Document 136-9

Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 1 of 33 EXHIBIT I DOJ-OGR-00002467 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 2 of 33 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x VIRGINIA L. GIUFFRE, Plaintiff, v. 15 CV 7433 (LAP) GHISLAINE MAXWELL, Defendant. Telephone Conference --------------------------------------------------------x New York, N.Y. January 19, 2021 10:10 a.m. Before: HON. LORETTA A. PRESKA, District Judge APPEARANCES BOIES SCHILLER & FLEXNER LLP Attorneys for Plaintiff BY: SIGRID S. McCAWLEY HADDON MORGAN and FOREMAN, P.C. Attorneys for Defendant BY: LAURA A. MENNINGER HOLLAND & KNIGHT Attorneys for Intervenors Julie Brown and Miami Herald Media Company BY: CHRISTINE N. WALZ KRIEGER KIM & LEWIN, LLP Attorneys for John Doe Defendants BY: PAUL M. KRIEGER SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002468 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 3 of 33 2 (Case called) THE COURT: Good morning, counsel. Good morning, ladies and gentlemen. Not that you are required to be present, but who is on for Ms. Giuffre, please? MS. MCCAWLEY: Good morning, your Honor. It is Sigrid McCawley from the law firm of Boies Schiller & Flexner on behalf of Virginia Giuffre. THE COURT: Good morning. Who is on for Ms. Maxwell, please? MS. MENNINGER: Good morning, your Honor, Laura Menninger on behalf of Ms. Maxwell from Haddon Morgan and Foreman. THE COURT: Good morning. Counsel, as you know, today the Court announces its rulings on the unsealing of the motions associated with docket entries 231, 279, 315, 320, and 335 in Giuffre v. Maxwell, as well as the documents relevant to those motions. At has become the custom, the Court will announce its general findings relevant to this round of unsealing before marching through its specific findings for each document. As to the Court's general findings, to determine whether materials should be unsealed, the Court's mandate is to undertake a particularized review of each document and to: (1) evaluate the weight of the presumption of public access to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 4 of 33 3 materials; (2) identify and evaluate the weight of any countervailing interests; and (3) determine whether the countervailing interests rebut the presumption. The presumption of public access attaches to judicial documents; that is, those documents filed in accordance with a decided motion or papers that are relevant to the Court's exercise of its inherent supervisory powers. The documents at issue here were submitted in connection with discovery motions decided by Judge Sweet. The Court concludes that they are judicial documents to which the presumption of public access attaches. As with the documents that the Court ordered unsealed in July, however, the motions at issue today are, as noted, discovery motions. Accordingly, the presumption of public access is somewhat less weighty than for a dispositive motion. It is, nevertheless, important to the public's interest in monitoring federal courts' exercise of their Article III powers that the public review the documents. With this presumption of public access in mind, the Court turns to the countervailing interests at stake. The Court has considered the arguments advanced by the parties in their briefing. It has also considered the submission from intervenors Julie Brown and the Miami Herald Media Company. The Court has also received submissions from various Does, in addition to Does 1 and 2, who are under consideration now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 5 of 33 1 Those additional Does have asserted privacy interests that 2 purportedly weigh against unsealing their names and related 3 materials. The Court will undertake its review of those 4 submissions when it comes time to consider the unsealing of the 5 names of those Does, after the parties have had a chance to 6 respond to those submissions today. The only nonparty Does the 7 Court has considered for unsealing are Does 1 and 2, who have 8 submitted no formal objection to unsealing, but who did ask 9 belatedly that their names not be revealed. 10 Moving to the countervailing interests advanced by the 11 parties: 12 First, Ms. Maxwell argues that the unsealing of 13 certain documents -- and portions thereof -- will create a 14 "media frenzy" that will unlawfully jeopardize her right to a 15 fair trial, and which will also violate Local Criminal Rule 16 23.1. Local Rule 23.1 prohibits the release of nonpublic 17 information or opinion where there is a "substantial likelihood 18 that such dissemination will interfere with a fair trial or 19 otherwise prejudice the administration of justice." Local 20 Criminal Rule 23.1(a). By its terms, this rule applies to 21 "lawyers or law firms, "government agents and police officers," 22 "in connection with pending or imminent criminal litigation 23 with which they are associated. Id. It is not clear to the 24 Court that this particular rule is applicable to courts' 25 unsealing of these documents, in which the public has long had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002471 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 6 of 33 1 a First Amendment right to access -- pursuant to the mandate 2 from the Court of Appeals. The Court observes, however, that 3 "the right of an accused to fundamental fairness in the jury 4 selection process" may be a countervailing interest that weighs 5 against public access to documents. 