Case 20-2413, Document 44, 08/20/2020, 2913556, Pagel of 78

Case 20-2413, Document 44, 08/20/2020, 2913556, Pagel of 78 20-2413 United States Court of Appeals for the Second Circuit —against— GHISLAINE MAXWELL, SHARON CHURCHER, JEFFREY EPSTEIN, PlaintiffiAppellee, Defendant -Appellant, Respondents, JULIE BROWN, MIAMI HERALD MEDIA COMPANY, ALAN M. DERSHOWITZ, MICHAEL CERNOVICH, DBA CERNOVICH MEDIA Intervenors. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 15-CV-7433 (LAP) APPENDIX Volume IV of VIII (Pages App.-0777 to App.-0852) Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. Attorneys or e en ant-Appellant Ghislaine Maxwell EFTA00076383 Case 20-2413, Document 44, 08/20/2020, 2913556, Paget of 78 Docket Entries App.-0001 Order regarding Ms. Maxwell's Letter Motion to Reconsider July 23, 2020 Ruling, Dated July 29, 2020 (Dkt. 1079) App.-0777 Notice of Appeal, Dated July 29, 2020 (Dkt. 1081) App.-0781 Non-Redacted Declaration of Sigrid S. McCawley In Support of Plaintiff's Motion to Exceed Presumptive Ten Deposition Limit in Federal Rule of Civil Procedure 30(A)(2)(a)(ii), Dated July 30, 2020 (Dkt. 1090-10) App.-0783 Ms. Maxwell's Letter Response to August 3, 2020 Order, Dated August 10, 2020 (Dkt. 1100) App.-0787 Exhibit A to Maxwell's Letter Response to August 3, 2020 Order - Protective Order, Dated July 30, 2020 U.S. v. Maxwell, No. 20 Cr. 330 (AJN) (S.D.N.Y.) (Dkt. 1100-1) App.-0791 Order regarding Ms. Maxwell's Letter Response to August 3, 2020 Order, Dated August 12, 2020 (Dkt. 1103) App.-0803 Transcript of' April 21, 2016 Hearing App.-0805 Transcript of July 23, 2020 Hearing App.-0835 Order regarding Modification of Protective Order, Dated August 18, 2020 U.S. v. Maxwell, No. 20 Cr. 330 (AN) (S.D.N.Y.) (Dkt. 044) App.-0852 EFTA00076384 CaseaskE2&2411432NARnetAltria &PO!, it, App.-0777 CEIRRI 85' RegEfaage7Sof 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Plaintiff, -against- GHISLAINE MAXWELL, Defendant. No. 15 Civ. 7433 (LAP) MEMORANDUM & ORDER LORETTA A. PRESKA, Senior United States District Judge: The Court has reviewed Defendant Ghislaine Maxwell's letter requesting reconsideration of the Court's July 23, 2020, decision to unseal (1) the transcripts of Ms. Maxwell's and Doe depositions, and (2) court submissions excerpting from, quoting from, or summarizing the contents of the transcripts. (See dkt. no. 1078.) Ms. Maxwell's eleventh -hour request for reconsideration is denied. As Ms. Maxwell acknowledges in her letter, reconsideration is an "extraordinary remedy." In re Beacon Assocs. Litig., 818 F. Supp. 2d 697, 701 (S.D.N.Y. 2011) (quoting In re Health Mgmt. Sys. Inc. Sec. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)) . Such motions "are properly granted only if there is a showing of: (1) an intervening change in controlling law; (2) the availability of new evidence; or (3) a need to correct a clear error or prevent manifest injustice." Drapkin v. Mafco Consol. Grp., Inc., 818 F. Supp. 2d 678, 696 (S.D.N.Y. 2011) . "A motion for reconsideration 1 EFTA00076385 CaseastE2&2871481DIARnetotkinfa &IOC it App.-0778 ca ii 87 RegERageThof 4 may not be used to advance new facts, issues or arguments not previously presented to the Court, nor may it be used as a vehicle for relitigating issues already decided by the Court." Bennett v. Watson Wyatt & Co., 156 F. Supp.2d 270, 271 (S.D.N.Y. 2001) . Here, Ms. Maxwell's request for reconsideration hinges on her assertion that new developments, i.e., her indictment and arrest, provide compelling reasons for keeping the deposition transcripts sealed. (See dkt. no. 1078 at 5.) But, despite Ms. Maxwell's contention that she could not address the effect of those events in her objections because they occurred after the close of briefing, (id.), 1 this is plowed ground. Indeed, in her original objection to unsealing, Ms. Maxwell argued that the specter of ongoing criminal investigations into unknown individuals associated with Jeffrey Epstein --a group that, of course, includes Ms. Maxwell --loomed large over the Court -ordered unsealing 1 The Court notes as a practical matter that 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 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. In fact, the Court notified the parties on July 21, 2020, that it would announce the unsealing decision with respect to Ms. Maxwell's deposition, together with other documents, on July 23. (See dkt. no. 1076.) Even then, Ms. Maxwell made no request for delay or to supplement her papers. Ms. Maxwell did not raise her "vastly different position," (Transcript of July 23 Ruling at 16:2-3), until moments after the Court had made its decision to unseal the relevant documents. 2 EFTA00076386 CasGastE2812411431DIARnetibtkInfeitt egooe App.-0779 CORSI 81 RegEfage733of 4 process. (See dkt. no. 1057 at 5.) This argument, specifically Ms. Maxwell's concern that unsealing would "inappropriately influence potential witnesses or alleged victims," (id.), and her reference to "publicly reported statements by Plaintiff, Plaintiff's counsel, the United States Attorney for the Southern District of New York, and the Attorney General for the U.S. Virgin Islands" about those investigations, (id.), carried with it the clear implication that Ms. Maxwell could find herself subject to investigation and, eventually, indictment. The Court understood that implication as applying to Ms. Maxwell and thus has already considered any role that criminal charges against Ms. Maxwell might play in rebutting the presumption of public access to the sealed materials. Ms. Maxwell's request for reconsideration of the Court's July 23 ruling is accordingly denied. Given the Court's denial of Ms. Maxwell's request for reconsideration, the Court will stay the unsealing of Ms. Maxwell's and Doe l's deposition transcripts and any sealed or redacted order or paper that quotes from or discloses information from those deposition transcripts for two business days, i.e., through Friday, July 31, 2020, so that Ms. Maxwell may seek relief from the Court of Appeals. Any sealed materials that do not quote from or disclose information from those deposition transcripts shall be unsealed on July 30, 2020, in the manner described by the Court's Order dated July 28, 2020. (See dkt. no. 1077.) Ms. Maxwell's and 3 EFTA00076387 Cas6astabat71431MAPnObritInfeitt egiOe App.