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18-2868
IN THE

United States Court of Appeals

FOR THE SECOND CIRCUIT

VIRGINIA L. GIUFFRE,
Plaintiff-Appellee,
---against---

GHISLAINE MAXWELL,
Defendant-Appellee,

(Caption continued on inside cover)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

CONSOLIDATED REPLY OF JOHN DOE IN SUPPORT OF MOTION FOR

LEAVE TO FILE BRIEF AS AMICUS CURIAE IN SUPPORT OF
DEFENDANT-APPELLEE MAXWELL’S OBJECTIONS TO THE COURT’S
MARCH 11, 2019 ORDER TO SHOW CAUSE

Nicholas J. Lewin
Paul M. Krieger
Jonathan F. Bolz
KRIEGER KIM & LEWIN LLP
500 Fifth Avenue, 34th Floor
New York, New York 10110
Tel.: (212) 390-9550
Attorneys for Amicus Curiae John Doe
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---against---

SHARON CHURCHER, JEFFREY EPSTEIN,

Respondents,

JULIE BROWN, MIAMI HERALD MEDIA COMPANY,

Intervenors-Appellants
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

A. Amicus Proceeded In A Timely Fashion—This Court’s Show

Cause Order Served As The Triggering Event ................................................ 3

B. The Stated Interest of Amicus Is Properly Before The Court ......................... 6

C. The Basis Compelling Redaction Is Plainly Evident ...................................... 8

D. Amicus Has Properly Identified The Interest Of Amicus And

Other Third Persons Relevant To The Disposition Of This
Matter .............................................................................................................10

CONCLUSION ........................................................................................................11
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TABLE OF AUTHORITIES

Cases

Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d

132 (2d Cir. 2016) .................................................................................................6

Concerned Area Residents for the Environment v. Southview Farm,

834 F.Supp. 1410 (W.D.N.Y. 1993) ..................................................................... 8

In re New York Times Co., 828 F.2d 110 (2d Cir. 1987) ........................................... 6

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) ...................... 9

Shi Liang Lin v. United States DOJ, 2d Cir. Nos. 02-4611, 02-4629,
03-40837, 2006 U.S. App. LEXIS 28465 (Nov. 13, 2006) ................................. 8

Trendi Sportswear, Inc. v. Bank of Baroda (In re Indu Craft Inc.), 580
F.App’x 33 (2d Cir. 2014) ....................................................................................8

United States v. Amodeo, 71 F.3d 1044 (2d Cir. 1995) .........................................3, 9

United States v. Gotti, 755 F. Supp. 1157 (E.D.N.Y.1991)....................................... 8

Zarda v. Altitude Express, Inc., 2d Cir. No. 15-3775, 2017 U.S. App.
LEXIS 13127 (May 25, 2017) ............................................................................. 8

ii
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Amicus John Doe submits this Brief in reply to the opposition of Plaintiff-

Appellee-Giuffre (“Plaintiff”) and Intervenor-Appellant Miami Herald (“Herald”)

to his Motion for Leave to File an Amicus Brief.

The oppositions offered in response to Amicus’ Motion are without

merit. Indeed, Plaintiff’s arguments are in stark contrast to those she made in the

underlying proceeding advocating for closure of the record because of privacy

concerns – claiming the allegations contained in the file included “misstatements

and falsehoods”; claiming the Second Circuit does “not allow a court to unseal

private and otherwise protected materials to conduct a public smear campaign”;

and claiming if the summary judgment motion was denied, “no adjudication” of

the allegations would occur. R-589, at 7−11. Amicus agrees. These same

arguments fully support Amicus’ interest and compel the relief sought.

But having fully secured the benefits of the privacy protections afforded by

the District Court and a confidential settlement, Plaintiff now elects to reverse

course and oppose the redaction of names and other identifying information of

non-participant third persons.

The proffered justification for now opposing the redactions, that the public

needs to know her claims, rings hollow: For more than a decade, Plaintiff has been

permitted to publish her claims to the world. No gag order has been imposed – her

ability to share her story and personal experiences remains unfettered.

