Giuffre v. Maxwell

Background

The court considered Alan Dershowitz’s request to modify the protective order entered in the related Giuffre v. Maxwell case. He sought access to “all filings and discovery materials, including third-party discovery,” from that litigation for use in defending Virginia Giuffre’s action against him. The parties submitted letters and participated in oral argument, and the court decided the request without requiring further briefing.

The Maxwell protective order allowed materials marked confidential to be used only to prepare for and try that case. It also limited disclosure to specified groups, including attorneys actively working on the Maxwell litigation. When that litigation concluded, confidential materials were to be returned or destroyed.

Cooper & Kirk’s possession of Maxwell materials

The court learned that Cooper & Kirk, which represented Giuffre in the Dershowitz action, had received the Maxwell materials in their entirety from Giuffre’s former counsel, Boies Schiller Flexner. The court concluded that this possession violated the plain terms of the Maxwell protective order. It reasoned that Cooper & Kirk could not be actively working on the Maxwell case because no attorney from the firm had entered an appearance, attended the relevant conferences, or filed a letter, brief, or motion in that case. The court also found that the materials could not be used outside the Maxwell litigation.

The court ordered Cooper & Kirk to destroy all Maxwell materials in its possession, except Giuffre’s deposition transcript from that case, as well as all work product derived from those materials. It required counsel to submit an affidavit describing the steps taken to destroy them. To the extent the firm was using the Maxwell materials in the Dershowitz action, it also had to stop using them, except for the deposition transcript.

Request to modify the protective order

The court applied the rule that a protective order should not be modified when parties or nonparties reasonably relied on it unless there is an extraordinary circumstance or compelling need. Dershowitz argued that broad access would promote efficiency and avoid duplicating discovery. The court held that those goals did not meet that standard.

The court also found that the request was excessively broad because it covered all filings and discovery from a case with more than a thousand docket entries. It was not persuaded that the two actions involved the same issues or that giving Dershowitz all Maxwell materials would materially advance his defense or counterclaims. The court further reasoned that disclosure could undermine the ongoing process for deciding whether Maxwell filings should be unsealed and could affect the privacy interests of third parties.

The court concluded that the parties who produced discovery in Maxwell reasonably relied on the promise that confidential information would be used only in that case. That reliance independently justified refusing to modify the protective order.

Disposition

The court denied Dershowitz’s request to modify the Maxwell protective order. It separately ordered Cooper & Kirk to destroy the specified materials and related work product, submit an affidavit describing the destruction, and stop using the materials in the Dershowitz action except for Giuffre’s deposition transcript.