G THE B IN EN V C R H E S A N 8 D 8 B 18 AR CE WWW. NYLJ.COM SIN VOLUME 260—NO. 74 TUESDAY, OCTOBER 16, 2018 SOUTHERN DISTRICT CIVIL PRACTICE ROUNDUP Expert Analysis Privacy Trumps Right of Access to Judicial Documents in ‘Giuffre v. Maxwell’ outhern District Judge or destroyed. The protective order Robert W. Sweet’s recent also provided expressly that it did decision in Giuffre v. Max- not have any “force and effect” on well, 2018 WL 4062649 the use of confidential information (S.D.N.Y. Aug. 27, 2018) at trial. Saddresses the press’s application After extensive discovery and By And to unseal potentially salacious Edward M. Judith L. pretrial litigation including denial Spiro Mogul documents covered by a protec- of a summary judgment motion tive order in an action concerning brought by Maxwell, the parties ‘Giuffre v. Maxwell’ allegations of sexual abuse. In Judge reached a confidential settlement Sweet’s words, the motion involved Giuffre v. Maxwell was a defama- in May 2017, the day before the “vital societal concepts, the privacy tion case brought by Virginia Giuf- case was scheduled to begin trial. rights of individuals, the judicial fre, who had alleged in the media Almost a year later, in April 2018, process to establish truth or falsity, and in court papers that she was the Miami Herald and one of its the transparency of that process, the victim of sexual abuse and reporters filed a motion to inter- and freedom of information and trafficking when she was a minor, vene in the proceedings and obtain of the press.” In ultimately decid- against Ghislaine Maxwell, who an order unsealing all of the pre- ing against unsealing, Judge Sweet Giuffre claimed had facilitated the viously sealed documents in the engaged in a concise but thorough abuse. Giuffre sued Maxwell for case, some of which pertained to review of the law in the Second Cir- defamation after Maxwell made discovery and related motions, and cuit on protective orders and the public statements denying Giuffre’s others of which had been submit- sealing of “judicial documents,” assertions and referring to Giuffre’s ted and sealed in connection with and the tension between the pub- claims as “obvious lies.” During dis- Maxwell’s unsuccessful motion for lic’s right of access and interest in covery, the parties entered into a summary judgment. Judge Sweet transparency in the legal system protective order permitting them to granted the motion to intervene, and the individual’s right to privacy. designate information produced in recognizing that intervention for discovery as confidential. The pro- the purposes of challenging a confi- tective order provided that at the dentiality order is permissible even EDWARD M. SPIRO and JUDITH L. MOGUL are principals of Morvillo Abramowitz Grand Iason & conclusion of the case, the parties years after a case is closed, but then Anello P.C. and co-authors of “Civil Practice in the could either have their confiden- denied the motion to unseal the Southern District of New York,” 2d Ed. (Thomson Reuters 2017). tial information returned to them documents. TUESDAY, OCTOBER 16, 2018 Tension Between Privacy v. Amodeo, 71 F.3d 1044 (2d Cir. such as privacy interests or public And the Public Right of Access 1995)). He went on to note that the safety, and where the sealing order The Right to Privacy. Judge Sweet presumption of access is not abso- is narrowly tailored to achieve those began his decision by reviewing the lute, and that consideration of what interests. Id. at *8. legal implications of the right to pri- weight the presumption should be Unsealing Denied vacy, discussing, in three short para- given depends on the importance of graphs, a June 18, 2018 New Yorker the material at issue to the court’s Having set forth the applicable article by Louis Menand—“Why Do exercise of its judicial function, standards, Judge Sweet went on We Care So Much About Privacy?”— weighed against the strength of to analyze separately whether the and a long series of legal decisions the countervailing interest in seal- discovery-related and summary on privacy interests ranging from ing the documents. The role of the judgment documents should be those of Guantanamo detainees, documents is measured along a unsealed, deciding with respect to users of public telephone booths, continuum from matters directly the discovery-related documents law enforcement cooperators, and affecting an adjudication to those that no presumption of access women making decisions about that come before the court “‘solely applied, and with respect to the reproductive choice. He observed summary judgment documents that that “[t]he montage of privacy law Judge Sweet engaged in a the strength of the privacy interests that has developed around these at stake outweighed the presump- concise but thorough review of disparate concepts does not lend tion of access to the documents. itself to easy