6 Here, however, the Court rejects Ms. Maxwell's 7 argument that the unsealing of any of the materials under 8 consideration today will jeopardize her right to a fair trial, 9 let alone sufficiently enough to overcome the presumption of 10 public access that attaches to these materials. Ms. Maxwell's 11 observation of the general media coverage of the unsealing 12 process does little to show how the unsealing of any specific 13 information at issue in the current round of unsealing will 14 jeopardize her right to a fair trial that is likely many months 15 away, or why this cannot be cured through the normal processes 16 in place for jury selection. 17 As a corollary to this countervailing interest, Ms. 18 Maxwell argues that the unsealing process should be put on hold 19 because the Court that is overseeing her criminal prosecution 20 has not yet determined whether these documents will be 21 considered admissible evidence or testimony at trial. The 22 Court finds that this argument is entitled to little weight at 23 this stage with respect to these specific documents. The 24 public's First Amendment right of access to these documents is 25 not outweighed by the prospective inadmissibility of certain of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002472 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 7 of 33 them in some later proceeding. In any case, the Court takes comfort in the fact that Ms. Maxwell recognizes that she has the Federal Rules of Criminal Procedure and evidence at her disposal when the appropriate time comes to fight this fight down the road. A word about Ms. Maxwell's July 2016 deposition. The full transcript of Ms. Maxwell's July 2016 deposition transcript was submitted as an exhibit annexed to her motion opposing a request to reopen that deposition, at docket entry 340-4. Excerpts of that transcript were also submitted as exhibits to various other briefing. Ms. Maxwell argues that the "privacy interests of those who resist disclosure" -- in the case of her deposition, Ms. Maxwell's interests -- counsel against unsealing deposition transcript. Ms. Maxwell argues that her discussion of certain "intimate matters" during that deposition should remain sealed. During this deposition, Ms. Maxwell was asked repeatedly about her own sexual activity with consenting adults. Unlike in her prior deposition, at her July 2016 deposition, she provided testimony in response to those questions. As noted earlier, the presumption of public access does attach to this transcript (although, has the Court has observed, to a lesser extent than if it were submitted in connection with a dispositive motion). Here, however, public access to certain parts of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 8 of 33 1 transcript is outweighed by Ms. Maxwell's countervailing 2 interests in resisting disclosure of the details of her 3 private, intimate relationships with consenting adults. This 4 testimony is, in any case, far afield from the sex trafficking 5 and sexual abuse allegations that were central to the dispute 6 in Giuffre v. Maxwell. Although the prurient interest of some 7 may be left un satiated as a result, Ms. Maxwell's interest in 8 keeping private the details of her sexual relationships with 9 consenting adults warrants the sealing of those portions of her 10 testimony (and any materials that reference them). 11 For the sake of efficiency, my chambers will share 12 with the parties a copy of the transcript that highlights the 13 portions of Ms. Maxwell's deposition that should remain 14 redacted. This will avoid, I know you're happy to hear, my 15 reading into the record my line-by-line determinations 16 regarding the full 193-page transcript. 17 Ms. Giuffre, likewise, asserts certain privacy 18 interests that she argues outweigh the presumption of public 19 access in certain documents. The Court finds, as it did for 20 the last round of motions it considered for unsealing, that 21 Ms. Giuffre's privacy interests in her medical records, where 22 they reference the medical treatment she received, outweigh any 23 public interests in those materials. So when I refer to 24 medical information to be redacted, I am referring to 25 information describing medical treatment. The parties agree, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002474 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 9 of 33 8 however, that references to health care providers in their institutions may be unsealed. Ms. Giuffre likewise argues that, for certain police reports, the privacy interests of certain persons warrant continued sealing where they were minor victims. Because these police reports were obtained through a public records request, they should be unsealed and docketed in the form that they were received from the law enforcement agency. This is also consistent with the approach that the Court of Appeals has taken. Consistent with the Court of Appeals' approach, other personal information in these police reports, such as addresses, should be redacted from previously undisclosed reports, to the extent such information has not already been redacted by the law enforcement agency. As for the names and identifying information of nonparty Does: At this stage, unless otherwise