NOTICE of Documents Ordered Unsealed by Court Order of December 18, 2023 re: 1315 Order,,. Document filed by Virginia L. Giuffre. (Attachments: # 1 Exhibit DE 660-1, # 2 Exhibit DE 660-3, # 3 Exhibit DE 697, # 4 Exhibit DE 698, # 5 Exhibit DE 698-1, # 6 Exhibit DE 698-2, # 7 Exhibit DE 700, # 8 Exhibit DE 701-2, # 9 Exhibit DE 714, # 10 Exhibit DE 721-1, # 11 Exhibit DE 754, # 12 Exhibit DE 845, # 13 Exhibit DE 846, # 14 Exhibit DE 856, # 15 Exhibit DE 928, # 16 Exhibit DE 947-1, # 17 Exhibit DE 957).(McCawley, Sigrid)
This document describes Donald Trump engaging in sexual acts with a minor connected to Jeffrey Epstein's sex trafficking ring.
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Page 1 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------X
Plaintiff,
v.
GHISLAINE MAXWELL,
Defendant.
.............................................
VIRGINIA L. GIUFFRE,
15-cv-07433-RWS
--------------------------------------------------X
Ms. Maxwell’s Motion for an Order to Show Cause re Protective Order
Laura A. Menninger
Jeffrey S. Pagliuca
Ty Gee
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
303.831.7364Page 2 Defendant Ghislaine Maxwell, through her counsel, moves for an Order to Show Cause
requiring plaintiff Virginia Giuffre and her lawyers to state why this Court should not impose
sanctions for their failure to comply with this Court’s Protective Order (Doc.62) and Opinion
issued on November 14, 2017.
INTRODUCTION
This Court entered a Protective Order that governs the parties’ use and disposition of
documents designated as “Confidential” (“Confidential Materials”). The Protective Order
prohibits the use of the materials in any other case, and requires the parties to return or destroy
the materials at the conclusion of this case.
This case concluded in May 2017. Despite our requests, Ms. Giuffre’s lawyers have
refused to return or destroy the Confidential Materials. Instead, they have indicated they wish to
use the Confidential Materials in another case they are pursuing.
The Protective Order on which all the parties relied to disclose and produce Confidential
Materials is unambiguous about the use and return or destruction of Confidential Materials. This
Court should issue an Order to Show Cause.
FACTUAL BACKGROUND
Ms. Giuffre sought to convert her defamation action into a lawsuit for child “sexual
abuse” and “sexual trafficking” of children. Toward that end, she made numerous allegations of
sexual conduct involving herself, Jeffrey Epstein, Ms. Maxwell, and dozens of others, including
numerous prominent men. In preparation to litigate Ms. Giuffre’s factual allegations, the parties
sought and obtained from each other and non-parties a wide range of highly sensitive, personal
and confidential information about themselves and non-parties.
This Protective Order. To facilitate disclosures and discovery the Court entered a
Protective Order allowing parties to disclose and produce “confidential”-designated materials
1Page 3 (“Confidential Materials”). The parties’ depositions were taken under the Order’s auspice: The
parties and numerous non-parties in depositions and document productions disclosed highly
sensitive, personal and confidential information with the understanding that such information
would be designated “Confidential.” The Order prohibits Confidential Materials from being
“disclosed or used for any purpose except the preparation and trial of this case.” Doc.62 ¶ 4.
Under the Order the parties are (a) prohibited from disclosing such materials to non-parties
except on certain conditions, and (b) required at the conclusion of the case to return or destroy
“each document and all copies thereof” of these Confidential Materials. Id. ¶ 12. The parties
produced thousands of pages of Confidential Materials under the Protective Order.
The parties submitted various Confidential Materials under seal as exhibits to court
filings. The Protective Order provided that any such materials submitted to the Court “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.”
In May 2017 the parties entered into a settlement agreement resolving all matters relating
to the lawsuit. On May 25, 2017, “[t]his action was settled and dismissed with prejudice pursuant
to a joint stipulation for dismissal.” Sealed Op., at 3 (Nov. 14, 2017); see Doc.917 (Order
approving joint stipulation for dismissal with prejudice).
On November 14, 2017, this Court ordered: “[A]ll documents, materials, and information
subject to the Protective Order must be returned to the party who designated its confidentiality as
of the date this action was dismissed.” Id. 2 (emphasis supplied). Ms. Giuffre and her counsel
have not complied with this order. This Motion seeks enforcement of the Protective Order and
this Court’s November 14, 2017, reiterating the command contained in the Protective Order to
return Confidential Materials.
2Page 4 The attempts by non-parties to gain access to Confidential Materials. Four sets of
non-parties have sought access to various Confidential Materials submitted to the Court in
various filings.
In August 2016 Alan Dershowitz requested unsealing of portions of a brief filed in
connection with a motion to quash, discrete emails filed with the motion, and the manuscript of
Ms. Giuffre’s memoir filed with another motion. Doc.364, at 1-2. The Court denied the motion
to unseal. Sealed Op., at 15-25 (Nov. 2, 2016). The Court noted Mr. Dershowitz sought to use
the materials “in a media campaign to make public a selected portion of the discovery in this
action to defend himself not in this court but in the court of public opinion.” Id. 21 (internal
quotations and citation omitted). If his motion were granted, the Court observed, “the Protective
Order will be selectively deployed and in the interest of reciprocity destroyed.” Id. at 21-22. The
Court concluded:
“It is presumptively unfair for courts to modify protective orders which assure
confidentiality and upon which the parties have reasonably relied. . . . [T]he
Second Circuit determined that ‘absent a showing of improvidence in . . . [a]
protective order or some extraordinary circumstance or compelling need . . . a
witness should be entitled to rely upon the enforceability of a protective order
against any third parties.’” In this case, the parties and multiple other deponents
have relied on this Court’s Protective Order in giving testimony and producing
documents . . . .
