Giuffre v. Maxwell

24-182 (L)

Giuffre v. Maxwell

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2024

Nos. 24-182-cv(L), 24-203-cv(CON)

VIRGINIA GIUFFRE,

Plaintiff-Appellant,

JULIE BROWN, MIAMI HERALD MEDIA CO.

Intervenors-Appellants,

v.

GHISLAINE MAXWELL,

Defendant-Appellee.

__________

On Appeal from the United States District Court

for the Southern District of New York

__________

SUBMITTED: APRIL 14, 2025

DECIDED: JULY 23, 2025

________________

Before: CABRANES, RAGGI, and PÉREZ, Circuit Judges.

________________

Following this court’s remand in Brown v. Maxwell, 929 F.3d 41 (2d

Cir. 2019), the United States District Court for the Southern District of New

York (Preska, J.) individually reviewed and unsealed voluminous

documents in this now-settled defamation action. Plaintiff Virginia Giuffre

and Intervenors the Miami Herald Media Company and Miami Herald

reporter Julie Brown appeal from several district court orders declining to

unseal certain documents. They submit that the district court erred in

(1) holding that undecided motions rendered moot by the parties’

settlement of this case were categorically not “judicial documents” subject

to a presumption of public access; (2) holding that the transcript of Giuffre’s

deposition in a separate action, offered by a third-party in support of a

motion to intervene in this case, was entitled to no more than a “barely

cognizable” presumption of public access because the district court did not

rely on it in granting the motion; (3) finding that as to parts of defendant

Ghislaine Maxwell’s deposition concerning her sexual relationships with

consenting adults, her privacy interests outweighed any presumption of

public access; (4) finding the countervailing privacy interests of various

pseudonymized third-parties to outweigh any public right of access to parts

of judicial documents containing identifying information; (5) declining to

make public the redacted list of all pseudonymized third-parties used by the

district court in its unsealing review; and (6) declining to make public

certain pseudonymized third-parties’ submissions made in support of

continued sealing.

Defendant Maxwell argues that this court is without jurisdiction to

review the first of these arguments, which challenges the district court’s

orders of December 16, 2019, and January 13, 2020, because timely notices

of appeal were not filed therefrom. In any event, she submits that the

district court did not err in any of the respects argued on this appeal.

This court concludes that the December 2019 and January 2020 Orders

were not final orders and, thus, that this court has jurisdiction to review all

2

orders challenged on this appeal. Upon such review, we identify no error

in the district court’s decisions not to unseal or make public many of the

documents at issue. As to others, however, we here clarify that (1) the

judicial nature of a document is properly determined at the time it is filed

such that a motion that is a judicial document when filed does not cease to

be so because, before the motion is decided, the case settles thereby making

the motion moot; (2) the fact that a court does not rely on a particular judicial

document in making a ruling does not, by itself, mean that the presumption

of public access attending that document is only barely cognizable; and (3) a

motion to seal or unseal judicial documents invokes the court’s supervisory

judicial power and, thus, filings relevant to that motion are themselves

judicial documents. To the extent the district court concluded otherwise, we

vacate its denials of unsealing and remand for further individual review of

sealed documents and unsealing as warranted consistent with this opinion.

In all other respects, however, we affirm.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

_________________

Sigrid S. McCawley, Boies Schiller Flexner LLP,

Fort Lauderdale, FL, for Plaintiff-Appellant.

Christine N. Walz, Scott D. Ponce, Cynthia A.

Gierhart, Holland & Knight LLP, New York, NY,

Miami, FL, Washington, D.C., for Intervenors-

Appellants.

Adam Mueller, Haddon, Morgan & Foreman, P.C.,

Denver, CO, for Defendant-Appellee.

3

Marion H. Little, Jr., Matthew S. Zeiger, Zeiger,

Tigges & Little LLP, Columbus, OH, for Amicus

Curiae John Doe 183, in support of Defendant-Appellee.

Michael G. McGovern, Ropes & Gray LLP, New

York, NY, for Amicus Curiae John Doe 133, in support

of Defendant-Appellee.

________________

PER CURIAM:

Following this court’s remand in Brown v. Maxwell (“Maxwell I”), 929

F.3d 41 (2d Cir. 2019), the United States District Court for the Southern

District of New York (Loretta A. Preska, Judge) 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. 1 Plaintiff Virginia Giuffre, now deceased, and Intervenors

the Miami Herald Media Company and Miami Herald reporter Julie Brown

(jointly, the “Herald”) appeal from those parts of the district court’s orders

declining to unseal certain documents. 2 They submit that the district court

1The documents were sealed on order of now-deceased Judge Robert W. Sweet,

who had presided over the defamation action before its settlement. On remand,

the case was reassigned to Judge Preska.

2On May 5, 2025, Giuffre’s counsel informed the court of her client’s April 25, 2025

death in Australia. Due to pending probate proceedings in Australia, counsel has

now filed a motion seeking an extension of time to move for substitution beyond

the August 4, 2025 deadline established by Fed. R. Civ. P. 25(a)(1) and Fed. R. App.

P. 43(a)(1). Because most of Giuffre’s arguments have been adopted by the Herald,

and no party has objected, we here consider such arguments without regard to

which party raised them initially.