noted, the only Does for whom names and identifying information should be unsealed are Does 1 and 2. The Court has already noted that the names of Does 1 and 2, portions of their deposition transcripts, and portions of the Palm Beach police report ascribed to them, have already been made public. Doe 1 gave a press interview about the subject matter of this action. Does 1 and 2 did, relatedly, ask that their names not be disclosed, after the horse was already out of the barn. They were given an additional opportunity to lodge formal objections, but did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 10 of 33 1 not do so. The Court ordered Doe 1's transcript released after 2 undertaking a particularized review of that transcript and 3 finding that the presumption of public access warranted 4 unsealing. Having received no normal objection from Does 1 or 5 2, the Court cannot discern a justification for continued 6 sealing of their names in this case's documents. Accordingly, 7 the names and identifying information for Does 1 and 2 should 8 be unsealed. 9 10 Additionally, Alan Dershowitz's name and information 11 identifying him may be unsealed. By his letter at docket entry 12 1138, he has requested that redactions of his name in these 13 materials be unsealed in all cases. 14 15 Finally, excerpts of any deposition testimony for 16 nonparty Does in the Court of Appeals that has already been 17 unsealed may be unsealed here also with redactions, if any, 18 ordered by the Court of Appeals. 19 20 For efficiency, I will not repeat this caveat as to 21 each document; I will only comment when it is not applicable. 22 Unless there is a specific comment, personal identifying 23 information for all nonparty Does should be redacted, with the 24 exception of Does 1 and 2, Professor Dershowitz, and in 25 deposition testimony already unsealed by the Court of Appeals. 26 27 The other names of Does and identifying information 28 will remain sealed until we move to particularized 29 consideration of those Does. 30 31 SOUTHERN DISTRICT REPORTERS, P.C. 32 (212) 805-0300 33 DOJ-OGR-00002476 --- PAGE BREAK --- The Court will now announce its findings with respect to the sealed documents that are the subject of this motion to unseal. These findings are a result of the Court's particularized review of each of the 156 documents it has considered for unsealing today. As before, the Court will proceed in the order of the documents listed on the chart that the parties have provided, listing their respective positions for each document. This chart is Exhibit F to Ms. Menninger's declaration, filed with Ms. Maxwell's reply brief in support of her objections to unsealing. The docket number is 1167-2. As before, the Court is grateful to the parties for their assistance in organizing the enormous number of documents for review. It has been a great service to the Court, and I do thank the parties for that. As I go through, references to page numbers are going to be those typed on the document, not those numbers assigned by the ECF system. Finally, as I go through, I will ask my law clerk, Patrick Malone, to interrupt if I am misreading any of this. As you can see, the parties' chart is enormous and has multiple, multiple iterations of findings listed on it. If I am misreading, I will ask Pat to interrupt so we don't have to go back at the end and confuse ourselves even more. Here we go. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 12 of 33 11 1 2 Document No. 231, motion for sanctions. Unseal and 3 redact only medical information and the names and identifying 4 information of nonparty Does, except for 1, 2 and Dershowitz. 5 I am not going to say this every time, the except for Does 1 6 and 2 and Dershowitz. I am only going to say names and 7 identifying information for nonparties. 8 Docket entry 232. Declaration of Ms. Menninger. 9 Same. Redact names and identifying information of nonparties. 10 232-7. Excerpts from Ms. Giuffre's deposition. This 11 deposition has been unsealed and, as redacted, is at docket 12 entry 1090-32. Same. Same. 13 Document 232-8. This is a transcript of a nonparty 14 Doe. We are not up to that Doe yet. Keep it sealed. 15 232-9. Ms. Giuffre's medical records shall remain 16 sealed. 17 232-10. Same. More of Ms. Giuffre's medical records. 18 23-11. Excerpts from the deposition of Dr. Steven 19 Olson. Unseal the deposition as both sides agree. 20 255. Letter motion to seal documents. It is not 21 sealed. It will, of course, remain unsealed. 22 257. Response in opposition to the motion for 23 sanctions. Unseal and redact only medical information and 24 names and identifying information of nonparties. 25 258. Declaration of Ms. McCawley. Unseal and redact 26 only names and identifying information of nonparties. I will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002478 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 13 of 33 just note here that material relating to Detective Recarey may be unsealed because, of course, he is not a Doe but a law enforcement official. 258-1. Deposition of a Doe. We are not up to that Doe yet. Keep sealed. Same for 258-2. Not up to the Doe. Same for 258-1. The deposition will remain sealed. I'm sorry. That was 258-3. Forgive me. It was the deposition of a Doe. 258-4, Detective Recarey's deposition. Unseal except for names and identifying information of nonparties. 