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Of course, a judicial disclosure of her unadjudicated claims is significant in

one obvious regard: statements made outside of this judicial proceeding do not

enjoy the same privilege from a defamation claim; the unadjudicated allegations

can only become the subject of defamation claims if published outside a judicial

forum. Thus shielded by the litigation privilege, Plaintiff now asks this Court to

disclose her unadjudicated claims without affording innocent third parties a forum

for protecting their privacy interests, challenging these claims, or seeking redress

for the resulting reputation damage.

As does the Herald. Rather than securing information directly from the

primary source, namely Plaintiff, it advocates for an order compelling disclosure of

judicial records so that it can publish unadjudicated allegations against persons

who have never been charged, never been sued, and have never once publicly

identified as alleged conspirators. Such attacks presume guilt; the

mischaracterizations and false statements repeated throughout the briefing

demonstrate the reputational damage that will arise in the absence of careful

redactions.

Defamation-defense and publishing strategy are not permissible

considerations in accounting for, and weighing, the privacy rights of third persons

against the public’s right of access to ensure the integrity of judicial proceedings.

Nor is the presumption of access intended to serve as a tool for a litigant to publish

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scandalous allegations against third persons who never participated in the

proceedings. Rather, “[t]he presumption of access is based on the need for federal

courts, although independent – indeed, particularly because they are independent –

to have a measure of accountability and for the public to have confidence in the

administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1050-51 (2d

Cir. 1995) (“Amodeo II”). Noteworthy here, none of the many briefs submitted

suggest any impropriety or irregularity in the District Court proceedings.

Nevertheless, Plaintiff and the Herald vigorously oppose Amicus speaking

on behalf of the interest of third persons potentially implicated by disclosure of the

unadjudicated allegations – even though this Court’s precedent specifically

instructs that “the privacy interests of innocent third parties . . . should weigh

heavily in a court’s balancing equation.” Amodeo II, 71 F.3d at 1050. Indeed, the

Court itself has a specific responsibility to protect the interest of non-parties in

determining that balance.

Amicus should be heard. Plaintiff and the Herald offer no legitimate reason

for the Court not to grant Amicus’ motion and consider Amicus’ brief.

A. Amicus Proceeded In A Timely Fashion—This Court’s Show

Cause Order Served As The Triggering Event.

Arguments that the Amicus Brief is untimely ignore both the proceedings

before the District Court and Second Circuit precedent. Before the District Court,

there was no necessity or cause for Amicus to participate: each party sought a
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Protective Order; each party filed, and did not otherwise object to the filing of,

materials under seal; and the parties subsequently privately settled their dispute,

thus eliminating a trial and public adjudication of the dispute. The Protective

Order expressly provided for disposition of all confidential materials at the

conclusion of the proceedings. R-62, ¶ 12.

Plaintiff attempts a misdirection ploy, arguing that third parties “understood,

through the plain language of the protective order, that confidentiality was to be

lifted when this case went to trial,” and any reasonable expectation of privacy

existed only through the trial date. App. Doc. 147, at 4. Setting aside the obvious

point that the District Court would have ultimately determined admissibility, no

trial ever occurred. Thus, Plaintiff cites the wrong section of the Protective Order

– Paragraph 12 controls, and the expectation of privacy never ceased either under

the procedures implemented before the District Court or, more importantly, this

Court’s precedent.

Plaintiff’s argument before this Court is especially remarkable when one

considers the arguments she previously asserted in response to Mr. Cernovich’s

Motion to Intervene in the Court below:

• “Defendant’s Motion for Summary Judgment and Rule 56.1

Statement of Fact is rife with misstatements and falsehoods.” R-589,
at 7.

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• “The Second Circuit does not allow a court to unseal private and
otherwise protected material to enable a non-party to conduct a public
smear campaign.” Id. at 9.

• “Courts routinely maintain the seal over materials for which

confidentiality is important, including summary judgment materials.”
Id. at 10.

• “If the motion is denied, then there will be no ‘adjudication’ as a

result of the motion- the jury will make the adjudication at trial- a trial
that will be open to the public.” Id. at 11.

• “The pages and pages of exhibits (for example) attached to

Defendant’s summary judgment will play, at best, a neglible [sic] role
in resolving this lawsuit.” Id.

