Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 1 of 13
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`VIRGINIA L. GIUFFRE,
`Plaintiff,
`
`-against-
`ALAN DERSHOWITZ,
`Defendant.
`VIRGINIA L. GIUFFRE,
`Plaintiff,
`
`-against-
`GHISLAINE MAXWELL,
`Defendant.
`
`No. 19 Civ. 3377 (LAP)
`
`
`No. 15 Civ. 7433 (LAP)
`MEMORANDUM & ORDER
`
`
`
`LORETTA A. PRESKA, Senior United States District Judge:
`Before the Court is a request by Defendant Alan Dershowitz
`(“Mr. Dershowitz”) to modify the protective order entered in
`Giuffre v. Maxwell, No. 15 Civ. 7433 (S.D.N.Y.), to permit him
`access to “all filings and discovery materials, including third-
`party discovery” from that case. (See Dershowitz Letter Requesting
`Pre-Motion Conference on Motion to Modify the Protective Order
`(“Dershowitz June 12 Letter”), dated June 12, 2020 [dkt. no. 133
`in 19 Civ. 3377].) Mr. Dershowitz originally sought the Court’s
`leave to fully brief a motion to modify the protective order in
`Maxwell pursuant to Rule 2.A of this Court’s individual practices.
`The parties from both Giuffre v. Dershowitz, No. 19 Civ. 3377
`
`
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`VIRGINIA L. GIUFFRE,
`Plaintiff,
`
`-against-
`ALAN DERSHOWITZ,
`Defendant.
`VIRGINIA L. GIUFFRE,
`Plaintiff,
`
`-against-
`GHISLAINE MAXWELL,
`Defendant.
`
`No. 19 Civ. 3377 (LAP)
`
`
`No. 15 Civ. 7433 (LAP)
`MEMORANDUM & ORDER
`
`
`
`LORETTA A. PRESKA, Senior United States District Judge:
`Before the Court is a request by Defendant Alan Dershowitz
`(“Mr. Dershowitz”) to modify the protective order entered in
`Giuffre v. Maxwell, No. 15 Civ. 7433 (S.D.N.Y.), to permit him
`access to “all filings and discovery materials, including third-
`party discovery” from that case. (See Dershowitz Letter Requesting
`Pre-Motion Conference on Motion to Modify the Protective Order
`(“Dershowitz June 12 Letter”), dated June 12, 2020 [dkt. no. 133
`in 19 Civ. 3377].) Mr. Dershowitz originally sought the Court’s
`leave to fully brief a motion to modify the protective order in
`Maxwell pursuant to Rule 2.A of this Court’s individual practices.
`The parties from both Giuffre v. Dershowitz, No. 19 Civ. 3377
`
`
`
`1
`
`
`
`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 2 of 13
`
`(S.D.N.Y.), and Maxwell submitted a number of letters in response
`to Mr. Dershowitz’s request and participated in oral argument on
`June 23, 2020.1 In light of that developed record, the Court
`elects to rule on Mr. Dershowitz’s request on the merits without
`further briefing.
`For the reasons that follow, Mr. Dershowitz’s request is
`denied. In addition, the Court rules that certain discovery
`materials from the Maxwell case are not properly in possession of
`Plaintiff Virginia Giuffre’s (“Ms. Giuffre”) current counsel and
`thus must be destroyed under the plain terms of the Maxwell
`protective order.
`
`1. The Maxwell Protective Order
`At the heart of the dispute is the protective order entered
`in Maxwell by Judge Robert W. Sweet. (See Protective Order (the
`“Maxwell Protective Order”), dated March 17, 2016 [dkt. no. 62 in
`15 Civ. 7433].)2
`
`
`1 (See Giuffre Response to Dershowitz Letter (“Giuffre June 17
`Letter”), dated June 17, 2020 [dkt. no. 141 in 19 Civ. 3377];
`Maxwell Response to Dershowitz Letter, dated June 17, 2020 [dkt.
`no. 1059 in 15 Civ. 7433]; Dershowitz Reply to June 17 Giuffre
`Letter, dated June 18, 2020 [dkt. no. 142 in 19 Civ. 3377];
`Dershowitz Reply to June 17 Maxwell Letter, dated June 18, 2020
`[dkt. no. 1060 in 15 Civ. 7433]; John Doe Response to Dershowitz
`Letter, dated June 22, 2020 [dkt. no. 1062 in 15 Civ. 7433];
`Transcript of June 23 Oral Argument (“Transcript”), dated June 26,
`2020 [dkt. no. 1069 in 15 Civ. 7433].)