Id. at 23 (quoting Dorsett v. City of Nassau, 289 F.R.D. 54, 64 (E.D.N.Y. 2012) (quoting
Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979))). Mr. Dershowitz filed an
appeal (Doc.504), which is pending.
In January 2017 a purported journalist Michael Cernovich requested unsealing of
Ms. Maxwell’s summary judgment brief, her attorney’s declaration in support of the summary
judgment motion, and any “pleadings, memoranda, declarations, exhibits, orders, and other
documents filed or to be filed” in connection with the summary judgment motion. Doc.551, at 2.
3Page 5 Mr. Dershowitz joined the motion. Doc.610. The Court denied the motion. Doc.892. Among
other things, the Court found that “the parties and multiple deponents have reasonably relied on
the Protective Order in giving testimony and producing documents including evidence of assault,
medical records, and emails.” Id. at 6. Mr. Cernovich (Doc.920) and Mr. Dershowitz (Doc.915)
filed an appeal, which is pending.
In January 2017, while the case at bar was pending, the Giuffre lawyers brought a second
lawsuit, Doe 43 v. Epstein, No. 17-cv-616 (S.D.N.Y.). In the case sub judice the Giuffre lawyers
had identified their new client, Doe 43, as a witness for Ms. Giuffre in the case at bar, and we
deposed and obtained documents relating to Doe 43. In the second lawsuit, Doe 43 (an adult)
alleged she, like Ms. Giuffre, had been the victim of sexual abuse and sexual trafficking by
Mr. Epstein to prominent men. Doe 43 named multiple defendants, including Mr. Epstein and
Ms. Maxwell.
In October 2017 two of the Doe 43 defendants, Mr. Epstein and Lesley Groff, requested
unsealing of numerous Confidential Materials relating to Doe 43’s alleged relationship with
Mr. Epstein. Doc.924, at 4. Ms. Giuffre and Doe 43 opposed the motion, arguing in part, “Jane
Doe 43 courageously gave her testimony . . . and voluntarily produced documents . . . The
documents that she produced contain sensitive information.” Doc.928, at 7. Ms. Giuffre and
Doe 43 objected, arguing that the movants were seeking “to humiliate and embarrass Jane Doe
43” by using the Confidential Materials in public filings in the Doe 43 case. Id. 9-10. This Court
denied the motion to unseal. It held that the Protective Order did not extend beyond the May 25,
2017, termination of this action. Sealed Op., at 7 (Nov. 14, 2017). “Accordingly,” the Court said:
absent “other arrangements . . . agreed upon” regarding the disposal of the
protected information, and this Court was informed of no such arrangements, on
May 25, 2017, all protected information, including the [materials that are the
4Page 6 subject of Mr. Epstein and Ms. Groff’s motion], was to be returned to the original
party, parties, non-party, or non-parties who designated it as confidential.
Id. at 7-8 (footnote omitted; quoting Protective Order ¶ 12).1 The Court ordered: “[A]ll
documents, materials, and information subject to the Protective Order must be returned to the
party who designated its confidentiality as of the date this action was dismissed.” Id. at 2
(emphasis supplied).
Notwithstanding the Court’s November 14, 2017, Opinion and our specific requests, the
lawyers for Ms. Giuffre and Doe 43 have refused to comply with Paragraph 12 of the Protective
Order. In the face of the Court’s conclusion that this case “terminat[ed]” on May 25, 2017, the
lawyers have taken the position that this case has not terminated because of the pendency of
appeals of this Court’s orders denying motions to unseal documents filed with the Court and in
the Court’s possession. As these lawyers know the vast bulk of the Confidential Materials was
never filed with the Court. They have offered no reason why they have refused to return or
destroy Confidential Materials “and all copies thereof” in their possession, custody and control
that have not been filed with the Court.
In April 2018 a Miami Herald journalist and the Herald (collectively “the Miami
Herald”) moved to unseal all sealed and redacted documents filed with the Court. Doc.936, at 1.
Messrs. Dershowitz and Cernovich joined the motion. Docs.941 & 947; see Doc.953, at 10. The
lawyers for Ms. Giuffre and Doe 43 took this position on behalf of Ms. Giuffre: “Plaintiff
Virginia Giuffre does not oppose [the Miami Herald’s motion to unseal] to the extent it seeks to
unseal all docket entries . . ., including the unsealing of all trial designated deposition
1
In the footnote the Court acknowledged that the parties could comply with Paragraph 12
by destroying the Confidential Materials, but observed that “without any affidavits provided to
the Court stating [that destruction has occurred], and in light of the present dispute, the Court
infers that such action was not taken.” Id. at 8 n.1.
5Page 7 transcripts.” Doc.945, at 3 (italics added; underscoring in original). The Court denied the motion.
