Giuffre Opposition

Case 20-2413, Document 22, 07/31/2020, 2897522, Page1 of 26 20-2413 United States Court of Appeals for the Second Circuit VIRGINIA L. GIUFFRE, Plaintiff-Appellee, —against— GHISLAINE MAXWELL, Defendant-Appellant, ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 15-CV-7433 (LAP) Virginia Giuffre’s Brief in Opposition to Ghislaine Maxwell’s Emergency Motion to Stay Pending Appeal or for a Temporary Administrative Stay Sigrid S. McCawley Boies Schiller Flexner LLP 401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, FL 33301 954-356-0011 Attorney for Plaintiff-Appellee Virginia L. Giuffre Case 20-2413, Document 22, 07/31/2020, 2897522, Page2 of 26 Table of Contents Introduction ................................................................................................................1 Statement of the Case and the Facts ..........................................................................3 Argument....................................................................................................................6 I. Maxwell’s Emergency Motion to Stay Is Meritless and Should be Denied. ......7 A. Maxwell’s Appeal Is Frivolous. ....................................................................7 B. Maxwell Will Not Suffer Irreparable Injury Absent a Stay. .......................15 C. The Equities Do Not Favor A Stay Pending Appeal, Which Would Injure Ms. Giuffre. .......................................................................................................16 D. The Public Interest Does Not Favor a Stay ..............................................18 II. Maxwell’s Emergency Motion to Stay Is Procedurally Improper and Should be Denied. ...............................................................................................................20 Conclusion ...............................................................................................................21 Certificate of Service ...............................................................................................22 i Case 20-2413, Document 22, 07/31/2020, 2897522, Page3 of 26 Table of Authorities Cases Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) ....................................................................... 1, 4, 5, 8 Gamble v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004) ......................................................................... 15, 16 In re Pamalat Sec. Litig., 258 F.R.D. 236 (S.D.N.Y. 2009) .........................................................................10 Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620 (2d Cir. 2018) ..................................................................................8 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) ......................................................................... 14, 18 Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002) ....................................................................................7 Nixon v. Warner Commc'ns, Inc., 435 U.S. 589 (1978) .............................................................................................12 Nken v. Holder, 556 U.S. 418 (2009) ...............................................................................................7 Paulsen v. County of Nassau, 925 F.2d 65 (2d Cir.1991) ...................................................................................18 Prescient Acquisition Grp., Inc. v. MJ Pub. Tr., 487 F. Supp. 2d 374 (S.D.N.Y. 2007) .................................................................12 Providence Journal Co. v. F.B.I., 595 F.2d 889 (1st Cir. 1979) ................................................................................15 U.S. S.E.C. v. Citigroup Glob. Markets Inc., 673 F.3d 158 (2d Cir. 2012) ..................................................................................7 United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) ....................................................................................9 United States v. Amodeo, ii Case 20-2413, Document 22, 07/31/2020, 2897522, Page4 of 26 71 F.3d 1044 (2d Cir. 1995) ......................................................................... 