-0780 CENCI 85' /20g4facje743of 4 Doe l's deposition transcripts and any sealed materials that quote or disclose information from them shall be unsealed in the manner prescribed by the July 28 Order on Monday, August 3, 2020, subject to any further stay ordered by the Court of Appeals. SO ORDERED. Dated: New York, New York July 29, 2020 eZdzat.fo? Yadeitig LORETTA A. PRESKA Senior United States District Judge 4 EFTA00076388 CaseastE2812€171431NARnedxgrai rAil App.-0781 CEilikl 87 RagEfragt7Bof 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Plaintiff, v. GHISLAINE MAXWELL, Defendant. X X 15-cv-07433-LAP NOTICE OF APPEAL PLEASE TAKE NOTICE that Ghislaine Maxwell, Defendant in the above-captioned case, hereby appeals to the United States Court of Appeals for the Second Circuit from the district court's Order of July 23, 2020, unsealing the deposition materials and the Order of July 29, 2020, denying Ms. Maxwell's motion to reconsider. Dated: July 29, 2020. Respectfully submitted, s/ Laura A. Menninger Laura A. Menninger (LM-1374) Jeffrey S. Pagliuca (pro hac vice) Ty Gee (pro hac vice) HADDON, MORGAN AND FOREMAN, P.C. Attorneys for Ghislaine Maxwell 1 EFTA00076389 CasastrabiAZI71432)IaAinicDbfidtrieitt ethia App.-0782 E0191 85' Pie ROgRageThof 2 CERTIFICATE OF SERVICE I certify that on July 29, 2020, I filed this Notice of Appeal with the Clerk of Court through CM/ECF, which will send notice of the filing to all parties of record. hi Nicole Simmons 2 EFTA00076390 Case Gaga4.407741333-IDARn -Offiuhiefle3MOQIXD, Filki5B33fface9:4191;91 of 4 App.-0783 United States District Court Southern District of New York Plaintiff, Case No.: 15-cv-07433-RWS v. Ghislaine Maxwell, Defendant. NON-REDACTED DECLARATION OF SIGRID S. McCAWLEY IN SUPPORT OF PLAINTIFF'S MOTION TO EXCEED PRESUMPTIVE TEN DEPOSITION LIMIT IN FEDERAL RULE OF CIVIL PROCEDURE 30(A)(2)(a)(ii), FILED UNDER SEAL I, Sigrid S. McCawley, declare that the below is true and correct to the best of my knowledge as follows: 1. I am a partner with the law firm of Boies, Schiller & Flexner LLP and duly licensed to practice in Florida and before this Court pursuant to this Court's September 29, 2015 Order granting my Application to Appear Pro Hac Vice. 2. I respectfully submit this Declaration in support of Plaintiff's Motion to Exceed Presumptive Ten Deposition Limit In Federal Rule of Civil Procedure 30(A)(2)(a)(ii), Filed Under Seal. 3. Attached hereto as Composite Exhibit I, is a true and correct copy of the May 17, 2016 Email Correspondence from Sigrid McCawley. 4. Attached hereto as Exhibit 2, is a true and correct copy of the May 27, 2016 Email Correspondence from Laura Menninger. 5. Attached hereto as Exhibit 3, is a true and correct copy of the Notice of Service EFTA00076391 CaseClat6-Z0-04433UoWirbotdenelft/20M20, arum/Rigel Petge2 of 4 App.-0784 and Subpoena to 6. Attached hereto as Exhibit 4, is a true and correct copy of the May 26, 2016 Correspondence from Sigrid McCawley. 7. Attached hereto as Exhibit 5, is a true and correct copy of the 8. Attached hereto as Composite Exhibit 6, is a true and correct copy of the April 22, 2016 Deposition Transcript of Ghislaine Maxwell. 9. Attached hereto as Exhibit 7, is a true and correct copy of the Palm Beach Police Report. 10. Attached hereto as Exhibit 8, is a true and correct copy of the November 21, 2005 Sworn Statement of 11. Attached hereto as Exhibit 9, is a true and correct copy of the May 4, 2016 Email Correspondence from Laura Menninger. I declare under penalty of perjury that the foregoing is true and correct. Is! Sigrid S. McCawley Sigrid S. McCawley, Esq. EFTA00076392 CaseCial620-04433112210rrbotóriS1 1/059320 Itibeibig0tat 1 PaOS of 4 App.-0785 Dated: May 27, 2016. Respectfully Submitted, BOIES, SCHILLER & FLEXNER LLP By: /s/ Sigrid McCawlev Sigrid McCawley (Pro Hac Vice) Meredith Schultz (Pro Hac Vice) Boles_ Schiller & Flexner LLP 401 E. David Boies Boles, Schiller & Flexner LLP Bradley J. Edwards (Pro Hac Vice) FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. Paul G. Cassell (Pro Hac Vice) S.J. Quinney College of Law University of Utah ' This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah for this private representation. EFTA00076393 CaseCla15-20-0;433{140rrOotdria1059 -420. AII3Ifinignet1P4dat of 4 App.-0786 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 27, 2016,1 electronically filed the foregoing document with the Clerk of Court by using the CM/ECF system. I also certify that the foregoing document is being served this day on the individuals identified below via transmission of Notices of Electronic Filing generated by CMIECF. Laura A. Menninger, Esq. Jeffrey Paliuca, Esq. AN, P.C. /s/ Sigrid S. McCawley Sigrid S. McCawley, Esq. EFTA00076394 Calliatil.S4t-Q-O721313cliAlThelitottmWtallit20 Fatettl3NA3.0PAeFP&ge 1.Ebf 3 App.