This book was produced in EPUB format by the Internet Archive.

The book pages were scanned and converted to EPUB format automatically. This process relies on optical character recognition, and is somewhat susceptible to errors. The book may not offer the correct reading sequence, and there may be weird characters, non-words, and incorrect guesses at structure. Some page numbers and headers or footers may remain from the scanned page. The process which identifies images might have found stray marks on the page which are not actually images from the book. The hidden page numbering which may be available to your ereader corresponds to the numbered pages in the print edition, but is not an exact match; page numbers will increment at the same rate as the corresponding print edition, but we may have started numbering before the print book's visible page numbers. The Internet Archive is working to improve the scanning process and resulting books, but in the meantime, we hope that this book will be useful to you.

The Internet Archive was founded in 1996 to build an Internet library and to promote universal access to all knowledge. The Archive's purposes include offering permanent access for researchers, historians, scholars, people with disabilities, and the general public to historical collections that exist in digital format. The Internet Archive includes texts, audio, moving images, and software as well as archived web pages, and provides specialized services for information access for the blind and other persons with disabilities.

Created with hocr-to-epub (v.1.0.0)

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA L. GIUFFRE, Plaintiff, - against - 7 Case No. 15-cv-7433 (RWS) GHISLAINE MAXWELL, | Defendant. MEMORANDUM OF LAW IN SUPPORT OF PROPOSED INTERVENORS JULIE BROWN AND MIAMI HERALD MEDIA COMPANY'S MOTION TO INTERVENE AND UNSEAL

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 2 of 21 TABLE OF CONTENTS TCAB LE OP AUTOR UES assis cesses sted caein dl avnie cae teadcesboces ses saneneveiecenteere nee eltad laseaates li IPRELUMUIN AR YS PAST BIVIEINT, oj o126scetecactonccesadenteaceacduidsecteecqsoscuncetatddestesncindd dorecrasidaineuaeanense 1 I. INTERVENORS' COVERAGE OF ALLEGATIONS AGAINST JEFFREY EPSTEIN AND GHISL AINE MAX W ELD oacyigsasiederyssuntesnasuceodactneranscuetecdgcindegunleomeiaasneess 2 Il. THE OVERBROAD SEALING ORDER AND PRIOR ATTEMPTS TO UNSEAL........ 5 I. THE ORDER DENYING THE MOTIONS TO UNSEAL......... 0c eeeccecesceeseeceeseeeeeneeeeees 6 PURE UIE INT ssasscleaceneeatedacesleciasetneade a caiceues ceeied a aecilvceugetvacdesasigaieaas acd ace niensaseacteagudedsnastauamemleamidene: 6 I MIAMI HERALD MEDIA HAS THE RIGHT TO INTERVENE AS A NEWS CIRC INT PDN ceca cca ass ster ee uses eine neces deatg ctacsisbecienbleleeeas sae teateaiquedeen.ce quicieeveadaeeaensees 7 i: THE PRESUMPTION OF OPENNESS UNDER THE COMMON LAW AND FIRST AMENDMENT APPLY TO THE DOCUMENTS AT ISSUE...........eeceescceseseeeeeteeeenteeeenes 8 A. The First Amendment and Common Law Provide For a Presumption of Access 10 Judicial DGCUNIeIIS: s.dcsciascocsvasseargiieeteaadsoneeeeteenedenentanes 8 B. The Documents at Issue Qualify As Judicial Documents.......... eee eeeeeseeeteeeeeee 11 IIL. THE DOCKET SHOULD BE UNSEALED BECAUSE THERE ARE NO COMPELLING CIRCUMSTANCES IN THIS CASE THAT OVERCOME THE PUBLIC SIGHT OP ACG BSS cccet cs ctcaateratenteutes ssc ssteaeuterduiearaeenseutonsses teecteteuiegantee iS IV. THE PARTIES HAVE NOT ESTABLISHED GOOD CAUSE FOR SEALING NON-FUDICTAL DOCUMENTS, IP AINY a sscactcssssoetendesstagsnsteaceatacenacees soededdssenad deadaecesgatees 1S RUMI LTT SON oases be acs castes sag ade geet ede ac easel cence nee neers 16

