# Ca ses1:25-c84034B3-dLAPenDb0u4m67t3002820File8967/28/20agPage 200f 9 Haddon, Morgan and Foreman, P.C. Ty Gee H A D D O N M O R G A N F O R E M A N 150 East 10th Avenue Denver, Colorado 80203 PH 303.831.7364 FX 303.832.2628 www.hmflaw.com tgee@hmflaw.com July 29, 2020 Honorable Loretta A. Preska United States District Court Southern District of New York 500 Pearl Street New York, NY 10007 Re: Reconsideration of the Court’s July 23 Ruling Giuffre v. Ghislaine Maxwell, No. 15 Civ. 7433 (LAP) Dear Judge Preska: As counsel for Ms. Maxwell we write to request that the Court vindicate its Protective Order and punish its violation. Ms. Maxwell’s two deposition transcripts were designated “Confidential” and subject to the protection of the Protective Order. Both transcripts ended up in the hands of the government, which used them to bring an indictment against Ms. Maxwell, charging her with, among other things, perjury in her deposition testimony. This is a serious violation of the Protective Order, and merits the commencement of contempt proceedings. We also write to seek reconsideration of the Court's July 23, 2020 ruling concluding that the transcripts of Ms. Maxwell’s April 2016 deposition and Doe 1’s deposition should be unsealed in their entirety (with the exception of non-party names). We recognize that a reconsideration motion is an extraordinary request, but we suggest it is appropriate under the circumstances. There are new facts since Ms. Maxwell lodged her objections to the unsealing of the transcript of her deposition, and there is a need to correct clear error or prevent manifest injustice relating to the unsealing of the transcript. We respectfully request that the Court keep sealed Ms. Maxwell’s and Doe 1's deposition transcripts and any sealed or redacted order or paper that quotes from or discloses information from the transcripts (“deposition material”). We do not seek unnecessary delay; however, if the Court denies our request for reconsideration, we do wish to seek relief from the Second Circuit. Accordingly, in the event the Court denies this reconsideration request, we ask that the Court stay any unsealing of the deposition material for at least two business days to give us time to apply to the Second Circuit for a stay of the unsealing order pending appeal. As the EFTA00075055 Causes1: 25-c8403493-LAPenDoc4m87t3002820File8967/29/20agePage200f 9 Honorable Loretta A. Preska July 29, 2020 Page 2 courts have recognized, temporary stays of unseal orders are appropriate so that “[t]he genie is [not] out of the bottle,” Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004), before the interested parties have an opportunity to seek review of the orders. See, e.g., United States v. Martoma, No. S1 12 CR 973 PGG, 2014 WL 164181, at *8 (S.D.N.Y. Jan. 9, 2014) (“The Court stays immediate disclosure of these materials to permit Defendant to make application to the U.S. Court of Appeals for the Second Circuit for a more extended stay.”); Brown v. Maxwell, 929 F.3d 41, 54 (2d. Cir. 2019) (recognizing likelihood of future appeals in this matter). 1. There are new, intervening and significant facts since briefing closed on the first round of review of sealed materials. After many months of relentless negative media coverage of Mr. Epstein and allegations that Ms. Maxwell was involved in his criminal activities, the government secured an indictment against her. On July 2, one day after Ms. Maxwell filed her reply in support of her objection to unsealing documents containing references to Does 1 and 2, the government staged a dramatic, forced entry at dawn into her home and arrested her. EXHIBIT A, at 3. Immediately after Ms. Maxwell’s arrest, Acting U.S. Attorney Audrey Strauss held a press conference and made numerous comments attacking Ms. Maxwell’s credibility and expressing her opinion of Ms. Maxwell’s guilt, e.g., that she was guilty of “l[ying]” in her deposition “because the truth, as alleged, was almost unspeakable.” Id. Plaintiff’s counsel piled on, offering their own opinions about Ms. Maxwell’s guilt. For example, Mr. Edwards opined that Ms. Maxwell was “a main facilitator” of Mr. Epstein’s crimes who “started the whole thing.” Id. Ms. McCawley praised the prosecutors: “[They] have done an incredible job and they’re being very meticulous, they want to make sure that the Indictments stick . . . They took a lot of time to be very careful and thoughtful and that gives me a lot of hope that [Ms. Maxwell] will remain in prison for the remainder of her life. . . . [Ms. Maxwell] was really the central figure . . . ” Id. at 6. Ms. Maxwell’s motion for an order barring such extrajudicial comments led Judge Nathan to admonish “counsel for all involved parties [to] exercise great care to ensure compliance with this Court's local rules, including Local Criminal Rule 23.1, and the rules of professional responsibility.” EXHIBIT B. She further “warn[ed] counsel and agents