-0787 HADDON M ORGAN FOREMAN August 10, 2020 Honorable Loretta A. Preska United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 Haddon. Morgan and Foreman. PC Laura A. Menninger www hmacrw tom 2020 Order (Doc. 1096) v. Ghislaine Maxwell, No. 15 Civ. 7433 (LAP) Dear Judge Preska: I write in response to the Court's Order of August 3, 2020 (Doc. 1069), the Order and Protocol for Unsealing Decided Motions (Doc. 1044) ("Protocol"), and to raise with the Court the legal effect of new information that came to the attention of counsel for Ms. Maxwell on Friday, August 7, 2020. New information: On Friday, August 7, 2020, counsel for Ms. Maxwell learned of critical new information that impacts both this action and U.S. v. Maxwell, 20 Cr. 330 (AJN) (the "Criminal Action"). The information implicates Ms. Maxwell's right to due process and fairness in this civil action and affects the Second Circuit's review of the Court's unsealing order of July 23, 2020. Additionally, the information implicates her rights as a criminal defendant guaranteed under the Fourth, Fifth and Sixth Amendments. Counsel makes the representations about implications of the new information as an officer of this Court. At this time, counsel is not at liberty to disclose the information because it is subject to a protective order in the Criminal Action, which forbids its use "for any civil proceeding or any purpose other than the defense" of the criminal action absent "further order of the Court." Protective Order, 20 Cr. 330 (AJN) at ¶¶ 1(a), 18 (Exhibit A). As required by that Protective Order and Judge Nathan's Individual Practices in Criminal Cases, counsel initiated a conferral with the U.S. Attorney's Office over the weekend concerning a modification of the Protective Order to share the information with this Court and the Second Circuit. Barring agreement, Ms. Maxwell intends to seek modification of the Protective Order in the Criminal Action from Judge Nathan forthwith to permit sharing the information with this Court, ex pane and in camera if necessary, and with the Second Circuit (likewise under seal if necessary). EFTA00076395 Caftetagftg-trrA33€1041TheEtottirff4V1/12O20 radailSAI0PAeFP4kge 2Etg 3 Honorable Loretta A. Preska August 10, 2020 Page 2 App.-0788 Ms. Maxwell requests a temporary stay of the unsealing process for approximately three weeks until the conclusion of (a) the conferral with the U.S. Attorney's Office to a modification of the Protective Order in the Criminal Action and, if necessary, an application and ruling by Judge Nathan on the issue, to permit the use of the information in this Court and before the Second Circuit (under seal in both courts, if necessary), (b) an application to this Court containing the new information in support of a request to stay the unsealing process until the conclusion of the Criminal Action, and (c) a ruling by this Court on the motion for stay. Streamlining of Unsealing Process: As directed by the Court, counsel for Ms. Maxwell conferred with plaintiff's counsel concerning various proposals to streamline the unsealing process. Subject to Ms. Maxwell's request to temporarily pause the process as described above, defense counsel has agreed to several potential modifications of the Protocol which we hope will ease the burden on the parties and the Court going forward, should the unsealing move ahead. Of note, and as Plaintiff will explain to the Court, the parties have agreed to notify all of the Non-Parties at once so that we can understand which Non-Parties object to the unsealing before deciding how to proceed with future redactions. Although this will give the Court and the Original Parties more information about the scope of objectors, there are limitations to the extent to which it will expedite the process. As counsel has made clear in the past, it will take significant effort by the Original Parties and their staff to put together the excerpts for any Non-Party who requests them because each Non-Party will be entitled to see his or her own information (but not that of other Non-Parties). After receiving a request from a Non-Party, we anticipate it will take up to a week per Non-Party to agree to the excerpts to send to them for review. But on balance we agree that having a sense of the number of participating Non-Parties will aid the Court in conducting future proceedings, we have agreed to Plaintiff's suggestion on that front. The parties can submit a proposed modification of the Protocol and Notice to the Court to reflect this agreement. We also have agreed, as the Court suggested, to shorten the time period for the Original Parties to object and to respond from 14 to 7 days. This would impact paragraphs 2(d), 2(e) and 2(f) of the Protocol. The parties can also submit a proposed modification of the Protocol to the Court. The parties also agreed to leave the time for Non-Parties to object at 14 days given some practical considerations applicable to them. Although the parties were able to reach some agreement, we cannot agree to all of Plaintiff's proposals and write separately to explain the basis for our disagreements. First, we carefully considered the Court's suggestion to reduce the number of pages of briefing to ten pages per side. Id. Our initial Objection (DE 1057) was 14 pages long; Plaintiff's Response was 19 pages. The Court concluded that our Objection was, in many respects, not specific enough. We would ask leave to at least have 15 pages to object to the five motions proposed below, with any response limited to the same. We will endeavor to keep it shorter than that, but also allow for more space to provide specifics to the Court. Second, we have obtained new contact information for Doe 1 from a separate civil suit. We believe that Doe 1 retains a right to notification and participation. We suggest EFTA00076396 Cafilail24144M33flokit elitoththAlal2O20.FailfilaffidEWPAeFPag4 SEbf 3 Honorable Loretta A. Preska August 10, 2020 Page 3 App.