Giuffre v. Maxwell

Filing 892

OPINION re: #793 LETTER MOTION to Seal Document Portions of February 16, 2017 Hearing Transcript addressed to Judge Robert W. Sweet from Meredith Schultz dated March 27, 2017 filed by Virginia L. Giuffre, #763 MOTION to Strike Document No. #725 filed by Virginia L. Giuffre, #550 MOTION to Intervene and Unseal filed by Michael Cernovich d/b/a Cernovich Media: This opinion resolves ECF Nos. 550, 763, and 793. The motion of the Intervenor to intervene is granted. The motion to modify the Protective Order is denied. (Signed by Judge Robert W. Sweet on 5/2/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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VIRGINIA GIUFFRE ,
Plaintiff ,

15 Civ . 7433

-againstOPIN I ON
GHISLAINE MAXWELL,
Defendant .

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A P P E A R A N C E S:
Counsel for Virginia Giuffre
BOIES, SCHILLER & FLEXNER LLP
401 East Las Olas Boulevard, Suite 1200
Fort Lauderdale, FL 33301
By :
Sigrid S . Mccawley , Esq .
Meredith L . Schultz , Esq.

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Counsel for Ghislaine Maxwell

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HADDON, MORGAN AND FOREMAN, p • c •
150 East Tenth Avenue
Denver , CO 80203
By :
Laura A. Menninger , Esq .
Jeffrey S . Pagliuca, Esq.
Counsel for Michael Cernovich
RANDAZZA LE GAL GROUP PLLC
1 00 Pearl Street, 14th Floor
Hartford, CT 06103
By:
Jay M. Wo l man , Esq.

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Sweet, D . J .

Michael Cernovich ("Cernovich" or the "Intervenor")
has moved under Rule 24(b) to intervene in this action and to
modify the protective order entered in this action in order to
unseal particular documents submitted in connection with the
motion of defendant Ghislaine Maxwell (" Maxwell " or the
"Defendant") for summary judgment to dismiss the complaint of
plaintiff Virginia L . Giuffre ("Giuffre" or the "P l aintiff").
Based upon the conclusions set forth below , the motion to
intervene is granted , and the motion to modify the protect i ve
order is denied.

I .

Prior Proceedings

This defamation action was commenced on September 21 ,
2015 and has been intensely l i t i gated as reflected by over 880
docket entries as of this date . Famil i ar i ty with the prior
opinions is assumed . See Giuffre v . Maxwell , No . 15 Civ . 7433
(RWS), 2016 WL 831949 (S.D . N.Y . Feb. 29 , 2016) ; Giuffre v .
Maxwell , No . 15 CIV. 7433 (RWS) , 2016 W 254932
L

(S . D.N . Y. Jan .

20 , 2016); Giuffre v. Maxwell , No. 15 Civ . 7433 (RWS)

(S.D.N . Y.

May 2 , 2016) ; see also March 22 , 2017 Redacted Opinion on
Defendant ' s Motion for Summary Judgment , ECF No. 872 .
2

At issue is the truth or falsity of statements made by
the Plaintiff which have been character i zed as lies by the
Defendant , giving rise to this defamation action . Among the
statements at issue are a l legations of sexua l abuse of minors .
Discovery has proceeded i nvolving these issues and those persons
alleged l y involved .

II .

The Protective Order

The Protect i ve Order was entered on March 17 , 2016 and
provided confidentiality for documents , mater i als and/or
information so designated by the parties , together with
procedures relating to the designations and any challenges to
the designations among other provisions . I t also prov i ded that
the Protective Order would not affect the use of confidential
information at trial .

III .

The Motion to Intervene is Granted

Based upon the conclusions reached in the November 2 ,
2016 order granting intervent i on to Al an Dershow i tz , the motion

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of Cernovich to intervene to modify the Protective Order is
granted . 1

IV.