for the parties and counsel for potential witnesses that going forward it will not hesitate to take appropriate action in the face of violations of any relevant rules.” Id. Judge Nathan said she would ensure “strict compliance” with the rules and “ensure that the Defendant's right to a fair trial will be safeguarded.” Id. On July 8 the government filed a superseding indictment alleging that Ms. Maxwell “assisted, facilitated, and contributed” to Mr. Epstein’s abuse of minors. The indictment quickly turned to this civil action, alleging that in 2016 Ms. Maxwell made “efforts to conceal her conduct” EFTA00075056 Causes1: 25-0407433-LAPenDocument3002820File8967/29/20pagePage 200f 9 Honorable Loretta A. Preska July 29, 2020 Page 3 by “repeatedly provid[ing] false and perjurious statements” in deposition testimony. EXHIBIT C ¶ 8. Quoting verbatim from Ms. Maxwell’s April 2016 deposition transcript, the indictment alleges Ms. Maxwell gave false testimony (a) when she testified “I don’t know what you’re talking about” in response to a question whether Mr. Epstein “ha[d] a scheme to recruit underage girls for sexual massages . . . [i]f you know”; and (b) when she testified, “I’m not aware of anybody that I interacted with [other than plaintiff] who was 17 at this point.” Id. ¶ 21. None of these questions and answers was used in the summary judgment papers or released by the Second Circuit. The transcript containing this testimony is sealed. 2. The Court should commence proceedings to vindicate the government and plaintiff's violation of the Protective Order. Only two parties—plaintiff and Ms. Maxwell—and their counsel had proper access to the transcripts of Ms. Maxwell’s deposition. The transcripts, which were designated “Confidential,” were the subject of the Protective Order strictly limiting the persons to whom the parties may disclose“Confidential"-designated documents. For example, the parties could only disclose such documents to "attorneys actively working on this case" and "persons regularly employed or associated with the attorneys who are working on this case." Doc.62, quoted in Doc.1071 at 3. This language was negotiated by the parties to specifically exclude an exception for investigations by law enforcement. On February 26, 2016, counsel for plaintiff proposed protective order language that would have allowed for a "law enforcement" exception: Paragraph I(a)4 of plaintiff's draft proposed that: "CONFIDENTIAL information shall not be disclosed or used for any purpose except the preparation and trial of this case and any related matter, including but not limited to, investigations by law enforcement." See Exhibit D at 3. This language was rejected by Ms. Maxwell because of her concerns that plaintiff and her lawyers were acting as either express or de facto agents of the Government. The language agreed upon, and made an Order of this Court specifically excluded an exception for law enforcement. Had the language not been made an order of the Court, Ms. Maxwell would have proceeded in a different fashion. She relied on this language and the protection afforded to her by this Court under established Second Circuit law. In its Order dated July 1, 2020, the Court said it was “troubled” to learn that plaintiff’s successor counsel, Cooper & Kirk, had received from plaintiff's former counsel, Boies Schiller Flexner, various discovery materials that were subject to the Protective Order. Doc.1071 at 4. The Court rejected Cooper & Kirk's suggestion that it properly was a recipient of the material: [W]hatever Cooper & Kirk’s intentions in requesting and obtaining the Maxwell materials from Boies Schiller, the Maxwell Protective Order explicitly provides that (1) discovery materials designated CONFIDENTIAL cannot be EFTA00075057 Case1: 15-c4074B3LAPenDocument102820File28967/29/20page4208f 9 Honorable Loretta A. Preska July 29, 2020 Page 4 disclosed or used outside of the Maxwell action and (2) that properly designated discovery materials may only be disclosed to specific groups of individuals, including attorneys "actively working on" the Maxwell litigation. Doc.1071 at 4-5 (emphasis supplied) Five things are plain. One, as the indictment and superseding indictment establish, the government has a copy of the transcripts from Ms. Maxwell’s April and July 2016 depositions, both of which were designated “Confidential.” Two, the government had no ability legally to obtain the deposition transcripts. In Martindell v. International Telephone and Telegraph Corp., 594 F.2d 291, 293 (2d Cir. 1979), cited with approval in In re Teligent, Inc., 640 F.3d 53, 58 (2d Cir. 2011), the government moved in a civil action to which it was not a party for access to transcripts of depositions twelve witnesses, including some of the civil defendants. The government said it was investigating possible violations of federal criminal laws, including perjury, subornation of perjury, obstruction of justice and conspiracy. The government: speculated that the pretrial deposition testimony might be relevant to its investigation into matters similar to those that had been the subject of the Martindell action and might be useful in appraising the credibility, accuracy and completeness of testimony given by witnesses in the Government’s investigation or might provide additional information of use to the Government. The Government, moreover, feared that unless it could obtain the deposition transcripts, it would be unable to secure statements from the witnesses because they would claim their Fifth Amendment rights in any investigative interviews by the Government. 