258-5. Correspondence to Ms. Menninger. Unseal but redact medical information. 258-6. Medical release information. Unseal but redact medical information and addresses. 258-7. The signed medical releases. Unseal but redact the tax returns and addresses. 258-8. Keep sealed. That's medical records. 258-9. Excerpts of a deposition of a Doe. Keep sealed. We are not up to that Doe yet. 258-10. Excerpts from Dr. Steven Olson's deposition. Unseal but redact the medical information. 261. Response in opposition to the motion for sanctions. Unseal and redact medical information and names, identifying information and deposition testimony of nonparties. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002479 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 14 of 33 1 I will note that in this document, but for the redactions that 2 I just talked about, the arguments section may be unsealed. 3 269. Reply and response to the motion for sanctions. 4 Unseal but redact the medical information, including the 5 treatment noted on page 2 in the text. 6 270. Declaration of Ms. Menninger. Both parties 7 agree to unseal. 8 270-1. Medical records of Ms. Giuffre shall remain 9 sealed. 10 270-2. Ms. Giuffre's deposition previously unsealed 11 at docket entry 10, 90-32, with the same redactions. 12 270-3. A subpoena served on Dr. Olson. Unsealed, but 13 redact the address. 14 270-4. A chart regarding counsel's statements 15 concerning health care providers' identities and records. Both 16 parties agree to unseal. 17 270-6. Documents produced, both sides agree to 18 unseal. 19 272. Letter motion for leave to file a surreply. 20 Unsealed. Wasn't sealed to begin with. 21 272-1. Ms. Giuffre's surreply on the sanctions 22 motion. Unseal and redact only medical information and names 23 and identifying information of nonparties. 24 272-2. Declaration of Ms. McCawley in reply. Both 25 sides agree to unseal. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002480 --- PAGE BREAK --- 1 272-3. Medical records which shall remain sealed. 2 272-4. Excerpts from Dr. Olson's deposition. 3 Unsealed but redact the medical information. 4 272-5. Defendant's supplemental memorandum of law. 5 Already publicly filed. 6 272-6. January 14, 2016 hearing transcript. Already 7 publicly filed 8 272-7. Defendant's response to plaintiff's 9 interrogatories. 10 Forgive me, counsel. 11 Attaches the medical information therein. 12 272-8. Medical records shall remain sealed. 13 272-9. Correspondence which may be unsealed by the 14 agreement of the parties. Correspondence between Bernadette 15 Martin and Meredith Schultz. 16 272-10. Excerpts from Ms. Giuffre's deposition. 17 Already publicly filed at docket entry 1090-32. 18 Document 303. Response to the letter motion. 19 Unsealed but redact the medical information. 20 304. Declaration of Ms. Menninger in support of the 21 motion for sanctions. Both parties agree to unseal. 22 304-1. Excerpts from Dr. Olson's deposition. Unseal 23 but redact the medical information. 24 304-2. Same. Dr. Olson. Keep sealed because it has 25 medical records. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002481 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 16 of 33 304-3. Same. Keep sealed. Medical records. 304-4. Letter from Ms. Menninger to Ms. Schultz. Unsealed but redact the medical information. 313. Supplemental authority. That has already been publicly filed. 313-1. Plaintiff's supplemental responses to interrogatories. Unsealed but redact the medical information. 279. Motions for an adverse instruction. Unseal in full. 280. Declaration of Ms. Schultz on the adverse inference instruction. Unseal but redact names and identifying information and testimony of nonparties. 280-1. Correspondence with Ms. Menninger. Unseal and redact only the names and identifying information of nonparties, including search terms that might disclose the nonparties. Counsel, I am going to do an aside here because I forgot something else. With respect to Ms. Maxwell's deposition, you are to redact the index. As we know, that might lead to premature identification of Does and, in any event, I do not believe that Judge Sweet relied on the index in making his rulings. 280-1. Correspondence with Ms. Menninger. Same thing. Unseal and redact only names and identifying information of nonparties, including search terms. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002482 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 17 of 33 1 280-2. These are Palm Beach County State Attorney's 2 Office public records. Unseal in the same manner as the Second 3 Circuit allowed the unsealing. 4 288. Letter motion regarding discovery. Not sealed. 5 288-1. E-mail correspondence. Not sealed. 6 288-2. More e-mail correspondence. Not sealed. 7 289. Letter motion in response to the motion to seal. 8 Not sealed. 9 290. Letter response in opposition to the motion. 10 Redact identifying information and e-mail addresses. 11 291. Declaration of Ms. Schultz. Not sealed. 12 291-1. E-mail correspondence from Ms. Menninger. The 13 parties agree unsealed. I think it was not sealed. 14 291-2. Letter correspondence from Ms. Schultz. 15 Unseal in full except for paragraph 1 under document request 16 No. 1. Should remain sealed. 17 291-3. Letter correspondence from Ms. Schultz. 18 Unseal and redact only names and identifying information of 19 nonparties. 