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 3 of 21 TABLE OF AUTHORITIES Page(s) CASES Alexander Interactive, Inc. v. Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174 (S.D.N.Y. Sept. 2, 2014) oe ceeeeeeseeceeneeeenees 12 Allen v. City of New York, 420 F. Supp. 2d 295 (S.D.N.Y. 2006) .0...ccceccccesscesssecsecceceeeeecsaeceeaaecseneeceaceeesaeceeaaeceeneeceaeeeesaecneaeeseenees 15 Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, S14 F 30.132 02d Cir, 2016) ciccssiveecacdeansactegenssbec cxnsetteanaudnteceideabadhacdasececkecdedseedesdevesascoanaedats cnetetdes 9,11, 14 Bernstein v. O'Reilly, Case No. 17-cv-9483 (April 3, 2018) ......ceccceeeccecsseceesseceeneeceeeecsaeceeaaeceeneecaeeecaaeceeaeeceneesaeeseaaeceeaeeeeaes 9 Carlson v. Geneva City Sch. Dist., 277 FIR D.90 CWAD NY, 2OLT) 8 ihc iantebentcivthicaantedett hsHices. tadee laddivstsdidenaiadlacssastioanaisdicasemeeenievice 15 Condit v. Dunne, 225 FIR Ds 113: 6S. D.NiY 5 2004) secis cacces tendered ssstnceasticccuseasancavtecceyed saavvansssaccuesaacecteedasdavelassuecenebavecwsdiceese 15 E*Trade Fin. Corp. v. Deutsche Bank AG, 562. F. Supp: 2d 528: (CS: DiNvY £2008) cess ssssads sescvtetsssdecteancectusveasettecansediesoncvguaanssaten sabe ceiannasadeasenccsenvansatees 9 Equal Emp't Opportunity Comm'n v. Nat'l Children's Ctr., Inc., 146. Fe3d: 1042 (DC. Car, 1998): cccecasceevesa'ssceee cs tetova tends codes eeevesbaceededancesases teed snaseusdel bused cabadeustvedeestevneties 8 FDIC v. Ernst & Ernst, 677 Fi2d' 230 Qe Cit 1982) eo vccissceasaindecs steednds vabnescs stesunee chun cei'ov seeds dagedh seis stitgursee’ andece soncveanrtendess seedene vtundedes 8 Gambale v. Deutsche Bank, S17 Fi3d 133 (2d Care 2004) evscitsessssadeatszesgeccecnvestaass sescesswed sauaesadecageansctesshidg sasienadencasnnds cages satcoabeestsds saises 15 Globe Newspapers, Co. v. Superior Court, ANT US 596. (1982) sseiseccasssvesinnsiadsecganvacescsaxpsencen ces dea chassth ogitaacenstes lund sueteeansdasannccauasee soeaaeadenedoiga staavie sete 10 Hardy v. Kaszycki & Sons, No. 83-CV-6346 (LAP), 2017 WL 6805707 (S.D.N.Y. Nov. 21, 2017) .....eecceecceceeceeeseeeeeneeeeeeeees 9, 14 Havens v. Metropolitan Life Insurance Co., No. 94 CIV. 1402 (CSH), 1995 WL 234710 (S.D.N.Y. April 20, 1995) oo... ees cecsceceeceeeseeeeeneeeeeeeeees 15 In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., MDL No. 1358, 2013 WL 3531600 (S.D.N.Y. July 12, 2013) oo... cee ceecceeseeceeseeceeeeeceeeesnaeeeeeeeeenees 10 In re NASDAQ Market-Makers Antitrust Litig., L64-F-R.D: 346 (S2DUNGY 1996) oececsscesxacossacednatstevacesancedebe cee essesaceedeedcneesnles igedesnaseesees fused cabateuctnedveatebastee’ 7 i