10, 15 United States v. Huntley, 943 F. Supp. 2d 383 (E.D.N.Y. 2013) .................................................................10 United States v. Massino, 356 F. Supp. 2d 227 (E.D.N.Y. 2005) .................................................................19 Rules Fed. R. App. P. 8 ......................................................................................................20 iii Case 20-2413, Document 22, 07/31/2020, 2897522, Page5 of 26 Introduction Nearly a year ago, this Court ordered: “In light of the District Court’s failure to conduct an individualized review of the sealed materials, it is necessary to do so now.” The Court further directed the District Court to “conduct such a particularized review and unseal all documents for which the presumption of public access outweighs any countervailing privacy interests.” Brown v. Maxwell, 929 F.3d 41, 51 (2d Cir. 2019). On July 23, 2020 the District Court, after giving Maxwell every opportunity to oppose unsealing, ordered certain limited materials, including the two depositions subject of this appeal, unsealed. Maxwell’s appeal is frivolous, and a transparent attempt to further delay the release of documents to which the public has a clear and unequivocal right to access. Everything in Maxwell’s appeal was known at the time of the argument below concerning unsealing; virtually none of it was presented to the District Court. In particular, the assertions that Ms. Giuffre or her counsel furnished Maxwell’s deposition to the Government was never made until two days ago—a week after the District Court’s decision unsealing the deposition and the day before the deposition was to be made public. The assertion that Ms. Giuffre or any of her counsel furnished Maxwell’s deposition to the Government, or any part of it, in violation of the protective order 1 Case 20-2413, Document 22, 07/31/2020, 2897522, Page6 of 26 is completely and utterly false. Maxwell’s counsel made no effort to contact us before making these serious charges; nor, as we understand it, did they make any effort to check with the Government. Whether they hoped to use these inflammatory allegations to win a brief respite from the court-ordered unsealing, or simply to distract attention from their client’s well-documented criminality, or possibly both, is unclear. What is clear is that Maxwell’s counsel made no effort to check before making their charges to this Court, or to the court below. For years, Maxwell and her cohorts have repeatedly and viciously attacked the victims of their sex trafficking, as well as the lawyers who represent them. Maxwell’s motion for reconsideration yesterday, and her present appeal, are another example of such baseless attacks.1 There is nothing in the record in the court below that supports Maxwell’s charges. If Maxwell’s counsel had raised these charges timely below, those charges would have been disposed of then. If it believes it is necessary, this Court can confirm with the Government the circumstances under which the Government obtained Maxwell’s deposition. 1 Maxwell asserts that she originally fought to have the language removed from the draft Protective Order that would have allowed counsel for Ms. Giuffre to simply give law enforcement discovery upon request. Maxwell appears to reason that if she knew law enforcement might be able to review her deposition she would have given different answer or in her words “proceeded in a different fashion.” Maxwell Br. at 4. Maxwell appears to live by a set of different rules because a deponent is always required to testify truthfully under oath regardless of whether there is a Protective Order in the case and regardless of whether there is a possibility that law enforcement could review a deposition. 2 Case 20-2413, Document 22, 07/31/2020, 2897522, Page7 of 26 The remainder of Maxwell’s arguments concerning her entitlement to a stay pending appeal are equally meritless, and the Court should dispense with Maxwell’s delay tactics by denying this motion and allowing the contested materials to be unsealed, consistent with the public’s right to access judicial documents under the First Amendment and the common law. Statement of the Case and the Facts On September 21, 2015, Virginia Giuffre filed a complaint alleging that Ghislaine Maxwell defamed her by characterizing Ms. Giuffre’s accusations of sexual assault and trafficking against Maxwell “obvious lies.” Dkt. 1 ¶ 30.2 Plaintiff sought to prove her defamation claim by proving that Maxwell’s statements were false, that Maxwell did indeed sexually assault and traffic her, and that she made her false statements with actual malice. After a long period of discovery, consisting of voluminous motion practice, testimony, and documents, the parties settled the case just days before the four week trial was scheduled. Much of the discovery record, however, remained under seal. The Miami Herald eventually filed a motion to intervene in the matter and to unseal the district court docket pursuant to its efforts to provide the public with the full scope of Jeffrey Epstein’s sex trafficking operation. The District Court denied 2 Citations to “DE” refer to this Court’s docket, and citations to “Dkt.” refer to the District Court docket. 