`2 Given the parties’ familiarity with them, the Court will not
`otherwise recount the facts underlying either the Maxwell or the
`Dershowitz action.
`
`
`
`2
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 3 of 13
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`The Maxwell Protective Order, despite the angst it is now
`causing, is unremarkable in form and function. Like many
`protective orders, Judge Sweet entered the Maxwell Protective
`Order in 2016 to “protect the discovery and dissemination of
`confidential information or information that will improperly
`annoy, embarrass, or oppress any party, witness, or person
`providing discovery in [Maxwell].” (Id.) The order accordingly
`permits the parties to designate as CONFIDENTIAL certain materials
`produced in discovery that “are confidential” and that implicate
`“common law and statutory privacy interests” of Ms. Giuffre and
`Maxwell Defendant Ghislaine Maxwell (“Ms. Maxwell”). (Id. ¶ 3.)
`Under the order, materials properly marked CONFIDENTIAL “shall not
`be disclosed or used for any purpose except the preparation and
`trial of [Maxwell],” (id. ¶ 4), and may only be disclosed to
`specific enumerated groups, including “attorneys actively working
`on this case” and “persons regularly employed or associated with
`the attorneys who are working on this case,” (id. ¶¶ 5(a)-(h)).
`The Maxwell Protective Order further provides that, upon the
`conclusion of the Maxwell litigation, all materials (or copies of
`materials) designated CONFIDENTIAL shall be returned to the party
`that designated them CONFIDENTIAL or, alternatively, destroyed.
`(Id. ¶ 12.)
`
`
`
`
`
`3
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 4 of 13
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`2. Cooper & Kirk’s Possession of the Maxwell Materials
`Before getting to the heart of the matter, i.e., Mr.
`Dershowitz’s request, the Court was troubled to learn at the June
`23 oral argument that replacement counsel for Ms. Giuffre, Cooper
`& Kirk, had received from Ms. Giuffre’s former counsel, Boies
`Schiller Flexner,3 the Maxwell materials at issue in their
`entirety. Asked to explain how those materials came into the
`firm’s possession, attorneys from Cooper & Kirk explained that
`they had obtained access to the materials because Ms. Giuffre
`retained them “both to represent her in [Giuffre v. Dershowitz]
`and to represent her in conjunction with the Boies Schiller firm
`in the Maxwell case.” (Transcript at 9:15-19.)
`
`The Court is not privy to the full details of Ms. Giuffre’s
`arrangement with Cooper & Kirk, but, in any event, they would do
`little to obviate the Court’s concern. The Maxwell Protective
`Order “must be interpreted as it[s] plain language dictates.”
`Geller v. Branic Intern. Realty Corp., 212 F.3d 734, 738 (2d Cir.
`2000)(quoting City of Hartford v. Chase, 942 F.2d 130, 135 (2d
`Cir. 1991)). And, whatever Cooper & Kirk’s intentions in
`requesting and obtaining the Maxwell materials from Boies
`
`
`3 This Court disqualified Boies Schiller Flexner from continued
`representation of Ms. Giuffre in its October 16, 2019 Opinion &
`Order. (See Opinion & Order re: Defendant’s Motion to Disqualify
`Counsel for Plaintiff and to Dismiss the Complaint, dated October
`16, 2019 [dkt. no. 67].) Ms. Giuffre retained Cooper & Kirk to
`represent her shortly thereafter.
`4
`
`
`
`
`
`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 5 of 13
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`Schiller, the Maxwell Protective Order explicitly provides that
`(1) discovery materials designated CONFIDENTIAL cannot be
`disclosed or used outside of the confines of the Maxwell action
`and (2) that properly designated discovery materials may only be
`disclosed to specific groups of individuals, including attorneys
`“actively working on” the Maxwell litigation. (See Maxwell
`Protective Order, ¶¶ 4, 5(a).)
`
`Cooper & Kirk is sunk on either score. As a practical matter,
`
`the Court would be surprised--shocked, even--if Cooper & Kirk was
`not in some sense “using” the Maxwell discovery in its
`representation of Ms. Giuffre in her action against Mr. Dershowitz.
