New Unsealing Decision from Second Circuit in Virginia Giuffre v. Ghislaine Maxwell

From today’s decision in Giuffre v. Maxwell, before Second Circuit Judges José Cabranes, Rinna Raggi, and Myrna Pérez:

Following this court’s remand in Brown v. Maxwell (“Maxwell I“) (2d Cir. 2019), the … District Court … reviewed hundreds of sealed documents in this now-settled defamation action and, after considering the privacy interests of more than a hundred third-parties, issued a series of orders directing that a large number of the documents be unsealed either in whole or in part. Plaintiff Virginia Giuffre, now deceased, and Intervenors the Miami Herald Media Company and Miami Herald reporter Julie Brown … appeal from those parts of the district court’s orders declining to unseal certain documents….

This appeal has its origins in a 2015 defamation action brought … by plaintiff Virginia Giuffre, a victim of sexual trafficking by financier Jeffrey Epstein. Giuffre charged defendant Ghislaine Maxwell, an Epstein associate, with defaming her by publicly calling her statements implicating Maxwell in Epstein’s trafficking “obvious lies.” In the extensive discovery conducted in that action, several hundred documents were produced, prompting multiple sealing motions …, which resulted in “nearly one-fifth of the docket” being filed under seal. Those documents, which included all filings pertaining to Maxwell’s summary judgment motion, remained under seal when, on May 24, 2017, the parties executed a settlement agreement, prompting the district court to close the case the following day.

Both before and after closure of Giuffre’s defamation action against Maxwell, various third-parties sought to intervene to seek the unsealing of numerous documents filed in that case. Among these parties was the Herald, which so moved on April 6, 2018. The district court allowed most third-parties (including the Herald) to intervene, but denied their motions for unsealing. On a consolidated appeal from those denials, this court ruled that materials submitted in connection with Maxwell’s denied summary judgment motion in the defamation action were judicial documents subject to a strong presumption of public access, determined that the presumption was not overcome by countervailing interests, and ordered the materials unsealed (subject to minimal redactions)…. Over the next few years, the district court individually reviewed hundreds of sealed documents, considered the asserted privacy interests of more than a hundred third-parties, conducted additional hearings, and issued further decisions as to unsealing, some of which prompted appeals to this court challenging orders to unseal….

The Second Circuit partly affirms the decision below and partly reverses it, but here are the interesting legal conclusions:

1. A motion that’s presumptively publicly accessible remains so even if “before the motion is decided, the case settles thereby making the motion moot.”
2. A document that’s presumptively publicly accessible remains so (oversimplifying slightly) even if the “court does not rely on [that] particular judicial document in making a ruling.”
3. Motions to seal or unseal and related filings are themselves presumptively publicly accessible.

And here’s an excerpt from the (long) analysis:

In deciding whether to seal or unseal filed materials, a court properly conducts a three-step inquiry:

First, the court determines whether the record at issue is a judicial document—a document to which the presumption of public access attaches. Second, if the record sought is determined to be a judicial document, the court proceeds to determine the weight of the presumption of access to that document. Third, the court must identify all of the factors that legitimately counsel against disclosure of the judicial document and balance those factors against the weight properly accorded the presumption of access….

To qualify as a “judicial document” the materials at issue must be “relevant to the performance of the judicial function and useful in the judicial process.” … [T]he identification of a judicial document is a binary decision made as of the time of the document’s filing, i.e., filed material either is or is not a judicial document depending on whether it could have a tendency to influence the court in the exercise of its Article III powers. Subsequent events do not alter that conclusion. Thus, insofar as the district court ruled in its December 2019 and January 2020 Orders that the settlement of Giuffre’s defamation action rendered pending motions in that case moot such that they could no longer be deemed judicial documents, we identify error, vacate those orders, and remand the case to the district court with directions that it conduct an individual review of the motion materials consistent with this opinion and order unsealing as appropriate….

[T]his court has [also] “expressly rejected the proposition that ‘different types of documents might receive different weights of presumption based on the extent to which they were relied upon in resolving a motion.’” … “[I]f the rationale behind access is to allow the public an opportunity to assess the correctness of the judge’s decision … documents that the judge should have considered or relied upon, but did not, are just as deserving of disclosure as those that actually entered into the judge’s decision.” In other words, “the proper inquiry is whether the documents are relevant to the performance of the judicial function, not whether they were relied upon.” …

“[A] court performs the judicial function not only when it rules on motions currently before it, but also when properly exercising its inherent supervisory powers.” … The sealing or unsealing of court filings is an exercise of supervisory power over the court’s docket…. The Doe filings [related to sealing or unsealing of court records] here at issue qualify as judicial documents because they were submitted to “influence [the] district court’s ruling[s]” as to whether other judicial documents submitted throughout the defamation litigation should be maintained under seal …. Accordingly, a presumption of public access attaches to the Doe filings ….

Because the Doe filings invoked the court’s supervisory powers with respect to its maintenance of other documents on its docket, the filings are incrementally more attenuated from and “ancillary to the court’s core role in adjudicating a case,” and, thus, entitled to a somewhat lower presumption of public access. How much lower depends on the underlying judicial documents at issue. The more those documents implicate a court’s core adjudicative role, the stronger the presumption of access that applies to them and, by extension, to filings seeking to seal or unseal them. The more removed the underlying documents are from a court’s core adjudicative role, the more reduced the presumption of access that applies to them, and to sealing filings pertaining to them.

Thus, where filings urging the court to seal or unseal pertain to documents that themselves play only a “negligible role” in a court’s performance of its Article III duties, those documents are accorded only a low presumption of public access—”little more than a prediction”—and the related filings to seal or unseal no more so. These different weights—both for sealing filings and the documents to which they pertain—reflect differences not only in the degree to which the materials implicate core judicial functions but also in the “resultant value of such information to those monitoring the federal courts.” ….

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