3 Case 20-2413, Document 22, 07/31/2020, 2897522, Page8 of 26 the motion, but this Court reversed, unsealing the summary judgment record itself and remanding the matter to the District Court, which was tasked with “conduct[ing] an individualized review of the sealed materials” and “unseal[ing] all documents for which the presumption of public access outweighs any countervailing privacy interests.” Brown, 929 F.3d at 51. Upon remand, the District Court tasked the parties with developing an unsealing protocol, and eventually issued a protocol that involved noticing nonparties mentioned in sealed documents about the potential for unsealing, and providing those nonparties with an opportunity to object. Dkt. 1044. The parties began with noticing J. Doe 1 and J. Doe 2, and selected the first five sealed, resolved motions in which either J. Doe 1 or J. Doe 2 is mentioned as the first set of documents subject to the individualized review that this Court mandated. J. Doe 1 and J. Doe 2 did not object to unsealing any document in which they are mentioned. On June 10, 2020, however, Maxwell herself objected to unsealing the first five motions at issue in any capacity. Dkt. 1057. She contended that the motions, including the briefing and exhibits that were filed with those motions, should remain sealed in their entirety. One of those exhibits is a transcript of Ghislaine Maxwell’s first deposition in this matter. Others include excerpts of the deposition of J. Doe 1. These are the deposition materials at issue in this appeal. On July 23, 2020, after full briefing by Maxwell, Ms. Giuffre, and the Miami 4 Case 20-2413, Document 22, 07/31/2020, 2897522, Page9 of 26 Herald, and three weeks after Maxwell’s arrest, the District Court ruled that the public has a right of public access to the first five motions and the documents filed in connection with those motions, and that under the standard that this Court set forth in Brown v. Maxwell, Maxwell had failed to provide specific, compelling reasons for keeping any of those documents permanently sealed. DE 10-9 (Tr. of July 23, 2020 Ruling) at 2:20–5:16. The District Court accordingly ordered that those documents be unsealed with limited redactions within one week. Id. at 14:22–25. Only after Judge Preska stated her ruling did Maxwell’s counsel bring up the “significant changes with respect to [Maxwell’s] position since [the parties] concluded briefing”: Maxwell’s arrest on July 2, 2020, three weeks prior. Id. at 15:18–5:25. The District Court said that it would give Maxwell’s counsel a week to file an appeal. Id. at 16:19. Maxwell’s counsel did not, however, file an appeal in a week as the District Court ordered. Instead, Maxwell filed a letter six days later on July 29 in which she baselessly accused Ms. Giuffre’s counsel of improperly sending the Government her sealed deposition and asking the district court to reconsider its decision to unseal the deposition materials, citing “new, intervening and significant facts”—Maxwell’s arrest (that, again, occurred on July 2). Dkt. 1078 at 2. Maxwell then asked the District Court to stay the release of the deposition materials for two more days. The District Court swiftly denied Maxwell’s “eleventh-hour 5 Case 20-2413, Document 22, 07/31/2020, 2897522, Page10 of 26 request,” stating that the court had already considered the countervailing interest of a criminal investigation into Maxwell and highlighting that Maxwell had ample opportunity to supplement her briefing in light of her arrest, yet chose to do so for the first time only “moments after the Court had made its decision to unseal the relevant documents.” Dkt. 1079 (July 29, 2020 Order) at 2 n.1. Maxwell’s series of “eleventh-hour” sideshows is a clear, transparent effort to delay the unsealing process, which this Court set into motion over a year ago when it remanded this matter to the district court on July 3, 2019. Brown v. Maxwell, No. 18-2867 (2d Cir. July 3, 2019), ECF No. 213. Maxwell’s delay tactics have resulted in the complete denial of the public’s right of access to a single sealed document until the District Court’s ruling last week. Enough is enough. Maxwell had an opportunity to explain how, in her opinion, the criminal proceedings against her warranted total closure of every question asked and answer provided during her deposition, but she failed. She is not entitled to any further delay, and a stay pending appeal is not warranted. Argument Maxwell cannot meet her burden of making a strong showing that she is entitled to a stay pending appeal. Further, her emergency motion is procedurally improper, and should therefore be disregarded in its entirety. 