicial documents based on the difficult balancing of the conflicting principles described below.

I. Prior Proceedings

In early 2011 Giuffre, in an interview with journalist Sharon Churcher ("Churcher") which was published in two British tabloids, described Maxwell's alleged role as someone who recruited or facilitated the recruitment of young females for sexual activity with Jeffrey Epstein ("Epstein"), that she, Giuffre, had been interviewed by the Federal Bureau of Investigation ("FBI") in 2011, and that she had discussed Maxwell's involvement in the described sexual abuse. Maxwell issued a statement denying this account on March 9, 2011.

On January 1, 2015, Giuffre moved to join two alleged victims of Epstein who had initiated an action under the Crime Victims' Rights Act against the United States, purporting to challenge Epstein's plea agreement. Giuffre's joinder motion (the "Joinder Motion") included numerous details about Giuffre's sexual abuse and listed the perpetrators of her abuse. Giuffre repeatedly named Maxwell in the Joinder Motion as being personally involved in the sexual abuse and sex trafficking scheme created by Epstein.

On January 3, 2015, Maxwell again issued a statement, responding to the allegations made in connection with Giuffre's Joinder Motion. Maxwell stated that Giuffre's allegations "against Ghislaine Maxwell are untrue" and that Giuffre's "claims are obvious lies" (the "January 3 Statement").

Giuffre filed her complaint in this action on September 21, 2015 (the "Complaint"), setting forth her claim of defamation by Maxwell arising out of the Maxwell January 3 Statement. Giuffre alleged she was the "victim of sexual trafficking and abuse while she was a minor child" and that Maxwell "facilitated" Giuffre's sexual abuse and "wrongfully" subjected Giuffre to "public ridicule, contempt and disgrace" by denying Giuffre's allegations. Giuffre further alleged that over the course of a decade she had been sexually abused at "numerous locations" around the world with prominent and politically powerful men.

Vigorous litigation was undertaken by the parties, as demonstrated by the 950 docket entries as of August 27, 2018, including a motion to dismiss the Complaint which was denied by opinion of February 29, 2016 (the "February 29 Opinion"). The primary issue presented was the truth or falsity of the January 3 statement issued by Maxwell, which in turn challenged all the previous statements made to the press by Giuffre and in Giuffre's Joinder Motion. This resulted, understandably, in a lengthy and tumultuous discovery process resulting in 18 hearings and 15 decisions.

After hearing counsel, it was determined that fact discovery would be completed on July 29, 2016,² see Proposed Discovery and Case Management Plan, Aug. 1, 2016, ECF No. 317. Both parties early on recognized the extreme sensitivities and privacy interests arising out of an effective discovery process involving the truth or falsity of the allegations at issue. The consequent protective order was entered into by the parties on agreement, and endorsed by the Court on March 17, 2016 (the "Protective Order"), and the sealing order was ordered by the Court on August 9, 2016 (the "Sealing Order"), for the purpose of protecting the discovery and dissemination of confidential information to be exchanged in this action. See Protective Order, ECF No. 62. This Protective Order allowed the parties to provide discovery on highly private and sensitive subjects without it being disclosed to the public, absent an additional order of this Court. The Protective Order served "to protect the discovery and dissemination of confidential information or information which will properly annoy, embarrass, or oppress any party, witness, or person providing discovery in this case." ECF Dkt. 62. The Protective Order applied broadly "to all documents, materials, and information, including without limitation, documents produced, answers to interrogatories, responses to requests for admission, deposition testimony, and other information disclosed pursuant to the disclosure or discovery duties created by the Federal Rules of Civil Procedure." Id. ¶ 1.

The Protective Order also provided the procedures to designate any such material as confidential, and to challenge such designations. Id. ¶¶ 8-10. Upon review by an attorney acting in good faith, the designating party was to designate certain confidential information as "CONFIDENTIAL," triggering a set of protections as to that document for the duration of the action. Id. ¶ 8. When a party filed material designated as confidential with the Court, it was to additionally file a Motion to Seal pursuant to Section 6.2 of the Electronic Case Filing Rules & Instructions for the Southern District of New York. Id. ¶ 10. Absent consent of the producing party, designated documents "shall not ... be disclosed."³ Id. ¶ 5.

At the conclusion of the case, the parties could elect either to return the confidential material to the designating party or destroy the documents. Id. ¶ 12. The Protective Order specified that it "shall have no force and effect on the use of any CONFIDENTIAL INFORMATION at trial."Id.

From March 17, 2016 to August 9, 2016, 26 motions to seal were filed with the Court pursuant to the Protective Order, each of which were granted. On August 9, 2016, an order amended the Protective Order as follows:

To reduce unnecessary filings and delay, it is hereby ordered that letter motions to file submissions under seal pursuant to the Court's Protective Order, ECF No. 62, are granted. The Protective Order is amended accordingly such that filing a letter motion seeking sealing for each submission is no longer necessary. A party wishing to challenge the sealing of any particular submission may do so by motion.

Sealing Order, ECF No. 348. One hundred sixty-seven documents were sealed pursuant to the Sealing Order.

On August 11, 2016, Intervenor Alan Dershowitz ("Dershowitz" or "Intervenor Dershowitz") moved to unseal three documents: (1) portions of a Reply Brief submitted by Churcher in support of her motion to quash the subpoena served on her; (2) emails between Churcher and Giuffre submitted in connection with the same motion; and (3) a draft of a manuscript prepared by Giuffre submitted in connection with a motion to extend a time deadline. See Dershowitz Motion to Intervene, Aug. 11, 2016, ECF Nos. 362-64. Other than the requested documents which he sought in order to make a public statement, Dershowitz agreed to be bound by the Protective Order. See Dershowitz Decl., ECF No. 363 ¶ 30. On November 2, 2016, the motion was denied...