Doc.953. It noted the case at bar contained “allegations concerning the intimate, sexual, and
private conduct of the parties and of third persons, some prominent, some private,” id. at 2;
Ms. Giuffre had alleged she had been subjected to “public ridicule, contempt and disgrace,” id. at
3; she also alleged she had been “sexually abused at numerous locations around the world with
prominent and politically powerful men,” id. at 3-4. As it did in denying the Dershowitz and
Cernovich motions, the Court found that release of the Confidential Materials “could expose the
parties to annoyance, embarrassment, and oppression given the highly sensitive nature of the
underlying allegations.” Id. at 24. Moreover,
[t]he parties mutually assented to entering into the Protective Order. The parties
relied upon its provisions, as did dozens of witnesses and other non-parties.
Documents designated confidential included a range of allegations of sexual acts
involving Plaintiff and non-parties to this litigation, some famous, some not; the
identities of non-parties who either allegedly engaged in sexual acts with Plaintiff
or who allegedly facilitated such acts; Plaintiff's sexual history and prior
allegations of sexual assault; and Plaintiff's medical history. The Protective Order
has maintained the confidentiality of these sensitive materials.
Id. The Court found irrelevant that Mr. Dershowitz and Ms. Giuffre in joining or not opposing
the Miami Herald’s motion were choosing not to protect their privacy interests:
The privacy interests of Maxwell, Giuffre, Dershowitz, as well as dozens of
third persons, all of whom relied upon the promise of secrecy outlined in the
Protective Order and enforced by the Court, have been implicated. It makes no
difference that Giuffre and Dershowitz have chosen to waive their privacy
interests to the underlying confidential information by supporting this motion, as
Maxwell has not agreed to such a waiver.
More importantly, the dozens of non-parties who provided highly
confidential information relating to their own stories provided that information in
reliance on the Protective Order and the understanding that it would continue to
protect everything it claimed it would. . . .
6Page 8 Id. at 34-35.2 The Miami Herald filed an appeal (Doc.955), which is pending.
ARGUMENT
The Court should enter an Order to Show Cause requiring Ms. Giuffre and her lawyers to
state why the Court should not impose sanctions on them for violation of this Court’s
orders.
The Protective Order requires the return or destruction of all Confidential Materials:
At the conclusion of this case, unless other arrangements are agreed upon, each
document and all copies thereof which have been designated as Confidential shall
be returned to the party that designated it Confidential, or the parties may elect to
destroy Confidential documents. Where the parties agree to destroy Confidential
documents, the destroying party shall provide all parties with an affidavit
confirming the destruction.
Doc.62 ¶ 12 (capitalization altered). Ms. Giuffre and her lawyers have not returned any
Confidential Materials to us. Nor have they provided us with an affidavit confirming the
destruction of the materials.
On July 6, 2017, we proposed a procedure for compliance with Paragraph 12 of the
Protective Order. Under that procedure the parties would destroy all Confidential Materials in
their possession, custody and control and would cause any non-party to whom they provided
Confidential Materials to destroy the materials. We proposed compliance by July 31, 2017. See
EXHIBIT A. Ms. Giuffre’s counsel rejected this proposal. Mr. Cassell said Paragraph 12’s
provisions were not in effect because the case had not concluded:
2
Just as Mr. Dershowitz correctly points out in his papers that the Confidential Materials
establish the falsity of Ms. Giuffre’s allegations against him, the materials contain compelling
evidence establishing that the allegations against Ms. Maxwell are false and that Ms. Giuffre sold
her false narrative to the press. Nonetheless we recognize that it is impossible to put back into the
proverbial bag Ms. Giuffre’s salacious and defamatory statements. Even if all the Confidential
Materials were disclosed contrary to the privacy rights of dozens of individuals, they “will be
selectively deployed” “not in this court but in the court of public opinion,” Sealed Op. (Nov. 3,
2016), at 22, by the media and others for their own purposes, none of which will be the search
for the truth. Accordingly we continue to believe the right of privacy of Ms. Maxwell and other
innocent individuals should carry the day.
7Page 9 [T]wo appeals involving this case (and to which Ms. Giuffre has been named as a
party) are currently pending in the Second Circuit. These two appeals [by Messrs.
Dershowitz and Cernovich] involve some of the confidential documents that you
are, apparently, proposing may need to be destroyed now.
Until those appeals have been resolved, it would be premature to begin
implementing paragraph 12’s provision.
EXHIBIT B.
On September 6, 2018, we renewed our request that Ms. Giuffre and her counsel comply
with Paragraph 12 “in light of Judge Sweet’s Opinions of November 14, 2017 [denying
Mr. Epstein and Ms. Groff’s motion to unseal] and August 27, 2018 [denying the Miami
Herald’s motion to unseal]. EXHIBIT C. Ms. Giuffre’s counsel again rejected our request.
Mr. Cassell repeated that this case had not concluded. In addition to the two pending appeals
involving Messrs. Dershowitz and Cernovich, he said, the Miami Herald’s appeal of the denial of
its motion to unseal also was pending. “Until the three pending appeals have been resolved,” he
concluded, “it continues to be the case that it would be premature to begin implementing
paragraph 12’s provisions.” EXHIBIT D. Mr. Cassell did not address this Court’s conclusion in its
November 14, 2017, opinion that this case terminated on May 25, 2017, and as of that date the
parties were required to comply with Paragraph 12.
On November 21, 2018, we conferred once more with Ms. Giuffre’s counsel. They said
their position remained unchanged.