-0789 providing the Notice to Doe 1 at the new address for any future pleadings that implicate his or her deposition, which is currently Subject to the Second Circuit's stay. Third, to prevent against some of the errors that occurred during the last round of unsealings, we request that the Protocol be amended to require the Responding Original Party who proposes unsealing to supply with their Response a proposed unredacted set of the pleadings at issue, for the Court's consideration and for the Objecting Original Party or Non- Party to have the right of reply. Preparing those redactions after the fact allows much ambiguity into the Court's ruling and we believe the Court's ruling should specify which redactions it is accepting or rejecting at the time of ruling. Finally, we request that the Court allow for the any objecting Non-Party or Original Party be given 7 days following any unseal order to apply for relief in the Second Circuit from the order prior to the documents being released. Proposed Next Set of Docket Entries for Review: Given the Second Circuit's stay concerning Ms. Maxwell and Doe l's deposition transcripts and materials that quote from them, we propose that the Court deviate from the Doe 1 and 2 chronology (given that Doe 1's deposition is sprinkled throughout those motions) and instead take the following five decided motions and their related pleadings. This list represents the first five chronological decided motions that (a) have sealed or redacted materials and (b) do not have attached or quote from documents subject to the stay. They are: • 75 — Defendant's Motion to Compel Responses to Defendant's First Set of Discovery Responses to Plaintiff • 139 — Plaintiff's Brief in Support of the Privilege Claimed for In Camera Submission • 155 — Defendant's Motion to Compel Non-Privileged Documents • 215 — Sharon Churcher Motion to Quash Subpoena • 231 — Defendant's Motion to Reopen Deposition of Plaintiff Counsel for Ms. Maxwell is available for a telephone conference to discuss any of the foregoing, should the Court desire. CC: Counsel of Record via ECF Respectfully submitted, C kimei::7 Laura A. Menninger EFTA00076397 C aseal 15-Z0-0; 433alai rrOot Efiftl M20. F2Its11308a. e feage718of 13 App.-0790 EXHIBIT A EFTA00076398 CaSeZ113115aDanlaillaIBIADditelitsithittlalrYa 'title:03 App.-0791 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA GHISLAINE MAXWELL, Defendant. x USDC SDNY DOCUMENT ELECTRONICALLY FILED DOCS: DATE FILED:7/30/2020 PROTECTIVE ORDER 20 Cr. 330 (AJN) x ALISON J. NATHAN, United States District Judge: WHEREAS the Government intends to produce to GHISLAINE MAXWELL, the defendant, certain documents and materials that (i) affect the privacy and confidentiality of individuals, (ii) would impede, if prematurely disclosed, the Government's ongoing investigation; (iii) would risk prejudicial pretrial publicity if publicly disseminated, and (iv) is not authorized to be disclosed to the public or disclosed beyond that which is necessary for the defense of this action, and other materials pursuant to Federal Rule of Criminal Procedure 16 ("Rule 16") and pursuant to any other disclosure obligations (collectively, the "Discovery"), which contain sensitive, confidential, or personal identifying information; WHEREAS, the Government seeks to protect sensitive, confidential, or personal identifying information contained in the materials it produces consistent with Rule 16 or other disclosure obligations; 1 EFTA00076399 CaSefill333520}a41213331DIMNDEEttageoSittrEEDN lattat6M2372@ftecie App.-0792 &213 WHEREAS the Government has applied for the entry of this Order; IT HEREBY IS ORDERED: 1. The Discovery disclosed to the defendant ("Defendant") and/or to the defendant's criminal defense attorneys ("Defense Counsel") during the course of proceedings in this action: a) Shall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action; b) Shall not be copied or otherwise recorded or transmitted by the Defendant, except to Defense Counsel, or except as necessary for the Defendant to take notes, which are not to be further transmitted to anyone other than Defense Counsel; c) Shall not be disclosed or distributed in any form by the Defendant or her counsel except as set forth in paragraph 1(d) below; d) May be disclosed only by Defense Counsel and only to the following persons ("Designated Persons") : i. investigative, secretarial, clerical, or paralegal personnel employed full-time, part-time, or as 2 EFTA00076400 CaSe&W1520}494 -AKERWATWORIMAOMIEDNIEMNIIIMUrApAghgbdiV0213 App.-0793 independent contractors by the defendant's counsel ("Defense Staff"); ii. any expert or potential expert, legal advisor, consultant, or any other individual retained or employed by the Defendant and Defense Counsel for the purpose of assisting in the defense of this case ("Defense Experts/Advisors"); iii. such other persons as hereafter may be authorized by Order of the Court ("Other Authorized Persons"); e) May be provided to prospective witnesses and their counsel (collectively, "Potential Defense Witnesses"), to the extent deemed necessary by defense counsel, for trial preparation. To the extent Discovery materials are disclosed to Potential Defense Witnesses, they agree that any such materials will not be further copied, distributed, or otherwise transmitted to individuals other than the recipient Potential Defense Witnesses. 2. The Defendant and Defense Counsel shall provide a copy of this Order to any Designated Persons to whom they disclose Discovery materials. Prior to disclosure of Discovery materials to Designated Persons, any such Designated Person shall agree to be subject to the terms of this Order by signing a copy hereof and stating that they "Agree to be bound by the terms herein," and providing such copy to Defense Counsel. All 3 EFTA00076401 Cael331S23kIMENERDARINDIttothedutELECTEIIIRMESge App.-0794 'F;; 0213 such acknowledgments shall be retained by Defense Counsel and shall be subject to in camera review by the Court if good cause for review is demonstrated. The Defendant and her counsel need not obtain signatures from any member of the defense team (i.e., attorneys, experts, consultants, paralegals, investigators, support personnel, and secretarial staff involved in the representation of the defendants in this case), all of whom are nonetheless bound by this Protective Order. 3. To the extent that Discovery is disseminated to Defense Experts/Advisors, Other Authorized Persons, or Potential Defense Witnesses, via means other than electronic mail, Defense Counsel shall encrypt and/or password protect the Discovery. 