The text on this page is estimated to be only 46.43% accurate

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 4 of 21 In re Omnicom Grp., Inc. Sec. Litig., ING OD CTV AA SS series cee ace tees ct 2 canteat nese ou oeandanctaceeadi tt cauceatosceactetsadceltoecuedaes iestectoieaeiats seeeeeccisteets 9,12 In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090 (S.D.N.Y. Aug. 10, 2015) ooo... ceeceeeeceeesteceeneeeeees 7 In re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220 (S.D.N.Y. 2006) ........c ce ceccccceeccecsseceeseeceeaeeceeneesaeceeaaeceeneeceaeeeeaeeeeaaeeaes 15 Landmark Commc'ns, Inc. v. Virginia, AD DW O29: CLO 18 \eoecetetenctecset ceccdasctcsevletcechtscatensesec cack tescteceetec edt te satessesuteec: teactetelsoteecttstavessusucseeetesaet ae 10 Lugosch v. Pyramid Co. of Onondaga, 43 5°H 30 110 CdiC rr 2006) isk sasaki sicdsicesnteaeeedindl been seca add ceean tea ceedandd aveze seeded snd aveanteae eed nda teeaeneeete passim Mitchell v. Fishbein, 227 BERD: 23 9(S DNS Y 5 2005) seston eSsenscscccn tes ccaeus tee Sade Reh sabe Gea ol Sa eens Sana ans ose RRS a 15 Nebraska Press Ass'n v. Stuart, ENS 39 197 G) hehe ees erect at ce fe se sa ve caciastnccesns ce chsnaten sens onncest acs cenabins heusten se sesips custseceuivecseastutees 10 Nixon v. Warner Commc'ns, Inc., AS WAU S69 NOT 8) cae scs ves cues chtcaecad tacxstens cass ctettensuscsc ecole tiexadene casted tae nsesnsesaceoetisnsceucceessdieeenscensccatetaaes 10 Press-Enterprise Co. v. Superior Court, AGA WS SOU 9BA ) ... ssevseesetsasnsstactavs pestavead eades Lesvaaes a cbeaaws ocstaaun a tacadws (eavsyse ts cusgaOb ces taG son aden Lea oa nnn chee es 10 Savitt v. Vacco, No. 95-CV-1842(RSP/DRH), 1996 WL 663888 (N.D.N.Y. Nov. 8, 1996).........ccccccccccecsssssssseeeeeeeeeenees 7 Schiller v. City of New York, No. 04 CIV. 7921(KMK), 2006 WL 2788256 (S.D.N.Y. Sept. 27, 2006)........ceccceecceesteeeeseceeeeees 7,12 Sec. and Exch. Comm'n v. TheStreet.Com, 21S E30 222 (2d Cir: 2001) acid cvccant tecsennstccnenscecdeansecescnnscacsunnstecedensatedeas st censabacecdeanstecndenacecdennss cereansdaceous 7 Under Seal v. Under Seal, 213: Fe Supp;-3d:-460 (SAD AN. Ys QOL 7) cic ccccicectesnctbectwcsess teen ccevsdee caeadeatatevscseceetdeantevscascaeeloodatieplane 8, 11, 14 United States v. Erie Cnty., 7603 F.3d 235) Qed Cake 201A) a siccccessssesscs covecesesnsnnvns viicsciisestandeus elects devannsenns tice sbvastouseat tees fodeatanavee ties ceventondes 14 United States v. Sattar, 471 F. Supp. 2d 380 (S.D.N.Y. 2006) .0...e cc cecccecceceesseceeeeceeeeecsaeceeaaeceeaeeceaeeeeaaeceeaaeceeneeceaeeseaaeeseaaeeenees 11 Wilson v. Am. Motors Corp., 7599 F.2d 1568: (11th: Cir. 1985) eseisccescvsciscssssivedevensnes cbsieesenuess saa lasaies dened nenadepivs castes dead sasive dese sancbebeaveeseeeee 8 OTHER AUTHORITIES Od Re Cryi P24 oles éiccsctscosesccedssuncddcesdsasdassauadaceavevstaveunndaceessdebissuuedacesveessaswusedocesdeesdusiewataceavecssassauecocsevssesa 1,7 ili

The text on this page is estimated to be only 47.83% accurate

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 5 of 21 Pedi 2 hese testes ace tented 15 US (Consts amend sD ssviseicssetacccvechas te cratic aetvidetiavetaasceesbes scoveusnaustiudes davelassavgebas Sesteapeastradepeavbliccaerbassacve passim iv

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 6 of 21 PRELIMINARY STATEMENT Pursuant to Rule 24 of the Federal Rules of Civil Procedure, the Miami Herald Media Company (the "Miami Herald"), and Julie Brown, investigative journalist for the Miami Herald ("Julie Brown" and together with Miami Herald, the "Intervenors"), respectfully submit this memorandum of law in support of their motion to intervene and unseal all of the documents in the above-captioned action that have been filed under seal or redacted. These judicial documents are germane to the Miami Herald's ongoing coverage of dozens of underage minors who were victims of Jeffrey Epstein, the South Florida financier who pleaded guilty in 2008 to solicitation of minors for prostitution and was suspected of involvement in a larger sex-trafficking organization. These documents are presumptively public, under both the common law and the First Amendment to the United States Constitution, but have been sealed pursuant to an improvidently granted protective order (ECF No. 62) (the "Protective Order") that allowed the parties to the above-caption actions ("Parties") to designate information as confidential without the particularized judicial scrutiny required by the law prior to sealing. Though two previous motions to unseal have been denied, the reasoning underlying the denial — the imminence of trial, and potential impact on a jury — is no longer relevant because the case has been settled. The Parties in this action have made use of the public courts to litigate a claim of intense public interest. They may not do so in secret without a specific finding of compelling interest. Since this has not occurred, and no other interest outweighs the public right of access, Intervenors' motion should be granted.