Ms. Giuffre’s and her counsel’s position violates the Protective Order. Their position that
this case has not concluded flies in the face of this Court’s conclusion and direction to the parties
more than a year ago to comply with Paragraph 12. In its sealed Opinion issued November 14,
2017, the Court ruled that this lawsuit concluded for purposes of Paragraph 12 on May 25, 2017,
8Page 10 and that the parties were required to return or destroy the Confidential Materials pursuant to
Paragraph 12:
x
“Based upon the conclusions set forth below, . . . all documents, materials, and
information subject to the Protective Order must be returned to the party who
designated its confidentiality as of [May 25, 2017,] the date this action was
dismissed.” Sealed Op. (Nov. 14, 2017), at 2 (emphasis supplied).
x
“[P]aragraph 13 and the [Protective] Order’s introductory language establish that the
purpose of the Order was to guide confidentiality determinations during the
discovery process, and not beyond this point. The Protective Order did not extend
beyond the completion of discovery or beyond the termination of this action.” Id. at
7.
x
“Accordingly, absent ‘other arrangements . . . agreed upon’ regarding the disposal of
the protected information, this Court was informed of no such arrangements, on May
25, 2017, all protected information, including the Jane Doe Evidence, was to be
returned to the original party, parties, non-party, or non-parties who designated it as
confidential.” Id. at 7-8 (footnote omitted; emphasis supplied).
These conclusions and the Court’s direction to the parties to comply with Paragraph 12
underscore the willful violation of Paragraph 12 of the Protective Order and the directive in
Court’s November 14, 2017, opinion to comply with Paragraph 12.
Ms. Giuffre’s counsel’s argument that the case has not been terminated because of the
pendency of the appeals by the non-parties is meritless. When the Court issued its directive on
November 14, 2017, to comply with Paragraph 12, it was well aware of the two pending appeals.
There is no dispute this action has been terminated: the case was dismissed with prejudice by the
parties’ stipulation approved by the Court on May 25, 2017. Id. at 3; Doc.917. The Court’s
interpretation of its own Protective Order is conclusive. It explicitly held that the Protective
Order “did not extend beyond the completion of discovery or beyond the termination of this
action,” and it declared on November 14, 2017, that this case is well beyond both. Sealed Op., at
3 (Nov. 14, 2017).
9Page 11 The three pending appeals are irrelevant to the parties’ compliance with Paragraph 12.
None of the non-parties who brought the appeals requested Confidential Materials in the parties’
possession, custody and control. To the contrary, each requested the unsealing of discrete court
filings or, in the case of the Miami Herald, the unsealing of all sealed court filings. None of these
requests concern the parties, who are not in the possession, custody or control of the court
filings. Indeed none of the non-parties requested any order requiring the parties to maintain or
produce Confidential Materials to them. Axiomatically whatever the result of the appeals,
nothing but unwarranted intransigence explains Ms. Giuffre and her counsel’s refusal to comply
with the Protective Order or the Court’s November 14, 2017, directive.
The Court’s inherent power to vindicate its orders is broad. “When the district court
invokes its inherent power to sanction misconduct by an attorney that involves that attorney’s
violation of a court order or other misconduct that is not undertaken for the client’s benefit, the
district court need not find bad faith before imposing a sanction under its inherent power.”
United States v. Seltzer, 227 F.3d 36, 42 (2d Cir. 2000). We have such a situation here.
Ms. Giuffre’s attorneys’ refusal to comply with Paragraph 12 and this Court’s November 14,
2017, directive was not undertaken for Ms. Giuffre’s benefit. Ms. Giuffre has settled her lawsuit.
Meanwhile Ms. Giuffre’s lawyers are prosecuting Doe 43 and seeking to take advantage of the
Confidential Materials in that lawsuit.3
3
To the extent Ms. Giuffre is complicit in her attorneys’ violation of the Court’s orders
and directives, both she and her counsel are subject to sanction. See, e.g., Seltzer, 227 F.3d at 4041; N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir. 1989).
10Page 12 CONCLUSION
The Court should issue an Order to Show Cause requiring Ms. Giuffre and her counsel to
state why this Court should not impose sanctions upon Ms. Giuffre or her counsel or both for
violation of this Court’s Protective Order and November 14, 2017, directive.
Dated: December 4, 2018
Respectfully submitted,
s/ Laura A. Menninger, Ty Gee
Laura A. Menninger (LM-1374)
Jeffrey S. Pagliuca (pro hac vice)
Ty Gee (pro hac vice)
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax:
303.832.2628
lmenninger@hmflaw.com
Attorneys for Ghislaine Maxwell
11Page 13 CERTIFICATE OF SERVICE
I certify that on December 4, 2018, I electronically served this Motion for an Order to
Show Cause re Protective Order via ECF on the following:
Sigrid S. McCawley
Meredith Schultz
Boies, Schiller & Flexner, LLP
401 East Las Olas Boulevard, Suite 1200
Ft. Lauderdale, FL 33301
smccawley@bsfllp.com
mschultz@bsfllp.com
Bradley J. Edwards
Farmer, Jaffe, Weissing, Edwards, Fistos &
Lehrman, P.L.