6 Case 20-2413, Document 22, 07/31/2020, 2897522, Page11 of 26 I. Maxwell’s Emergency Motion to Stay Is Meritless and Should be Denied. To justify a stay pending an appeal, the proponent bears the burden of (1) making a “strong showing” that reversal on appeal is “likely,” (2) showing that, absent a stay, they will suffer irreparable injury, (3) demonstrating that the equities favor them, and (4) showing that a stay would be in the public interest. Nken v. Holder, 556 U.S. 418, 426 (2009). Maxwell fails to meet her burden on all four fronts. A. Maxwell’s Appeal Is Frivolous. A movant seeking a stay pending appeal is required to make a “strong showing” that reversal on appeal is “likely.” Nken, 556 U.S. at 426. The District Court’s ruling as to the deposition material is subject to an abuse of discretion standard and was a correct and careful application of remand instructions from this very Court. Maxwell’s criticisms of the District Court’s order have no likelihood of success on appeal, and are instead frivolous.3 “When reviewing a district court’s decision to seal a filing or maintain such a 3 Maxwell cites the incorrect standard and minimizes the burden that she must meet in demonstrating that reversal on appeal is likely. Maxwell cites Mohammed v. Reno, for the proposition that she need only show a “substantial possibility” of success, which is “something less than 50 percent.” 309 F.3d 95, 102 (2d Cir. 2002). But Mohammed is inapplicable here, as the holding of that case is limited to “the context of a stay of removal of an alien pending appeal of an adverse habeas decision” due to the nature of the injury at stake—deportation. Id. Instead, Maxwell must demonstrate a likelihood of success on the merits. U.S. S.E.C. v. Citigroup Glob. Markets Inc., 673 F.3d 158, 163 (2d Cir. 2012) (assessing “likelihood of success on the merits in [the stay applicant’s] effort to overturn the court’s ruling”). 7 Case 20-2413, Document 22, 07/31/2020, 2897522, Page12 of 26 seal, ‘[the Second Circuit] examine[s] the court’s factual findings for clear error, its legal determinations de novo, and its ultimate decision to seal or unseal for abuse of discretion.’” Brown, 929 F.3d at 47 (emphasis added). “A district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions.” Klipsch Grp., Inc. v. ePRO E-Com. Ltd., 880 F.3d 620, 627 (2d Cir. 2018) (internal quotation marks omitted). Accordingly, to succeed on appeal, Maxwell would have to demonstrate that the District Court’s ruling that the public has a presumptive right of access to the deposition materials, and that Maxwell’s countervailing interests to keep the deposition materials sealed do not outweigh that presumption, was an abuse of discretion. Maxwell will be unable to do so. As a preliminary matter, Maxwell has had ample opportunities to provide specific, compelling reasons for closure as to particular documents, and has continually failed to do so. Her last-ditch effort to convince this Court otherwise is a worn-out distraction. In fact, this is just but one attempt—of which there are many—at using vague arguments describing high-level categories of countervailing interests to keep the docket in this case under seal. See, e.g., Dkt. 1020 (Dec. 5, 2019 Letter) (providing the Court with a list of broad and vague 8 Case 20-2413, Document 22, 07/31/2020, 2897522, Page13 of 26 categories of reasons for maintaining nearly all of the motion papers in this matter under seal); Brown v. Maxwell, No. 18-2868, ECF No. 149 (2d Cir. Mar. 19, 2019) (listing in a cursory fashion several reasons that the summary judgment materials should remain under in response to the Second Circuit’s order to show cause); DE 10-9 at 15:18–5:25 (rejecting Maxwell’s argument for sealing documents by reasoning that she “proffers little more than her ipsi dixit”). That Maxwell has yet again resorted to a last-ditch attempt to shield documents speaks volumes unto itself. Regardless, for the same reasons that Maxwell’s attempt to prevent unsealing of the instant documents has failed before, it fails yet again. The District Court correctly found that Maxwell failed to meet her burden of demonstrating “that the interests favoring non-access outweigh those factoring access.” United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995) (“Amodeo I”). Maxwell concedes that the deposition materials at issue are entitled to a presumption of public access, as she must. Maxwell Br. at 18. She contends, however, that several countervailing interests outweigh the presumption of public access. Putting aside that she raised several arguments in her emergency motion that she did not raise below, the District Court did not abuse its discretion in determining that the purported countervailing interests that Maxwell identified should be afforded little to no weight. 