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 7 of 21 FACTUAL AND PROCEDURAL BACKGROUND I. INTERVENORS' COVERAGE OF ALLEGATIONS AGAINST JEFFREY EPSTEIN AND GHISLAINE MAXWELL The Miami Herald is the second largest newspaper in South Florida. Established in 1903, it is circulated in Miami-Dade, Broward County, and Monroe County, as well as in the Caribbean and Latin America. Julie Brown is an investigative journalist at the Miami Herald with over twenty years of experience. For over three years, the Miami Herald has reported on and investigated Mr. Epstein and others who were involved in the sexual abuse of underage girls. Recent court filings, both in federal and state court, have raised new allegations about his involvement in a wider sextrafficking ring. The Miami Herald has covered, among other subjects, the initial investigation by the Palm Beach state attorney, the FBI and the U.S. Attorney's Office, the negotiations between those law enforcement agencies and Mr. Epstein's legal defense team, and the ultimate decision by the U.S. Attorney's Office to sign a non-prosecution agreement that was negotiated in secret and sealed in return for a guilty plea to a lesser state crime. The deal, which was not revealed until well after it was signed and Mr. Epstein was sentenced, resulted in him serving 13 months of an 18-month sentence. He now lives in the U.S. Virgin Islands. The Miami Herald has also reported on civil matters related to the original criminal case against Mr. Epstein, which include the now-settled above-captioned action. Here, the underlying claim is a defamation action brought by Virginia Giuffre ("Ms. Giuffre" or "Plaintiff") against Ghislaine Maxwell ("Ms. Maxwell" or "Defendant") on the grounds that Ms. Maxwell, in coordination with Mr. Epstein, "facilitated [] sexual abuse" of Ms. Giuffre and "wrongfully subjected Giuffre to public ridicule, contempt and disgrace by...calling Giuffre a liar in published statements." (ECF. No. 1.) Specifically, Court transcripts in the Giuffre/Maxwell case make several references to Ms. Maxwell being the "madame" of Mr. Epstein's sex-trafficking enterprise,

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 8 of 21 and to witnesses who may be able to provide evidence of a wider, cross-border sex-trafficking ring. In connection with its ongoing investigation, the Miami Herald has sought to access public court filings that will shed light on the scope of Epstein's crimes and address serious questions about whether there was any undue influence that tainted the investigation. These include how the Epstein case was disposed of by the criminal justice system, whether victims were treated properly, whether Epstein's victims were unfairly kept in the dark, whether Epstein was given favorable treatment because of his wealth and status, in short, whether the public interest was served. These questions have yet to be answered because many of the records that could provide responsive information have been sealed. The public, including Epstein's victims, has the right to know how Mr. Epstein's case was prosecuted. The law provides the public with the presumption of access in order to hold our legal instutitions accountable and to maintain confidence that they will protect the most vulnerable in our society. Il. THE OVERBROAD SEALING ORDER AND PRIOR ATTEMPTS TO UNSEAL During litigation of the defamation claim, the Court, upon Defendant's motion, entered an overly broad Protective Order stating, inter alia: This Protective Order shall apply to all documents, materials, and information, including without limitation, documents produced, answers to interrogatories, responses to requests for admission, deposition testimony, and other information disclosed pursuant to the disclosure or discovery duties created by the Federal Rules of Civil Procedure. 28 2K Information designated "CONFIDENTIAL" shall be information that is confidential and implicates common law and statutory privacy interests of (a) plaintiff Virginia Roberts Giuffre and (b) defendant Ghislaine Maxwell. 2 2K Designation of a document as CONFIDENTIAL INFORMATION shall constitute a representation that such document has been

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 9 of 21 reviewed by an attorney for the designating party, that there is a valid and good faith basis for such designation, made at the time of disclosure or production to the receiving party, and that disclosure of such information to persons other than those permitted access to such material would cause a privacy harm to the designating party. Whenever a party seeks to file any document or material containing CONFIDENTIAL INFORMATION with the Court in this matter, it shall be accompanied by a Motion to Seal pursuant to Section 6.2 of the Electronic Case Filing Rules & Instructions for the Southern District of New York. 28K A party may object to the designation of particular CONFIDENTIAL INFORMATION by giving written notice to the party designating the disputed information. The written notice shall identify the information to which the objection is made. If the parties cannot resolve the objection within ten (10) business days after the time the notice is received, it shall be the obligation of the party designating the information as CONFIDENTIAL to file an appropriate motion requesting that the Court determine whether the disputed information should be subject to the terms of this Protective Order. If such a motion is timely filed, the disputed information shall be treated as CONFIDENTIAL under the terms of this Protective Order until the Court rules on the motion. If the designating party fails to file such a motion within the prescribed time, the disputed information shall lose its designation as CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in accordance with this Protective Order. In connection with a motion filed under this provision, the party designating the information as CONFIDENTIAL shall bear the burden of establishing that good cause exists for the disputed information to be treated as CONFIDENTIAL. Essentially, the Protective Order allowed the Parties the autonomy to designate portions of the docket as "confidential" and further allowed those designated portions to remain confidential unless the non-designating party objected. Following the Protective Order, Defendant designated her deposition as confidential and submitted at least 13 letter motions to file documents under seal, including exhibits to discovery motions (see, e.g., ECF. No. 167), and discovery motions themselves. (See, e.g., ECF No. 236.) Each of the letter motions was so-ordered. Plaintiff also submitted at least 22 motions to file