425 North Andrews Avenue, Suite 2
Ft. Lauderdale, FL 33301
brad@pathtojustice.com
Paul G. Cassell
383 S. University Street
Salt Lake City, UT 84112
cassellp@law.utah.edu
J. Stanley Pottinger
49 Twin Lakes Road
South Salem, NY 10590
stanpottinger@aol.com
s/ Nicole Simmons
12
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PlainSite Cover Page
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Case 1:15-cv-07433-LAP Document 1332-17 Filed 01/08/24 Page 1 of 13
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------X
Plaintiff,
v.
GHISLAINE MAXWELL,
Defendant.
.............................................
VIRGINIA L. GIUFFRE,
15-cv-07433-RWS
--------------------------------------------------X
Ms. Maxwell’s Motion for an Order to Show Cause re Protective Order
Laura A. Menninger
Jeffrey S. Pagliuca
Ty Gee
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
303.831.7364
PDF Page 3
Case 1:15-cv-07433-LAP Document 1332-17 Filed 01/08/24 Page 2 of 13
Defendant Ghislaine Maxwell, through her counsel, moves for an Order to Show Cause
requiring plaintiff Virginia Giuffre and her lawyers to state why this Court should not impose
sanctions for their failure to comply with this Court’s Protective Order (Doc.62) and Opinion
issued on November 14, 2017.
INTRODUCTION
This Court entered a Protective Order that governs the parties’ use and disposition of
documents designated as “Confidential” (“Confidential Materials”). The Protective Order
prohibits the use of the materials in any other case, and requires the parties to return or destroy
the materials at the conclusion of this case.
This case concluded in May 2017. Despite our requests, Ms. Giuffre’s lawyers have
refused to return or destroy the Confidential Materials. Instead, they have indicated they wish to
use the Confidential Materials in another case they are pursuing.
The Protective Order on which all the parties relied to disclose and produce Confidential
Materials is unambiguous about the use and return or destruction of Confidential Materials. This
Court should issue an Order to Show Cause.
FACTUAL BACKGROUND
Ms. Giuffre sought to convert her defamation action into a lawsuit for child “sexual
abuse” and “sexual trafficking” of children. Toward that end, she made numerous allegations of
sexual conduct involving herself, Jeffrey Epstein, Ms. Maxwell, and dozens of others, including
numerous prominent men. In preparation to litigate Ms. Giuffre’s factual allegations, the parties
sought and obtained from each other and non-parties a wide range of highly sensitive, personal
and confidential information about themselves and non-parties.
This Protective Order. To facilitate disclosures and discovery the Court entered a
Protective Order allowing parties to disclose and produce “confidential”-designated materials
1
PDF Page 4
Case 1:15-cv-07433-LAP Document 1332-17 Filed 01/08/24 Page 3 of 13
(“Confidential Materials”). The parties’ depositions were taken under the Order’s auspice: The
parties and numerous non-parties in depositions and document productions disclosed highly
sensitive, personal and confidential information with the understanding that such information
would be designated “Confidential.” The Order prohibits Confidential Materials from being
“disclosed or used for any purpose except the preparation and trial of this case.” Doc.62 ¶ 4.
Under the Order the parties are (a) prohibited from disclosing such materials to non-parties
except on certain conditions, and (b) required at the conclusion of the case to return or destroy
“each document and all copies thereof” of these Confidential Materials. Id. ¶ 12. The parties
produced thousands of pages of Confidential Materials under the Protective Order.
The parties submitted various Confidential Materials under seal as exhibits to court
filings. The Protective Order provided that any such materials submitted to the Court “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.”
In May 2017 the parties entered into a settlement agreement resolving all matters relating
to the lawsuit. On May 25, 2017, “[t]his action was settled and dismissed with prejudice pursuant
to a joint stipulation for dismissal.” Sealed Op., at 3 (Nov. 14, 2017); see Doc.917 (Order
approving joint stipulation for dismissal with prejudice).
On November 14, 2017, this Court ordered: “[A]ll documents, materials, and information
subject to the Protective Order must be returned to the party who designated its confidentiality as
of the date this action was dismissed.” Id. 2 (emphasis supplied). Ms. Giuffre and her counsel
have not complied with this order. This Motion seeks enforcement of the Protective Order and
this Court’s November 14, 2017, reiterating the command contained in the Protective Order to
return Confidential Materials.
2
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Case 1:15-cv-07433-LAP Document 1332-17 Filed 01/08/24 Page 4 of 13
The attempts by non-parties to gain access to Confidential Materials. Four sets of
non-parties have sought access to various Confidential Materials submitted to the Court in
various filings.
In August 2016 Alan Dershowitz requested unsealing of portions of a brief filed in
connection with a motion to quash, discrete emails filed with the motion, and the manuscript of
Ms. Giuffre’s memoir filed with another motion. Doc.364, at 1-2. The Court denied the motion
to unseal. Sealed Op., at 15-25 (Nov. 2, 2016). The Court noted Mr. Dershowitz sought to use
the materials “in a media campaign to make public a selected portion of the discovery in this
action to defend himself not in this court but in the court of public opinion.” Id. 21 (internal
quotations and citation omitted). If his motion were granted, the Court observed, “the Protective
Order will be selectively deployed and in the interest of reciprocity destroyed.” Id. at 21-22. The
Court concluded:
“It is presumptively unfair for courts to modify protective orders which assure
confidentiality and upon which the parties have reasonably relied. . . . [T]he
Second Circuit determined that ‘absent a showing of improvidence in . . . [a]
protective order or some extraordinary circumstance or compelling need . . . a
witness should be entitled to rely upon the enforceability of a protective order
against any third parties.’” In this case, the parties and multiple other deponents
have relied on this Court’s Protective Order in giving testimony and producing
documents . . . .