The Motion to Modify the Protective Order is Denied

The Protective Order provided confidentiality for
information the parties determine would "improperly annoy ,
embarrass or oppress any party , witness or person providing
discovery in this case ." Protective Order, ECF No . 62 , p . 1 .
Intensive discovery has proceeded without challenge to a
significant number of designations , principally by the
Pl aint i ff . The Intervenor seeks to unsea l the materials
submitted in connection with the Defendant's motion for summary
judgment. The opinion denying that motion for summary judgment
has been filed under seal , and includes a direction , in
accordance with the agreed - upon procedure, that the parties
submi t an opinion that redacts any information that is subject
to the Protective Order . That opinion , containing uncontested
redactions , has been filed , ECF No. 872. The redactions to the

The Plaintiff had moved to strike Cernovich's opposition to her
notice of intent to request certa i n redactions on the basis that
Cernovich had not been granted standing as an Intervenor . That
motion , ECF No. 763 , is now denied as moot.
1

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opinion omit only the confidential fact contentions of the
parties resulting from the discovery . 2

In the Second Circuit , there is a "strong presumpti on
against the modification of a protective order , and orders
should n ot be modified absent a showing of improvidence in the
grant of the o rder or s ome extraordinary circumstance or
compelling need . " In re Teligent, Inc. , 640 F.3d 53, 59 (2d Cir.
2011)

(affirming denial of motion to lift confidentiality

provisions of the protective order) . Indeed, "once a discovery
protecti ve order is in place, the applicab l e standard required
plaintiff seeking to modify the order to show improvidence in
the grant of the protective order or some extraordinary
circumstance or compelling need." In re September 11 Litigati on ,
262 F . R.D. 274

(S . D. N. Y. 2009) . This Court has , three times,

found the issues presented in the action warrant a Protective
Order , and has specifically expressed concern for its ongoing
efficacy .

The Second Circuit has been hesitant to permit
modifications that might "unfairly disturb the legitimate

The argument with respect to the summary judgment was held in
open court without objection , see Transcript of February 16 ,
2017 Hearing , ECF No . 702, at p. 16 . The Plaintiff ' s request for
redaction , ECF No. 721 and 793 , is denied .

2

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expectations of the parties or deponents ." Dorsett v. County of

Nassau , 289 F.R . D. 54 , 65 (E .D. N. Y. 2012)
and quota t ions omitted)

(internal citations

(denying motion to lift confidentiality

of report of polic in g failures surrounding the murder of a young
mother) . "It is presumptively unfair for courts to modify
protecti v e orders which assure confidentiality and upon which
the parties have reasonably relied." Id .

(internal citations and

quotations omitted) . Consequently , "the Second Circuit
determined that ' absent a showing of improvidence in the grant
of a Rule 26(c) protective order or some extraordinary
circumstance or compelling need .

. a witness should be

entitled to rely upon the enforceab ili ty of a protective order
against any third parties. '" Id.

(quoting Martindell v . Int ' l

Tel . & Tel . Corp ., 594 F.2d 291 , 296 (2d Cir. 1979)

(denying

g o vernmental access for criminal investigative purposes civil
deposition transcripts taken under a protective order).

In this case , the parties and multiple deponents have
reasonably relied on the Protective Order in giving testimony
and producing documents including evidence of assault , medical
records , and emails . See Med . Diagnostic Imaging, PLLC v .

Carecore Nat ., LLC, 2009 WL 2 1 35294 , at *4

(S . D.N.Y. 2009)

(denying motion to modify protective order because parties and

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third parties reasonably relied upon the terms of the protective
order). Third-party witnesses have done the same.

Cernovich cites no civil case in which a court
modified a protective order to give an intervenor access to
discovery information about the sexual assault of a minor,
except for a case when the intervenor was the handicapped
victim's mother. Instead, Cernovich cites authority that is
inapposite and self-evidently distinguishable.