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 10 of 21 documents under seal, including additional discovery motions (see, e.g., ECF No. 245), and a Motion for an Adverse Inference Instruction. (See ECF No. 278.) The Court so-ordered each of these motions. After at least 35 motions on the part of Plaintiff and Defendant, the Court issued an order stating that the parties were no longer required to seek court approval to designate confidential information: To reduce unnecessary filings and delay, it is hereby ordered that letter motions to file submissions under seal pursuant to the Court's Protective Order, ECF No. 62, are granted. The Protective Order is amended accordingly such that filing a letter motion seeking sealing for each submission is no longer necessary. A party wishing to challenge the sealing of any particular submission may do so by motion. (ECF No. 348.) In addition to the wholesale sealing of certain motions, the entire body of Defendant's motion for summary judgment — 68 pages — was redacted (see ECF No. 538) and over half of the order denying Defendant's motion for summary judgment was redacted. (ECF No. 8772.) In response to the sealing, two separate parties moved to intervene and to unseal selected filings. The first, Alan Dershowitz, himself implicated in the Epstein scandal, moved to intervene and to unseal three documents or in the alternative to modify the Protective Order (the "Dershowitz Motion"). (ECF No. 362.) The documents that Mr. Dershowitz targeted are currently unidentifiable because the Dershowitz Motion was partially redacted, and the order denying the motion to unseal was itself sealed. The second individual, podcast host and investigative journalist Michael Cernovich, moved to intervene and unseal Defendant's Motion for Summary Judgment (the "Cernovich Motion"). (ECF No. 550.) The portion of the Cernovich motion seeking to unseal the Motion for Summary Judgment was also denied.

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 11 of 21 Uf. THE ORDER DENYING THE MOTIONS TO UNSEAL The order on the Cernovich Motion (which, unlike that on the Dershowitz Motion, was not sealed) reasoned that both the sensitive nature of the material at issue and the procedural status of the case merited closure. Regarding the former reason, the Court stated that "privacy interests of both parties and third parties warrant disclosure with respect to discovery materials." (ECF No. 892, at 8.) Regarding the latter reason, the Court emphasized that, due to the ongoing status of the litigation and the imminence of trial, "a release of contested confidential discovery material could conceivably taint the jury pool." (/d., at 7.) Summarizing, the court stated: "Because of the sensitive nature of the materials designated as confidential, involving allegations of sexual abuse and trafficking of minors, and because we are mere weeks from assembling a jury for trial, the importance of leaving these materials protected by the Protective Order outweighs any public interest in their publication." (/d., at 9.) Messrs. Dershowitz and Cernovich both appealed to the Second Circuit. (ECF Nos. 500 and 915.) TheaAppeals are currently pending. On May 24, 2016, Plaintiff and Defendant entered into a settlement agreement. Now, the Miami Herald seeks to unseal all sealed documents on the docket, including the Parties' depositions and documents submitted in support of motions, and to remove any redactions from filed documents unless there remains a compelling need for closure. ARGUMENT As a representative of the public interest in the transparency of our courts, the Miami Herald seeks to intervene in this matter to unseal documents germane to a subject of intense media coverage and public import. Despite the sensitive nature of some of the materials under seal, the law affords the presumption of openness, under the common law and the First Amendment to the U.S. Constitution, more weight. Even if the Parties have reasons compelling enough to overcome

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 12 of 21 this presumption, the Parties were not required, as they should have been, to articulate those reasons. Instead, the Parties benefited from a presumption of closure. Of particular importance, a main reason denying the prior motions to unseal — the on-going status of the litigation — is no longer relevant because the litigation has been settled. While certain redactions may remain necessary to shield personal medical information or the identities of crime victims, the majority of the materials sought here can and should be disclosed. For these reasons, explained in further detail below, the Miami Herald respectfully requests that the Court unseal all sealed files on the docket, and remove any redactions from partially redacted documents. L THE MIAMI HERALD HAS THE RIGHT TO INTERVENE AS A NEWS ORGANIZATION Under the law of this Circuit, news organizations are routinely permitted to intervene and be heard on issues involving public access to proceedings and documents, including challenges to discovery protective orders, pursuant to Rule 24 of the Federal Rules of Civil Procedure, either as a matter of right or permissively. See, e.g., Sec. and Exch. Comm'n v. TheStreet.Com, 273 F.3d 222, 227 n.4 (2d Cir. 2001); Schiller v. City of New York, No. 04 CIV. 7921(KMK)(JC), 2006 WL 2788256, at *2 (S.D.N.Y. Sept. 27, 2006); In re NASDAQ Market-Makers Antitrust Litig., 164 F.R.D. 346, 350-51 (S.D.N.Y. 1996); Savitt v. Vacco, No. 95-CV-1842(RSP/DRH), 1996 WL 663888, at *7 (N.D.N.Y. Nov. 8, 1996) ("The Second Circuit Court of Appeals and its district courts have consistently held that news agencies have standing to challenge protective orders in cases of public interest."). Accordingly, this Court should permit Intervenors to intervene for the limited purpose of advocating for public access to these proceedings. This motion is timely. Intervention has been granted years into litigation - and even long after a case has concluded. See In re Pineapple Antitrust Litig., No. 04 MD. 1628 RMB MHD, 2015 WL 5439090, at *2 (S.D.N.Y. Aug. 10, 2015) ("There is no legal authority of which we are

