Giuffre V. Maxwell S/ Ty Gee Case 18-2868, Document 141
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Case 18-2868, Document 141, 03/15/2019, 2519388, Page1 of 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): ______________________________________18-2868 __ _______________Caption [use short title]_____________________ Motion for: ____________________________________________to Reconsider and Vacate Court's Order to __ ______________________________________________________Show Cause and March 13 Order to Produce Sealed __ ______________________________________________________Materials, and to Hold the Orders in Abeyance __ Set forth below precise, complete statement of relief sought: Order to Show Cause and March 13 Order should be ________________________________________________________ Giuffre v. Maxwell ______________________________________________________reconsidered and vacated __ ________________________________________________________ ________________________________________________________ ________________________________________________________ ________________________________________________________ MOVING PARTY:______Defendant_________________________________Ghislaine Maxwell OPPOSING PARTY:_______________________________Plaintiff Virginia L. Giuffre _____________ ___Plaintiff ___Defendant ___Appellant/Petitioner ___Appellee/Respondent MOVING ATTORNEY:________________________________Ty Gee ___ OPPOSING ATTORNEY:__________________________Paul Cassell ______________ [name of attorney, with firm, address, phone number and e-mail] ______________________Haddon, Morgan and Foreman,__________________________________P.C. _______________________________________________________________S.J. Quinney College of Law at the University of Utah ________________________________________________________150 E. 10th Avenue, Denver, CO 80203 _______________________________________________________________383 S. University Street, Salt Lake City, UT 84112-0730 ________303.831.7364;[email protected] _______________________________________________________________801.585.5202; [email protected] Court- Judge/ Agency appealed from: _________________________________________________________________________________________Hon. Robert W. Sweet, District Judge (S.D.N.Y.) Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUCTIONS PENDING APPEAL: ✔ Has movant notified opposing counsel (required by Local Rule 27.1): Has this request for relief been made below? ___Yes ___No ___Y es ___No (explain ):__________________________ Has this relief been previously sought in this court? __ _Yes ___No _______________________________________________ Requested return date and explanation of emergency: ________________ _____________________________________________________________The motion requests that post argument orders be held in abeyance pending resolution Opposing counsel’s position on motion: _____________________________________________________________of the motion. ___Unopposed ___Opposed ___Don’t Know _____________________________________________________________ Does opposing counsel intend to file a response: _____________________________________________________________ ___Yes ___No ___Don’t Know Is oral argument on motion requested? ___Yes ___No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? ___ Yes ___No If yes, enter date:_______________________________________________________March 6, 2019 Signature of Moving Attorney: _________________________________s/ Ty Gee Date:__________________3/15/2019 Service by: ___CM/ECF✔ ___Other [Attach proof of service] Form T-1080 (rev.12-13) Case 18-2868, Document 141, 03/15/2019, 2519388, Page2 of 27 IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT VIRGINIA L. GIUFFRE, Plaintiff-Appellee, v. GHISLAINE MAXWELL, Defendant, v. No. 18-2868 SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants Appellee Maxwell’s Motion to Reconsider and Vacate the Court’s Order to Show Cause and March 13 Order to Produce Sealed Materials, and to Hold the Orders in Abeyance Pending Disposition of This Motion Appellee Ghislaine Maxwell, through her attorneys Haddon, Morgan and Foreman, P.C., moves the Court (1) to reconsider and vacate its Order to Show Cause and its Order of March 13, 2019, to Produce Sealed Materials, and (2) to hold in abeyance the Orders until the disposition of this Motion. Case 18-2868, Document 141, 03/15/2019, 2519388, Page3 of 27 Introduction The panel’s Order to Show Cause and March 13 Order directing the appellees to produce the sealed and redacted summary judgment papers that were not part of the joint appendix suggest the panel intends to supplant the district court in determining whether the summary-judgment papers should be unsealed. We respectfully submit that the panel is acting well outside and contrary to the Supreme Court and this Court’s own precedents. The question before the panel is whether the district court abused its discretion in denying motions to unseal court filings. If the Court concludes the district court abused its discretion, the remedy is remand to the district court for further proceedings consistent with the Court’s directions. That consistently and without exception has been the relief this Court has afforded appellants successfully challenging an order denying a motion to unseal. In the event this Court determines the district court abused its discretion in denying the unseal motions, the only means to adequately protect the compelling interests at stake is to remand to the district court. It is that court—not the Second Circuit—that authorized the discovery into the sexual and other private acts and history of the parties and non-parties based on Ms. Giuffre’s representations about the relevance of the discovery. And it is the district court—not this Court—that 2 Case 18-2868, Document 141, 03/15/2019, 2519388, Page4 of 27 has the ability to balance the public’s interest in access to the discovery in court filings against Ms. Maxwell’s and the non-parties’ compelling interests. This is an extraordinary case. Ms. Giuffre for more than a decade has actively pursued publicity and money for her story of alleged child sex trafficking. She has publicly accused numerous private and public individuals of having sex with her. When Ms. Maxwell, a private figure, denied Ms. Giuffre’s accusation that she was involved in the alleged sex trafficking, Ms. Giuffre sued her for “defamation.” In an expansive fishing expedition she then used the discovery process to coerce Ms. Maxwell and dozens of non-parties to disclose to her highly sensitive, embarrassing and confidential information about their personal lives, including information about their consensual sexual activities with their significant others. To persuade the district court to permit her intrusive discovery, Ms. Giuffre’s counsel readily agreed to the restrictions on disclosure imposed by the protective order. Now, having secured this sensitive, embarrassing and confidential information with the protective order, Ms. Giuffre, with the aid of the Miami Herald, is seeking to make public all the information she secured with the district court’s authority and assistance. If Ms. Giuffre prevails in opening up all the sealed and redacted information, not only will she be able to continue pursuing 3 Case 18-2868, Document 141, 03/15/2019, 2519388, Page5 of 27 publicity for profit, but also she will be able to engage in the prurient trafficking of others’ private, personal and confidential information in service of her ongoing business of selling her exotic and false story. By using unsealed judicial documents, she will be insulated from any recourse by those whose privacy interests she has destroyed in unsealing and then publicizing their information. The Supreme Court was correct that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 599 (1978). The panel lacks the context and familiarity with the facts, the parties and the non-parties to adequately protect the compelling privacy interests at stake, and it will be unable to narrowly tailor an order that balances the presumptive right of access and the compelling interests of the parties and non-parties. Accordingly the panel should vacate the Order to Show Cause and the March 13 Order, decide the appeals and, if appropriate, remand the matters to the district court for further proceedings. To the extent expedition is required, the panel has the authority to direct the district court to act promptly—as it did in Lugosch1—on the unseal motions. 1Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). 4 Case 18-2868, Document 141, 03/15/2019, 2519388, Page6 of 27 Factual Background Two related appeals are pending before the panel. The appeals were consolidated for oral argument, which was held on March 6, 2019. Appeal No. 18-2868. This is the appeal at bar. In April 2018, nearly a year after the underlying defamation action was settled and the case closed, Intervenors- Appellants Julie Brown and Miami Herald Media Company’s (collectively, “Miami Herald”) moved to make available to the public all sealed and redacted court filings. District Judge Sweet held