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Case 20-2413, Document 10-9, 07/30/2020, 2896538, Paget of 17
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COURT
NEW YORK
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Plaintiff,
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v.
15 CV 7433 (LAP)
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Remote Zoom Conference
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Defendant.
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New York, N.Y.
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July 23, 2020
11:30 a.m.
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Before:
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District Judge
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APPEARANCES
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Attorney for Plaintiff
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Attorney for Defendant
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(The Court and all parties appearing via Zoom)
THE COURT: Are we ready to begin or is there anyone
else we're waiting for? OK.
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So
counsel for
pinpointing
exceedingly
it easy for
let's begin. I wanted to start out by thanking
organizing the docket entries by motion, by Doe, by
the references to the Does and the like. It was
helpful to the Court and really a model of making
the Court.
My law clerk is on the call and I'm going to invite
him to correct me if I make any mistakes in going over charts
when we go document by document.
To remind us where we are in the process of unsealing
materials from
v Maxwell, the Court is to:
One, evaluate the weight of the presumption of public
access to the materials;
Two, identify and evaluate the weight of any
countervailing interests; and
Three, determine whether the countervailing interests
rebut the presumption.
The Court acknowledges that the presumption of public
access attaches to judicial documents, that is, to documents
filed in connection with a decided motion or to papers that are
relevant to the Court's exercise of its inherent supervisory
powers. The documents at issue here relate to discovery
motions previously decided by Judge Sweet, and so the Court
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concludes that they are judicial documents to which the
presumption of public access attaches. Because the motions are
discovery motions, the presumption is somewhat less weighty
than on a dispositive motion but is nevertheless important to
the public's interest in monitoring federal courts' exercise of
their Article III powers.
The motions at issue today mention Does 1 and 2, the
first long line of nonparties mentioned throughout the sealed
materials. Pursuant to the protocol set out in docket
no. 1044, these individuals were given notice of the motion to
unseal and given the opportunity to request the material that
pertains to them and to object to its unsealing. Neither Doe
requested the material or lodged an objection to unsealing.
The Court notes that the names of Does 1 and 2, portions of
their deposition transcripts, and portions of the Palm Beach
police report ascribed to them have already been made public.
Also, Doe 1 gave a press interview about the subject matter of
this action.
Also pursuant to the protocol, the parties were
permitted to comment on the motion to unseal, and defendant
Maxwell has lodged objections to unsealing. In her objections,
Ms. Maxwell relies on several countervailing interests, the
most weighty of which are that the material concerns personal
matters that, if released, might lead to annoyance or
embarrassment, that the material was abusively filed or is
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untrustworthy, and that the material concerns the subject of z,
criminal investigation.
With respect to the argument that the material
constitutes personal information which might lead to annoyance
or embarrassment if unsealed, 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.
With respect to the argument that the material was
abusively filed or is untrustworthy, again, Ms. Maxwell
proffers few specifics. That some of the exhibits to the
motion papers might not have been technically required on the
motion does not make the papers abusively filed. That
Ms. Maxwell's lawyers did not cross-examine some of the
witnesses relied on does not make the witnesses' testimony too
unreliable to be unsealed. In any event, the Court is dubious
that such a fine-toothed comb review is required to evaluate
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the public interest in access to these papers. Thus, the Court
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finds that these interests are entitled to little weight under
the facts of this case.
Finally, that the material relates to a person now
known to be under criminal investigation, Ms. Maxwell, is not
entitled to much weight here. Again, Ms. Maxwell has relied on
ipsi dixits and has not explained how the sealed material, if
released, could, as she posits, "inappropriately influence
potential witnesses or victims." Again, the Court finds that
this interest is entitled to little weight under the facts of
this case.
As should be clear from the above, the 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. Accordingly,
those papers shall be unsealed.
The Court also notes that several of the documents
sealed on these motion papers have already been made public,
and so those documents will not be discussed.
Also, personal identifying information as to any
person mentioned in the documents and the names of nonparties
other than Does 1 and 2 and other portions related to such
nonparties' specific conduct will be redacted from the
materials being unsealed. Disclosure of the additional
nonparty names will await notice to those parties and an
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opportunity for them to be heard.
I won't repeat this caveat as to each document but
will only comment when it is not applicable. So unless there's
a specific comment, personal identifying information should be
redacted and the names of the other Does not yet identified.