`And, even if it was not doing so, Cooper & Kirk is not “actively
`working on” the Maxwell matter such that disclosure of discovery
`materials to it would be permissible under the plain terms of the
`protective order. (See id.) First, the Maxwell Protective Order
`governs the “preparation and trial” of Ms. Giuffre’s since-settled
`claims against Ms. Maxwell, (id. ¶ 4), meaning Cooper & Kirk
`necessarily cannot play an active role in litigating them. Second,
`even assuming arguendo that the Maxwell Protective Order could
`permit the disclosure to Cooper & Kirk, and despite Cooper & Kirk’s
`representation that it was retained to represent Ms. Giuffre in
`Maxwell, the firm has not, from what the Court can tell, been
`actively working on the case. To wit, no Cooper & Kirk attorney
`has entered an appearance in Maxwell, no Cooper & Kirk attorney
`5
`
`
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 6 of 13
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`has attended any of the (numerous) conferences that have taken
`place in that matter since the firm was retained by Ms. Giuffre,
`and no Cooper & Kirk attorney has filed any letter, brief, or
`motion with the Court. Whatever Cooper & Kirk’s participation in
`the Maxwell unsealing litigation, it does not appear to be
`“active.”
`
`Accordingly, the Court concludes that Cooper & Kirk’s
`
`possession of the Maxwell discovery materials violates the plain
`terms of the Maxwell Protective Order.4 All of those materials
`and any material, including work product, derived from the Maxwell
`materials (other than the deposition of Ms. Giuffre in Maxwell5)
`shall be destroyed. Counsel shall submit an affidavit detailing
`the steps taken to do so. Furthermore, to the extent that it is
`doing so, Cooper & Kirk shall cease use of the Maxwell materials
`in its preparation of Ms. Giuffre’s action against Mr. Dershowitz.
`
`
`
`
`4 The Court also notes, as Mr. Dershowitz’s counsel did at oral
`argument on June 23, that it would be unfair for Ms. Giuffre’s
`counsel to have access to the Maxwell discovery materials while
`Mr. Dershowitz does not. While the Court rejects Mr. Dershowitz’s
`request to modify the Maxwell Protective Order, it will not in the
`same breath force him to litigate this action with one arm tied
`behind his back.
`5 At a hearing before the Court on December 2, 2019, the Court
`ordered Ms. Giuffre to turn over her deposition transcript from
`Maxwell to Mr. Dershowitz. (See Transcript at 21:2-7.)
`6
`
`
`
`
`
`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 7 of 13
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`3. Mr. Dershowitz’s Request to Modify the Maxwell Protective
`Order
`As mentioned above, see supra at 1, Mr. Dershowitz seeks to
`modify the Maxwell Protective Order to gain access to all materials
`from that litigation. The Court concludes that modification is
`not justified for a number of reasons.
`
` The Court of Appeals has held that where there has been
`reasonable reliance by a party or non-party in providing discovery
`pursuant to a protective order, a district court should not modify
`that order “absent a showing of improvidence in the grant of the
`order or some extraordinary circumstance or compelling need.”
`S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001). In
`determining whether such extraordinary circumstances exist, the
`Court considers several factors, including: (1) the scope of the
`protective order; (2) the language of the order itself; (3) the
`level of inquiry the court undertook before granting the order;
`and (4) the nature of reliance on the order. In re Ethylene
`Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308,
`318 (D. Conn. 2009).
`
`At a broad level, Mr. Dershowitz has simply not demonstrated
`the existence of an “extraordinary circumstance or compelling
`need,” TheStreet.com, 273 F.3d at 229, that counsels in favor of
`modification. The thrust of Mr. Dershowitz’s request is that
`wholesale production of the Maxwell materials to him will “promote
`
`
`
`7
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 8 of 13
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`efficiency and avoid duplication” in his defense of Ms. Giuffre’s
`claims. (See Dershowitz June 12 Letter.) That is all well and
`good, but while “fostering judicial economy and avoiding
`duplicative discovery are laudable goals . . . they hardly amount
`to extraordinary circumstances or compelling need.” Md. Cas. Co.
`v. W.R. Grace & Co., No. 83 Civ. 7451 (SWK), 1994 WL 419787, at *9
`(S.D.N.Y. Aug. 10, 1994).