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erred as a matter of law in (1) holding that undecided motions rendered

moot by the parties’ settlement of this case were categorically not “judicial

documents” subject to a presumption of public access; (2) holding that the

transcript of Giuffre’s deposition in a separate action, 3 offered by a third-

party in support of a motion to intervene in this case, was entitled to no

more than a barely cognizable presumption of public access because the

district court did not rely on it in ruling on intervention; (3) finding that, as

to parts of defendant Ghislaine Maxwell’s deposition concerning her sexual

relationships with consenting adults, her privacy interests outweighed any

presumption of public access; (4) finding that the countervailing privacy

interests of various pseudonymized third-parties outweighed any

presumption of public access to parts of judicial documents containing

identifying information; (5) declining to make public a redacted list of

pseudonymized third-parties that the district court had used in conducting

its unsealing review; and (6) declining to make public the submissions of

certain pseudonymized third-parties made in support of continued sealing.

Defendant Maxwell argues that this court is without jurisdiction to

review Appellants’ challenges to the district court’s orders of December 16,

2019, and January 19, 2020, as no timely appeal was taken from either order.

See Order, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Dec. 16, 2019) (the

“December 2019 Order”); Giuffre v. Maxwell, No. 15-cv-7433, 2020 WL 133570

(S.D.N.Y. Jan. 13, 2020) (the “January 2020 Order”). In any event, Maxwell

submits that the district court did not err in any of the respects argued on

this appeal.

3 See Edwards v. Dershowitz, 15-00072 (Fla. 17th Jud. Cir. Ct.).

5

For reasons stated in this opinion, we conclude that the December

2019 and January 2020 Orders were not final orders and, thus, this court has

jurisdiction to review all orders challenged on this appeal. Upon such

review, we identify no error in the district court’s decisions not to unseal or

make public many of the documents here at issue. As to others, however,

we here clarify that (1) the judicial nature of a document is properly

determined at the time it is filed such that a motion that is a judicial

document when filed does not cease to be so because, before the motion is

decided, the case settles thereby making the motion moot; (2) the fact that a

court does not rely on a particular judicial document in making a ruling does

not, by itself, mean that the presumption of public access attending that

document is only barely cognizable; and (3) a motion to seal or unseal

judicial documents invokes the court’s supervisory judicial power and, thus,

filings relevant to that motion are themselves judicial documents. To the

extent the district court concluded otherwise, we vacate its denials of

unsealing, and we remand for further individual review of sealed

documents and unsealing as warranted consistent with this opinion. In all

other respects, however, we reject the parties’ claims of error and affirm the

orders of the district court.

BACKGROUND

This appeal has its origins in a 2015 defamation action brought in the

Southern District of New York 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

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lies.” Maxwell I, 929 F.3d at 46. 4 In the extensive discovery conducted in

that action, several hundred documents were produced, prompting

multiple sealing motions to Judge Sweet, which resulted in “nearly one-fifth

of the docket” being filed under seal. Id. 5 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

4 Epstein and Maxwell were each federally indicted on various charges related to

a scheme of sexually trafficking minors. See United States v. Maxwell, 118 F.4th 256,

262 & n.5 (2d Cir. 2024); In re Wild, 994 F.3d 1244, 1249 (11th Cir. 2021) (en banc).

Epstein died, apparently by his own hand, before the case against him came to

trial. See In re Wild, 994 F.3d at 1249. Maxwell stood trial, was found guilty by a

jury, and sentenced to a term of 240 months’ incarceration, which she is presently

serving. See United States v. Maxwell, 118 F.4th at 263.

5In Maxwell I, this court noted that “[d]ue to the volume of sealing requests filed

during discovery,” the district court entered a sealing order that “disposed of the

requirement that the parties file individual letter briefs to request sealing and

prospectively granted all of the parties’ future sealing requests,” thereby

“effectively ced[ing] control of the sealing process to the parties themselves.” Id.

7

unsealed (subject to minimal redactions). See id. at 47–48, 53. This court

further ruled that materials submitted in connection with and relevant to

certain non-dispositive motions, including discovery and in limine motions,

were also judicial documents entitled to a “substantial” presumption of

public access, albeit a lesser one than that accorded dispositive motions. Id.

at 53. Accordingly, we vacated the district court’s orders denying unsealing

of such documents and remanded the case to the district court with

directions that the court individually review and unseal them as warranted

after balancing the presumption of public access against any countervailing

privacy interests. See id. at 50–51, 53. 6

Toward that end, on September 4, 2019, the district court directed the

parties to identify the sealed materials by docket number and to categorize

them according to their status as judicial or non-judicial documents. After

considering the parties’ submissions, on December 16, 2019, the district

court made the first ruling challenged on this appeal, i.e., that “only motions

actually decided by Judge Sweet—along with documents relevant to Judge

Sweet’s decision on those motions—are properly considered judicial

documents to which a presumption of public access attaches.” December

2019 Order at 1. The reasons for this decision were set forth in a January 13,

2020 opinion & order, which stated in the converse that any motions that

“were not decided” by Judge Sweet at the time the defamation action was

settled had become moot and, therefore, the motions and materials related

6In so ruling, this court recognized the potential for persons to use court files “to

promote scandal arising out of unproven potentially libelous statements,” and

described various methods available “to protect the judicial process from being

coopted for such purposes.” Id. at 51–52 (internal quotation marks omitted). No

such concerns are raised on this appeal.

