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Second Circuit Vacates Blanket Sealing Order in Giuffre v. Maxwell Case

Urges Media to Exercise Restraint in Covering Potentially Defamatory Allegations

By Sanford L. Bohrer and Christine N. Walz

Earlier this month, the Second Circuit reaffirmed the presumption of access to judicial documents. In an appeal filed by the Miami Herald and its reporter Julie Brown (as well as Alan Dershowitz and Michael Cernovich), the Second Circuit vacated a blanket sealing order that had the effect of shielding documents concerning litigation related to the investigation into a sex-trafficking operation allegedly run by financier Jeffrey Epstein and his associates. Brown v. Maxwell, No.18‐2868 (July 2, 2019) (Cabranes, Pooler, Droney, JJ.).


This case involves the court records from the 2015 libel lawsuit brought by Virginia Giuffre, an alleged victim of Epstein, against Ghislaine Maxwell, an associate of Epstein's. The underlying lawsuit concerned Giuffre's allegations that Maxwell had defamed her by calling her a liar. (This case was previously summarized in detail after the oral argument.) In that case, the District Court issued a protective order that allowed the parties to unilaterally designate material as "Confidential." The protective order required that any party seeking to file confidential information submit a motion to seal. In the months that followed, the parties filed numerous motions to file documents under seal, and the District Court granted each one.

In August 2016, the District Court entered a more extensive sealing order that allowed the parties to file any document under seal without first filing a motion to seal in order "[t]o reduce unnecessary filings and delay." More than one hundred and fifty separate filings were submitted under seal or redacted. The sealed documents include motions and memoranda of law, court orders, and hearing transcripts, among other documents.

Second Circuit Decision

The Second Circuit held that the District Court failed to conduct the requisite particularized review when ordering the sealing of the materials at issue. As a result, it decided to unseal the summary judgment documents (with limited redactions) and to remand the case to the District Court for a particularized review of the remaining sealed materials.

The Miami Herald has covered Jeffrey Epstein, his alleged victims, and the prosecution of his alleged crimes for over four years. The on-going investigation seeks to determine whether Epstein's victims were heard by prosecutors and whether Epstein escaped more serious consequences because of his wealth and political connections. In connection with this investigation, the Miami Herald and investigative reporter Julie Brown intervened in the District Court and moved to unseal the entire docket on April 6, 2018. This motion was denied. The District Court had also previously denied the earlier unsealing motions filed by Alan Dershowitz and Michael Cernovich. The sealing order issued by the District Court emphasized, in broad strokes, the privacy interests of the litigants, notwithstanding recognition that the alleged victim – Ms. Giuffre – consented to unsealing.

The Miami Herald (as well as Dershowitz and Cernovich) appealed the order, arguing that public and press had a right to the documents under the common law and the First Amendment. The Miami Herald also argued that, at minimum, the documents should be remanded to the District Court for a document-by-document analysis.

The Reporters Committee for Freedom of the Press filed an amici brief, on behalf of itself and a coalition of 32 news media organizations. That amici brief again emphasized the significant public interest in access to the sealed summary judgment records and argued that the District Court erroneously dismissed that interest. In addition, the amici brief argued that generalized privacy interests, such as those relied upon by the District Court, cannot support the sealing of the summary judgment records.

In the opinion of the Court, written by Judge Cabranes, the Second Circuit:

  • Reiterated 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" and that "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;"
  • Clarified that judicial documents are those documents that "would reasonably have the tendency to influence a District Court's ruling on a motion or in the exercise of its supervisory powers, without regard to which way the court ultimately rules or whether the document ultimately in fact influences the court's decision" and that "all documents submitted in connection with, and relevant to, such judicial decision‐making are subject to at least some presumption of public access;"
  • Found that the District Court erred in assigning a lesser presumption of access to the summary judgment materials because summary judgment was denied by the Court and because it based its sealing order on generalized statements about the record as a whole, rather than an individualized review of the documents at issue;
  • Ordered the release of a minimally redacted version of the summary judgment record be made accessible on the Court of Appeals docket (upon the issuance of the mandate); and
  • Ordered that the District Court conduct an individualized review of the sealed materials and unseal all documents for which the presumption of public access outweighs any countervailing privacy interests.

Additionally, the Second Circuit included in its opinion a "cautionary note" about statements made in the records to be unsealed in which it "urged the media to exercise restraint in covering potentially defamatory allegations" and "caution[ed] the public to read such accounts with discernment." It is unclear from the decision whether this note was made based on the Court's specific concerns about the documents to be unsealed, in response to concerns raised by the parties in the underlying litigation about allegedly defamatory statements contained in the record, or based on a more generalized concern about false statements made in court filings and press reports about those statements.

Judge Pooler concurred in the opinion except to the extent it ordered the immediate unsealing of the summary judgment record without remand.

Ghislaine Maxwell has filed a petition for rehearing by the panel and en banc. Those petitions are pending before the Court.

Sanford L. Bohrer and Christine N. Walz of Holland & Knight LLP represent Miami Herald and Julie Brown. Marc Randazza and Jay Marshall Wolman of Randazza Legal Group, PLLC represent Michael Cernovich. Andrew G. Celli Jr. represents Alan M. Dershowitz. Paul G. Cassell of S.J Quinney College of Law, University of Utah, Salt Lake City, UT and Sigrid S. McCawley of Boies Schiller Flexner LLP represent Plaintiff-Appellee Virginia L. Giuffre. Ty Gee and Adam Mueller of Haddon, Morgan and Foreman, P.C. represent Defendant-Appellee Ghislaine Maxwell. The Reporters Committee for Freedom of the Press filed an amici brief on behalf of itself and a coalition of 32 news media organizations.

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