`
`Moreover, the Court is not convinced that the production of
`the Maxwell materials to Mr. Dershowitz would even vindicate those
`important objectives beyond making life easier for Mr. Dershowitz.
`The sheer breadth of Mr. Dershowitz’s request is worth reiterating:
`he seeks “all filings and discovery materials, including third-
`party discovery” from the Maxwell litigation, a years-long affair
`with over a thousand docket entries. (Dershowitz June 12 Letter
`(emphasis added)). In other words, it is not a targeted strike
`that Mr. Dershowitz proposes, but a carpet bombing. And, while
`Mr. Dershowitz contends it is “obvious” that Ms. Giuffre “has made
`relevant . . . all of the discovery from Maxwell,”” he has not
`beyond conclusory assertions demonstrated a congruence between the
`Maxwell action and his own that would warrant such an
`indiscriminate approach.
`
`A brief comparison of the Maxwell and Dershowitz actions makes
`this clear. Ms. Giuffre’s now-settled action against Ms. Maxwell
`
`
`
`8
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 9 of 13
`
`alleged that Ms. Maxwell was a ringleader in Jeffrey Epstein’s
`sex-trafficking scheme, a trusted lieutenant of Epstein’s who
`facilitated his purported trafficking of underage girls to
`prominent individuals. Ms. Giuffre’s defamation action against
`Mr. Dershowitz alleges that Mr. Dershowitz was one of the prominent
`individuals who took advantage of Epstein and Ms. Maxwell’s
`trafficking scheme and that Ms. Giuffre was forced to have
`intercourse with Mr. Dershowitz when she was underage. Ms. Giuffre
`alleges that Mr. Dershowitz’s false denial of such contact defamed
`her. To be sure, the two actions are related because they involve
`the alleged behavior of individuals who were in Epstein’s
`substantial orbit, but they are not coextensive, and Ms. Giuffre’s
`action against Mr. Dershowitz relates primarily to a much narrower
`range of conduct than what was at issue in her action against Ms.
`Maxwell. The Court is thus skeptical that judicial economy would
`be served by handing Mr. Dershowitz a mountain of discovery from
`a separate case that may not even be relevant to his defense or to
`his counterclaims against Ms. Giuffre.
`
`Furthermore, the requested modification might not serve the
`interests of judicial economy because it would threaten to undercut
`the ongoing unsealing process in Maxwell. The Court spent months,
`with substantial input from the parties, fashioning a procedure
`for unsealing the Maxwell filings that properly takes into account
`the privacy interests of the scores of third parties named in those
`9
`
`
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 10 of 13
`
`documents. (See dkt. nos. 1026-1044 in 15 Civ. 7433.) That
`process involves actively soliciting objections from non-parties
`and extensive briefing from the parties in response to those
`objections. (See Unsealing Protocol, dated March 31, 2020 [dkt.
`no. 1044 in 15 Civ. 7433].) Critically, the agreed-upon unsealing
`procedure can only work as intended if non-parties are willing to
`participate. Handing over to Mr. Dershowitz all of the materials
`from Maxwell, which would necessarily include all of the sealed
`filings that are the subject of the unsealing protocol, would
`threaten that balance. Non-parties may question the legitimacy of
`that process if Mr. Dershowitz can obtain, without any regard
`whatsoever for their interests, the sealed materials for the mere
`reason that disclosure would make mounting his defense and
`litigating his counterclaims against Ms. Giuffre more convenient.
`The Court will not risk collateral damage to the Maxwell unsealing
`process by modifying the protective order.6
`
`
`6 Bubbling underneath the debate about modification of the Maxwell
`Protective Order is a more practical concern: the temptation that
`the Maxwell materials might inspire for a litigant in Mr.
`Dershowitz’s position. As a general matter, Mr. Dershowitz’s
`battle with Ms. Giuffre has proceeded in very public--and
`frequently toxic--fashion. See, e.g., Alan Dershowitz Twitter
`Posts
`from
`June
`22,
`2020,
`available
`at
`https://twitter.com/AlanDersh (suggesting that Ms. Giuffre should
`be “prosecuted and sent to prison” for perjury). More importantly,
`and perhaps reflecting Mr. Derhsowitz’s desire to defend himself
`in the public eye, Counsel for Mr. Dershowitz noted at oral
`argument that “Professor Dershowitz obviously wants all
`
`(Footnote continues on following page.)