9 Case 20-2413, Document 22, 07/31/2020, 2897522, Page14 of 26 “[B]road allegations of harm unsubstantiated by specific examples or articulated reasoning” are insufficient to justify the sealing of judicial documents. In re Pamalat Sec. Litig., 258 F.R.D. 236, 244 (S.D.N.Y. 2009). Further, “countervailing privacy interests are at the lowest for matters that have far-reaching ‘public ramifications’ and where there exists ‘a fair opportunity for the subject to respond to any accusations contained therein.’” United States v. Huntley, 943 F. Supp. 2d 383, 387 (E.D.N.Y. 2013) (quoting United States v. Amodeo, 71 F.3d 1044, 1051 (2d Cir. 1995)). Here, the District Court addressed and rejected each of Maxwell’s meritless countervailing interests: 1) Maxwell’s argument that the release of personal information would lead to embarrassment was an “ipsi dixit”; 2) much of what Maxwell wants sealed is “mostly nontestimony about behavior that has been widely reported in the press” and that is “far outweighed by the presumption of public access”; 3) the instant materials were not abusively filed; and 4) “that the material relates to a person now known to be under criminal investigation” is not entitled to much weigh. DE 10-9 at 4:4-7, 10-19; 5:4-9. The District Court’s determination that none of Maxwell’s purported countervailing interests should be afforded much weight, and that any weight to which those interests are entitled could not outweigh the presumption of public access to the deposition materials, was not an abuse of discretion. Maxwell’s argument that her now-pending criminal trial somehow alters this 10 Case 20-2413, Document 22, 07/31/2020, 2897522, Page15 of 26 balance is wrong. To start, the District Court addressed this very issue, something Maxwell delayed in raising until after the District Court had already ruled on the unsealing of the deposition materials, despite having three weeks to inform the District Court of Maxwell’s arrest and explain its effect on the unsealing process. As the District Court noted: Ms. Maxwell was arrested on July 2, 2020—that is, three weeks prior to the Court’s July 23 decision to unseal the materials at issue. To the extent that they relate to the Court’s balancing of interests in the unsealing process, the issues that Ms. Maxwell raises in her request were surely plain the day that Ms. Maxwell was apprehended. Ms. Maxwell, however, did not seek to supplement her objections to unsealing despite ample time to do so. Dkt. 1079 (July 29, 2020 Order) at 2 n.1. That Maxwell waited until the last minute to raise this issue demonstrates that it was merely a ploy to delay compliance with Judge Preska’s July 23 ruling. She had her chance to raise this argument and failed to do so. Further, Maxwell has, yet again, failed to provide any explanation as to how the deposition materials will affect the criminal proceedings against her in a concrete, specific way, especially in light of the jury selection process that is specifically aimed at ensuring the selection of neutral jurors and a criminal defendant’s right to a fair trial. And “a generalized concern of adverse publicity concerning a public figure is [not] a sufficiently compelling reason that outweighs the presumption of access.” Prescient Acquisition Grp., Inc. v. MJ Pub. Tr., 487 F. 11 Case 20-2413, Document 22, 07/31/2020, 2897522, Page16 of 26 Supp. 2d 374, 375 (S.D.N.Y. 2007).4 Maxwell’s reliance on Nixon v. Warner Communications, Inc. is misplaced. In Nixon, the Supreme Court explained that the case involved a “unique element” justifying the denial of the media’s motion to obtain the tapes—namely, a “congressionally prescribed avenue of public access” to the sealed materials through the Presidential Recordings Act. 435 U.S. 589, 603 (1978). The Supreme Court weighed this alternative means of public access heavily, stating that “[t]he presence of an alternative means of public access tips the scales in favor of denying release.” Id. at 606. Here, there is no alternative means of accessing the deposition materials—they are discovery materials in this very case and this case is therefore the only way to obtain access to them. Permanent sealing of the deposition materials would eviscerate the public’s constitutional right of access to them. Nixon, therefore, demonstrates only the strength of the public’s interest in the deposition 4 Maxwell’s contention that Ms. Giuffre violated the case’s Protective Order, which is not a countervailing interest and is not something that Maxwell raised with the District Court prior to her letter requesting reconsideration, is meritless for the reasons explained above. Maxwell’s brief also misleadingly asserts that Ms. Giuffre’s counsel have violated the case’s Protective Order in the past. Maxwell Br. at 10-11 n.2. That is false. It is true that the District Court, sua sponte, did initially find that Plaintiff’s successor counsel in the Giuffre v. Dershowitz matter were not entitled to possess the Maxwell discovery materials under the terms of the Maxwell Protective Order, and the court ordered those materials destroyed. But, it stayed that order two days later. Plaintiff’s successor counsel submitted an explanation for how and why successor counsel had obtained those materials in good faith, and the court has not reinstated its destruction order. Instead, the court has ordered the parties in that matter to “confer orally with an eye toward reaching a reasonable accommodation concerning Mr. Dershowitz’s requests for various filings and discovery materials from Giuffre v. Maxwell.” Giuffre v. Dershowitz, 19 Civ. 3377 (S.D.N.Y. July 22, 2020), ECF No. 152. 