IN THE UNITED STATES COURT OF APPEALS

IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Plaintiff-Appellee, v. GHISLAINE MAXWELL, Defendant, v. SHARON CHURCHER, JEFFREY EPSTEIN, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, Intervenors-Appellants No. 18-2868 Appellee Maxwell's Response to Order to Show Cause EFTA00794214 Appellee Ghislaine Maxwell, through her attorneys Haddon, Morgan and Foreman, P.C., submits this Response to the Court's Order to Show Cause ("OTSC"). I. Objections to the Order to Show Cause. For the reasons stated in Ms. Maxwell's Motion to Reconsider and Vacate the Court's Order to Show Cause and March 13 Order to Produce Sealed Materials, we respectfully object to the Court's Order to Show Cause ("Motion to Reconsider"). In the event the Court finds on the merits that the district court abused its discretion in sealing or redacting summary judgment materials, the appropriate procedure is to remand the case and direct the court to exercise its sound discretion whether to seal or redact the materials "in light of the relevant facts and circumstances of the particular case," Nixon v. Warner Commc 'ns, Inc., 435 U.S. 589, 599 (1978). II. General objections to unsealing of summary judgment materials. As an initial matter, it is essential that the v. Maxwell parties, i.e., Ms. and Ms. Maxwell, understand precisely the scope of the OTSC. As we noted in the Motion to Reconsider, the scope is not clear because of the different references to summary judgment "materials." See Mot. to Reconsider, at 18 n.4. For purposes of this Response, we assume the Court is referring to the summary judgment motion, response, reply, and all the documents and information 1 EFTA00794215 submitted in support of and opposition to the summary judgment motion (collectively "summary judgment materials" or "materials"). And we assume the Court via the OTSC is notifying the v. Maxwell parties ("parties") that they may object to the Court's public disclosure of any sealed or redacted summary judgment materials. The OTSC is, however, incomplete because the dozens of individuals who relied on the Protective Order had no notice of the Order and have had no opportunity to respond. We interpose the following general objections: 1. All sealed and redacted summary judgment materials should remain sealed and redacted with the exception of materials that also are in the public domain. 2. We respectfully object to this Court's substitution of its discretion for that of the district court in deciding whether to unseal and unredact the summary judgment materials and in deciding the extent to which, if at all, the Protective Order or the order disclosing materials should be narrowly tailored to protect the compelling interests of Ms. Maxwell and non-parties whose information is contained or referenced in the materials. The issues implicated by the decision to unseal and unredact the materials is complex and requires familiarity with, among other things, the district court's prior oral and written rulings, the parties' arguments and representations, the statements by non-parties and their counsel, the 2 EFTA00794216 interrelationship between and among factual allegations contained in the materials. We incorporate here by reference the Motion for Reconsideration. 3. We object to the disclosure of any materials or statements therein that did not constitute, reflect or result in any judicial action or that the district court did not rely on, including (a) materials that were irrelevant or otherwise were not competent/admissible evidence under the rules of evidence and Federal Rule of Civil Procedure 56, and (b) allegations not evidentially supported as required under Rule 56. 4. We object to the disclosure of any materials submitted to the district court, and any related factual allegation, without any valid Rule 56 purpose. This includes materials Ms. counsel submitted with the sole intention that they eventually would be revealed to the public to advance her non-Rule 56-related ulterior purposes, including the purpose of gaining publicity and notoriety and creating an environment in which she could continue to profit from her allegations. 5. We object to the disclosure of any materials that were inadmissible under the rules of evidence and were the subject of multiple pending and later-filed motions to exclude their use. Virtually all of the exhibits attached to the Plaintiff's Summary Judgment Response were subject to significant in limine motions and were inadmissible for any legitimate evidentiary purpose. These objections are incorporated by reference. 3 EFTA00794217 6. We object to the disclosure of any materials that were provided by parties or non-parties pursuant to the Protective Order (Jt. App. 131-36) and the district court's decisions concerning the Protective Order (collectively, "Protective Order"), pursuant to assurances or representations by the parties' counsel that these materials would be subject to the Protective Order, or pursuant to the parties' and non-parties' reliance on the Protective Order to maintain the secrecy and confidentiality of the materials. These non-parties include numerous individuals (many public figures) falsely accused by Ms. witnesses who discredit her claims, employees of businesses, and family members and friends of Ms. 7. We object to the disclosure of any materials that were provided by non- parties under the circumstances set forth in Objection No. 6 who have not been given notice of or an opportunity to participate in litigation in this Court on whether sealed and redacted materials should be unsealed and unredacted and disclosed to the public. 8. We object to the unredaction of statements by Ms. counsel referring to and misrepresenting the content of sealed and/or redacted materials. 