Id. at 23 (quoting Dorsett v. City of Nassau, 289 F.R.D. 54, 64 (E.D.N.Y. 2012) (quoting
Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979))). Mr. Dershowitz filed an
appeal (Doc.504), which is pending.
In January 2017 a purported journalist Michael Cernovich requested unsealing of
Ms. Maxwell’s summary judgment brief, her attorney’s declaration in support of the summary
judgment motion, and any “pleadings, memoranda, declarations, exhibits, orders, and other
documents filed or to be filed” in connection with the summary judgment motion. Doc.551, at 2.
3
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Case 1:15-cv-07433-LAP Document 1332-17 Filed 01/08/24 Page 5 of 13
Mr. Dershowitz joined the motion. Doc.610. The Court denied the motion. Doc.892. Among
other things, the Court found that “the parties and multiple deponents have reasonably relied on
the Protective Order in giving testimony and producing documents including evidence of assault,
medical records, and emails.” Id. at 6. Mr. Cernovich (Doc.920) and Mr. Dershowitz (Doc.915)
filed an appeal, which is pending.
In January 2017, while the case at bar was pending, the Giuffre lawyers brought a second
lawsuit, Doe 43 v. Epstein, No. 17-cv-616 (S.D.N.Y.). In the case sub judice the Giuffre lawyers
had identified their new client, Doe 43, as a witness for Ms. Giuffre in the case at bar, and we
deposed and obtained documents relating to Doe 43. In the second lawsuit, Doe 43 (an adult)
alleged she, like Ms. Giuffre, had been the victim of sexual abuse and sexual trafficking by
Mr. Epstein to prominent men. Doe 43 named multiple defendants, including Mr. Epstein and
Ms. Maxwell.
In October 2017 two of the Doe 43 defendants, Mr. Epstein and Lesley Groff, requested
unsealing of numerous Confidential Materials relating to Doe 43’s alleged relationship with
Mr. Epstein. Doc.924, at 4. Ms. Giuffre and Doe 43 opposed the motion, arguing in part, “Jane
Doe 43 courageously gave her testimony . . . and voluntarily produced documents . . . The
documents that she produced contain sensitive information.” Doc.928, at 7. Ms. Giuffre and
Doe 43 objected, arguing that the movants were seeking “to humiliate and embarrass Jane Doe
43” by using the Confidential Materials in public filings in the Doe 43 case. Id. 9-10. This Court
denied the motion to unseal. It held that the Protective Order did not extend beyond the May 25,
2017, termination of this action. Sealed Op., at 7 (Nov. 14, 2017). “Accordingly,” the Court said:
absent “other arrangements . . . agreed upon” regarding the disposal of the
protected information, and this Court was informed of no such arrangements, on
May 25, 2017, all protected information, including the [materials that are the
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subject of Mr. Epstein and Ms. Groff’s motion], was to be returned to the original
party, parties, non-party, or non-parties who designated it as confidential.
Id. at 7-8 (footnote omitted; quoting Protective Order ¶ 12).1 The Court ordered: “[A]ll
documents, materials, and information subject to the Protective Order must be returned to the
party who designated its confidentiality as of the date this action was dismissed.” Id. at 2
(emphasis supplied).
Notwithstanding the Court’s November 14, 2017, Opinion and our specific requests, the
lawyers for Ms. Giuffre and Doe 43 have refused to comply with Paragraph 12 of the Protective
Order. In the face of the Court’s conclusion that this case “terminat[ed]” on May 25, 2017, the
lawyers have taken the position that this case has not terminated because of the pendency of
appeals of this Court’s orders denying motions to unseal documents filed with the Court and in
the Court’s possession. As these lawyers know the vast bulk of the Confidential Materials was
never filed with the Court. They have offered no reason why they have refused to return or
destroy Confidential Materials “and all copies thereof” in their possession, custody and control
that have not been filed with the Court.
In April 2018 a Miami Herald journalist and the Herald (collectively “the Miami
Herald”) moved to unseal all sealed and redacted documents filed with the Court. Doc.936, at 1.
Messrs. Dershowitz and Cernovich joined the motion. Docs.941 & 947; see Doc.953, at 10. The
lawyers for Ms. Giuffre and Doe 43 took this position on behalf of Ms. Giuffre: “Plaintiff
Virginia Giuffre does not oppose [the Miami Herald’s motion to unseal] to the extent it seeks to
unseal all docket entries . . ., including the unsealing of all trial designated deposition
1
In the footnote the Court acknowledged that the parties could comply with Paragraph 12
by destroying the Confidential Materials, but observed that “without any affidavits provided to
the Court stating [that destruction has occurred], and in light of the present dispute, the Court
infers that such action was not taken.” Id. at 8 n.1.
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transcripts.” Doc.945, at 3 (italics added; underscoring in original). The Court denied the motion.