In In re Pineapple Antitrust Litig., No. 04 MD. 1628
RMB MHD, 2015 WL 5439090 (S.D.N.Y. Aug. 10, 2015), cited by
Cernovich, the motion was granted because it was a "long-closed
civil lawsuit," not an ongoing litigation, as is the case here.
Similarly, in Bernstein v. Bernstein Litowitz Berger & Grossmann
LLP, 814 F.3d 132, 142 (2d Cir. 2016), the Court only allowed
intervention "[after parties settled the action" - not one month
prior to the commencement of trial. This action is currently
scheduled for trial in mid-May and a release of contested
confidential discovery materials could conceivably taint the
jury pool.

Further, there was "no viable basis to deny the
motion" offered in In re Pineapple, 2015 WL 5439090, at *l,
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whereas h ere , the Plaintiff has provided in oppos iti on
sufficient basis to deny the motion, including the case's status
as ongoing and near trial, and the nature of the documents
requested as sensitive, regarding sexual assault of a minor at
issue. In N . Y . Civ . Liberties Union v . N.Y.C.
F.3d 286, 298

Transit Auth.,

685

(2d Cir . 2011), the Court stated: "Accordingly, we

have recognized that ' a person's physical safety' as well as
'the privacy interests of individuals' such as witnesses, third
parties, and those investigated in connection with a legal
vio lation, may 'warrant closure.'" Here, privacy interests of
both parties and third parties warrant closure with respect to
discovery materials. In Schiller v . City of N .Y., No. 04 CIV .
7921(KMK), 2006 WL 2788256 (S.D .N.Y. Sept. 27 , 2006) , the motion
was brought by the New York Times and the Court granted the
motion while noting that the intervention "for the limited
purpose of challenging strictures on the dissemination of
information should not impede the progress of the litigation."
Id. at *3. There is no such limited purpose here.

Another case cited by Cernovich , Hartford Courant Co .
v . Pellegrino,

380 F.3d 83 ,

91 (2d Cir. 2004), is inapposite

because it involved the right of access to docket sheets wh i ch
Cernovich already has.

8

The Court recognizes that there is generally a
presumption of public access to judicial documents . The Second
Circuit has noted that where , as here, "a district court

' denied

the summary judgment motion, essentially postponing a final
determination of substantive legal rights, '
in access

the public interest

' is not as pressing. '" United States v . Amodeo , 7 1

F . 3d 1044 , 1049 (2d Cir . 1995)

(quoting In re Reporters Comm .

for Freedom of the Press , 773 F . 2d 1325, 1342 n . 3 (D . C . Cir .
1985)

(Wright , J ., concurring in part and dissenting in part))

Because of the sensitive nature of the materials designated as
confidential , involving allegations of sexual abuse and
trafficking of minors, and because we are mere weeks from
assembling a jury for trial , the importance of leaving these
materials protected by the Protect i ve Order outweighs any public
interest in their publication at this time .

The Intervenor seeks to modify the Protective Order
with respect to documents produced in discovery and referred to
in the parties' factual statements . Protection of confidential
discovery in this case is appropriate . See, e.g. , Doe v . City of

San Diego, No . 12-CV-689-MMA-DHB , 2014 WL 1921742 , at *5 (S . D.
Cal . May 14 , 2014)

(denying in part a request to unseal where

the court found the information to be of the kind that would
"gratify private spite , promote public scandal, circulate
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libelous statements , or release trade secrets " )

(internal

quotation marks and citation omitted) . To the extent that the
summary judgment decision of March 22, 2017 relied upon the
confidential fact submissions , that re l iance was set forth .

The Intervenor has not established a compelling need
for the documents obtained in discovery which undergird the
summary judgment decision.

The motion of the Intervenor to modify the Protective
Order to obtain discovery materials deemed conf i dential by the
parties is denied.

V.

Conclusion

This opinion resolves ECF Nos. 550 , 763 , and 793 .

The mot i on of the Intervenor to intervene is granted.
The motion to modify the Protective Order is denied.

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It is so ordered.

New York, NY
May V, 2017

ERT W. SWEET
U.S.D.J.

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