9. We object to the unredaction and circulation of Ms. numerous defamatory claims under the cloak of a "litigation" or "judicial privilege," thereby de facto immunizing the statements and insulating them from tort liability. 4 EFTA00794218 III. Specific objections to unsealing of summary judgment materials. DOCKET EXHIBIT OBJECTION OBJECTIONS/ # # PLEADINGS in v. 537 Proposed redactions to Def. Statement of Undisputed Facts: Numbered paragraphs 11-17, 35, 37-52 541 Proposed redactions: Numbered paragraphs 11-17, 35, 37- 52; Section 6(A) (pp. 40 et seq.); Section 6(E) (pp. 56-68) 542 Document titles redacted consistent with Appellee's objections herein 5424 D Not a judicial document, not relied upon by Court; portions stricken by Judge Marra Florida Order I Not a judicial document, not relied upon by Court L Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; repeats previously unpublicized defamatory hearsay from Plaintiff ECF 566 at 6-7, 826 at 6-7; M Not a judicial document, not relied upon by Court; N Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented, no notice of proceedings); contains defamatory statements about previously undisclosed 3rd parties accused of sex trafficking; repeats material stricken by Judge Marra O Not a judicial document, not relied upon by Court; P Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (unrepresented); inadmissible evidence contained within transcript; repeats defamatory hearsay from Plaintiff ECF 566 at 32- 39; 633 at 4; 826 at 32-39 Q Not a judicial document, not relied upon by Court; R Not a judicial document, not relied upon by Court; S Not a judicial document, not relied upon by Court; numerous non-parties' employment records; counsel not given notice of these proceedings T Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (unrepresented); inadmissible evidence contained within transcript ECF 566 at 57; 633 at 12; 826 at 57 5 EFTA00794219 U Not a judicial document, not relied upon by Court; contains proprietary employee handbook; counsel not given notice of these proceedings V Not a judicial document, not relied upon by Court; W Not a judicial document, not relied upon by Court; contains proprietary employee information; counsel not given notice of proceedings X Not a judicial document, not relied upon by Court; Y Not a judicial document, not relied upon by Court; Z Not a judicial document, not relied upon by Court AA Not a judicial document, not relied upon by Court BB Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (counsel) CC Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (counsel) EE Not a judicial document, not relied upon by Court FF Not a judicial document, not relied upon by Court C'C' Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; Inadmissible, Motions in Limine ECF 7, 6 93, 566 at 4 67 ; 633 at 9 II; 826 at 49 HH Not a judicial document, not relied upon by Court II Not a judicial document, not relied upon by Court; Deposition taken in another matter (Maxwell did not participate or cross-examine); 3rd Party Confidentiality (some represented by counsel, no notice of proceedings); contains defamatory accusations re previously undisclosed 3rd parties; repeats material stricken by Marra JJ Not a judicial document, not relied upon by Court; Deposition taken in another matter (Maxwell did not participate or cross-examine); 3rd Party Confidentiality (some represented by counsel, no notice); contains defamatory accusations re previously undisclosed 3rd parties; repeats material stricken by Judge Marra 6 EFTA00794220 KK Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; contains defamatory statements about previously undisclosed 3rd parties accusing of sex trafficking; repeats material stricken by Judge Marra 542-9 MM Not a judicial document, not relied upon by Court 586 Proposed redactions: pp. 1-27 up to III (not addressing any summary judgment issues); p. 44 ("for example" through end of paragraph); p. 48-49 (to end of section); p. 53-54 (last paragraph continued to next page); p. 56 ("In sum" thru 57 1g paragraph); p.57-67 (Sections 8(A)-(F)) 586- I Proposed redactions: Statement of Undisputed Facts paragraphs 11-17 and 35-52; all of "Plaintiff's Undisputed Facts," paragraphs 55-74 (p. 62-65) (nothing in rules permits non-movant to submit undisputed facts) 586-2 Document titles redacted consistent with Appellee's objections herein 586-3 1 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (unrepresented, no notice) ECF 633 566 at 2, at 2, and 826 at 2 2 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; repeats previously unpublicized defamatory hearsay from Plaintiff; inadmissible hearsay ECF 566 at 6-7, 826 at 6-7; 3 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice). The transcript was inadmissible and not relied on by the Court. ECF 567 at 5 4 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (unrepresented, no notice); inadmissible evidence; defamatory hearsay from Plaintiff ECF 566 at 32- 39; 633 at 4; 826 at 32-39 5 Not a judicial document, not relied upon by Court; 7 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented). The transcript is inadmissible ECF 567 at 12; 566 at 44, 833 at 44; 8 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented). The transcript is inadmissible ECF 673, 674-1 9 Not a judicial document, not relied upon by Court 10 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice of these proceedings). The transcript is inadmissible ECF 673, 674-1 7 EFTA00794221 11 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality; Right to Privacy 12 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice) ECF 566 13 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice). The testimony