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 13 of 21 aware ... to the effect that there is a deadline by which such a journalistic request for access to documents must be asserted, and certainly no requirement that the application be made before the lawsuit is closed."); Equal Emp't Opportunity Comm'n v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) ("Intervention to challenge confidentiality orders may take place long after a case has been terminated.") (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 779 (3d Cir. 1994)); see also Wilson v. Am. Motors Corp., 759 F.2d 1568 (11th Cir. 1985) (non-party permitted to intervene after judicially approved settlement in order to challenge a seal on court documents); FDIC v. Ernst & Ernst, 677 F.2d 230, 231-32 (2d Cir. 1982) (non-party permitted to intervene and challenge a stipulated confidentiality order two years after a judicially approved settlement). The public and the Miami Herald are entitled to access these records and proceedings at any time. Il. THE PRESUMPTION OF OPENNESS UNDER THE COMMON LAW AND FIRST AMENDMENT APPLY TO THE DOCUMENTS AT ISSUE A. The First Amendment and Common Law Provide For a Presumption of Access to Judicial Documents The public holds an affirmative, enforceable right of access to judicial records under both the common law and the First Amendment to the U.S. Constitution. See Under Seal v. Under Seal, 273 F. Supp. 3d 460, 467 (S.D.N.Y. 2017) (noting that the common law and First Amendment provide "related but distinct presumptions in favor of public access to court ... records") (quoting Newsday LLC v. Cnty. Of Nassau, 730 F.3d 156, 163 (2d Cir. 2013)). Both regimes protect the values of transparency and accountability in the judicial process through procedural requirements, and both place heavy burdens on parties seeking to seal judicial records to ensure that the courts do not sacrifice the public's right of access to the desires of the litigations. See generally Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) (First Amendment and common law right to judicial documents); Jn re Omnicom Grp., Inc. Sec. Litig., No. 02 CIV. 4483 RCC/MHD, 2006 WL 3016311, at *1 (S.D.N.Y. Oct. 23, 2006) (an application to seal "must address and

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 14 of 21 overcome the presumption of public filing that finds its twin sources in the common-law right of public access to judicial documents and the qualified First Amendment right to attend judicial proceedings. The two are entirely complementary."). Historically, at common law, "both civil and criminal trials have been presumptively open." E*Trade Fin. Corp. v. Deutsche Bank AG, 582 F. Supp. 2d 528, 531 (S.D.N.Y. 2008) (citing Richmond Newspapers v. Virginia, 448 U.S. 555, 580 n.17 (1980)). Recently, the Second Circuit reiterated the common law presumption in Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016). In Bernstein, the Second Circuit emphasized the "general right to inspect and copy...judicial records and documents." Jd. at 142 (quoting Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)). It further explained that the weight of the presumption is a function of: "(1) the role of the material at issue in the exercise of Article III judicial power and (2) the resultant value of such information to those monitoring the federal courts, balanced against competing considerations such as 'the privacy interests of those resisting disclosure."" Jd. (internal quotation marks omitted). The presumption weakens where "testimony or documents play only a negligible role in the performance of Article II duties," but even so, there remains a "prediction of public access." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d at 121. Moreover, even if a court determines that the interests of those seeking closure outweigh the presumption of access, "sealing must be supported by specific findings." Hardy v. Kaszycki & Sons, No. 83-CV6346 (LAP), 2017 WL 6805707, at *6 (S.D.N.Y. Nov. 21, 2017) (citing United States v. Amodeo, 44 F.3d 141, 148 (2d Cir. 1995)); see also Bernstein v. O'Reilly, Case No. 17-cv-9483 (S.D.N.Y. April 3, 2018) (denying motion to seal where defendant failed to "present compelling countervailing factors that could overcome the presumption of public access" to court records.).

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 15 of 21 The First Amendment presumption of access is even stronger. As the U.S. Supreme Court has said time and again, the First Amendment requires open courts and court records to ensure the "appearance of fairness [that is] so essential to public confidence in the system." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984). The media's access to judicial proceedings and records keeps the public informed and helps instill public confidence in both the process and the results of trials. Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559-60 (1976); Nixon, 435 U.S. at 609. "The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." Landmark Commc'ns, Inc. v. Virginia, 435 U.S. 829, 838-39 (1978). The First Amendment access right imposes a heavy burden on those who seek to limit public access to justify the restriction. See Globe Newspapers, Co. v. Superior Court, 457 U.S. 596, 606 (1982) ("the State's justification in denying access must be a weighty one"); Lugosch v. Pyramid Co., 435 F.3d 110 at 126 (First Amendment "gives rise to a higher burden on the party seeking to prevent disclosure than does the common law presumption"); In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab. Litig., MDL No. 1358, 2013 WL 3531600, at *2 (S.D.N.Y. July 12, 2013) ("Once properly invoked, the public's right of access to judicial documents under the First Amendment must be given strong weight.") (internal quotation marks omitted). As the Supreme Court explained in Globe Newspapers, the standard to be met is a strict one: "Where .. . the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest." 457 U.S. at 606-07 (1982). In this case, the Protective Order improperly reversed the common law and First Amendment presumption of openness to one of closure. Instead of requiring the Parties to 10

