Giuffre v. Maxwell

Background

The court considered the parties’ submissions about a protocol for individually reviewing sealed materials in this litigation. The review was intended to determine the proper weight of the public-access presumption for each document, identify interests supporting continued sealing or redaction, and decide whether those interests overcome public access. The order itself established the review process; it did not decide whether any particular sealed item would ultimately be unsealed.

Rulings on the Protocol

1. Decided motions. The court determined that motions at docket numbers 468 and 567 had been decided by Judge Sweet. They therefore belonged on the list of sealed materials subject to individualized review.

2. List of non-parties. The court rejected the plaintiff’s proposal to exclude non-parties already mentioned in materials that had been unsealed or were otherwise unsealed. It adopted the more complete list provided by the defendants. That list excluded reporters, the plaintiff’s medical providers, and law-enforcement personnel, but retained all other potentially relevant non-parties. The protocol contemplated notice to people whose privacy, reputation, or other interests might be affected, including people identified in the materials, people whose intimate or private conduct was described, and people alleged to have been victimized.

3. Meaning of “best efforts.” The court rejected the plaintiff’s proposal to limit address searches to public-record databases. The protocol instead requires the parties to identify the most current address available in a public-record database or another readily available source, so notice will be the best practicable under the circumstances.

4. Notice of appellate rights. The protocol includes notice that a decision unsealing sealed material mentioning a non-party should be treated as affecting that non-party’s rights and interests for purposes of an appeal.

5. Replies. The protocol permits reply briefs from both parties and non-parties who object to unsealing.

6. Evidentiary hearings. The parties or non-parties may ask by letter for an evidentiary hearing to resolve factual issues underlying the unsealing of particular documents. The request must explain why a hearing is necessary.

7. Judicial documents. Parties and non-parties may argue that a court submission is not a “judicial document”—a document to which the public-access presumption may apply. If the court determines that the submission is a judicial document, the objector must also address the strength of the public-access presumption.

Review Procedure

The court adopted a rolling review organized by the non-party mentioned in the sealed materials. For each group of documents, the parties receive notice of the materials to be considered. The parties must use their best efforts to confidentially serve each mentioned non-party with a court-approved notice, generally by certified first-class mail.

A non-party has 14 days after service to request excerpts of the sealed materials. After receiving the excerpts, the non-party has 14 days to object to unsealing or redaction. The original parties may oppose a non-party’s objection within 14 days, and the non-party may reply within seven days. An original party may also file its own objection, with the same general response and reply periods. Briefs are subject to page limits: six double-spaced pages for supporting or opposing memoranda and four pages for replies.

The court may hold a factual hearing and will later decide whether each sealed item should be unsealed completely, unsealed in redacted form, or kept under seal. Non-party appearances and participation are optional. A non-party’s failure to object does not count as consent to unsealing, and the court will conduct its own review regardless of whether it receives an objection.

Confidentiality and Next Steps

A non-party who requests excerpts may use them only to decide whether to object and prepare an objection, and may disclose them only to a lawyer representing the non-party in the proceeding. Non-party submissions are filed under seal, with identifying information redacted and pseudonymous identifiers used as appropriate. Unless the order expressly provides otherwise, filings made under the protocol remain sealed because they are submitted only to help the court decide whether other materials should be unsealed.

The court attached revised versions of the protocol, the notice to non-parties, the request-for-excerpts form, and the objection form. It directed the parties to confer and notify the court by March 26, 2020, about additional proposed changes and to propose a date for a telephone conference about next steps. Judge Preska’s order established this process but did not make a final unsealing decision.