12 Case 20-2413, Document 22, 07/31/2020, 2897522, Page17 of 26 materials, and the important of their release in this matter. Next, the District Court’s rejection of Maxwell’s countervailing interest of “reasonable reliance on the judicial promise of confidentiality” was well within its discretion. To start, Maxwell cannot vindicate the rights of nonparties in this action, such as J. Doe 1, and her attempt to do so is clearly an attempt to keep damning testimony sealed forever. The District Court put into place an intricate protocol by which nonparties are afforded an opportunity to object to unsealing and assert any right to privacy that they contend they have. See Dkt. 1044. J. Doe 1 chose not to object, and Maxwell cannot now step in and attempt to shield J. Doe 1’s deposition testimony under the guise of protecting their “reasonable reliance on the judicial promise of confidentiality.” See Maxwell Br. at 23. And the fact that Ms. Giuffre’s counsel agreed to a protective order in the case, see id. at 24, is evidence of absolutely nothing—protective orders are routine parts of litigation. The fact that one was agreed upon by all parties does not establish that Maxwell reasonably relied on the protective order in answering every single question asked of her during her first deposition. But, putting that aside, the argument that Maxwell reasonably relied on a protective order in answering personal questions during her first deposition is frankly absurd. During her first deposition, the only deposition at issue in this appeal, Maxwell “refused to testify as to any consensual adult behavior and generally disclaimed any knowledge of underage 13 Case 20-2413, Document 22, 07/31/2020, 2897522, Page18 of 26 activity.” DE 10-9 at 4:8–10.5 Maxwell cannot seriously contend that she reasonably relied on the protective order in refusing to answer questions about consensual sexual activity. Finally, the District Court did not abuse its discretion in affording little to no weight to Maxwell’s purported countervailing interests in preventing the abuse of court records and files and to avoid annoyance, embarrassment, oppression, and undue burden. As the District Court correctly concluded Ms. Maxwell proffers little more than her ipsi dixit; she provides no specifics as to these conclusions. In her first deposition, which is among the documents being considered on this motion, Ms. Maxwell refused to testify as to any consensual adult behavior and generally disclaimed any knowledge of underage activity. In the context of this case, especially its allegations of sex trafficking of young girls, the Court finds that any minor embarrassment or annoyance resulting from disclosure of Ms. Maxwell’s mostly nontestimony about behavior that has been widely reported in the press is far outweighed by the presumption of public access. DE 10-9 at 4:5–16. Further, it is generally the privacy interests of “innocent third parties,” not defendants accused of serious misconduct, that “weigh heavily in a 5 In fact, this Court squarely addressed and rejected the argument Maxwell currently makes in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). This Court held that the existence of a confidentiality order did not defeat the presumption of public access to judicial documents where the order was an umbrella order and specifically contemplated that relief from its provisions could be sought at any time. 435 F.3d at 125. In this case, as in Lugosch, the protective order is an umbrella protective order that “specifically contemplates that relief from the provisions of the order may be sought at any time.” Lugosch, 435 F.3d at 125; Dkt. 62 ¶¶ 11, 14. Maxwell cannot use such an umbrella order to shield the entirety of her deposition from the public. “Given this provision, it is difficult to see how [Maxwell] can reasonably argue that [she] produced documents in reliance on the fact that the documents would always be kept secret.” See Lugosch, 435 F.3d at 125. 14 Case 20-2413, Document 22, 07/31/2020, 2897522, Page19 of 26 court’s balancing equation.” Amodeo II, 71 F.3d at 1050. Maxwell is unlikely to succeed on the merits of this appeal. B. Maxwell Will Not Suffer Irreparable Injury Absent a Stay. The gravamen of Maxwell’s argument as to irreparable injury is that denial of a stay will moot her appeal. But Maxwell has not cited a single Second Circuit case stating that the possibility that an appeal will become moot in the absence of a stay constitutes irreparable injury under the Nken standard. And even the case law that Maxwell does cite is of no help to her here, and is easily distinguishable. Providence Journal Co. v. F.B.I., is of no help to Maxwell because, unlike in this matter, the Appellant made a sufficient showing of the potential to succeed on the merits. 