determinations of pri- the law in the Second Circuit on With respect to the discovery doc- vacy rights,” but that certain areas protective orders and the seal- uments, Judge Sweet reasoned that enjoyed an undisputed right to pri- ing of “judicial documents,” and both the parties and dozens of non- vacy. He concluded that the case the tension between the public’s parties had relied on the confiden- before him required balancing of right of access and interest in tiality order in providing evidence such privacy interests against the transparency in the legal sys- concerning particularly salacious public’s right of access to judicial tem and the individual’s right to allegations related to sexual acts proceedings, rooted in the First privacy. involving non-parties’ and the Plain- Amendment and the common law. tiff’s sexual history. He found that Id. at **6-7 (citing cases). to [ensure] their irrelevance.’” Id. most of the discovery documents, The Public Right of Access to at *8 (quoting Amodeo, 71 F.3d at which were sealed during the course Judicial Documents. Judge Sweet 1049). The presumption is at its of discovery and not relied on by next explained two different but strongest for “judicial documents,” the court in rendering an adjudica- related presumptions in favor of which are documents “relevant to tion, were not “judicial documents,” access to court records: a “strong” the performance of the judicial and lay beyond the reach of any pre- form, rooted in the First Amend- function and useful in the judicial sumption of access. Accordingly, ment, and a “weaker” form ground- process.” Id. at *9 (quoting Lugosch he readily denied unsealing with ed in the common law. Under both v. Pyramid Co. of Onondaga, 435 respect to the discovery documents. forms, the public has a right of F.3d 110 (2d Cir. 2006)). Both the Judge Sweet’s consideration of access derived from the need for common law and First Amendment whether to unseal the summary the otherwise independent judiciary presumptions may be overcome by judgment documents was more to be both accountable and trans- specific findings that sealing is nec- complicated because documents parent. Id. at *7 (citing United States essary to preserve higher values, submitted on a motion for summary TUESDAY, OCTOBER 16, 2018 judgment, whether or not relied and discussed allegations of sexual “particulars” supporting “the need upon by the court in reaching its assault and trafficking of minors by for evidence gathered from the decision, are “judicial documents” both public and private persons in period from 2015 to 2016 concern- to which a presumption of access comprehensive detail, leading him ing events that took place over 15 unquestionably applies. He rejected to conclude that a strong privacy years ago.” Finding that unsealing the intervenors’ argument that the interest had been established. He would “promote scandal arising presumption was at its strongest, found that even though the Plaintiff, out of unproven potentially libel- because in this case, he had denied as well as one of the intervenors, ous statements … and defeat the the motion for summary judgment. had chosen to waive their priva- compelling privacy interests of the Citing the Second Circuit’s seminal cy interests, Maxwell and dozens parties and non-parties who relied decision in Amodeo, Judge Sweet of others had provided informa- on the Protective Order,” he con- reasoned that because denial of tion in reliance on the confiden- cluded that extraordinary circum- summary judgment postpones the tiality provided by the protective stances outweighed the presump- final determination of the parties’ tion of access sufficient to deny the substantive rights, the public’s motion to unseal. Id. at *13. The intervenors have appealed right of access is not as pressing Conclusion as when summary judgment is Judge Sweet’s decision, granted. giving the Second Circuit an The intervenors have appealed Having determined that only a opportunity to further explore Judge Sweet’s decision, giving the “lesser” presumption of access the difficult balance between Second Circuit an opportunity to applies, Judge Sweet next exam- the public’s right of access and further explore the difficult balance ined the strength of the counter- core privacy interests regard- between the public’s right of access vailing factors (under the com- ing highly salacious, unproven and core privacy interests regard- mon law), or higher values (under allegations. ing highly salacious, unproven the First Amendment inquiry) allegations. that would be served by contin- order with the understanding that ued sealing of the documents. He the information would remain identified two countervailing inter- sealed. ests or values militating against Judge Sweet cited the integrity of unsealing. the judicial process as the second Specifically, he found that the factor weighing against unsealing.