• “In this case, Ms. Giuffre - and multiple other deponents - reasonably
relied on this Court’s Protective Order in giving testimony and
producing documents.” Id. at 13.

• “Third-party witnesses have done the same. Under Martindell, this

Court cannot take away those protections after the fact.” Id. at 14.

Plaintiff’s opposition to Amicus’s motion is replete with statements squarely

contradicting her prior arguments to the District Court.

Even then, it was unnecessary for Amicus to pursue any action or argument

before the lower court because this Court’s precedent charged the District Court

with the task, in the first instance, of protecting the interest and privacy of third

persons. As stated by this Court in In re New York Times Co., 828 F.2d 110, 116

(2d Cir. 1987), “[t]he job of protecting [privacy rights] rests heavily upon the

shoulders of the trial judge, since all the parties who may be harmed by disclosure

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are typically not before the court.” The District Court discharged this obligation.

It found that privacy was the compelling reason rebutting the presumption of

access, and the court’s privacy analysis expressly considered the privacy interests

of third persons. R-953, at 37.

Nothing changed with the subsequent appeal before this Court. The

consensus issue on appeal was whether the District Court abused its discretion.

See Bernstein v. Bernstein Litowitz Berger & Grossman LLP, 814 F.3d 132, 139

(2d Cir. 2016). The remedy for an abuse of discretion is reversal with instructions

on remand. Accordingly, only if this Court found an abuse of discretion and

remanded for further proceedings before the District Court would the potential

involvement of Amicus in the litigation have arisen. It was only following this

Court’s Order to Show Cause, which appeared to contemplate the potential release

of the Summary Judgment Materials by this Court, that Amicus had reason to

become involved.

B. The Stated Interest of Amicus Is Properly Before The Court.

Plaintiff and the Herald argue that Amicus has not properly stated his

interest, or that the interest Amicus has proffered is personal and thus not properly

considered. But Amicus has readily satisfied the standard for its submission. First,

Amicus has plainly stated it is not affiliated or associated with any of the parties –

and thus it is appropriate to submit an amicus brief. Plaintiff’s speculation and

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conspiracy theories as to connectivity and relationships are simply that:

speculation and unfounded theories. And Amicus’ voice is particularly needed

where, as here, Defendant-Appellee advances arguments intended to protect the

privacy interest of the parties and discovery participants while Amicus, in contrast,

advocates on behalf of third parties who did not participate in the underlying

proceedings.

Second, Amicus has identified the specific interest implicated – the

disclosure of private facts and false accusations against non-participants who never

had the prior opportunity (or even a future opportunity in light of the litigation

privilege) to respond. This interest which Amicus seeks to protect is not confined

to his personal situation, but applies more broadly to other similarly situated third

persons who may also be identified in the Summary Judgment Materials.

The Herald, in opposing our motion on the basis that Doe is pursuing his

own interests, cherry-picks a quotation from United States v. Gotti, 755 F. Supp.

1157, 1158 (E.D.N.Y.1991). See Doc. 159, at 3. That is deeply misleading. The

Gotti court goes on to explain that the “literal translation of the phrase [amicus

curiae] does not always accurately translate in fact.” Gotti, at 1158. That court

noted that “[o]ther functions served by amicus curiae are to provide supplementary

assistance to existing counsel and insuring a complete and plenary presentation of

difficult issues so that the court may reach a proper decision.” Id.

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Indeed, “there is no rule . . . that amici must be totally

disinterested.” Concerned Area Residents for the Environment v. Southview Farm,

834 F.Supp. 1410, 1413 (W.D.N.Y. 1993). To that end, this Court has conferred

amicus status on those with a direct interest in the outcome of the case. See, e.g.,

Trendi Sportswear, Inc. v. Bank of Baroda (In re Indu Craft Inc.), 580 F.App’x 33,

34 (2d Cir. 2014) (“given [the bank’s] equitable interest in the outcome of this

case, we sua sponte grant [the bank] status as amicus curiae in each of the appeals,

and consider the arguments it presented to this Court”).