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to them were “not judicial documents subject to the presumption of public

access.” January 2020 Order, 2020 WL 133570, at *4. Thus, the district court

did not review undecided motion documents individually or order any

unsealed.

Thereafter, on March 31, 2020, the district court issued an unsealing

protocol for its individual review of the large number of remaining

materials. Pursuant thereto, the district court and the parties agreed upon

“a list of non-parties whose privacy, reputational or other interests may be

implicated by the unsealing.” Order and Protocol for Unsealing Decided

Motions at 1, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Mar. 31, 2020).

These parties’ identities were pseudonymized by referring to them on the

public record as “Does,” i.e., “Doe 1,” “Doe 2,” and so on.

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. 7

On December 18, 2023, the district court entered its final unsealing

order. See Giuffre v. Maxwell, No. 15-cv-7433, 2023 WL 8715697 (S.D.N.Y.

Dec. 18, 2023). Approximately two weeks later, on January 5, 2024, the

district court issued a further order denying the Herald’s and Intervenor

7 See, e.g., Doe 171 v. Giuffre, No. 22-3050, 2023 WL 4926196, at *1 (2d Cir. Aug. 2,

2023) (summary order) (affirming unsealing of certain documents); Doe 107 v.

Giuffre, No. 22-3042, 2023 WL 4926195, at *1 (2d Cir. Aug. 2, 2023) (summary order)

(remanding for further consideration of whether to maintain certain documents

under seal); Giuffre v. Maxwell, 827 F. App’x 144, 145 (2d Cir. 2020) (summary

order) (affirming unsealing of certain documents).

9

Alan Dershowitz’s requests to release the list of Does involved in this action

that the court used in tracking the reviewed materials. See Giuffre v. Maxwell,

No. 15-cv-7433, 2024 WL 68373, at *1 (S.D.N.Y. Jan. 5, 2024). On January 17,

2024, Giuffre and the Herald each filed notices of appeal challenging certain

denials of unsealing reflected in these two orders; the earlier December 2019

and January 2020 Orders; and various oral rulings pronounced on January

19, 2021, July 1, 2021, April 19, 2022, and November 18, 2022. See Notices of

Appeal, Giuffre v. Maxwell, 15-cv-7433 (S.D.N.Y. Jan. 17, 2024); see also

Transcripts, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Nov. 18, 2022; Apr.

19, 2022; July 1, 2021; Jan. 19, 2021). This court consolidated their appeals.

DISCUSSION

I. Jurisdiction

Maxwell argues that this court is without jurisdiction to hear so much

of this appeal as challenges the district court’s December 2019 and January

2020 Orders because they constituted “a final judgment and not a collateral

order” which had to be appealed within 30 days of entry, making the

January 17, 2024 notices of appeal in this case untimely by several years.

Maxwell Br. at 14–18. We are not persuaded.

Appellate jurisdiction generally exists only over the “final decisions

of the district courts,” 28 U.S.C. § 1291, and only if a notice of appeal is filed

“within 30 days after entry of the judgment or order appealed from,” Fed.

R. App. P. 4(a)(1)(A); see Bowles v. Russell, 551 U.S. 205, 209 (2007) (holding

timely appeal requirement is “mandatory and jurisdictional” (internal

quotation marks omitted)). Once final judgment has been entered, however,

the parties may appeal “claims of district court error at any stage of the

10

litigation.” Amara v. Cigna Corp., 53 F.4th 241, 248 (2d Cir. 2022) (quoting

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996)).

In deciding whether a district court order is a final decision, we look

to “general finality principles,” id. at 250, which instruct that a final decision

is one that “ends the litigation on the merits and leaves nothing for the court

to do but execute the judgment,” Vera v. Republic of Cuba, 802 F.3d 242, 246

(2d Cir. 2015) (internal quotation marks omitted). Applying those principles

to a challenged postjudgment order, we will defer appellate review of such

an order “until the district court has decided all related issues to prevent

piecemeal appeals of interlocutory orders in ongoing postjudgment

proceedings.” Amara v. Cigna Corp., 53 F.4th at 251 (emphasis in original)

(internal quotation marks omitted). Thus, we have held jurisdiction lacking

to review “postjudgment discovery orders,” but available to review

“postjudgment orders denying motions for recusal” or for “disqualif[ication

of] a court-appointed monitor” because in the first scenario the “relevant

final decision . . . is the subsequent judgment that concludes the . . .

proceedings,” while in the latter two scenarios “the district court had

reached its final disposition on the relevant issue.” Id. (internal quotation

marks omitted and alteration adopted). Similarly, we have held jurisdiction

lacking to review a finding of civil contempt until there has been actual

defiance and sanctions imposed, but we have held an order denying

contempt immediately appealable because “no further district court action

is necessary to give life” to the order. Id. (internal quotation marks omitted).

Maxwell argues that the district court’s postjudgment December 2019

and January 2020 Orders were final because they “categorically removed

the undecided motions . . . from the unsealing process.” Maxwell Br. at 17.

That is incorrect. In the January 2020 Order, the district court specifically

11

left open the possibility that the undecided motions and their attending

materials might be unsealed subject to further review:

Notwithstanding the fact that the undecided motions and the

papers associated with them are not judicial documents, they

may eventually be unsealed because they are in some way relevant

to Judge Sweet’s actual decisions—which are numerous—that

are certainly subject to the presumption of public access. Ms.