595 F.2d 889, 890 (1st Cir. 1979). Moreover, the district court in that case itself stated that it was “a case of initial impression wherein respectable minds might differ and (embodies) a strong public policy . . . .” Id. Here, Maxwell has failed to make a showing of a strong showing of success, and the District Court’s order demonstrates that there is no strong public policy weighing in Maxwell’s favor. Supra Section I.A. Maxwell also finds no safe harbor in Gamble v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004). That case did not involve a motion to stay an unsealing order pending appeal, and this Court in fact affirmed the District Court’s order unsealing portions of the record. Id. at 145. In any event, the confidential information at issue 15 Case 20-2413, Document 22, 07/31/2020, 2897522, Page20 of 26 was elicited by the trial judge’s “casual questioning of counsel in the course of proceedings addressing the settlement, not the adjudication, of litigation,” and the presumption of public access was weak. Id. at 143. Conversely, in this case, the deposition materials Maxwell seeks to keep sealed are judicial documents entitled to the presumption of public access that have been the subject of exhaustive motion practice, and have a high presumption of public access. See DE 10-9 at 5:12-15 (“[T]he Court finds that the countervailing interests identified fail to rebut the presumption of public access to the motions at issue and the documents filed in connection with those motions.”). In any event, the harm Maxwell alleges is entirely of her (and her counsel’s) own making, as the District Court afforded them ample time to seek relief before this Court. That Maxwell chose to engage in dilatory conduct and delay her filings (both before the District Court and this Court) should not weigh in favor of her stay application now. For the foregoing reasons, Maxwell cannot demonstrate irreparable injury justifying a stay pending appeal. C. The Equities Do Not Favor A Stay Pending Appeal, Which Would Injure Ms. Giuffre. The third factor, which concerns the balance of equities, weighs heavily against a stay. Maxwell is not the only party to this action and hers is not the only reputation at stake. As this Court knows, this lawsuit was initiated when Maxwell viciously attacked Ms. Giuffre, stating that Ms. Giuffre’s accusations against 16 Case 20-2413, Document 22, 07/31/2020, 2897522, Page21 of 26 Maxwell, who recruited her into a global sex-trafficking operation and sexually abused her for years, were “obvious lies.” Since coming forward nearly a decade ago, Ms. Giuffre has been publicly attacked and called a liar by her abusers, who include some of the world’s most powerful people, causing her to relive her trauma over and over again. In 2018, for example, Alan Dershowitz began accusing Ms. Giuffre of making up her story for money. And in late 2019, Prince Andrew, during an interview with the BBC, publicly stated that he had no recollection of ever meeting Ms. Giuffre, despite the fact that she was forced to have sex with him multiple times and the existence of a public photograph depicting Prince Andrew’s arm around the waist of an underage Ms. Giuffre. These repeated instances of defamation have not only caused Ms. Giuffre serious pain, but have likely convinced countless other victims to keep quiet. Accordingly, Maxwell’s statement that a stay would cause “no meaningful harm” to Ms. Giuffre is absurd. See Maxwell Br. at 25. Ms. Giuffre has been patiently waiting for years for the public to understand the scope of the fight that is currently sealed in this case. Much of the evidence that could vindicate her, including the statements of corroborating witnesses, is closed to the public. In fact, there have been numerous instances in which Ms. Giuffre has been unable to answer a question or to respond to a challenge to her story out of fear that her statements 17 Case 20-2413, Document 22, 07/31/2020, 2897522, Page22 of 26 would violate the protective order in this case. Preventing key evidence, including Maxwell’s and John Doe 1’s depositions, from seeing the light of day will injure her irreparably and continue to prevent her from fully responding to the constant, demoralizing attacks on her character. Ms. Giuffre cannot wait another year for vindication while this appeal, which will likely be one of many by Maxwell, remains pending in this Court. D. The Public Interest Does Not Favor a Stay The public interest unequivocally weighs against a stay of the district court’s order that the deposition materials, among other documents, are entitled to a presumption of public access. As this Court has made clear, “[o]ur public access cases and those in other circuits emphasize the importance of immediate access where a right to access is found.” Lugosch, 435 F.3d at 126 (emphasis added); see also id. (“We take this opportunity to emphasize that the district court must make its findings