4. The Government, the Defendant, Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Defense Witnesses and their counsel, and Other Authorized Persons are prohibited from posting or causing to be posted any of the Discovery or information contained in the Discovery on the Internet, including any social media website or other publicly available medium. 5. The Government (other than in the discharge of their professional obligations in this matter), the Defendant, Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Defense Witnesses and their counsel, and Other Authorized Persons are strictly prohibited from publicly 4 EFTA00076402 CaSdia5M)494213M4MNDlittaitioSitaffiEEDICIIMMIE0E6213 App.-0795 disclosing or disseminating the identity of any victims or witnesses referenced in the Discovery. This Order does not prohibit Defense Counsel or Defense Staff from referencing the identities of individuals they believe may be relevant to the defense to Potential Defense Witnesses and their counsel during the course of the investigation and preparation of the defense case at trial. Any Potential Defense Witnesses and their counsel who are provided identifying information by Defense Counsel or Defense Staff are prohibited from further disclosing or disseminating such identifying information. This Order does not prohibit Defense Counsel from publicly referencing individuals who have spoken by name on the public record in this case. 6. The Defendant, Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Defense Witnesses, and Other Authorized Persons are prohibited from filing publicly as an attachment to a filing or excerpted within a filing the identity of any victims or witnesses referenced in the Discovery, who have not spoken by name on the public record in this case, unless authorized by the Government in writing or by Order of the Court. Any such filings must be filed under seal, unless authorized by the Government in writing or by Order of the Court. 5 EFTA00076403 CaSed3M5219)(04213MW3NDEBtazitheitilt8REglia IRMEMMIpageSetb213 App.-0796 7. Copies of Discovery or other materials produced by the Government in this action bearing "confidential" stamps, or designated as "confidential" as described below, and/or electronic Discovery materials designated as "confidential" by the Government, including such materials marked as "confidential" either on the documents or materials themselves, or designated as "confidential" in a folder or document title, are deemed "Confidential Information." The Government shall clearly mark all pages or electronic materials containing Confidential Information, or folder or document titles as necessary, with "confidential" designations. 8. Confidential Information may contain personal identification information of victims, witnesses, or other specific individuals who are not parties to this action, and other confidential information; as well as information that identifies, or could lead to the identification of, witnesses in this matter. The identity of an alleged victim or witness who has identified herself or himself publicly as such on the record in this case shall not be treated as Confidential Information. 9. Defense Counsel may, at any time, notify the Government that Defense Counsel does not concur in the designation of documents or other materials as Confidential Information. If the Government does not agree to de-designate such documents or materials, Defense Counsel may thereafter move 6 EFTA00076404 CaSde9a5a0439M3MPIONDrEttothtfORSHRMIllelitillE0dif36213 App.-0797 the Court for an Order de-designating such documents or materials. The Government's designation of such documents and materials as Confidential Information will be controlling absent contrary order of the Court. 10. Confidential Information disclosed to the defendant, or Defense Counsel, respectively, during the course of proceedings in this action: a) Shall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action; b) Shall be maintained in a safe and secure manner; c) Shall be reviewed and possessed by the Defendant in hard copy solely in the presence of Defense Counsel; d) Shall be possessed in electronic format only by Defense Counsel and by appropriate officials of the Bureau of Prisons ("BOP"), who shall provide the defendant with electronic access to the Discovery, including Confidential Information, consistent with the rules and regulations of the BOP, for the Defendant's review; 7 EFTA00076405 CaSeAblEagkOMBRAIONDIbitxftWEDISPIedaIDATTapetagb App.-0798 (11213 e) Shall be reviewed by the Defendant solely in the presence of Defense Counsel or when provided access to Discovery materials in electronic format by BOP officials; f) May be disclosed only by Defense Counsel and only to Designated Persons; g) may be shown to, either in person, by videoconference, or via a read-only document review platform, but not disseminated to or provided copies of to, Potential Defense Witnesses, to the extent deemed necessary by Defense Counsel, for trial preparation, and after such individual(s) have read and signed this Order acknowledging that such individual(s) are bound by this Order. 11. Copies of Discovery or other materials produced by the Government in this action bearing "highly confidential" stamps or otherwise specifically designated as "highly confidential," and/or electronic Discovery materials designated as "highly confidential" by the Government, including such materials marked as "highly confidential" either on the documents or materials themselves, or designated as "highly confidential" in an index, folder title, or document title, are deemed "Highly Confidential Information." To the extent any Highly Confidential Information is physically produced to the Defendant and Defense Counsel, rather than being made available to the Defendant and Defense Counsel for on-site review, the 8 EFTA00076406 CaGedaliiMM=QMJIttottiaiecisfift1ittl6QCIQMOMMO~MI13 App.-0799 Government shall clearly mark all such pages or electronic materials containing Highly Confidential Information with "highly confidential" stamps on the documents or materials themselves. 