Giuffre raises such a possibility in her briefing, suggesting that

the undecided motions can fairly be assumed to have played a

role in Judge Sweet’s deliberations as to other rulings. At this

stage in the unsealing process, the Court declines Ms. Giuffre’s

invitation to assume categorically that the undecided motions

are germane to Judge Sweet’s rulings on the decided motions

but nonetheless acknowledges the realistic possibility that they are

relevant and thus ripe for unsealing.

January 2020 Order, 2020 WL 133570, at *4 (emphases added) (internal

quotation marks and citations omitted; alterations adopted).

Thus, the district court’s challenged December 2019 and January 2020

Orders were not final decisions denying unsealing but, rather, steps in the

process by which the district court would determine which documents

would be unsealed. These orders resulted in the materials not being

unsealed at that time, but they specifically left open the possibility of their

being unsealed later in the course of the district court’s ongoing review.

Our reasoning in Amara v. Cigna reinforces that conclusion. When

that appeal was heard, this court had already affirmed a final judgment

“ordering Cigna to reform its pension plan to pay greater benefits to” a large

class of plaintiffs. 53 F.4th at 245. Thereafter, the district court resolved the

parties‘ disputes over the calculation of those benefits in a series of

12

“Methodology Orders,” the last of which issued in November 2017. Id.

Amara’s counsel then sought attorneys’ fees based on the total benefits

recovered. See id. at 245–46. “In April 2019—almost six months after the

district court awarded attorney’s fees and over a year after the last

Methodology Order—Plaintiffs moved to enforce the Methodology Orders

and to hold Cigna in contempt and impose sanctions.” Id. at 246. After that

motion was denied, Amara sought to appeal “from both the Methodology

Orders and the Sanctions Order.” Id. at 246–47.

In dismissing that part of the appeal challenging the Methodology

Orders as untimely, this court concluded that those orders were final when

entered because (1) Cigna “relied on the Methodology Orders to calculate

[the] benefits” it had already disbursed, (2) the plaintiffs themselves had

acknowledged in December 2017 that “the district court had completed its

orders on the methodology for computing individual relief,” and (3) the

plaintiffs’ “motion for contempt and sanctions necessarily presuppose[d]

that the Methodology Orders were final” because “the district court could

not have revised the Methodology Orders and simultaneously held Cigna

in contempt and imposed sanctions for violating the newly revised orders.”

Id. at 254–55 (internal quotation marks omitted) (alteration adopted).

The orders appealed from here are readily distinguishable in ways

that defeat Maxwell’s claim of finality. First, Maxwell has not argued any

detrimental reliance on the December 2019 and January 2020 Orders, much

less reliance akin to Cigna’s actual disbursements of benefits in Amara. Nor

has Maxwell pointed to anywhere in the record that Giuffre or the Herald

conceded that these orders were final with respect to the unsealing of

undecided motion materials. On the contrary, the district court

acknowledged that such materials might yet be unsealed as relevant to

13

decided motions. See supra at 11–12. Finally, unlike the subsequent motions

in Amara, which necessarily presupposed the finality of the Methodology

Orders, subsequent proceedings in this case did not depend on any

presumption of finality as to the December 2019 or January 2020 Orders.

Radio Station WOW v. Johnson, 326 U.S. 120 (1945), relied on by

Maxwell, warrants no different conclusion. There, the Supreme Court held

that a decision by a state’s highest court “not only direct[ing] a transfer of

property, but also order[ing] an accounting of profits from such property”

was “final,” notwithstanding that the order clearly contemplated ongoing

proceedings. Id. at 124–25. The December 2019 and January 2020 Orders

here at issue are not analogous. Certainly, they do not direct the immediate

transfer of any property. However apt that analogy might be if the district

court had ordered the undecided motion materials unsealed in 2019 or

2020—thus making them available for use by Giuffre and the Herald in a

way that might be impossible to unwind on an appeal heard several years

later—it cannot be drawn here where the district court maintained the

materials under seal while leaving open the possibility of unsealing upon

review of still other materials.

In sum, the district court’s ruling in the December 2019 and January

2020 Orders that motions undecided at the time of the defamation action’s

settlement were not judicial documents subject to a presumption of public

access was a step in the process for deciding what materials would be

unsealed. It was not a final decision from which an appeal had to be taken

within 30 days.

Accordingly, we have jurisdiction over all orders challenged on this

appeal, and we proceed to address the merits of the parties’ arguments.

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II. The Challenged Denials of Unsealing

The law is well established that “[w]hen reviewing a district court’s

decision to seal a filing or to maintain such a seal, we examine the court’s

factual findings for clear error, its legal determinations de novo, and its

ultimate decision to seal or unseal for abuse of discretion.” Maxwell I, 929

F.3d at 47 (internal quotation marks omitted). Here, the record shows that,

on remand from our decision in Maxwell I, the district court devoted

considerable effort and time to the careful review of more than a hundred

sealed documents; that, as a result of that effort, the district court unsealed

and made publicly available a large number of those documents; and that it

acted well within its discretion in maintaining many others under seal. In a

few areas, however, we are compelled to identify legal errors and to remand

for further review of certain documents.

