Harvard Law professor Alan Dershowitz, right-wing blogger Mike Cernovich, and the Miami Herald won the unsealing July 2 of a defamation lawsuit stemming from the prosecution of convicted billionaire sex offender Jeffrey Epstein.
The defamation case grew out of Epstein’s 2008 guilty plea to soliciting sex with a minor. Two of his victims, later joined by two more, filed suit under the Crime Victims’ Rights Act seeking to void the plea deal, which involved only limited jail time. Over the course of that challenge, the Epstein victims made sexual misconduct allegations—but didn’t bring formal claims—against other high-profile people, including Dershowitz, one of his attorneys, and British socialite Ghislaine Maxwell.
Maxwell called one of her accusers, Virginia Giuffre, a liar. Giuffre sued for defamation in the U.S. District Court for the Southern District of New York. Facing voluminous requests by both sides to seal documents, the judge overseeing the case issued an order presumptively sealing all court papers, including legal briefs relating to the Maxwell’s motion for summary judgment.
The defamation suit eventually settled.
Dershowitz moved to intervene in the case to seek unsealing of documents that he said would exonerate him. Cernovich and the Herald moved to unseal the entire case on journalistic grounds. The judge allowed all three to join the case but denied their unsealing requests.
They appealed to the U.S. Court of Appeals for the Second Circuit, which vacated that order July 2.
Judge José A. Cabranes, writing for the court, said the trial judge “failed to conduct the requisite particularized review” before sealing virtually the whole case. The briefs urging and opposing summary judgment, in particular, carry a strong presumption of public access, Cabranes said.
Overcoming that presumption requires specific findings that the judge didn’t make because he couldn’t have, the court said.
“Upon reviewing the summary judgment materials in connection with this appeal, we find that there is no countervailing privacy interest sufficient to justify their continued sealing,” Cabranes wrote.
The court ordered the summary judgment papers unsealed. It remanded the case to the district court, ordering the trial court to remedy its “failure to conduct an individualized review of the sealed materials.”
Judge Christopher F. Droney joined the ruling.
Judge Rosemary S. Pooler dissented in part, saying it should be up to the trial judge to decide on remand whether to unseal the summary judgment papers.
The case is Maxwell v. Giuffre, 2d Cir., No. 16-3945, 7/2/19.