Doc.953. It noted the case at bar contained “allegations concerning the intimate, sexual, and
private conduct of the parties and of third persons, some prominent, some private,” id. at 2;
Ms. Giuffre had alleged she had been subjected to “public ridicule, contempt and disgrace,” id. at
3; she also alleged she had been “sexually abused at numerous locations around the world with
prominent and politically powerful men,” id. at 3-4. As it did in denying the Dershowitz and
Cernovich motions, the Court found that release of the Confidential Materials “could expose the
parties to annoyance, embarrassment, and oppression given the highly sensitive nature of the
underlying allegations.” Id. at 24. Moreover,
[t]he parties mutually assented to entering into the Protective Order. The parties
relied upon its provisions, as did dozens of witnesses and other non-parties.
Documents designated confidential included a range of allegations of sexual acts
involving Plaintiff and non-parties to this litigation, some famous, some not; the
identities of non-parties who either allegedly engaged in sexual acts with Plaintiff
or who allegedly facilitated such acts; Plaintiff's sexual history and prior
allegations of sexual assault; and Plaintiff's medical history. The Protective Order
has maintained the confidentiality of these sensitive materials.
Id. The Court found irrelevant that Mr. Dershowitz and Ms. Giuffre in joining or not opposing
the Miami Herald’s motion were choosing not to protect their privacy interests:
The privacy interests of Maxwell, Giuffre, Dershowitz, as well as dozens of
third persons, all of whom relied upon the promise of secrecy outlined in the
Protective Order and enforced by the Court, have been implicated. It makes no
difference that Giuffre and Dershowitz have chosen to waive their privacy
interests to the underlying confidential information by supporting this motion, as
Maxwell has not agreed to such a waiver.
More importantly, the dozens of non-parties who provided highly
confidential information relating to their own stories provided that information in
reliance on the Protective Order and the understanding that it would continue to
protect everything it claimed it would. . . .
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Id. at 34-35.2 The Miami Herald filed an appeal (Doc.955), which is pending.
ARGUMENT
The Court should enter an Order to Show Cause requiring Ms. Giuffre and her lawyers to
state why the Court should not impose sanctions on them for violation of this Court’s
orders.
The Protective Order requires the return or destruction of all Confidential Materials:
At the conclusion of this case, unless other arrangements are agreed upon, each
document and all copies thereof which have been designated as Confidential shall
be returned to the party that designated it Confidential, or the parties may elect to
destroy Confidential documents. Where the parties agree to destroy Confidential
documents, the destroying party shall provide all parties with an affidavit
confirming the destruction.
Doc.62 ¶ 12 (capitalization altered). Ms. Giuffre and her lawyers have not returned any
Confidential Materials to us. Nor have they provided us with an affidavit confirming the
destruction of the materials.
On July 6, 2017, we proposed a procedure for compliance with Paragraph 12 of the
Protective Order. Under that procedure the parties would destroy all Confidential Materials in
their possession, custody and control and would cause any non-party to whom they provided
Confidential Materials to destroy the materials. We proposed compliance by July 31, 2017. See
EXHIBIT A. Ms. Giuffre’s counsel rejected this proposal. Mr. Cassell said Paragraph 12’s
provisions were not in effect because the case had not concluded:
2
Just as Mr. Dershowitz correctly points out in his papers that the Confidential Materials
establish the falsity of Ms. Giuffre’s allegations against him, the materials contain compelling
evidence establishing that the allegations against Ms. Maxwell are false and that Ms. Giuffre sold
her false narrative to the press. Nonetheless we recognize that it is impossible to put back into the
proverbial bag Ms. Giuffre’s salacious and defamatory statements. Even if all the Confidential
Materials were disclosed contrary to the privacy rights of dozens of individuals, they “will be
selectively deployed” “not in this court but in the court of public opinion,” Sealed Op. (Nov. 3,
2016), at 22, by the media and others for their own purposes, none of which will be the search
for the truth. Accordingly we continue to believe the right of privacy of Ms. Maxwell and other
innocent individuals should carry the day.
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[T]wo appeals involving this case (and to which Ms. Giuffre has been named as a
party) are currently pending in the Second Circuit. These two appeals [by Messrs.
Dershowitz and Cernovich] involve some of the confidential documents that you
are, apparently, proposing may need to be destroyed now.
Until those appeals have been resolved, it would be premature to begin
implementing paragraph 12’s provision.
EXHIBIT B.
On September 6, 2018, we renewed our request that Ms. Giuffre and her counsel comply
with Paragraph 12 “in light of Judge Sweet’s Opinions of November 14, 2017 [denying
Mr. Epstein and Ms. Groff’s motion to unseal] and August 27, 2018 [denying the Miami
Herald’s motion to unseal]. EXHIBIT C. Ms. Giuffre’s counsel again rejected our request.
Mr. Cassell repeated that this case had not concluded. In addition to the two pending appeals
involving Messrs. Dershowitz and Cernovich, he said, the Miami Herald’s appeal of the denial of
its motion to unseal also was pending. “Until the three pending appeals have been resolved,” he
concluded, “it continues to be the case that it would be premature to begin implementing
paragraph 12’s provisions.” EXHIBIT D. Mr. Cassell did not address this Court’s conclusion in its
November 14, 2017, opinion that this case terminated on May 25, 2017, and as of that date the
parties were required to comply with Paragraph 12.
On November 21, 2018, we conferred once more with Ms. Giuffre’s counsel. They said
their position remained unchanged.