A. Undecided Motions and Attendant Materials

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.

Stafford v. Int'l Bus. Machs. Corp., 78 F.4th 62, 69–70 (2d Cir. 2023), cert. denied,

144 S. Ct. 1011 (2024) (internal quotation marks and citations omitted); see

15

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006)

(discussing same three-step analysis).

Giuffre and the Herald argue that the district court erred as a matter

of law at the first step when, in its December 2019 and January 2020 Orders,

the court ruled that motions undecided at the time the underlying

defamation action settled were categorically not judicial documents entitled

to a presumption of public access and, on that ground, declined to review

those documents individually for possible unsealing. We agree that no such

categorical conclusion was warranted. To the extent that error may be

attributable to any lack of clarity in this court’s precedents, see January 2020

Order, 2020 WL 133570, at *3 (referencing “lack of clear guidance from the

Court of Appeals”), we here state explicitly that a judicial document

determination is properly made by evaluating the relevant materials at the

time of their filing with the court. Where materials pertain to a motion, the

subsequent mooting of the motion is irrelevant to that determination.

To explain, we reiterate some basic principles pertinent to the

identification and public disclosure of judicial documents. As this court has

recognized, “[t]he common law right of public access to judicial documents

is firmly rooted in our nation’s history.” Lugosch v. Pyramid Co. of Onondaga,

435 F.3d at 119. The presumption of public access is based on the need for

independent federal courts “to have a measure of accountability and for the

public to have confidence in the administration of justice.” Id. (quoting

United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1048 (2d Cir. 1995)).

Thus, “professional and public monitoring” of the courts “is an essential

feature of democratic control” of the third branch of government, which

necessarily requires public “access to testimony and documents that are

16

used in the performance of Article III functions.” Id. (quoting Amodeo II, 71

F.3d at 1048).

While most material filed on a federal court’s docket in the ordinary

course of litigation will consist of judicial documents giving rise to a

presumption of public access, the conclusion does not necessarily apply to

every paper or document filed with a court. See United States v. Amodeo

(“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995); accord Maxwell I, 929 F.3d at 51–

52 (observing that material rejected or stricken by court as “redundant,

immaterial, impertinent, or scandalous . . . would not be considered a

judicial document and would enjoy no presumption of public access”

(internal quotation marks omitted)).

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.” Amodeo I, 44 F.3d at 145; accord Lugosch v. Pyramid Co. of

Onondaga, 436 F.3d at 119. In this context, “judicial function” refers to a

federal court’s exercise of power under Article III of the Constitution. See

Amodeo II, 71 F.3d at 1049–50.

In Lugosch, this court recognized that materials submitted for

consideration in an as-yet-undecided summary judgment motion constitute

judicial documents “as a matter of law” because the motion sought to have

the court “adjudicate[] substantive rights.” 435 F.3d at 121–22 (internal

quotation marks omitted). We specifically rejected an argument that it

would be “premature” to determine the judicial nature of a document before

a court “knows the disposition of the underlying motion.” Id. at 121. Insofar

as an earlier case had identified a decided summary judgment motion as a

judicial document, we identified no material distinction between decided

17

and undecided motions, stating that “nothing about that timing was relevant

to our conclusion” in the earlier case. Id. (emphasis added) (discussing Joy

v. North, 692 F.2d 880 (2d Cir. 1982)). Thus, in Lugosch, we ruled that

summary judgment documents “are judicial documents to which a

presumption of immediate public access attaches” even before the motion

has been decided. Id. at 126.

The district court distinguished Lugosch because that case’s “holding

specifically applied to ‘contested documents,’” which it construed to mean

documents pertaining to “a pending motion for summary judgment in

active litigation, not motions that were rendered moot by settlement of a

case.” See January 2020 Order, 2020 WL 133570, at *3 n.3 (quoting Lugosch

v. Pyramid Co. of Onondaga, 435 F.3d at 123) (emphasis omitted). Lugosch,

however, did not use the phrase “contested documents” to refer to

undecided motion materials as such but, rather, to the documents whose

sealing was disputed in that case. 8

Even if Lugosch had used the term “contested documents” as the

district court understood it, that would not support a conclusion that

documents cease to be judicial when the motion to which they pertain

becomes moot. Certainly, Lugosch itself did not explicitly (or implicitly)

8This court described the documents at issue in Lugosch as consisting of “at least

twenty-five sealed documents or sets of documents, for a total volume of

approximately 4000 pages,” and thereafter referred to those documents as “the

contested documents.” 435 F.3d at 113–26; see id. at 115 (“[D]efendants called into

question, inter alia, the value of the contested documents to the district court in

ruling on the summary judgment motion. In turn, the plaintiffs[] . . . not[ed] that

they indeed intended to rely on some of the contested documents [i.e., the sealed

documents] at oral argument and [sought] guidance from the court on the use of

those documents at oral argument.”).

18

exclude such materials from its holding. Moreover, two subsequent

decisions of this court establish that the term “judicial documents” is not so

limited: Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132

(2d Cir. 2016), and Maxwell I.