quickly.”). “[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991). This entire unsealing process is therefore about ensuring that the documents to which the public has a right to access are expeditiously released. See, e.g., DE 10-9 at 17:3–10 (encouraging counsel to confer on ways to make the unsealing process “more efficient, less time consuming, and to make it stretch . . . over a shorter period of time). A stay pending appeal would 18 Case 20-2413, Document 22, 07/31/2020, 2897522, Page23 of 26 directly contradict the objectives of this process and the public’s constitutional right to immediately access the documents at issue. This case is of great public interest, and rightfully so. The litigation involved voluminous documents and testimony about Jeffrey Epstein’s transcontinental sextrafficking operation and documents concerning various public agencies’ utter failure to protect and bring justice to his victims for nearly two decades. See United States v. Massino, 356 F. Supp. 2d 227, 235 (E.D.N.Y. 2005) (recognizing that law enforcement’s efforts “to stamp out organized crime in this District” were “a matter of vital public concern” and that the public had “a legitimate interest in being able to review materials that helped to ensure that the reputed boss of a notorious organized crime family will spend the rest of his natural life in a federal prison”). The public has a right to understand how and why the government failed Epstein’s victims, and the lengths to which he and his co-conspirators, including Maxwell, went to discredit and silence their victims, including Ms. Giuffre. The alleged effect that the release of Maxwell’s first deposition transcript could have on her criminal trial is overblown. In the district court, Maxwell failed to identify a single, concrete reason as to why every single line of her first deposition transcript must remain shielded from the public in perpetuity. As the District Court concluded, Maxwell relied on “ipsi dixits and [did] not [explain] how the sealed material, if released, could, as she posits, ‘inappropriately influence potential 19 Case 20-2413, Document 22, 07/31/2020, 2897522, Page24 of 26 witnesses or victims.’” DE 10-9 at 5:6–9. That is because, as the District Court recognized, in her first deposition, Maxwell actually provided very little substantive testimony and instead “refused to testify as to any consensual adult behavior and generally disclaimed any knowledge of underage activity.” Id. at 4:7–16. Maxwell has continuously failed to explain how her “mostly nontestimony” would prejudice any prospective juror. Id. at 4:13–14. And, tellingly, Maxwell provides absolutely no explanation as to why the jury selection process, which has safeguarded the integrity of countless other high profile criminal trials for many years, is not enough to ensure a fair and impartial jury. II. Maxwell’s Emergency Motion to Stay Is Procedurally Improper and Should be Denied. Maxwell’s emergency motion to this court is procedurally improper. The Federal Rules of Appellate Procedure are clear: “A party must ordinarily move first in the district court” for a “stay of the judgment or order of a district court pending appeal.” Fed. R. App. P. 8(a)(1)(A). Absent moving first in the district court, a “motion for relief . . . may be made to the court of appeals or to one of its judges” if the motion “show[s] that moving first in the district court would be impracticable.” Id. 8(a)(2)(A)(i). Maxwell both failed to move first in the District Court and to show that moving first in the district court was impracticable. The District Court’s ruling that Maxwell now appeals was issued more than a week ago, on July 23. It was Maxwell’s choice to file a letter asking for 20 Case 20-2413, Document 22, 07/31/2020, 2897522, Page25 of 26 reconsideration six days after the District Court’s ruling and one day before the deposition materials were to be unsealed. The tight timeline is again of Maxwell’s own making, and does not excuse her failure to abide by the Federal Rules of Appellate Procedure. Her “emergency” motion should be disregarded in its entirety for being procedurally improper. Conclusion For the foregoing reasons, Maxwell’s emergency motion to stay pending appeal should be denied. Dated: July 31, 2020 Respectfully Submitted, /s/ Sigrid McCawley Sigrid McCawley BOIES SCHILLER FLEXNER LLP 401 E. Las Olas Blvd., Suite 1200 Ft. Lauderdale, FL 33301 (954) 356-0011 21 Case 20-2413, Document 22, 07/31/2020, 2897522, Page26 of 26 Certificate of Service I certify that on July 31, 2020, I served a copy of this Opposition to Ghislaine Maxwell’s Emergency Motion to Stay Pending Appeal or, in the Alternative, Motion for a Temporary Administrative Stay Pending Full Consideration of the Motion to Stay via CM/ECF, which will send notification of the filing to all counsel of record. /s/ Sigrid McCawley Sigrid McCawley 22