20 300. Letter to Judge Sweet. Not sealed. 21 300-1:2. E-mail correspondence. Not sealed. 22 337. Letter motion. Not sealed. 23 338. Memorandum of law in support of the adverse 24 inference motion. Redact names and identifying information of 25 nonparties and excerpts from their testimony. Redact e-mail SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002483 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 18 of 33 addresses but, as a side note, material relating to Detective Recarey may be unsealed. 1 338-1. Ms. McCawley's declaration. Unseal and redact names and identifying information with respect to nonparties. 2 338-2. Unseal in full. Correspondence from Ty Gee. 3 338-3. Excerpts from Ms. Maxwell's deposition. As with the full transcript, same here. 4 338-4. Excerpts from Ms. Maxwell's July deposition. Same. Same. 5 338-5. Excerpts from a Doe's deposition. We are not up to that Doe yet. Keep sealed. 6 338-6. Excerpts from Detective Recarey's deposition. Unseal and redact only names of identifying information of nonparties 7 338-7. Excerpts from a Doe's deposition. Not up to that Doe yet. Keep sealed. 8 338-8. Excerpts from the deposition of Doe No. 1. Unseal and redact only names and identifying information of nonparties. 9 338-9. Testimony of a Doe. Keep sealed. Not up to that Doe yet. 10 338-10. This is a subpoena. Both sides agree it may be unsealed. 11 353. Motion to strike. Unseal and redact only the names and identifying information of the nonparties. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002484 --- PAGE BREAK --- Case: 120-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 19 of 33 1 375. Response in opposition to the motion to strike. 2 Not sealed. 3 Document No. 77. I think it's docket entry 315. 4 Motion to compel. Unseal and redact the names and identifying 5 information of nonparties and their testimony. Page 12. The 6 last bullet point shall remain redacted. It relates to private 7 conduct. Argument may be unsealed. The public Vanity Fair 8 article may be unsealed. 9 316. Ms. Schultz's declaration. Unseal and redact 10 the names and identifying information of the nonparties. 11 316-1. Excerpts from a Does deposition. We are not 12 up to that Doe yet. Remain sealed. 13 Document No. 80. Forgive me. I don't have the docket 14 entry but it is composite Exhibit 2. It's excerpts from a 15 Doe's deposition. Not up to that Doe yet. Keep sealed. 16 316-3. Excerpts from Detective Recarey's deposition. 17 Unseal except for names and identifying information of 18 nonparties. 19 316-4. Excerpts of a Doe deposition. Not up to that 20 Doe. Keep sealed. 21 Document No. 83, which is composite Exhibit 5. These 22 are excerpts from Doe 1's deposition. Apparently, the Second 23 Circuit already released them without redactions. 24 316-6. June 20, 2016 order from Judge Sweet. This 25 was filed at docket entry 264-1 and the same redactions shall SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002485 --- PAGE BREAK --- 1 remain. 2 316-7. Excerpts from Ms. Maxwell's deposition. As with the entire transcript. 3 4 Document No. 86, which is composite Exhibit 8. 5 Messages involving the defendant. Portions of this document were redacted and released by the Second Circuit. So whatever 6 happened with respect to the Second Circuit's release, we will abide by its ruling. 7 8 9 339. Response in opposition to the motion to compel. 10 Unseal and redact the names, identifying information, and testimony of the nonparties. With respect to Ms. Maxwell's 11 depositions, as ordered for the whole transcript. The objections to questions 9, 10, and 11 will remain sealed 12 because it relates to Ms. Maxwell's intimate conduct. 13 14 The material on pages 17 to 19, the shaded material there shall remain sealed. Same reason. 15 16 Pages 20 to 23. Testimony from or about the Does. 17 The shaded material shall remain sealed except for Detective Recarey. 18 19 20 340. Declaration of Mr. Pagliuca. Unseal and redact only the names and identifying information of the nonparties. 21 22 I will note Detective Recarey is in there and Ms. Maxwell's depositions are in there, but those rulings are already out. 23 24 340-1. Ms. Giuffre's deposition. This was already unsealed by us on docket entry 1090-32. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002486 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 21 of 33 1 340-3. Ms. Maxwell's deposition. As before. 2 340-4. Ms. Maxwell's deposition. As before. 3 340-5. Deposition of a Doe. Not up to that Doe yet. 4 Keep sealed. 5 340-6. Detective Recarey's deposition. Unseal with 6 the redaction of names and identifying information of 7 nonparties. 8 Document 94, Exhibit G in that series, that is Doe 1's 9 deposition. As before, unseal and redact only names and 10 identifying information of nonparties. 11 340-8. Nonparty Does deposition. Not up to that Doe 12 yet. Keep sealed. 13 Document 96, Exhibit I in that series. Deposition of 14 a Doe. Not up to that Doe yet. Keep sealed. 15 368. Reply memorandum of law. Unseal and redact only 16 the names and identifying information and summaries of 17 testimony of nonparties. By way of note, the argument may be 18 unsealed, subject to the caveats. Detective Recarey may be 19 unsealed, subject to the caveats. 20 369. Declaration of Ms. McCawley. Unseal and redact 21 only the names and identifying information of the nonparties. 