At issue in Bernstein was a sealed complaint that the parties sought to

maintain under seal after their settlement of the case. In upholding the

district court’s denial of permanent sealing, this court “easily conclude[d]”

that the complaint was a “judicial document”: “A complaint, which initiates

judicial proceedings, is the cornerstone of every case, the very architecture

of the lawsuit, and access to the complaint is almost always necessary if the

public is to understand a court’s decision.” Bernstein v. Bernstein Litowitz

Berger & Grossmann LLP, 814 F.3d at 140 (internal quotation marks omitted).

Settlement of the case warranted no different conclusion for two reasons:

[1] It is true that settlement of a case precludes the judicial

determination of the pleadings’ veracity and legal sufficiency.

But attorneys and others submitting pleadings are under an

obligation to ensure, when submitting pleadings, that “the

factual contentions made have evidentiary support or, if

specifically so identified, will likely have evidentiary support

after a reasonable opportunity for further investigation or

discovery.”

Id. (alteration adopted) (quoting Fed. R. Civ. P. 11(b)(3)). This first reason is

not confined to pleadings because the rule applies equally to “a pleading,

written motion, or other paper.” Fed. R. Civ. P. 11(b).

[2] In any event, the fact of filing a complaint, whatever its

veracity, is a significant matter of record. Even in the

settlement context, the inspection of pleadings allows the

public to discern the prevalence of certain types of cases, the

19

nature of the parties to particular kinds of actions, information

about the settlement rates in different areas of law, and the

types of materials that are likely to be sealed. Thus, pleadings

are considered judicial records even when the case is pending

before judgment or resolved by settlement.

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d at 140

(internal quotation marks and citations omitted; alteration adopted). As for

this second reason, Lugosch v. Pyramid Co. of Onondaga makes plain that it

applies to dispositive motions as well as pleadings. See 435 F.3d at 124 (“An

adjudication [including by summary judgment] is a formal act of

government, the basis of which should, absent exceptional circumstances,

be subject to public scrutiny.” (internal quotation marks and alteration

omitted)). Further, Maxwell I extends the reasoning to non-dispositive

motions—e.g., “motions to compel testimony, to quash trial subpoenae, and

to exclude certain deposition testimony”—holding that they qualify as

judicial documents “subject to at least some presumption of public access.”

929 F.3d at 50 (noting that “[a]ll such motions, at least on their face, call upon

the court to exercise its Article III powers” of adjudication and are “of value

‘to those monitoring the federal courts’” (quoting Amodeo II, 71 F.3d at

1050)). Together, these precedents clarify that Bernstein’s second reason

does not establish a prerequisite for recognizing material as a judicial

document at the first step of analysis. Instead, it explains why pleadings

and dispositive motions that qualify as judicial documents bear a

particularly strong presumption of public access at the second step—

settlement before adjudication notwithstanding. Thus, because Maxwell I

recognized that the judicial authority invoked by some non-dispositive

motions “is ancillary to the court’s core role in adjudicating a case,” the

presumption of public access accorded to such motions is “generally

20

somewhat lower than the presumption applied to material introduced at

trial, or in connection with dispositive motions.” Id. For non-dispositive

motions, then, at the third and final step of analysis, “a court must still

articulate specific and substantial reasons for sealing such material, [but] the

reasons usually need not be as compelling as those required to seal

summary judgment filings,” trial evidence, or pleadings. Id.

Even more relevant here than Maxwell I’s explanation for why the

relative strength of the presumption of access may differ among different

kinds of judicial documents is its holding that that the identification of

motions—non-dispositive as well as dispositive—as judicial documents

does not depend on “which way the court ultimately rules” on the motion

“or whether the document ultimately in fact influences the court’s decision.”

Id. at 49. All that matters in identifying motion materials as judicial

documents “relevant to the performance of the judicial function” is that they

“would reasonably have the tendency to influence a district court’s ruling on

a motion.” Id. (emphasis in original) (internal quotation marks omitted).

That “tendency” determination is predictive and properly made by

reference to the motion papers when filed, not to when—or even if—the

motion is decided. Thus, a motion that is moot when filed is not properly

identified as a judicial document because it can have no tendency to

influence a district court’s exercise of adjudicatory power. But the same

conclusion does not obtain with respect to a motion that, when filed, sought

to secure a particular ruling within the court’s Article III power. Like the

complaint in Bernstein, such a motion and its attendant materials are

21

properly identified as judicial documents even if the motion remains

undecided when the case closes and is thereby rendered moot. 9

In sum, the 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.

9At the second and third steps of sealing analysis, events subsequent to filing may

warrant consideration. See generally Stafford v. Int’l Bus. Machs. Corp., 78 F.4th at 70

(stating that “presumption of access to judicial documents” related to petition to

confirm arbitration award was “weaker . . . because the petition to confirm . . . was

moot”). Stafford is distinguishable from this case, however, in an important

respect. Unsealing was sought with respect to materials assumed to have been

properly sealed in the first instance. See id. at 71 (noting “[c]onfidentiality is a

paradigmatic aspect of arbitration” (internal quotation marks omitted)). In that

context, the subsequent mootness of the petition to confirm was understood to

have reduced the weight of the presumption of access to the properly sealed

materials, thereby reinforcing the original sealing determination. By contrast,

here, the district court’s individual document review is intended to correct possible

error in the initial wholesale sealing of large numbers of documents. See supra n.5.

To the extent documents should never have been placed under seal at the start,

reducing the original presumption of access based on subsequent mootness does

not warrant allowing the error to stand.