Ms. Giuffre’s and her counsel’s position violates the Protective Order. Their position that
this case has not concluded flies in the face of this Court’s conclusion and direction to the parties
more than a year ago to comply with Paragraph 12. In its sealed Opinion issued November 14,
2017, the Court ruled that this lawsuit concluded for purposes of Paragraph 12 on May 25, 2017,
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and that the parties were required to return or destroy the Confidential Materials pursuant to
Paragraph 12:
x
“Based upon the conclusions set forth below, . . . all documents, materials, and
information subject to the Protective Order must be returned to the party who
designated its confidentiality as of [May 25, 2017,] the date this action was
dismissed.” Sealed Op. (Nov. 14, 2017), at 2 (emphasis supplied).
x
“[P]aragraph 13 and the [Protective] Order’s introductory language establish that the
purpose of the Order was to guide confidentiality determinations during the
discovery process, and not beyond this point. The Protective Order did not extend
beyond the completion of discovery or beyond the termination of this action.” Id. at
7.
x
“Accordingly, absent ‘other arrangements . . . agreed upon’ regarding the disposal of
the protected information, this Court was informed of no such arrangements, on May
25, 2017, all protected information, including the Jane Doe Evidence, was to be
returned to the original party, parties, non-party, or non-parties who designated it as
confidential.” Id. at 7-8 (footnote omitted; emphasis supplied).
These conclusions and the Court’s direction to the parties to comply with Paragraph 12
underscore the willful violation of Paragraph 12 of the Protective Order and the directive in
Court’s November 14, 2017, opinion to comply with Paragraph 12.
Ms. Giuffre’s counsel’s argument that the case has not been terminated because of the
pendency of the appeals by the non-parties is meritless. When the Court issued its directive on
November 14, 2017, to comply with Paragraph 12, it was well aware of the two pending appeals.
There is no dispute this action has been terminated: the case was dismissed with prejudice by the
parties’ stipulation approved by the Court on May 25, 2017. Id. at 3; Doc.917. The Court’s
interpretation of its own Protective Order is conclusive. It explicitly held that the Protective
Order “did not extend beyond the completion of discovery or beyond the termination of this
action,” and it declared on November 14, 2017, that this case is well beyond both. Sealed Op., at
3 (Nov. 14, 2017).
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The three pending appeals are irrelevant to the parties’ compliance with Paragraph 12.
None of the non-parties who brought the appeals requested Confidential Materials in the parties’
possession, custody and control. To the contrary, each requested the unsealing of discrete court
filings or, in the case of the Miami Herald, the unsealing of all sealed court filings. None of these
requests concern the parties, who are not in the possession, custody or control of the court
filings. Indeed none of the non-parties requested any order requiring the parties to maintain or
produce Confidential Materials to them. Axiomatically whatever the result of the appeals,
nothing but unwarranted intransigence explains Ms. Giuffre and her counsel’s refusal to comply
with the Protective Order or the Court’s November 14, 2017, directive.
The Court’s inherent power to vindicate its orders is broad. “When the district court
invokes its inherent power to sanction misconduct by an attorney that involves that attorney’s
violation of a court order or other misconduct that is not undertaken for the client’s benefit, the
district court need not find bad faith before imposing a sanction under its inherent power.”
United States v. Seltzer, 227 F.3d 36, 42 (2d Cir. 2000). We have such a situation here.
Ms. Giuffre’s attorneys’ refusal to comply with Paragraph 12 and this Court’s November 14,
2017, directive was not undertaken for Ms. Giuffre’s benefit. Ms. Giuffre has settled her lawsuit.
Meanwhile Ms. Giuffre’s lawyers are prosecuting Doe 43 and seeking to take advantage of the
Confidential Materials in that lawsuit.3
3
To the extent Ms. Giuffre is complicit in her attorneys’ violation of the Court’s orders
and directives, both she and her counsel are subject to sanction. See, e.g., Seltzer, 227 F.3d at 4041; N.Y. State Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1352 (2d Cir. 1989).
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CONCLUSION
The Court should issue an Order to Show Cause requiring Ms. Giuffre and her counsel to
state why this Court should not impose sanctions upon Ms. Giuffre or her counsel or both for
violation of this Court’s Protective Order and November 14, 2017, directive.
Dated: December 4, 2018
Respectfully submitted,
s/ Laura A. Menninger, Ty Gee
Laura A. Menninger (LM-1374)
Jeffrey S. Pagliuca (pro hac vice)
Ty Gee (pro hac vice)
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Phone: 303.831.7364
Fax:
303.832.2628
lmenninger@hmflaw.com
Attorneys for Ghislaine Maxwell
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CERTIFICATE OF SERVICE
I certify that on December 4, 2018, I electronically served this Motion for an Order to
Show Cause re Protective Order via ECF on the following:
Sigrid S. McCawley
Meredith Schultz
Boies, Schiller & Flexner, LLP
401 East Las Olas Boulevard, Suite 1200
Ft. Lauderdale, FL 33301
smccawley@bsfllp.com
mschultz@bsfllp.com
Bradley J. Edwards
Farmer, Jaffe, Weissing, Edwards, Fistos &
Lehrman, P.L.
425 North Andrews Avenue, Suite 2
Ft. Lauderdale, FL 33301
brad@pathtojustice.com
Paul G. Cassell
383 S. University Street
Salt Lake City, UT 84112
cassellp@law.utah.edu
J. Stanley Pottinger
49 Twin Lakes Road
South Salem, NY 10590
stanpottinger@aol.com
s/ Nicole Simmons
12
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