22 369-1. Ms. Maxwell's April 2016 deposition. As 23 before. 24 369-2. Sealed court order. That has already been 25 filed at docket entry 264-1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002487 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 22 of 33 21 1 369-3. Excerpts from Ms. Maxwell's June 2016 deposition. As before. 2 3 369-4. Excerpts from a Doe's deposition. Not up to that Doe yet. Keep sealed. 4 5 Same with 269-5. Another Doe we are not up to yet. Keep sealed. 6 7 369-6. This is depositions of a Doe. The Second Circuit has already released this transcript, so it remains released subject to the redactions ordered by the Second Circuit. 8 9 10 Circuit. 11 369-7. Excerpts from Doe 1's deposition. The Second Circuit already released this transcript without redactions. 12 13 369-8. Excerpts of the deposition of a Doe. The Second Circuit already released this transcript without redactions. 14 15 redactions. 16 369-9. Flight logs. This document was also released by the Second Circuit without redactions. 17 18 THE DEPUTY CLERK: Judge, I need to interrupt. I was just informed that apparently somebody is broadcasting this on to YouTube, so I don't know if you want to give a reminder that that is illegal to do. 19 20 THE COURT: Whoever is doing it, you are operating against the law. I suspect there is a way to find out. So I will ask you, most respectfully, to stop doing it. We have had enough of lack of the rule of law around here. Let's try to 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002488 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 23 of 33 22 1 observe it. 2 I think we are up to 369-10. This is a January 22, 3 2015 Daily Mail article. That may be unsealed in full but, 4 apparently, it's publicly available anyway. 5 369-11. Excerpts from Detective Recarey's deposition. 6 Same. Same. Unseal and redact names and identifying 7 information of nonparties. 8 369-12. Excerpts from a deposition of a Doe. We are 9 not up to that Doe. Remain sealed. 10 369-13. Excerpts from the deposition of a Doe. We 11 are not up to that Doe yet. Keep sealed. 12 Same with 369-14. Another Doe. 13 369-15. Another Doe. 14 And 369-16, another Doe. We are not up to any of 15 those yet. Those transcripts shall remain sealed. 16 320. This is defendant's submission regarding search 17 terms. Unseal and redact only the names and identifying 18 information of nonparties. People's e-mails, including Ms. 19 Maxwell's, should be redacted. 20 321. Ms. Menninger's declaration. Unseal and keep 21 redacted the e-mail addresses and any names, identifying 22 information, or e-mail addresses of nonparties. 23 321-1. Correspondence from Ms. Schultz. Unseal and 24 redact only the names and identifying information of nonparties 25 and Ms. Maxwell's e-mail address. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 24 of 33 23 1 321-2. Correspondence from Ms. Menninger to Ms. Schultz. Unseal and redact only the names and identifying information of nonparties. 2 Same with 321-3, 321-4, 321-5. That's all correspondence between the lawyers and it should be unsealed and the names and identifying information of nonparties redacted. 3 321-6. Search terms. Unseal and redact only the names, identifying information, including identifying information in the search terms of nonparties. 4 322. Motion to seal document. Not sealed. 5 323. Submission of proposed search terms. Same thing. Unseal and redact the names, identifying information of nonparties, including search terms that might disclose it. 6 329. Letter to Judge Sweet. Not sealed. 7 335. Motion for a protective order. Unseal. 8 336. Declaration of Ms. McCawley. Both sides agree to unseal it. 9 336-1. Correspondence between the lawyers. The parties agree to unseal. 10 336-2. Correspondence between the lawyers. The parties agree to unseal. 11 336-3. Correspondence from Ty Gee to Meredith Schultz. The parties agree to unseal. 12 380. Response in opposition to the motion for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002490 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 25 of 33 24 protective order. Unseal. 381. Ms. Menninger's declaration. The parties agree to unseal. We are now coming upon a group of Palm Beach County Sheriff's Office records and later Fremont County police reports. And the answer to all of this is going to be unseal. This applies to 381-1, 381-2, 381-3, 381-4, 381-5, 381-6, 381-7, all of which were Palm Beach County police records and 381-8, which is a Fremont County police record. Unseal all of that. As I said at the outset, as produced. So to the extent that the producing agency redacted material, it should remain redacted. 392. Reply memo of the law. Unseal but redact names and identifying information of nonparties. 393. Declaration of Ms. McCawley. Unseal but redact names and identifying information of nonparties. 393-1. These were unsealed by the Second Circuit and shall remain unsealed, subject to the redactions ordered by the circuit on page 24 of the composite exhibit. 393-2. These are flight logs. They were released by the Second Circuit without redactions. 393-3. Excerpts from Ms. Maxwell's July 2016 deposition. As with the entire transcript. 393-4. Excerpts from Ms. Maxwell's April 22, 2016 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002491 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 26 of 33 1 deposition. As with the entire transcript. 