is inadmissible and not relied on by Court ECF 677, 678 14 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice). The testimony is inadmissible. ECF 566, 693, 694, 694-1 15 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented by Counsel, no notice). The testimony is inadmissible and not relied on by Court ECF 566 16 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented by counsel, no notice); Right to privacy; Transcript contains inadmissible evidence ECF 566 at 64- 65; 826 at 64-65 17 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (unrepresented, no notice); inadmissible evidence contained within transcript ECF 566 at 57; 633 at 12; 826 at 57 18 Not a judicial document; Deposition taken in another case, Maxwell did not participate or cross exam. The testimony is inadmissible and was not relied on by Court ECF 566 19 Not a judicial document; Deposition taken in unrelated case, Maxwell did not participate or cross exam); The testimony is inadmissible and was not relied on by Court ECF 567 20 Not a judicial document; Deposition taken in unrelated case, Maxwell did not participate or cross exam) The testimony is inadmissible and was not relied on by Court ECF 567 21 Not a judicial document; Deposition taken in unrelated case, Maxwell did not participate or cross exam; The testimony is inadmissible and was not relied on by Court ECF 567, 646 ri Not a Judicial Document; Attorney Client Privilege. The document was not relied on by the Court 23 Not a judicial document; the document is an inadmissible opinion, FRE 702, not relied on by the Court ECF 524, 525-1 24 Not a judicial document; This document is inadmissible, FRE 702, and was not relied on by the Court ECF 528, 786, 787, 788 25 Not a judicial document, not relied upon by Court; 27 Not a judicial document, not relied upon by Court; FERPA protected 8 EFTA00794222 28 Not a judicial document; The compilation document is inadmissible and was not relied on by the Court ECF 677 19 Not a judicial document; This document is inadmissible and was not relied on by the Court ECF 679, 680 30 Not a judicial document; This document is inadmissible and was not relied on by the Court ECF 681 31 Not a judicial document; This document is inadmissible and was not relied on by the Court ECF 667, 783 32 Not a judicial document; This document is inadmissible hearsay without foundation and was not relied on by Court ECF 677, 693 33 Not a judicial document, not relied upon by Court; 34 Not a judicial document, not relied upon by Court; 35 Not a judicial document, not relied upon by Court; 36 Not a judicial document, not relied upon by Court; 37 Not a judicial document, not relied upon by Court; 38 Not a judicial document, not relied upon by Court; repeats defamatory hearsay of Plaintiff 39 Not a judicial document, not relied upon by Court; 40 Not a judicial document, not relied upon by Court; The document is inadmissible and was not relied on by the Court ECF 677 41 Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (represented, no notice of these proceedings). The document was not relied on by the Court 42 Not a judicial document, not relied upon by Court; 43 Not a judicial document, not relied upon by Court 44 Not a judicial document, not relied upon by Court; Inadmissible 45 Not a judicial document; The document is inadmissible and was not relied on by the Court ECF 677 9 EFTA00794223 46 Not a judicial document, not relied upon by Court; 47 Not a judicial document, not relied upon by Court; contains proprietary employee information; counsel not given notice of proceedings 49 Not a judicial document, not relied upon by Court; numerous non-parties' employment records; counsel not given notice of these proceedings 50 Not a judicial document, not relied upon by Court; stricken by Judge Marra; Florida Order 51 Not a judicial document, not relied upon by Court; 620 Proposed redactions: p. 26, last paragraph thru end of p. 27; p. 28 last paragraph thru conclusion on top of p. 29 620-1 Proposed redactions: numbered paragraphs 11-17, 35-52 621 Document titles redacted consistent with Appellee's objections herein 621-1 NN Not a judicial document, not relied upon by Court 621-2 OO Not a judicial document, not relied upon by Court; 611-3 PP Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented by counsel, no notice); contains defamatory statements re previously undisclosed 3rd parties accused of sex trafficking; repeats material stricken by Judge Marra 621-4 QQ Not a judicial document, not relied upon by Court; 621-5 RR Not a judicial document, not relied upon by Court; 3rd Party Confidentiality (some represented by counsel, no notice); contains defamatory statements about previously undisclosed 3rd parties accusing of sex trafficking; repeats material stricken by Judge Marra /172 Proposed Redactions: Statement of Undisputed Facts 11- 17 and 35-52 10 EFTA00794224 Respectfully submitted, s/ Ty Gee Ty Gee Laura Menninger Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel 303.831.7364 [email protected]; [email protected]; [email protected] Attorneys for Defendant Ghislaine Maxwell 11 EFTA00794225 Certificate of Service I certify that on March 19, 2019, I served via CM/ECF a copy of this Appellee Maxwell's Response to Order to Show Cause on the following persons: The Hon. Robert W. Sweet District Judge United States District Court for the Southern District of New York (via United States mail) Christine N. Walz ([email protected]) Madelaine J. Harrington ([email protected]) Sanford L. Bohrer ([email protected]) Paul G. Cassell ([email protected]) Sigrid S. McCawley ([email protected]) Andrew G. Celli ([email protected]) David Lebowitz ([email protected]) Jay M. Wolman [email protected]) s/ Nicole Simmons 12 EFTA00794226