`10
`
`
`
`
`
`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 11 of 13
`
`Finally, to the extent that an analysis of the EPDM factors
`is necessary, see supra at 7, the Court concludes that the fourth
`factor--the nature of reliance on the order by producing parties
`--alone justifies rejecting Mr. Dershowitz’s request for
`modification. Integral to this conclusion is the fact that the
`Maxwell Protective Order prohibits information designated as
`CONFIDENTIAL from being “disclosed or used for any purpose except
`for the preparation and trial of [the Maxwell] case.” (Maxwell
`Protective Order ¶ 4.) This provision functioned as a powerful
`mechanism for inducing parties to provide discovery in a
`contentious litigation. Indeed, this Court has gone so far as to
`describe similar clauses as “key provision[s]” of their respective
`protective orders. Jose Luis Pelaez, Inc. v. Scholastic, Inc.,
`
`
`(Continued) information [contained in the Maxwell materials] to be
`out there, to be public . . . because he believes it exonerates
`him.” (Transcript at 21:21-24.)
`This raises concerns for reasons that should be obvious.
`While the Court does not believe that Mr. Dershowitz would do
`anything so brazen as purposely to publicize the Maxwell sealed
`materials, the fact that he is defending his reputation might
`incent him, naturally, to be more cavalier with the sealed
`materials where they are helpful to him. The potential for this
`has already reared its head--Mr. Dershowitz’s June 12 letter
`requesting
`modification
`arguably
`contained
`public
`characterizations of the sealed materials, a fact that “troubled”
`Ms. Giuffre, (Giuffre June 17 Letter). Thus, given the public
`character of this litigation and what is at stake for the
`litigants, production of the Maxwell materials to Mr. Dershowitz
`would raise additional risk of leakage from the materials at issue
`in the Maxwell unsealing process into filings in the Dershowitz
`action. This would further undermine the unsealing process in
`Maxwell.
`
`
`
`11
`
`
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`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 12 of 13
`
`312 F. Supp. 3d 413, 417 (S.D.N.Y. 2018). The presence of such
`provisions accordingly proves critical to the modification
`analysis--that producing parties are “justified in believing that
`a protective order would not be modified for purposes external to
`the lawsuit in which it was entered” may be a dispositive factor
`in denying modification of a protective order. Nielsen Co. (U.S.),
`LLC v. Success Sys., Inc., 112 F. Supp.3d 83, 121 (S.D.N.Y. 2015);
`see also Jose Luis Pelaez, 312 F. Supp. 3d at 416-17.
`
`Here, there is no question that the plain terms of the Maxwell
`Protective Order would justify such an expectation. The Maxwell
`Protective Order incentivized parties to provide sensitive
`information in discovery by explicitly promising that said
`information would only be wielded in connection with litigating
`the claims at issue in that case and that case only. Had the
`parties producing discovery in Maxwell under the auspices of the
`protective order anticipated that their information could
`eventually be turned over to make litigation of a related, but
`entirely separate, case more convenient, they may have never
`produced information in the first place. The Court accordingly
`concludes that such reliance on the Maxwell Protective Order
`precludes modification.
`
`
`
`
`
`
`
`12
`
`
`
`Case 1:19-cv-03377-LAP Document 144 Filed 07/01/20 Page 13 of 13
`
`For the reasons discussed above:
`
`CONCLUSION
`
`(1) Cooper & Kirk shall destroy (a) all materials from
`Giuffre v. Maxwell, No. 15 Civ. 7433, currently in its
`possession, save for the transcript of Ms. Giuffre’s
`deposition in that case and (b) all work product derived
`from the Maxwell materials. Cooper & Kirk shall submit
`to the Court an affidavit detailing the steps that it
`took to destroy the materials. In addition, to the extent
`it is doing so, Cooper & Kirk shall cease all use of the
`Maxwell materials--outside of Ms. Giuffre’s deposition
`transcript--in its work on Ms. Giuffre’s action against
`Mr. Dershowitz.
`
`(2) Mr. Dershowitz’s request to modify the Maxwell
`Protective Order [dkt. no. 133 in 19 Civ. 3377] is
`denied.
`SO ORDERED.
`Dated:
`New York, New York
`July 1, 2020
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________________
`LORETTA A. PRESKA
`Senior United States District Judge
`
`
`
`
`
`
`
`13
`
`
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