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B. Giuffre’s Florida Deposition Transcript

At the behest of certain “Does,” the district court in a November 18,

2022 oral ruling, declined to unseal those parts of Giuffre’s deposition

testimony given in a Florida action that had been submitted by Alan

Dershowitz in support of his motion to intervene in this case. 10 The district

court reasoned that the “document played no apparent role in the Court’s

decision on the motion” and, therefore, even if it was a judicial document,

“any presumption of public access to this document is barely cognizable.”

Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Nov. 18,

2022). This misapprehends our precedent.

First, a court should proceed cautiously in assuming that judicial

documents submitted to a district court in support of a motion “played no

apparent role” in the court’s ruling on that motion. Indeed, in Lugosch v.

Pyramid Co. of Onondaga, we endorsed a contrary assumption, i.e., that

submissions to a district court in support of or opposition to a motion “can

fairly be assumed to play a role in the court’s deliberations.” 435 F.3d at 123

(internal quotation marks omitted). Second, and in any event, this court has

“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.’” Maxwell I, 929 F.3d at 48 (quoting

Lugosch v. Pyramid Co. of Onondaga, 435 F.3d at 123) (alteration adopted). In

Lugosch, we explained that “[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

10 See supra n.3.

23

judge’s decision.” 435 F.3d at 123 (internal quotation marks and emphasis

omitted; ellipsis in original). 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.” Maxwell I, 929 F.3d at 50. That reasoning

obtains here.

In urging otherwise, Maxwell attempts to distinguish Lugosch on the

ground that the materials there at issue “were summary judgment

documents, which enjoy the strongest presumption of access,” whereas

Giuffre’s Florida deposition transcript “had nothing to do with the merits of

Giuffre’s defamation claim.” Maxwell Br. at 34 (emphasis omitted). That

argument elides the district court’s reasoning, which focused—

erroneously—on the extent to which the district court relied on the

deposition transcript, not on the type of motion to which the transcript

pertained and, hence, on the extent to which the motion called on the court

to exercise Article III judicial power. We need not here decide how the

degree of judicial power exercised in ruling on a motion to intervene

compares to that exercised on a dispositive motion. It suffices to say that

the former as well as the latter invokes a court’s Article III judicial power to

secure a desired ruling. See generally Floyd v. City of New York, 770 F.3d 1051,

1057 (2d Cir. 2014) (“On timely motion, the court must permit anyone to

intervene who . . . claims an interest relating to the property or transaction

that is the subject of the action.” (emphasis in original) (internal quotation

marks omitted)).

For reasons discussed in the preceding section, this means that the

intervention motion filings here at issue are judicial documents. See supra

at 16–22. And while the presumption of access attached to such documents

may not be as “strong” as that attached to summary judgment filings,

24

Maxwell I, 929 F.3d at 49–50, it cannot be characterized as “barely

cognizable,” Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y.

Nov. 18, 2022), and certainly not on the ground that a document supporting

that motion appears not to have been relied on by the district court in ruling

on that motion.

Accordingly, we vacate the November 18, 2022 ruling to the extent

that it declined to unseal the submitted parts of Giuffre’s Florida deposition

transcript and remand for the district court to conduct a further review

consistent with this opinion.

C. The Does’ Sealing Submissions

The Herald argues that the district court erred in sealing “the Does’

objections to the unsealing of their information, on which the Court based

its unsealing rulings,” despite the Herald’s request for such materials to be

placed on the public docket. Herald Br. at 33; see App’x at 584 (requesting

that “nature and quantity of comments received be reflected on the public

docket”); id. at 601 (requesting that “Court place all non-party objections on

the docket[] [and] permit the parties a brief period to respond”). 11

In support, the Herald points to “the district court’s own unsealing

protocol,” Herald Br. at 33, which states that the court would “make

appropriate redactions . . . and file” the Does’ submissions via the court’s

electronic filing system. Order and Protocol for Unsealing Decided Motions

at 4, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Mar. 31, 2020); accord

Updated Order and Protocol for Unsealing Decided Motions at 4, Giuffre v.

11Because the Herald made these requests, we are satisfied that its arguments on

this point are preserved, contrary to the arguments of Amicus Curiae Doe 183.

25

Maxwell, No. 15-cv-7433 (S.D.N.Y. Apr. 17, 2020) (reiterating same in

updated protocol). We note that the unsealing protocol also provides that,

“[u]nless expressly stated otherwise, all notices, submissions, and filings

made pursuant to this [unsealing protocol] shall remain permanently sealed

inasmuch as they are submitted solely so that the Court may decide whether

any Sealed Materials should be unsealed.” Id.

We need not here resolve any possible ambiguity in these two

provisions because, in any event, the parties have not cited any order of the

district court ruling on the Herald’s request for the Does’ sealing submissions

to be made public, nor have we identified any such order on the extensive

district court docket. Under these circumstances, we would normally

remand for the district court to rule in the first instance on the Herald’s

request. See Melendez v. City of New York, 16 F.4th 992, 1046 (2d Cir. 2021)

(remanding for consideration of argument “advanced in plaintiff’s” brief on

which district court did not rule). Before doing so, however, we address the

merits of the parties’ arguments in the interest of easing the burden this

unsealing process has already placed on the district court.