It is not uncommon for this Court to even “invite amicus curiae briefs from

interested parties.” See, e.g., Zarda v. Altitude Express, Inc., 2d Cir. No. 15-3775,

2017 U.S. App. LEXIS 13127, at *6 (May 25, 2017) (emphasis added); Shi Liang

Lin v. United States DOJ, 2d Cir. Nos. 02-4611, 02-4629, 03-40837, 2006 U.S.

App. LEXIS 28465, at *1 (Nov. 13, 2006) (same).

The interest of Amicus and similarly situated third persons is thus properly

identified and presented to this Court.

C. The Basis Compelling Redaction Is Plainly Evident.

Implicit in the oppositions is the contention that the analysis begins and ends

with a determination that the Summary Judgment Materials are judicial documents.

Plaintiff even goes so far as to characterize this Court’s Order to Show Cause as

“creat[ing] something akin to a super-presumption of access.” App. R-147, at 2.

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That Order does, and ought do, nothing of the sort. It merely cites this Court’s

prior decision in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir.

2006) for the proposition that the Summary Judgment Materials are judicial

documents to which a strong presumption of access attaches.

But this presumption of access is not absolute. It may be overridden by

specific findings that restrictions are necessary to preserve a legitimate competing

interest and are narrowly tailored to serve that interest. Perhaps the clearest

example occurs when the privacy or reputational interest of third persons is

implicated in the court records: “the privacy interests of innocent third parties . . .

should weigh heavily in a court’s balancing equation.” Amodeo II, 71 F.3d at

1050.

Knowing the Court’s duty to protect such privacy interests, Plaintiff and the

Herald resort to the rhetorical argument that Amicus must offer specific reasons for

each requested redaction – even though Amicus is not privy to the actual record

and even though it is the court that is charged with undertaking such review. And

their argument that Amicus’ concerns are “generalized” fares no better. It is the

parties’ own representations and the District Court’s own description of the

contents of the contested documents upon which Amicus relies. They collectively

make clear that the contents are not confined to statements about the litigants or

persons who participated in the discovery process – they specifically include

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references to untested allegations of wrongdoing implicating third persons.

Statements implicating a person in a crime or injuring a person in his business or

occupation constitute libel per se. No speculation is required; reputational harm is

presumed as a matter of law.

D. Amicus Has Properly Identified The Interest Of Amicus And

Other Third Persons Relevant To The Disposition Of This Matter.

Finally, Plaintiff and the Herald challenge Amicus’ interest in these

proceedings, claiming Amicus and other third persons have no privacy interest in a

matter involving underage sex trafficking. This argument is part and parcel of

their apparent theory that anyone named in a judicial filing presumptively forfeits

any privacy interest.

But allegations that appear in the Summary Judgment Documents are just

that: allegations. They have not been litigated anywhere. Plaintiff’s contention

that they were actually adjudicated by the summary judgment process is not only

demonstrably false, it flatly contradicts her statement to the District Court that

denial of the motion for summary judgment would leave the allegations

unadjudicated. R-589, at 11.

Amicus and other third persons possess privacy interests that are deserving

of protection. Their rights are particularly compelling given that these allegations

may be the product of false statements, mistake, confusion, or failing memories.

And appropriate protections are required here to protect third persons whose
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privacy and reputations are jeopardized by the release and publication of

unadjudicated allegations – allegations that will never be resolved in the instant

case in light of the parties’ settlement, that are not believed to be pending for

adjudication elsewhere, and that, because the underlying events occurred more

than sixteen years ago, presumably will never be litigated in the future. R-1,

Compl. ¶ 9. What public interest is served in releasing accusations that Plaintiff

herself has been unwilling to publicly state?

CONCLUSION

For these reasons, Amicus should be granted leave to file his brief. 1

Dated: March 29, 2019

New York, New York

Respectfully submitted,

By: /s/ Nicholas J. Lewin

Nicholas J. Lewin
Paul M. Krieger
Jonathan F. Bolz
KRIEGER KIM & LEWIN LLP
500 Fifth Avenue, 34th Floor
New York, New York 10110
Tel.: (212) 390-9550

Attorneys for Amicus Curiae John Doe

1
This document complies with the word limit of Fed. R. App. P. 27(d)(2)(C) because,
excluding certain parts of the document exempted by Fed. R. App. P. 32(f) this document
contains 2,422 words.

11