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 16 of 21 demonstrate a compelling need for closure, the Protective Order effectively rubber-stamped any information designated as confidential by the Parties. The Court then reaffirmed the presumption of closure by lifting the requirement in the original Protective Order that required the parties to submit letter motions in order to seal documents. (ECF No. 348.) Though the original Protective Order provided the non-designating party with a mechanism to dispute a confidentiality designation (ECF No. 62, {/ 11), this did not, and cannot, replace the public's baseline right to access. B. The Documents at Issue Qualify As Judicial Documents All of the documents that the Miami Herald seeks to unseal — in whole or in part — qualify as "judicial documents" to which applies the common law and First Amendment presumption of access. Recently, this court noted that "[g]lenerally, the presumption of access applies to all documents filed with the court." Under Seal, 273 F. Supp. 3d at 269; see also United States v. Sattar, 471 F. Supp. 2d 380, 385 (S.D.N.Y. 2006) (generally, a document is a "judicial document" if itis "submitted to the Court for the purposes of seeking or opposing adjudication."); Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (a judicial document is one that is "relevant to performance of judicial function and useful in judicial process"). Defendant's motion for summary judgment fits this definition squarely because it presents the substantive reasons for final adjudication. See Bernstein, 814 F.3d at 136 (holding that motions for summary judgments, as well as reports submitted in connection with a motion for summary judgment, are entitled a strong presumption of access). 11

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 17 of 21 The remaining documents, the majority of which are those submitted in opposition or support to discovery motions, also qualify.! Citing the broad rule in Lugosch, the court in Alexander Interactive, Inc. v. Adorama, Inc., No. 12 CIV. 6608 PKC JCF, 2014 WL 4346174, at *2 (S.D.N.Y. Sept. 2, 2014), stated that "documents to be submitted are in support of a motion to compel discovery [] presumably will be necessary to or helpful in resolving that motion. They are, therefore, judicial documents." Similarly, in Jn re Omnicom Grp., the court held that a "series of letter briefs with accompanying exhibits...certainly qualify as judicial documents." 2006 WL 3016311 at *2. These briefs were submitted, "to request the court to exercise its adjudicative powers in favor of the parties’ respective views of a discovery dispute." /d.; see also Schiller, 2006 WL 2788256, at *5 (holding that briefs and supporting papers submitted in connection with a dispute over the confidentiality of discovery materials were "created by or at the behest of counsel and presented to a court in order to sway a judicial decision" and were therefore "judicial documents that trigger the presumption of public access"). The docket entries and accompanying exhibits, including deposition testimony, sealed by the following orders are therefore "judicial documents": ECF Nos. 100, 145, 158, 163, 167, 183, 186, 196, 344 (entries related to motions to compel); ECF Nos. 168, 178, 197, 209, 236, 256, 273, 285, 319, 249 (entries related to motions to serve deposition subpoenas, exceed deposition limits, reopen Plaintiff's deposition, or complete depositions); ECF Nos. 266, 282, 285, 297, 328, 350 (entries related to motion for adverse inference); ECF Nos. 125, 329 (entries related to motions concerning forensic examination of computer); ECF No. 146 (entries related to brief in support of privilege claimed for Plaintiff's in camera submission); ECF no. 354, 275 (entries related to Defendant's response to non-party's ' The Miami Herald is only able to identify the nature of the sealed documents that were filed before the Court issued its order (ECF. No. 348), which lifted the requirement that the Parties file a letter motion in order to designate information as confidential and seal. 12

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 18 of 21 motion to quash subpoena); ECF No. 281, 286 (entries related to Plaintiff's sur-reply); ECF No. 322 (entries related to Plaintiff's proposed search terms); ECF. No. 332 (entries related to exhibit accompanying Plaintiff's notice of supplemental authority); ECF. 351 (entries related to motion for protective order). I. THE DOCKET SHOULD BE UNSEALED BECAUSE THERE ARE NO COMPELLING CIRCUMSTANCES IN THIS CASE THAT OVERCOME THE PUBLIC'S RIGHT OF ACCESS In light of the First Amendment and common law presumption against closure and the First Amendment's stringent, "compelling reason" standard, the interests of the Parties are insufficient when weighed against the public's right of access. As a preliminary matter, one of the main reasons for closure identified in the Court's denial of the Cernovich Motion — the ongoing status of the litigation — is no longer relevant because the case has settled. Accordingly there is no more risk that the "release of contested confidential discovery materials could conceivably taint the jury pool." (ECF No. 892, at 7.) Any weight given to the fact that, at the time of the denial of the Cernovich motion, the case was "mere weeks from assembling" trial, should be disregarded. The legal rights of the parties are now settled, and if the public's interest in this matter was at all tempered in light of the on-going litigation, it is now renewed. Further, even if the case remained open, the privacy interests of the litigants do not outweigh the public's right of access under the First Amendment. Ms. Giuffre's allegations have been the subject of significant public interest and have been covered at length by the Miami Herald and other members of the news media. Coverage is ongoing, and there are several aspects of the story that require further investigation. As such, the judicial documents in question involve issues that are "manifestly ones of public concern and therefore ones in which the public has an interest in overseeing." United States v. Erie Cnty., 763 F.3d 235, 242 (2d Cir. 2014); see also Under Seal 13