594 F.2d at 293. The district court denied the government’s request, holding that “the deposition testimony had been given in reliance upon the protective order, thus rendering unnecessary invocation by the witnesses of their Fifth Amendment rights, that the requested turnover would raise constitutional issues, and that principles of fairness mandated enforcement of the protective order.” Id. The Second Circuit affirmed: In the present case the deponents testified in reliance upon the Rule 26(c) protective order, absent which they may have refused to testify. . . . [T]he witnesses were entitled to rely upon the terms of a concededly valid protective order and Judge Conner did not abuse his discretion in refusing to vacate or modify that order. Id. at 296-97. Three, the government did not obtain a copy of the deposition transcripts from Ms. Maxwell or her counsel. Four, following plaintiff's counsel's admitted violation of the Protective Order EFTA00075058 Ca ses1:25-c84034B3-dLAPenDb0u4m6nt3002820File8967/29/20agP5age200f 9 Honorable Loretta A. Preska July 29, 2020 Page 5 earlier this month, it is clear now that there has been a second violation of the Protective Order in a manner consistent with the plaintiff's intent and goals—namely, the prosecution of Ms. Maxwell and the pursuit of a sentence that would imprison her “for the remainder of her life,” EXHIBIT A, at 3. Five, no one should be permitted to violate this Court’s Protective Order with impunity. As it did in connection with plaintiff’s violation of the Protective Order via her attorneys, the Court should enter orders to determine the nature and extent of the violation of the Order, identify those persons who violated the Order, and impose appropriate sanctions. Until this process is completed, the Court should stay any disclosure of the transcripts of Ms. Maxwell’s deposition and deposition material. We respectfully submit that in the event the Court finds a violation of the Protective Order, this Court should direct the government to return to the Court any copies of the deposition transcripts and enter an order to show cause why the person(s) who violated the Order should not be held in contempt. See, e.g., Blum v. Schlegel, 108 F.3d 1369 (2d Cir. 1997); Hunt v. Enzo Biochem, Inc., 904 F. Supp. 2d 337, 340 (S.D.N.Y. 2012). 3. The indictment provides a compelling reason not to unseal the transcript of Ms. Maxwell’s deposition. That Ms. Maxwell was under criminal investigation, the Court ruled, “is not entitled to much weight here.” Tr. of July 23 Hearing, at 5. The Court said Ms. Maxwell had not explained how the sealed material could inappropriately influence potential witnesses or victims. Id. The effect of Ms. Maxwell's indictment, arrest, upcoming trial and of Judge Nathan's efforts to ensure a fair trial was not discussed in our objections since none of these things had happened before briefing was closed. Two cases are instructive. In each the courts indicated that in deciding whether to unseal materials it was important to give weight to the impact on a criminal defendant's right to a fair trial. In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), a number of media moved the district court to release audio tapes admitted into evidence in the trial of four of President Nixon's former advisors. The media intended to copy the tapes for broadcasting and sale to the public. District Judge Sirica denied the motion, principally on the ground that the rights of the four defendants, who had been convicted and had filed notices of appeal, would be prejudiced if they prevailed in their appeals. 435 U.S. at 595, 602 n.14. Judge Sirica noted that the transcripts of the audio tapes had been released to the public. Id. at 595. The D.C. Circuit Court of Appeals held Judge Sirica abused his discretion. The Supreme Court reversed the court of appeals and rejected the media's arguments that release of the tapes was required under the common law right of access and the First Amendment. The Court noted apparently with approval that (a) “Judge Sirica’s view” that “the public’s ‘right to know’ did not . . . overcome the need to safeguard the defendants’ rights on appeal,” and (b) “Judge Sirica’s principal reason for refusing to release the tapes EFTA00075059 Causes1:25-c8407433