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Case 1:15-cv-07433-RWS Document 967 Filed 02/26/19 Page 1 of 7
X
VIRGINIA
Plaintiff,
-against-
i,:SDNY
15 Civ. 7433
OPINION
'UM ENT
.ECTRC N
• e"
Defendant.
DOC #:
2 111
LI DATE FIT
APPEARANCE
S:
Attorney for Plaintiff
BOIES SCHILLER 6 FLEXNER LLP
401 E. Las Olas Boulevard, Suite 1200
Fort Lauderdale, FL 33301
By: Sigrid McCawley
Meredith Schultz
Attorneys for Defendant
HADDON, MORGAN 6 FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
By: Laura A. Menninger
Jeffrey Pagliuca
Ty Gee
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Sweet, D.J.
Defendant Ghislaine Maxwell ("Maxwell" or the
"Defendant") has moved for an Order to Show Cause requiring
plaintiff
("
' or the "Plaintiff") to
state why this Court should not impose sanctions for their
failure to comply with this Court's Protective Order, ECF No.
64, and Sealed Opinion dated November 14, 2017.
I.
Prior Proceedings S Factual Background
commenced this action on September 21, 2015.
On March 17, 2016, the Court entered a Protective
Order providing confidentiality for documents, materials and/or
information so designated by the parties (the "Confidential
Materials"). See Order, ECF No. 62. Under the Protective Order,
the parties are (a) prohibited from disclosing such materials to
non-parties except on certain conditions, and (b) required at
the conclusion of the case to return or destroy each document
and all copies of these Confidential Materials. Id. 11 5-7, 12.
The Protective Order also provided that any such materials
submitted to the Court "shall be accompanied by a Motion to Seal
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pursuant to Section 6.2 of the Electronic Case Filing Rules &
Instructions for the Southern District of New York." Id. 1 10.
Throughout this action, four separate motions were
filed seeking access to certain Confidential Materials submitted
to the Court in various filings.
In August 2016, Intervenor Alan Dershowitz
("Dershowitz") requested unsealing of portions of a brief filed
in connection with a motion to quash, discrete emails filed with
the motion, and the manuscript of
's memoir filed with
another motion. See ECF No. 364. In January 2017, Intervenor
Michael Cernovich ("Cernovich") requested unsealing of Maxwell's
summary judgment brief, her attorney's declaration in support of
the summary judgment motion, and any documents filed in
connection with the summary judgment motion. See ECF No. 551.
Dershowitz joined the motion. See ECF No. 610. In October 2017,
Intervenors Jeffrey Epstein ("Epstein") and Lesley Groff
("Groff") requested unsealing of numerous documents concerning
the alleged relationship between Epstein and Jane Doe 43--a
witness who was deposed in this action and who brought an action
against Epstein and Groff, Doe 43 v. Epstein et al., No 17 Civ.
616 (S.D.N.Y). See ECF No. 924. Finally, in April 2018,
Intervenors Julie Brown and the Miami Herald Media Company
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(collectively, the "Miami Herald") moved to unseal all sealed
and redacted documents filed with the Court. See ECF No. 936.
Dershowitz and Cernovich joined the motion. See ECF Nos. 941 &
947.
This Court denied each motion to unseal. See Sealed
Op. (Nov. 2, 2016); ECF No. 892; Sealed Op. (Nov. 17, 2017); ECF
No. 953. Dershowitz, Cernovich, and the Miami Herald appealed
the denial of their respective motions. See ECF Nos. 504, 915,
920, 955. The three appeals were consolidated and remain pending
in the Second Circuit.
This action was settled and dismissed with prejudice
pursuant to a joint stipulation for dismissal on May 25, 2017.
On July 6, 2017, Maxwell's counsel proposed a
procedure for compliance with Paragraph 12 of the Protective
Order under which the parties would destroy all Confidential
Materials in their possession, custody and control and would
cause any non-party to whom they provided Confidential Materials
to destroy the materials. See Gee Decl. Ex. A, ECF No. 958-1.
counsel rejected this proposal, contending that
Paragraph 12's provisions were not in effect because the case
had not "concluded" in light of the Second Circuit appeals. See
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Gee Decl. Ex. B, ECF No. 958-2. On September 6, 2018, Maxwell's
counsel renewed their request that
and her counsel
comply with Paragraph 12. See Gee Decl. Ex. C, ECF No. 958-3.
's counsel again stated their view that, until the
pending appeals were resolved, it would be premature to begin
implementing the provisions of Paragraph 12. See Gee Decl. Ex.
D, ECF No. 958-4.
As a result of the foregoing events, Maxwell filed the
instant motion for an Order to Show Cause requiring
and
her counsel to state why this Court should not impose sanctions
upon
or her counsel for their alleged violation of this
Court's Protective Order and November 14, 2017 directive. ECF
No. 957. This motion was heard and marked fully submitted on
February 6, 2019.
II. The Motion is Denied
By its terms, the Protective Order's document
destruction provision is not triggered until the "conclusion of
this case." Order 1 12, ECF No. 62. The instant motion thus
requires this Court to interpret its own Order and determine the
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time at which this case has concluded for purposes of that
provision.)
"Courts that have issued protective orders requiring
the return of documents have customarily ordered such return at
the conclusion of the case, including all appeals." Standard
Inv. Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., No
07 Civ. 2014 (SWK), 2008 WL 199537, at *14 (S.D.N.Y. Jan. 22,
2008). Indeed, the "common practice . . . appears to be for
protective orders to require the . . . return [of) sensitive
material after the completion of all appeals in the case."
United States v. Basciano, 03 Cr. 929 (NGG), 2006 WL 2270432, at
*3 (E.D.N.Y. June 30, 2006).
As previously described, the Second Circuit currently
has pending before it three appeals concerning the documents
underlying the Protective Order. The possible outcomes of these
consolidated appeals include the unsealing of the entire docket,
which would render aspects of the instant motion moot, and a
In support of her motion, Maxwell points to this Court's November 17,
2017 Opinion, which stated: "(A111 documents, materials, and information
subject to the Protective Order must be returned to the party who designated
its confidentiality as of the date this action was dismissed." Sealed Op. at
2. However, that Opinion focused on Epstein and Groff's motion to unseal and
did not articulate the effect of the pending appeals on the document
destruction provision.
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remand to this Court for further proceedings, which may require
parties' use of confidential materials subject to this motion.
In sum, this case has not yet concluded and the
Protective Order's provision requiring the return of materials
will not be enforced at this time.
III. Conclusion
For the foregoing reasons, Maxwell's motion for an
Order to Show Cause is denied.
it is so ordered.
Now York, NY
February
-40BERT
W. SWEET
U.S.D.J.
6
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