2 400. Motion for leave to file a surreply. In the 3 introduction, the sentence beginning "Ms. Maxwell never 4 admitted" shall remain sealed. It relates to private, intimate 5 conduct. 6 Pages 1 to 2. The material under No. 1 relating to 7 Ms. Maxwell's adult conduct shall remain sealed. 8 Item 3. Detective Recarey's material. Unsealed, 9 other than the names and identifying information of nonparties. 10 Item 4. Shall remain sealed. We are not up to this 11 Doe yet. 12 Item 5. Shall remain sealed. We are not up to this 13 Doe yet. 14 Item 6. Unseal. Relates to Doe No. 1. 15 Item 7. Shall remain sealed. We are not up to this 16 Doe yet. 17 The last sentence in paragraph 1 under argument may be 18 unsealed. The next sentence, the material relating to adult 19 consensual behavior, should be redacted. And by way of 20 notation, Detective Recarey's information may be unsealed 21 except for names and identifying information of nonparties. 22 401-1. Excerpts from Ms. Maxwell's July 2016 23 deposition. As with the whole transcript. 24 401-2. Excerpts from Ms. Maxwell's April 2016 25 deposition. As with the entire transcript. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002492 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 27 of 33 1 401-3. Excerpts from Detective Recarey's deposition. 2 These pages were released by the Second Circuit without redactions. 3 4 401-4. Excerpts from the depositions of the Doe. We 5 are not up to that Doe yet. Remain sealed. 6 401-5. Excerpts from the deposition of Doe No. 1. 7 Unseal and redact only names and identifying information of 8 nonparties. 9 401-6. Excerpts of the deposition of a Doe. We are 10 not up to that Doe yet. So it shall remain sealed. 11 Counsel, may I ask you to proceed as you did last 12 time, confer, and prepare the documents for unsealing pursuant 13 to this order, and post the documents within a week on the 14 public docket. As before, give them an appropriate name, such 15 as documents ordered unsealed on January 19. 16 Counsel, are there any questions? 17 MS. MENNINGER: I have two housekeeping questions, I 18 think. I recognize your Honor just said one week. If it's 19 possible to ask for one week and one day. We have all of our 20 motions due in Ms. Maxwell's criminal case next Monday. And 21 the burden on my paralegal staff to get these redactions done 22 at the same time, one extra day would be very helpful. 23 THE COURT: If that's all you need, one day, that's 24 fine. If you need a couple more, confer with Ms. McCawley and 25 just let me know. Certainly you have the one day. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002493 --- PAGE BREAK --- MS. MENNINGER: Your Honor, when will the Court be providing us with that line itemed deposition? The reason I ask is, we would just ask for a couple days after we receive that to analyze -- I think an appeal looks unlikely. But once we see the redactions, we would have to make that determination and confer with Ms. Maxwell, who is in custody, as you know. I would just ask for a little bit of leeway to be able to do those two things. THE COURT: Yes, ma'am. I expect you will receive it in the next day or two. But if you don't and you need extra time, let me know. MS. MENNINGER: Thank you, your Honor. The last one, your Honor, is with regards, since we are all together, to the issue of the third round of unsealing. Because we already provided notice to Does 1 and 2, we are not providing notice to them, I understand. But there is a little bit of a gray area within the protocol as to how to calculate days for objections because they normally flow from the date on which a nonparty receives notice. And so if I could ask for a date certain, preferably, given the other obligations, a week from this Friday, that would allow us enough time to get those objections done as well. THE COURT: Ms. McCawley, is that OK with you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- MS. MCCAWLEY: Yes, that's fine with me, your Honor. I also have one housekeeping matter once Ms. Menninger is done. THE COURT: A week from Friday is fine with me. MS. MENNINGER: Thank you. Those were all that I had. THE COURT: Ms. McCawley. MS. MCCAWLEY: Thank you, your Honor. My question relates to those Does in the bucket that did not object. Each time we go through these, obviously, there is a burden to redact those names, which is lessened if we don't have to worry about the individuals who have not objected. Is there a mechanism by which we can address that so we won't have to labor through those in each section? THE COURT: Ms. Menninger, what do you have to say? MS. MENNINGER: Your Honor, I think the parties have taken two pretty different views of this. One, Ms. McCawley asked in her briefing on this round that if someone didn't file an objection, then we should release their names. As I pointed out in another letter to your Honor on this topic, it's apparent that many of the Does didn't actually receive the notice from the Court. And so I still believe that the Court has to evaluate, as the Second Circuit did, Does even if we didn't receive an objection from them. So, unfortunately, I think it still means we go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- through in the order that we have been doing, move on to the next