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 19 of 21 273 F. Supp. 3d at 472 (unsealing entire docket and holding that public right of access outweighed defendant's concern of adverse publicity and her reliance on previously executed confidentiality agreement); Bernstein, 814 F.3d at 143-44 (attempt to seal complaint against law firm alleging that partners engaged in kick-back scheme was properly denied where complaint was of "legitimate interest to the public" and where disclosure would not reveal details of an ongoing investigation, pose a risk to witnesses, endanger national security, reveal trade secrets, or implicate duty to protect attorney-client material or confidential client information); Hardy, 2017 WL 6805707, at *6-7 (unsealing transcript of settlkement between workers' union and, inter alia, the Trump Organization and holding that, under common law and the First Amendment, public interest outweighed reliance on sealing order and the "generalized interest" in promoting settlement). Neither of the Parties have presented the "specific, on-the-record findings" that establish a compelling reason for sealing or redaction. Lugosch, 435 F.3d at 126. Quite the opposite — the Court initially granted at least 35 letter motions to seal documents, the vast majority with de minimis justification. See, e.g. ECF No. 285 (So-ordering sealing where Defendant reasoned "Exhibits contain content designated as confidential by the parties pursuant to the Protective Order"); ECF No. 236 (So-ordering the sealing where Defendant reasoned "These Motions, Declarations, and Exhibits contain content designated as confidential by the parties pursuant to the protective order"). The Court then lifted any requirement for justification whatsoever when it ceased to require letter motions prior to sealing. In sum, the parties did not — and were not required to — rebut the presumption of access afforded by the common law and the First Amendment, much less establish the prerequisite "compelling interest" needed to justify sealing. 14

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 20 of 21 IV. THE PARTIES HAVE NOT ESTABLISHED GOOD CAUSE FOR SEALING NON-JUDICIAL DOCUMENTS, IF ANY Even if the Court were to hold that the documents at issue are not "judicial documents" the Parties have not met the "good cause" standard that is still required to justify closure of other documents. "[T]he party seeking a protective order has the burden of showing that good cause exists for issuance of that order. However, it is equally apparent that the obverse also is true, i.e., if good cause is not shown, the discovery materials in question should not receive judicial protection and therefore would be open to the public for inspection." Gambale v. Deutsche Bank, 377 F.3d 133, 142 (2d Cir. 2004) (quotation marks and citation omitted); Mitchell v. Fishbein, 227 F.R.D. 239, 254 (S.D.N.Y. 2005) (movant must demonstrate good cause for order barring public dissemination of discovery materials); Condit v. Dunne, 225 F.R.D. 113, 115 (S.D.N.Y. 2004) (same). To show good cause under Rule 26(c), parties must demonstrate that disclosure will cause a clear and serious injury via a "particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Havens v. Metropolitan Life Insurance Co., No. 94 CIV. 1402 (CSH), 1995 WL 234710, at *10 (S.D.N.Y. April 20, 1995) (quoting Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)); see also Carlson v. Geneva City Sch. Dist., 277 F.R.D. 90, 94 (W.D.N.Y. 2011) (requiring "defined, specific, and serious injury") (citation omitted); Allen v. City of New York, 420 F. Supp. 2d 295, 302 (S.D.N.Y. 2006) (to establish good cause, a party must demonstrate that "a clearly defined and serious injury ... would result from disclosure of the document." (internal citations and quotation marks omitted)); Jn re Terrorist Attacks on Sept. 11, 2001, 454 F. Supp. 2d 220, 222 (S.D.N.Y. 2006) (ordinarily good cause demonstrated "when a party shows that disclosure will result in a clearly defined, specific and serious injury") (internal citations and quotation marks omitted). In this case, the blanket 15

Case 1:15-cv-07433-RWS Document 936 Filed 04/06/18 Page 21 of 21 Protective Order allows the Parties to seal presumptively public information merely by designation, without any judicial scrutiny at all, and therefore the good cause standard is not satisfied. CONCLUSION For the foregoing reasons, the Miami Herald's motion to intervene and unseal all sealed or redacted docket entries should be granted. Dated: April 6, 2018 Respectfully Submitted, /s Christine N. Walz HOLLAND & KNIGHT LLP Sanford L. Bohrer Christine N. Walz 31 West 52nd Street New York, NY 10019 Telephone: 212.513.3200 Fax: 212.385.9010 Attorneys for Movants/Intervenors Julie Brown and Miami Herald Media Company #55775939_v1 16