Case 1:19-cv-03377-LAP Document 133 Filed 06/12/20 Page 1 of 3
Howard M. Cooper
E-mail:
[email protected]
June 12, 2020
Via ECF
Honorable Loretta A. Preska
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007-1312
Re:
Giuffre v. Dershowitz, Case No.: 19-cv-03377-LAP and
Giuffre v. Maxwell, Case No.: 15-cv-07433-LAP
Dear Judge Preska:
I write pursuant to Rule 2.A. of Your Honor’s Individual Practices.
Defendant Alan Dershowitz (“Professor Dershowitz” or “Dershowitz”) respectfully
requests a pre-motion conference with Your Honor in the above matters to discuss his request that
this Court compel Plaintiff Virginia Giuffre (“Plaintiff”) and others to produce to him all filings
and discovery materials, including third-party discovery, from Giuffre v. Maxwell, Civil Action
No. 15-07433 (“Maxwell”).1 As Your Honor is aware from our initial conference, the discovery in
Maxwell overlaps substantially with the discovery in Plaintiff’s suit against Professor Dershowitz,
and its production will promote efficiency and avoid duplication in this case. Plaintiff does not
dispute this but takes the position that the Protective Order in Maxwell prevents her from producing
the requested materials. Likewise, third-party witnesses from whom Professor Dershowitz has
sought discovery have already or are expected to raise similar objections. Professor Dershowitz
has explained that he is prepared to abide by any applicable court order subject only to reserving
the right to seek relief from the Court as to particular items if appropriate, a right which would
exist in any event. Through this letter, Professor Dershowitz seeks leave to file a motion in both
his case and in Maxwell allowing him access to all discovery materials and pleadings in Maxwell.
Of course, if the Court prefers a different procedural route to accomplish what he requests, then
Professor Dershowitz will follow the Court’s directive.
Professor Dershowitz will be brief with respect to the obvious. It is plainly evident that
Plaintiff has made relevant here all of the discovery from Maxwell. Without limitation, and by
example only, Plaintiff has alleged, falsely, that circumstances surrounding Jeffrey Epstein made
it obvious to Dershowitz that she was being “trafficked” to him. As we understand it, virtually
every witness in Maxwell was asked about their percipient knowledge of Epstein’s alleged actions.
All of this, of course, is separate and aside from discovery in Maxwell directed at establishing
Plaintiff’s lack of credibility and false allegations, which we understand to be substantial. For
example, we have a good faith basis to believe that friends, family members and others who were
deposed in Maxwell gave testimony likely to undermine Plaintiff’s credibility here. Likewise,
1
Todd & Weld LLP will handle these matters for Dershowitz in both cases.
Todd & Weld LLP • Attorneys at Law • One Federal Street, Boston, MA 02110 • T: 617.720.2626 • F: 617.227.5777 •
www.toddweld.com
Case 1:19-cv-03377-LAP Document 133 Filed 06/12/20 Page 2 of 3
Hon. Loretta A. Preska
June 12, 2020
Page 2 of 3
Plaintiff put her reputation (which she contended was destroyed by Ghislaine Maxwell) and her
damages at issue in Maxwell. Dershowitz is entitled to discover and use that evidence here.
Dershowitz can easily surpass the standard required to access materials under the
Protective Order. When there has been “reasonable reliance” on a protective order, modification
is justified only upon a showing of an improvidently granted order or “some extraordinary
circumstance or compelling need.” S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 (2d Cir. 2001)
(quoting Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979)). However, “where
the deponent or party could not have reasonably relied on the protective order to continue
indefinitely, ‘a court may properly permit modification of the order.’” In re Ethylene Propylene
Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 318 (D. Conn. 2009) (quoting
TheStreet.com, 273 F.3d at 231). To evaluate the reasonableness of reliance, courts consider:
(1) the scope of the protective order; (2) the language of the order itself; (3) the
level of inquiry the court undertook before granting the order; and (4) the nature of
reliance on the order. Additional considerations that may influence a court's
decision to grant modification include: the type of discovery materials the collateral
litigant seeks and the party’s purpose in seeking a modification.