Consistent with the protocol, the Court will now
announce its findings with respect to the sealed documents
relating to Does 1 and 2 that are the subject of this motion to
unseal. For ease of reference, as counsel knows, the Court
will proceed in the order of the documents listed on Exhibit A,
that is docket no. 1068-1.
Docket entry 143. Plaintiff's motion to compel
defendant to answer deposition questions. Unseal subject to
the caveat which I won't keep saying.
144. Plaintiff's declaration of Ms. McCawley in
support of the motion. Unseal.
144-1. Exhibit 1. Page 21 of Ms. Maxwell's April 22,
2016 deposition. Unseal.
144-2. Additional pages of Ms. Maxwell's April 22,
2016 deposition. Unseal.
Same thing for 144-4.
Same thing for 144-5.
Same thing for 144-6.
Same thing for 144-7.
149. Defendant's response to the motion. Unseal.
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150. Declaration of Mister -- how does he say it,
Mr. Pagliuca? Say it again.
MS. MENNINGER: Pagliuca.
THE COURT: Mr. Pagliuca in opposition to the motion
to compel. Unseal.
150-1. Additional pages from Ms. Maxwell's April 22,
2016 deposition. Unseal.
152. Plaintiff's reply memorandum of law on the
motion. Unseal.
153. Ms. McCawley's declaration in support of the
motion to compel. Unseal.
I'm sorry. I'm going to go back to 152 for a minute.
Unseal the portions summarizing Doe l's public statements.
Those appear on page 6. Unseal portions summarizing deceased
nonparties' public statements. Page 6. OK.
Continuing on. 153-1. Additional deposition
excerpts. Unseal.
164. Defendant's motion to compel all attorney-client
communications and work product put at issue by plaintiff and
her attorneys. Unseal.
165. Declaration of Ms. Menninger in support of that.
That can be unsealed in full because there are no -- there is
no material within the caveat in the document.
165-3. Exhibit C. This is a copy of a motion to join
in Jane Doe 1 and Jane Doe 2 files in court. That document is
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already public.
165-8. Excerpts from Ms.
deposition taken
in the Dershowitz matter on January 16, 2016. Unseal.
165-10. Copy of e-mail correspondence. Unseal.
165-11. Excerpts from Ms.
deposition,
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May 3, 2016. Unseal.
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184. Plaintiff's response in opposition to the
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motion. Unseal the portions relating to Does 1 and 2 which
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appears on page 3.
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185. Ms. McCawley's declaration in opposition. That
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can be unsealed in full because there is no material included
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in the caveats in the document.
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185-2. Copy of Jane Doe's no. 3 and 4 corrected
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joinder motion. Already filed in public.
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185-3. Response to the motion to intervene. Already
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filed in public.
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185-11. Various deposition excerpts from
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Ms.
deposition. The pages unsealed by the Second
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Circuit should, of course, remain unsealed.
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185-13. It's a copy of Ms. I
II May 30, 2016
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affidavit. That can be unsealed in full.
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185-14. Copy of deposition excerpts from Mr. Cassell.
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Unseal.
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185-15. Copy of a transcript of the Scarola/Edwards
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interview of April 7, 2011. Unseal in full. The document is
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already public
185-16. Copy of common interests agreement. Unseal.
194. Ms. Menninger's declaration in support of the
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motion to compel. Unseal in full.
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194-3. Excerpts of Ms.
May 3, 2016
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deposition. Unseal.
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172. Plaintiff's motion to exceed the presumptive ten
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deposition limit. That may be unsealed. Obviously subject to
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the caveat.
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173. Ms. McCawley's declaration in support. Unseal
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173-5. May 18, 2016 deposition transcript of Doe 162.
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Pages released by the Second Circuit, of course, will remain
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sealed -- will remain unsealed. Let me say it again. The
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pages unsealed by the Second Circuit, of course, remain
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unsealed and further unsealing awaits notice.
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173-6. Excerpts from Ms. Maxwell's April 22, 2016
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deposition. Same thing. Pages unsealed by the Second Circuit
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remain unsealed. The portions of the deposition relating to
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Does 1 and 2 which appear pages 71, 72, 73, and 218 shall be
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unsealed.
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189. Response in opposition to the motion. Unseal
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everything except for the reaction
I'm sorry, the redaction
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on page 5 pending further nonparty notice.
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190. Ms. Menninger's declaration in opposition. That
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can be unsealed in full.
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190-1. Excerpts from Ms. IIIIIIIII deposition taken
on May 3, 2016. Unseal everything except for the inadvertently
included letter on page 2.