12. Highly Confidential Information contains nude, partially -nude, or otherwise sexualized images, videos, or other depictions of individuals. 13. Defense Counsel may, at any time, notify the Government that Defense Counsel does not concur in the designation of documents or other materials as Highly Confidential Information. If the Government does not agree to de-designate such documents or materials, Defense Counsel may thereafter move the Court for an Order de-designating such documents or materials. The Government's designation of such documents and materials as Highly Confidential Information will be controlling absent contrary order of the Court. 14. Highly Confidential Information disclosed to Defense Counsel during the course of proceedings in this action: a) Shall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action; 9 EFTA00076407 CaSe2gMeileallICB3110(P1NOMmOeftelM0PBREMIOM2Me3OW1116213 App.-0800 b) Shall not be disseminated, transmitted, or otherwise copied and provided to Defense Counsel or the Defendant; c) Shall be reviewed by the Defendant solely in the presence of Defense Counsel; d) Shall not be possessed outside the presence of Defense Counsel, or maintained, by the Defendant; e) Shall be made available for inspection by Defense Counsel and the Defendant, under the protection of law enforcement officers or employees; and f) Shall not be copied or otherwise duplicated by Defense Counsel or the Defendant during such inspections. 15. The Defendant, Defense Counsel, Defense Staff, Defense Experts/Advisors, Potential Defense Witnesses, and Other Authorized Persons are prohibited from filing publicly as an attachment to a filing or excerpted within a filing any Confidential Information or Highly Confidential Information referenced in the Discovery, unless authorized by the Government in writing or by Order of the Court. Any such filings must be filed under seal, unless authorized by the Government in writing or by Order of the Court. 16. The provisions of this Order shall not be construed as preventing disclosure of any information, with the exception of victim or witness identifying information, that is 10 EFTA00076408 CaSatitioa01419611BBDAVINDatittefitillite IN€601133110WieeiNg11112 6213 App.-0801 publicly available or obtained by the Defendant or her Defense Counsel from a source other than the Government. 17. Except for Discovery that has been made part of the record of this case, Defense Counsel shall return to the Government or securely destroy or delete all Discovery, including but not limited to Confidential Information, within 30 days of the expiration of the period for direct appeal from any verdict in the above -captioned case; the period of direct appeal from any order dismissing any of the charges in the above - captioned case; the expiration of the period for a petition pursuant to 28 U.S.C. § 2255; any period of time required by the federal or state ethics rules applicable to any attorney of record in this case; or the granting of any motion made on behalf of the Government dismissing any charges in the above - captioned case, whichever date is later. 18. The foregoing provisions shall remain in effect unless and until either (a) the Government and Defense Counsel mutually agree in writing otherwise, or (b) this Order is modified by further order of the Court. 19. The Government and Defense Counsel agree to meet and confer in advance of any hearings or trial to discuss and agree to any modifications necessary for the presentation of evidence at those proceedings. In the absence of agreement, 11 EFTA00076409 CarAtEISAWIGGISTMOONMstOefttilliteKE1114101S1110MONedgr212 A213 App.-0802 Defense Counsel may make an appropriate application to the Court for any such modifications. SO ORDERED: Dated: New York, New York July 30 , 2020 HONORABLE ALISON J. NATHAN United States District Judge 12 EFTA00076410 CaSeatilSth-Q-092I313€1AFtielitotuniftial030,F211831610 32CgeNtgelEbf2 App.-0803 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Plaintiff, -against- GHISLAINE MAXWELL, Defendant. No. 15 Civ. 7433 (LAP) ORDER LORETTA A. PRESKA, Senior United States District Judge: The Court has reviewed the parties' letters dated August 10 and August 11, 2020. (See dkt. nos. 1099-1101.) The Court writes specifically to address Defendant Ghislaine Maxwell's request for a three-week stay of the unsealing process due to the availability of "critical new information" related both to this action and to the pending criminal case against her, U.S. v. Maxwell, No. 20 Cr. 330 (AJN). (See dkt. no. 1100 at 1-2.)I Ms. Maxwell's request is denied. Given that Ms. Maxwell is not at liberty to disclose this new information because it is subject to the protective order in the criminal action, (id. at 1), the Court has no reasonable basis to impose a stay. And, as Ms. Maxwell knows, her ipse dixit does not provide compelling I Pursuant to the Court's Order dated August 3, 2020 [dkt. no. 1094], the parties have also submitted to the Court for resolution various disputes related to (1) methods for streamlining the unsealing process, and (2) the next set of docket entries to be reviewed for potential unsealing. The Court will address those disputes at a later date. 1 EFTA00076411 CaSeetagth-Q-0721313doWhelltottinW/0/2030,M013?iff/I2P2Qjentptaf2 App.-0804 grounds for relief. Should the protective order in the criminal action be modified to permit disclosure of the relevant information to the Court, Ms. Maxwell may renew her request for a stay of the unsealing process. SO ORDERED. Dated: New York, New York August 12, 2020 04-eti‘f a? ›adat4 LORETTA A. PRESKA Senior United States District Judge 2 EFTA00076412 Case 20-2413, Document 44. 08'20/2020, 2913556, Page31 of 78 App.-0805 1 G4LMGIUC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 3 4 5 v. 6 GHISLAINE MAXWELL, 7 Defendant. 