Does, for example. And if a party, like Professor Dershowitz, has made clear that they do not object, then certainly we understand those should be unsealed. But for many of these nonparties we know for a fact that they did not actually receive the notice, despite everyone's best efforts to get them notice. So I would say that, unfortunately, we still need to continue to redact them until we take up those particular Does in the future and your Honor has an opportunity to do the particularized review that the protocol promised would happen with respect to nonparties, whether or not they objected. THE COURT: Ms. McCawley. MS. MCCAWLEY: Yes, your Honor. I think it's analogous to this situation where we have got a party who is saying they are not objecting. They have the notice. They received it. They did not object. And the burden on the Court and the parties to go through this process -- THE COURT: You broke up a little bit. Would you go back. Somebody has another device on. Ms. McCawley, would you go back to the burden on the Court and the parties, please. MS. MCCAWLEY: Yes, your Honor. The burden on the Court and the parties is extensive with respect to this grouping of individuals who have not objected. So it seems to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 --- PAGE BREAK --- Case: 20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 31 of 33 me to make the most sense for us to look at that group and not have to go through the burden of redacting as to those individuals with each round. We can address them in one setting in some manner. Then we wouldn't have to be in each round redacting and paying attention to people who have no objection on the file. THE COURT: Ms. Menninger, anything else? MS. MENNINGER: I just think there is a big difference between people who have not objected affirmatively, like Professor Dershowitz, and those from whom we have heard nothing or received back no confirmation that they received the notice from the Court. I think we need to treat those groups differently. With respect to people who affirmatively want their name out there, fine, I have no problem. For those who have not just simply not responded, we know for the half that we served, in approximately half of the cases we never received, despite a return receipt requested, any confirmation that they actually received the notice. MR. KRIEGER: Your Honor, if I may have a brief minute to respond. THE COURT: Yes, sir. MR. KRIEGER: Your Honor, I just want to echo Ms. Menninger's points that the mere fact that a Doe doesn't object, even if they have received notice, doesn't mean that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002497 --- PAGE BREAK --- Case: 20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 32 of 33 31 1 the Court is not obliged to do the balancing test that the 2 Court has so carefully done today and previously. The fact 3 that someone -- there is going to be many reasons why a party 4 doesn't want to weigh in, and it doesn't absolve the Court and 5 the parties from the obligation of taking those steps, even if 6 it is a burden. That's part of the process here, Judge. 7 THE COURT: Anything else, counsel? 8 MS. WALSH: Christine Walsh from Holland & Knight, on 9 behalf of the Miami Herald. 10 We do agree with Ms. McCawley that the process seems 11 to be duplicative with regards to the Does who are not 12 responding that the Court will need to go back and revisit 13 documents that are being released piecemeal. And if there is 14 not objections, those should be considered at one time. 15 THE COURT: Anything else, counsel? 16 MS. MCCAWLEY: Yes, your Honor. One more option for 17 you to consider, with Ms. Menninger raising the concern about 18 people who we didn't get a return receipt from. We can also 19 segregate out those for whom we did get a return receipt from, 20 meaning they received it, we got the return receipt, and they 21 did not object, so we would have that body. If that's a 22 concern for the Court, we could narrow it at least somewhat. 23 THE COURT: Anything else, counsel? 24 Thank you. Some of you have taken the words right out 25 of my mouth. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002498 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 136-9 Filed 02/04/21 Page 33 of 33 32 1 First, there is a difference between people like 2 Professor Dershowitz, who say affirmatively, I don't care, let 3 it all out, and people from whom we just have not heard, 4 whether they received the documents or not. 5 Secondly, I understand that my direction from the 6 Court of Appeals is to make a particularized finding. I don't 7 think I can weigh the countervailing interests of any 8 particular Doe without considering that particular Doe by 9 himself or herself. 10 Accordingly, I don't think we can lump them together. 11 Should we receive indications from other Does that they 12 affirmatively have no objection to release of their material, 13 that makes it easy. But, otherwise, we have to go through 14 them, and I have to make a particularized finding. It will be 15 a long, tedious process, but even this time I think it went a 16 little more quickly. 17 Anything else, counsel? 18 Thank you, counsel, and thank you again for your 19 assistance in organizing the documents. Good morning. 20 (Adjourned) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 DOJ-OGR-00002499