203. Response in support of the motion. The portions
relating to Does 1 and 2 which appear at pages 2, 5, and 6 may
be unsealed.
204. Ms. McCawley's declaration in support. Unseal.
204-1. Doe no. 162's deposition transcript. The
pages unsealed by the Second Circuit will, of course, remain
unsealed and the remainder of the document remains sealed until
notice to the nonparty.
204-2. It's Doe no. 151's rough deposition transcript
excerpts. The pages unsealed by the Circuit will remain
unsealed. The remainder will await notice to that Doe.
204-3. Deposition of John Doe 1. Unseal in full.
211. That's the reply to the motion. The portions
mentioning Does 1 and 2 which appear at pages 2, 5, and 6 may
be unsealed.
212. Ms. Schultz's declaration in support of the
motion. The portions mentioning John Does 1 and 2 which appear
at page 2 may be unsealed.
212-1. Doe no. 162's deposition transcript excerpts,
pages unsealed by the Circuit will remain unsealed.
212-2. Doe 151's final deposition transcript
excerpts. The pages unsealed by the Circuit will remain
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unsealed
212-3. Doe 1's deposition transcript excerpt. Unseal
in full
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222 -- I'm sorry. 224. It's the reply on the motion.
The portions relating to Does 1 and 2 which appear at page 2
may be unsealed.
199. That's a motion for an extension of time to
complete depositions. That's open in any event.
228. The response in opposition to the motion.
Unseal.
229. Ms. Menninger's declaration in opposition.
Unseal.
221 -- 229-1. Excerpts of the deposition of Doe
no. 151. Hold until notice to that Doe.
229-2. The billionaire playboy's club book
manuscript. The pages unsealed by the Circuit will remain
unsealed.
229-4. Excerpts of plaintiff's deposition of May 3,
2016. Unseal the pages released by the Circuit.
229-10. This is correspondence released in the case
between Ms. Maxwell and Jeffrey Epstein from January 2015.
Unseal in full.
229-11. Notices of deposition and a subpoena for Doe
84 -- Will, I can say these two names, right?
THE LAW CLERK: Yes, Judge.
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THE COURT: Joe Recarey and Michael Reiter together
with a letter of production from Ms. McCawley. Unseal in full.
248. Reply memorandum of law in support of the
motion. We're going to await the notice to the Doe on that
one.
249. Ms. McCawley's declaration in support of the
motion. Unseal in full.
249-4. Ms. McCawley's correspondence with opposing
counsel. The portions relating to Does 1 and 2 which appears
at pages 4 and 5 can be unsealed.
249-13. Defendant's Rule 26 disclosures. The
portions relating to Does 1 and 2 shall be unsealed.
249-14. Ms. Schultz's correspondence with opposing
counsel. Unseal.
249-15. Same. Same.
230. Defendant's motion to reopen the deposition of
plaintiff
It may be unsealed. However, the
information currently redacted in the document relating to
plaintiff's medical history shall remain redacted for obvious
reasons.
235. Ms. Menninger's declaration in support of the
motion. Unseal.
235-4. The deposition of Ms.
The pages
released by the Second Circuit of course remain unsealed. The
portions relating to Doe 1 and 2 which appears -- which appear
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at pages 122, 126, 134, and 138 shall be unsealed.
235-5. Ms. Menninger's declaration. The medical
records on pages 5 to 12 should remain sealed; otherwise,
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unseal.
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235-6 are medical records. They shall remain sealed.
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235-7. Excerpts from the -- a deposition of Doe
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no. 131. That will remain sealed pending notice to the Doe.
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235-8. Production letters from Ms. Schultz to
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Ms. Menninger. The exhibits will remain sealed.
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235 -- and they are medical records.
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235-9. Excerpts from the May 26, 2016 deposition of
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Dr. Stephen Olsen. The material relating to plaintiff's
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medical issues shall remain sealed. The other material in the
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deposition, for example, how the doctor takes notes, how the
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doctor gets new patients, how the doctor writes prescriptions
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and that sort of thing may be unsealed.
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235-10. Production letters from Ms. McCawley to
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Ms. Menninger. Unseal.
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235-12. The June 1, 2016 errata sheet relating to
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m-.
deposition. Unseal.
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235-13. Plaintiff's third revised disclosure pursuant
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to Federal Rule 26. Unseal.
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260. Ms. McCawley's declaration in opposition to the
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motion. The redactions which are medical information will
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remain.
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260-1. Will, is this only the authorization or is it
the authorization plus material?