EPDM, 255 F.R.D. at 318; see also Tradewinds Airlines, Inc. v. Soros, No. 08 CIV. 5901
(JFK), 2016 WL 3951181, at *2 (S.D.N.Y. July 20, 2016). The characteristics of the Maxwell
Protective Order justify modification because reliance on comprehensive and indefinite protection
from this Protective Order was not reasonable. First, the Protective Order is a blanket order that
covers all private documents without consideration as to whether a specific document actually
contains justifiably confidential material. See Exhibit A. Second, the Protective Order contains
language permitting future modifications. See id. at ¶ 14 (allowing modification by the Court “at
any time for good cause”). Third, the Court entered a verbatim version of Maxwell’s proposed
order with no individualized determination for specific documents and allowed parties to make
their own designations of confidentiality, widening the gap between the Court’s judgment and
materials that are actually confidential. See id. at ¶ 8; Exhibit B. Finally, parties likely relied on
the Protective Order not in exchange for sacrificing a privilege or right of refusal, but instead only
to hide embarrassing information. Dershowitz could access the same material through discovery
but pursues modification of the Protective Order as a more efficient path. EPDM, 255 F.R.D. at
324 (“Certainly if the litigant could access the same materials and deposition testimony by
conducting its own discovery, it is in the interest of judicial efficiency to avoid such duplicative
discovery.”).
Each of these factors gives credence to the conclusion that reliance on the Protective Order
was not reasonable, rendering modification an appropriate mechanism for the Court to use to
facilitate discovery. However, even if reliance was reasonable, Dershowitz is able to show a
“compelling need” under Martindell because his subpoenas for the same information will result in
duplicative and wasteful discovery. Soros, 2016 WL 3951181, at *2 (“Without modification of the
Todd & Weld LLP • Attorneys at Law • One Federal Street, Boston, MA 02110 • T: 617.720.2626 • F: 617.227.5777 •
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Case 1:19-cv-03377-LAP Document 133 Filed 06/12/20 Page 3 of 3
Hon. Loretta A. Preska
June 12, 2020
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Protective Order, the same discovery materials will likely have to be reviewed and re-produced,
needlessly causing duplication of effort and extra expense.”).
The following is a list of objections or responses based upon the Protective Order in
Maxwell which Professor Dershowitz has received pursuant to his document and subpoena
requests. Professor Dershowitz anticipates additional similar objections to his other subpoenas.
Alan Dershowitz’s First Request for Production of Documents to Virginia L.
Giuffre, Request 2: All Documents and Communications concerning Your
allegations in the Complaint in this Action. Plaintiff responded: “[A]ssuming the
Court grants leave, Plaintiff will produce to Defendant the document production
received from Ghislaine Maxwell in the Giuffre v. Maxwell matter, which is
currently subject to the protective order in that case.” See Exhibit C.
Alan Dershowitz’s Subpoena to Paul G. Cassell, Request 14: All Documents
previously produced by You in Giuffre v. Maxwell, 15-cv-07433 (S.D.N.Y.). Cassell
“also objects because these documents are under seal by court order in the U.S.
District Court for the Southern District of New York.” See Exhibit D.
General objections based on confidentiality and privacy: Plaintiff and nonparties Paul Cassell, Stanley Pottinger, and Boies Schiller Flexner LLP all generally
object to document and subpoena requests based on confidentiality and privacy
obligations which would naturally encompass objections based on the Maxwell
Protective Order. Plaintiff makes similar objections in her interrogatory responses.
Professor Dershowitz has conferenced these matters with Plaintiff in good faith and it is
necessary for the Court to resolve them. Plaintiff does not oppose the Court granting Dershowitz
access under the Protective Order in the Maxwell case to any discovery or other filings from that
case the Court deems are relevant to issues in dispute in this case. If the Court deems that any
additional discovery or filings from the Maxwell matter are relevant to this case and orders their
production, Plaintiff will of course comply with that Court order.
Respectfully submitted,
/s/ Howard M. Cooper
Howard M. Cooper
cc:
All counsel of record, via ECF
Todd & Weld LLP • Attorneys at Law • One Federal Street, Boston, MA 02110 • T: 617.720.2626 • F: 617.227.5777 •
www.toddweld.com