8 Plaintiff, 9 10 11 12 13 Before: X 15 Civ. 7433 (RWS) New York, N.Y. April 21, 2016 11:05 a.m. HON. ROBERT W. SWEET, APPEARANCES District Judge 14 BOIES, SCHILLER & FLEXNER LLP 15 Attorneys for Plaintiff BY: SIGRID STONE McCAWLEY 16 -and- FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 17 BY: BRAD EDWARDS -and- 18 PAUL G. CASSELL 19 HADDON, MORGAN & FOREMAN Attorneys for Defendant 20 BY: LAURA A. MENNINGER JEFF PAGLUICA 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076413 Case 20-2413, Document 44. 08120/2020, 2913556, Page32 of 78 App.-0806 2 G4LMGIUC 1 (Case called) 2 3 Who knows. 4 it fairly well under control. 5 6 already given me. 7 8 would like to start, if it's 9 10 11 12 13 14 you two pro hac vice motions. My client, 15 16 17 18 19 20 21 22 23 24 25 throughout the THE COURT: Welcome back. I have read the papers. I might have missed something, but I think I've got I would be pleased to hear anything anybody wants to tell me in addition to what you've MS. McCAWLEY: Your Honor, this is Sigrid McCawley. I convenient with the Court, with the pro hac vice motions that are pending because we would like counsel to be able to anticipate in these proceedings. Would that be all right if I started with that? THE COURT: I don't care. MS. McCAWLEY: Thank you. Your Honor, you have before would like to have counsel of record in the case be added as Professor Paul Cassell and Brad Edwards. We have presented those pro hacs to your Honor. This is the first time in my years of practice that I've had a contested one, so I've looked at the case law surrounding that and I think it is very clear that a client is entitled to counsel of choice in a case. In this matter she has selected these lawyers. They have been working with her. They had been working on this matter for many months now. We need them as counsel of record in the case now because we are going to have depositions country where, for example, Professor Cassell is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076414 Case 20-2413, Document 44. 08120/2020, 2913556, Page33 of 78 App.-0807 3 G4LMGIUC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 client, 25 in Utah. He will be able to handle the Colorado depositions and things of that nature. We are here because those pro hac vice motions are being contested. The core piece of that is the argument that they should not be allowed to seek confidential information in this case. Your Honor will remember that I was before you a couple of weeks ago again trying to get the deposition of the defendant, which is set for tomorrow, but still hasn't occurred yet. And in order to expedite that process I agreed to the protective order that was put in front of the Court and I waived all of my objections to that in order to be able to facilitate and move that deposition forward. That protective order provides that attorneys who are actively working on the case can receive confidential material. My opposing counsel has interpreted that to mean that that must be a counsel of record in the case. We disagree with that interpretation. I wouldn't have agreed to a protective order knowing that they were already working on the case. If that were the situation, as your Honor can understand in this case, the majority of the material has been marked confidential, so it would prohibit my cocounsel from working on behalf of their client. Your Honor, I'm here to request on behalf of my that she be entitled to have her counsel of record of choice in this matter. If your Honor will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076415 Case 20-2413, Document 44. 08120/2020, 2913556, Page34 of 78 App.-0808 4 G4LMGIUC 1 indulge me, I would like Mr. Cassell to address his pro hac 2 motion, please. 3 MR. CASSELL: Good morning, your Honor, Paul Cassell. 4 I'm a law professor. 5 THE COURT: I don't want to hear it. Sorry. No. 6 Thanks very much. 7 MR. CASSELL: Thank you, your Honor. 8 THE COURT: Anything from the defense. 9 MR. PAGLIUCA: Yes, your Honor. Jeff Pagliuca on 10 behalf of Ms. Maxwell. 11 Your Honor, I have never opposed a pro hac motion in 12 my 34 years of practice, so this is a first for me. But it is 13 clear, your Honor, that these lawyers will be witnesses in this 14 case. 15 THE COURT: This we don't know. I can't make that 16 determination now. Anything else? 17 MR. PAGLIUCA: Yes. 18 THE COURT: You may be totally right, but I don't 19 know. 20 MR. PAGLIUCA: Your Honor, here is the problem. This 21 case is about the plaintiff's false allegations. 22 THE COURT: Yes. I think I picked up on that. 23 MR. PAGLIUCA: These are the lawyers that wrote the 24 false allegations. 25 THE COURT: I think I picked up on that, too. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076416 Case 20-2413, Document 44. 08/20/2020, 2913556, Page35 of 78 App.-0809 5 G4LMGIUC 1 MR. PAGLIUCA: These are the lawyers that admitted 2 that these were false allegations. 3 THE COURT: I know. I don't have to tell you, you 4 know, there is going to be all kinds of privilege issues, all 5 kinds of issues about whether or not they have to testify. We 6 are not at that stage. I cannot and I will not decide that 7 now. 8 what else? 9 MR. PAGLIUCA: There is a problem with the sharing of 10 confidential information with these lawyers. These lawyers 11 have both personal and professional interests. 12 THE COURT: I understand that. I get that point. 13 Anything else? 14 MR. PAGLIUCA: No, your Honor. 15 THE COURT: This is what we will do on the pro hac. 16 Everybody agrees, nobody, maybe in the world, but nobody in 17 this courtroom, including me, has dealt with this kind of 18 problem before. That's perhaps only one of a number of issues 19 that are unique about this case. That's neither here nor 20 there. Clearly, the plaintiff has the right to consult with 21 any lawyer she chooses. However, the materials here are 22 sensitive. I don't know the extent to which they have been 23 designated confidential, but I'm quite sure that a substantial 24 number of them have been, by the very nature of the case, I 25 guess. Let me put it this way. I want to be sure that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076417 Case 20-2413, Document 44. 