THE LAW CLERK: Judge, I believe it's the
authorization on the first two pages and then the medical
records on subsequent pages.
THE COURT: Thank you. The medical record
authorization may be unsealed. The subsequent pages which
constitute medical records will remain sealed.
260-2. Dr. Lightfoot's June 27, 2016 correspondence.
That may be unsealed.
267. The reply on the motion. The information
relating to plaintiff's medical history shall remain sealed.
268. Ms. Menninger's declaration in support of the
motion. Unseal.
268-1. Pages from plaintiff's medical records. They
shall remain sealed.
268-2. Excerpts from the deposition of Doe no. 67.
The pages unsealed by the Second Circuit will remain sealed -
I'm sorry, will remain unsealed and the remainder of the
document will remain sealed pending notice to the relevant
Does.
Counsel, I will ask you to confer and to prepare the
documents for unsealing pursuant to this order and post the
documents within a week on the docket sheet as documents
unsealed pursuant to the Court's order of July 23 or something
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like that.
Counsel, do you have any questions?
MS. MENNINGER: Your Honor, on behalf of Ms. Maxwell I
would ask if we could have the opportunity for a brief stay in
order to seek relief in the Second Circuit. There is not a
certain mechanism for doing that in an unsealing context but
know that the Brown Court at the conclusion of their opinion
stated their intent for that panel to maintain jurisdiction
over this case for purposes of any appeals taken from an
unsealing order and so we would ask for two weeks, if we could,
to seek relief in the Second Circuit.
THE COURT: Ms. McCawley.
MS. McCAWLEY: Yes, your Honor. We obviously believe
that the material should be unsealed as quickly as possible so
we would prefer to obviously have the material unsealed.
MS. MENNINGER: Your Honor, if I may briefly, to add
to my record. While I understand and respect the Court's
ruling, there have been some significant changes with respect
to my client's position since we concluded briefing. In
particular, and perhaps known to everyone listening to this,
while we were speaking about a potential ongoing criminal
investigation at the time we submitted our brief, since that
time Ms. Maxwell has been indicted and a trial has been
scheduled for next July in another courtroom in the Southern
District. So while we were not able to provide specifics
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necessarily with regard to what witnesses might be relevant to
any such criminal trial, now we are in a vastly different
position and certainly have great concerns about our client's
ability to seek and receive an impartial and fair trial and
jury given the intense media scrutiny around anything that is
unsealed or anything that happens in this or any of the related
cases. So while we -- your Honor had mentioned at the
beginning of this ruling that there was a lack of specifics on
the front of the pending criminal investigation, I think there
may be the ability to provide a lot more specifics about that
at this time and certainly I think it's an issue that we would
like to, if we may, have a brief amount of time to submit. It
is important either to this Court's analysis or to the Second
Circuit.
THE COURT: So what are you asking me for?
MS. MENNINGER: Your Honor, I ask for two weeks if we
could to file an emergency appellate motion in the Second
Circuit and ask them to stay any further release.
THE COURT: I will give you a week to file the motion.
In the meantime I will still ask counsel to confer and to
prepare the papers for release. If the Court of Appeals has
not ruled on your motion in a week, then you can let me know.
(Court reporter dropped off the call; called back in
and read record to the point where call dropped)
THE COURT: After that, I asked counsel to confer
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generally along the outlines of the proposal in Ms. Maxwell's
letter of April 3, docket no. 1045 to propose the next
chronological set of motions to be considered for unsealing.
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also asked counsel to confer on ways to make the process more
efficient, less time consuming, and to make it stretch out or
over a shorter time period. For example, it occurs to me we
could shorten the briefing time. We could reduce the number of
pages of briefing, for example, to ten pages each side total or
something like that. I'll ask counsel to confer and to report
back within a week.
Finally, going forward, as you all saw, Exhibit A to
Ms.
motion -- I said the number of it earlier but
that was exceedingly helpful. If you would like to propose a
joint exhibit similar to that as we go forward with everybody's
positions, I would welcome it.
Is there anything else you want to ask, counsel?
MS. McCAWLEY: No, your Honor.
MS. MENNINGER: No, your Honor. Not from Ms. Maxwell.
Thank you.
THE COURT: Thank you and I'll just tell you lawyers
again how useful the work you did in organizing the docket
entries was. Thank you for it again.
MS. MENNINGER: Thank you, your Honor.
THE COURT: Good afternoon, counsel. Thank you.
MS. McCAWLEY: Good afternoon. Thank you. (Adjourned)
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