In arguing for maintaining the Doe filings under seal, Amicus Curiae

Doe 183 relies on a footnote in Maxwell I stating that “the presumption of

public access does not apply to material that is submitted to the court solely

so that the court may decide whether that same material must be disclosed.”

Doe 183 Br. at 7 (emphasis omitted) (quoting Maxwell I, 929 F.3d at 50 n.33).

That reliance is misplaced for at least two reasons. First, Doe 183’s quotation

is a truncation of the cited footnote which, read in full, addresses “whether

[the relevant disputed] material must be disclosed in the discovery process or

shielded by a Protective Order.” Maxwell I, 929 F.3d at 50 n.33 (emphasis

added). Footnote 33 did not address material submitted in connection with

26

motions to seal documents already disclosed in discovery and filed with the

court.

Second, and more to the point, Maxwell I defines a judicial document

as material filed with a court that “would reasonably have the tendency to

influence [not only] a district court’s ruling on a motion . . . [but also] the

exercise of its supervisory powers.” 929 F.3d at 49 (emphasis omitted); see

id. (“[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.” (internal quotation marks omitted and alteration

adopted)). The sealing or unsealing of court filings is an exercise of

supervisory power over the court’s docket. See id. at 51 (“Every court has

supervisory power over its own records and files . . . .” (quoting Nixon v.

Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)) (internal quotation marks

and alteration omitted)).

The Doe filings 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; they were not submitted “solely

so that the court may decide whether that same material”—i.e., the Doe

filings—“must be disclosed in . . . discovery.” Id. at 49, 50 & n.33 (emphasis

added); cf. SEC v. TheStreet.Com, 273 F.3d 222, 232–33 (2d Cir. 2001) (holding

deposition transcript not judicial document when submitted only so district

court could determine whether that transcript met protective order’s

definition of “confidential information” so as to be excused from filing on

public docket). Accordingly, a presumption of public access attaches to the

Doe filings, and the district court on remand can proceed to the second and

27

third steps of analysis, i.e., determining the weight of the presumption and

balancing the presumption against countervailing interests.

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,” Maxwell I, 929 F.3d at 50, 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. See Lugosch

v. Pyramid Co. of Onondaga, 435 F.3d at 119 (referencing “continuum” on

which judicial document’s presumption of access is governed by “role of the

material at issue in the exercise of Article III judicial power” (internal

quotation marks omitted)). 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. Maxwell I, 929 F.3d at

49–50 (internal quotation marks omitted). 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.” Id. at 49 (internal quotation marks

omitted).

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We are confident that, on remand, the able district judge will consider

these factors in individually reviewing the Doe filings and the underlying

documents to which they pertain, assigning an appropriate weight to the

presumption of public access applicable to the filings, weighing that

presumption against any countervailing interests, and then deciding which

filings (or parts of filings) can be unsealed.

D. Remaining Challenges

We have reviewed Giuffre’s and the Herald’s further arguments

challenging the district court’s decisions to maintain under seal parts of

Maxwell’s deposition and parts of documents identifying certain Does, and

its decision not to release the list of Does it used in its unsealing review. We

identify neither legal error nor abuse of discretion in these decisions and,

thus, we reject the arguments challenging them on the merits.

CONCLUSION

To summarize, we hold as follows:

1. This court has jurisdiction to review the district court’s December

2019 and January 2020 Orders notwithstanding Giuffre’s and the

Herald’s failure to file notices of appeal within 30 days of their

entry because these orders were not final and, thus, are properly

reviewed on timely appeal of the district court’s final unsealing

orders issued on December 18, 2023 and January 5, 2024.

2. In maintaining certain documents under seal or refusing to make

other documents public, the district court erred in the following

ways:

a. The district court concluded that materials filed in connection

29

with motions subsequently mooted by settlement of the

underlying case were categorically not “judicial documents”

entitled to some presumption of public access. Whether such

materials are properly identified as judicial documents is

determined as of the time of filing and that determination is not

affected by subsequent mootness.

b. The district court concluded in its November 18, 2022 oral

ruling that Giuffre’s Florida deposition transcript offered in

support of a third-party motion to intervene was entitled to

only a “barely cognizable” presumption of access because the

“document played no apparent role in the Court’s decision on

the motion.” Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-

7433 (S.D.N.Y. Nov. 18, 2022). Documents do not “receive

different weights of presumption based on the extent to which

they were relied upon in resolving a motion.” Maxwell I, 929

F.3d at 48 (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d

at 123) (alteration adopted).

c. The district court failed to treat briefs and supporting

documents filed in connection with sealing or unsealing

motions as judicial documents. Insofar as such materials have

the tendency to influence sealing rulings, which are an exercise

of judicial supervisory power, they constitute judicial

documents. The weight of the presumption of access

applicable to filings implicating a court’s supervisory power

may be less than that applicable to documents relevant to a

court’s exercise of adjudicatory power. That weight may also

30

vary according to the weight of the presumption applicable to

the underlying material.

3. In all other respects, appellants’ claims of error are without merit.

For the forgoing reasons, we VACATE the district court’s December

2019 and January 2020 Orders in their entirety, and its November 18, 2022

oral ruling to the extent set forth above, and we REMAND the case to the

district court for individualized review of materials consistent with this

opinion. In all other respects, we AFFIRM the appealed orders and rulings.

31