08120/2020, 2913556, Page36 of 78 App.-0810 6 G4LMGIUC 1 enforce the confidentiality appropriately. 2 Now, with those preliminary thoughts in mind I am 3 going to deny the motion at this time because I know that there 4 is a statement, some kind of a statement from the mediator in 5 the Florida action. When I get a piece of paper that says the 6 Florida action is dismissed, a court order or whatever, then 7 this motion can be renewed. 8 Also, I want an affidavit from the two lawyers that 9 there is no matter in which they are personally involved, that 10 they are making no claim, there is no claims, there is no 11 litigation in which they are involved. The reason I say that 12 is that I would not grant the application for a pro hac status 13 to a party in this or a related litigation. If I get those 14 affidavits and the statement about the closure of the Florida 15 case in which they are a party, then the application can be 16 renewed and at that point I would be probably inclined, unless 17 something else comes up or unless the defense tells me 18 something that I don't now know, I would grant the application 19 that brings us to the order itself and the meaning of the 20 order. I think active in the litigation is the key phrase. 21 The plaintiff has listed the people that she considers would be 22 appropriate and it's these two gentleman and I think one other 23 person, and that's fine. That is the definition. 24 However, I'm also going to ask the parties to agree 25 upon an order that would expand the confidentiality agreement SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076418 Case 20-2413, Document 44. 08/20/2020, 2913556, Page37 of 78 App.-0811 7 G4LMGIUC 1 to this extent, to require the plaintiff to indicate to me and 2 to the defense if there is anyone else who is going to be 3 active in the litigation. I'll tell you why I feel this way. 4 I want to be sure that we can enforce the confidential aspect 5 of that agreement, and I think that could be critical down the 6 line. That's the reason for those requests. 7 Now, we also have a motion to compel. 8 MS. McCAWLEY: Your Honor, can I just get 9 clarification very quickly because I don't want to have to come 10 back to the court so I want to make sure I'm following 11 correctly. Your ruling, because we have a deposition tomorrow 12 that counsel was going to be assisting me with, particularly on 13 the Fifth Amendment -- 14 THE COURT: Can't have access unless I get these 15 materials by then. If I do, that's something else. If I do, 16 fine. Otherwise, they can't have access to the confidential 17 data. They can assist. 18 MS. McCAWLEY: Can I just point something out to the 19 Court as well. 20 THE COURT: The plaintiff can have any lawyer she 21 wants. The question is the confidential materials. 22 MS. McCAWLEY: Can I just point the Court to one more 23 issue, because this is their protective order. They now said 24 to the Court that these two individuals are witnesses or 25 potential witnesses. The protective order allows in Section G SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076419 Case 20-2413, Document 44. 08120/2020, 2913556, Page38 of 78 App.-0812 8 G4LMGIUC 1 confidential material to go to deponents, witnesses or 2 potential witnesses. 3 THE COURT: That's a different issue. I have not 4 dealt with that. Obviously anybody who is a witness may have 5 access to the confidential material, because they have to buy 6 into the confidentiality order in order to do that. But they 7 are outside of it at the moment. 8 MS. McCAWLEY: Your ruling is, they cannot attend the 9 deposition tomorrow? 10 THE COURT: They can. Anybody can attend the 11 deposition that anybody wants to have, but they can't 12 participate in it. They can't have access to the confidential 13 material until we get this matter straightened out. Ok. 14 MS. McCAWLEY: I understand, your Honor. 15 MR. PAGLIUCA: Your Honor, we will be designating the 16 testimony as confidential. 17 THE COURT: You see. There you go. That's life. I 18 can't believe that this entire testimony is going to be 19 confidential. Honestly, you all are too much. Ok. If that's 20 what you do, you know that's not going to work because not all 21 of this stuff at issue is going be to confidential. No, no 22 way. What is your name? Ok. We will deal with tomorrow's 23 problem tomorrow. 24 MR. PAGLIUCA: Ok, your Honor. 25 THE COURT: The compel. Anybody want to add anything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 EFTA00076420 Case 20-2413, Document 44. 08/20/2020, 2913556, Page39 of 78 App.-0813 9 G4LMGIUC 1 on that? 2 MS. MENNINGER: Yes, your Honor. Laura Henninger on 3 behalf of Ms. Maxwell. I have taken the liberty, your Honor, 4 of just making a very short little cheat sheet of the 5 outstanding issues, if I may approach. 6 THE COURT: Yes. It will be interesting to see if 7 yours is the same as the one we have prepared. Yours is much 8 longer than ours. 9 MS. MENNINGER: Your Honor, I'm happy to address all 10 of the ones on mine. I certainly am also happy to take 11 direction from the Court regarding issues that you believe to 12 still be of more interest. 13 THE COURT: As I say, I've read your papers. I would 14 be pleased to hear anything you want to add that you think is 15 not covered or you want to respond or anything like that. 16 MS. MENNINGER: Your Honor, one of the largest and 17 most significant pieces to us are the assertions by plaintiff 18 that her own communications with law enforcement are somehow 19 protected by -- 20 THE COURT: I'm prepared to deal with that. 21 MS. MENNINGER: The second one, your Honor, and it 22 relates somewhat to the issues already presented on the pro hac 23 motions, are our requests for the fee agreements with all of 24 plaintiff's various 15 or so lawyers wh