| Proceedings | Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y.), on appeal as Brown v. Maxwell, Nos. 18-2868-cv and 16-3945-cv(L) (2d Cir.); United States v. Maxwell, No. 1:20-cr-00330-AJN (S.D.N.Y.)12 |
| Sealed in the civil case | 167 documents, described by the Court of Appeals as nearly one-fifth of the docket, together with the whole summary judgment record1 |
| Governing test | Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006), applied in both proceedings123 |
| Ordered released on appeal | The summary judgment record, subject to what the court called minimal redactions, July 3, 20191 |
| Categories the Court of Appeals redacted | Personally identifying information; the names of alleged victims of sexual abuse who were minors; certain deposition answers on intimate matters1 |
| Volume at issue | Nearly 2,000 pages, on the separate opinion’s count4 |
| Remaining sealed material | Remanded for document-by-document review under a docketed unsealing protocol, with notice to non-party Does15 |
A redacted filing is a court document that is public except for the parts a court or a party has obscured. It is not the same act as sealing, which withholds a document entire, and the two were used side by side in the Epstein-related litigation: in the civil defamation suit Giuffre v. Maxwell the material in dispute was withheld by sealing, and redaction became the mechanism by which the summary judgment record was afterwards released.1 The standard governing both is the three-part test of Lugosch v. Pyramid Co. of Onondaga, which requires specific findings on the record and narrow tailoring before a judicial document is kept from the public.12 For redaction in the Department of Justice’s own releases, which was made under a different authority and reported separately, see Document redaction integrity.
How the civil case came to be sealed
Giuffre v. Maxwell was filed in the Southern District of New York on September 21, 2015.1 The Court of Appeals later recorded that, because of the volume of sealing requests made during discovery, the district court entered a sealing order on August 9, 2016 that “effectively ceded control of the sealing process to the parties themselves,” dispensing with individual letter briefs and granting the parties’ future sealing requests in advance.1 The result was that “167 documents—nearly one-fifth of the docket—were filed under seal,” among them motions to compel discovery, motions for sanctions, and motions in limine.1
The summary judgment briefing went the same way. The parties filed their memoranda and exhibits under seal, and when the district court denied the motion on March 22, 2017 it did so in what the Court of Appeals described as “a heavily redacted 76-page opinion,” with the full text and the rest of the summary judgment record remaining sealed.1 The case settled in May 2017 and was closed the next day.1
What the Court of Appeals released, and what it redacted
Three outside parties moved to intervene and unseal. The district court granted each motion to intervene and denied each related request to unseal, in orders entered November 2, 2016, May 3, 2017 and August 27, 2018.1 On July 3, 2019 the Second Circuit vacated those orders. It held that the district court had failed to conduct the particularized review its own precedent requires and had made generalized statements about the record as a whole instead of “specific, on-the-record findings that sealing is necessary to preserve higher values.”1 Reviewing the summary judgment materials itself, the court found “no countervailing privacy interest sufficient to justify their continued sealing,” and ordered them unsealed on issuance of its mandate, subject to what it called minimal redactions.1
The court set out what those redactions covered. In a footnote it recorded that it had redacted personally identifying information, “such as personal phone numbers, contact lists, birth dates, and social security numbers”; the names of alleged victims of sexual abuse who were minors, taken out of deposition testimony and police reports; and “deposition responses concerning intimate matters where the questions were likely only permitted—and the responses only compelled—because of a strong expectation of continued confidentiality.”1
Judge Pooler, dissenting in part, would have left the work to the district court: “it unseals nearly 2000 pages of material. The task of identifying and making specific redactions in such a substantial volume is perilous; the consequences of even a seemingly minor error may be grave and are irrevocable.”4
The rest of the sealed material was remanded. The court held that filings made in connection with discovery motions, motions in limine and other non-dispositive motions carry a lesser but still substantial presumption of public access, and directed the district court to review the remaining materials one by one and unseal them as appropriate.1
Review on remand
On remand the district court did not rule on the sealed material in bulk. It entered an order and protocol for unsealing decided motions, under which the parties filed objections keyed to individual docket entries. A filing of June 10, 2020 objects to unsealing the sealed items in three groups of docket entries and their related filings, states that the reasons are in an accompanying memorandum, and does not object to the unsealing of two further groups at a future date, on the ground that non-party Does referred to in them should first be given notice and an opportunity to object under the protocol.5 Where the 2016 sealing order had granted the parties’ future sealing requests in advance, without individual review, the protocol on remand required notice to non-party Does before the remaining groups could be unsealed.15
Redaction in the criminal prosecution
In the criminal prosecution of Ghislaine Maxwell the contested pre-trial filings were handled by proposed redaction, with temporary sealing while the proposals were under review, and the court reviewed the proposals rather than accepting them. On April 16, 2021 Judge Alison J. Nathan recorded that the defendant had filed twelve reply briefs temporarily under seal so that the government and the court could review proposed redactions, and that seven of the twelve contained no redaction or sealing request at all.2 The premise of the proposed redactions was that the material had been produced in discovery under the protective order entered in the case, and the court rejected it: “The mere existence of a confidentiality agreement or a protective order covering judicial documents is insufficient to overcome the presumption of access.”2 The seven were ordered onto the public docket that day, and any party still seeking redactions was required to file specific justifications in line with Lugosch.2 The redactions the court later approved, on November 11, 2021, were found consistent with the Lugosch test and narrowly tailored to the pre-trial privacy interests of alleged victims, anticipated witnesses and non-parties.3 The practice of the parties and the court in that prosecution is described further at Document redaction integrity.
Limits of this page
Redacted text cannot be read. This wiki does not guess at, decode or publish what lies beneath a redaction, does not supply a name into a document that withholds it, and does not decode a case designation or a pseudonym used in a filing.
A redaction in a court filing is a judicial or administrative determination and not an accusation.3 The Court of Appeals attached to its own unsealing order a caution about how the released filings should be read: materials submitted by parties “do not reflect the court’s own findings,” pleadings and briefs “can be misleading,” and readers who take a reference to court papers “as some sort of marker of reliability” are making a mistake.1 The caution applies to material released through this process.
The unsealing process described here concerns two proceedings in one district. It does not describe redaction in the Department of Justice’s productions, in FOIA responses, or in the congressional releases, each of which was made under a different authority.
Related
Document redaction integrity; Unsealing motions and media action; Discovery materials; Maxwell trial exhibits; Legal privilege and Epstein material; FOIA exemptions; Withheld government records; Redacted government images; Epstein Files Transparency Act; Ghislaine Maxwell.
Footnotes
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Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), Nos. 18-2868-cv and 16-3945-cv(L), decided July 3, 2019, opinion pp.7, 8, 9, 13, 14, 21, 22 and 24. https://epstein-data.com/EFTA00092308 The copy read carries highlighting added by a later hand, which is not part of the opinion. ↩ ↩2 ↩3 ↩4 ↩5 ↩6 ↩7 ↩8 ↩9 ↩10 ↩11 ↩12 ↩13 ↩14 ↩15 ↩16 ↩17 ↩18 ↩19 ↩20
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United States v. Maxwell, No. 1:20-cr-00330-AJN (S.D.N.Y.), Order of April 16, 2021, Dkt. 205, pp.1-2. https://epstein-data.com/EFTA00032667 ↩ ↩2 ↩3 ↩4 ↩5 ↩6
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United States v. Maxwell, No. 1:20-cr-00330-AJN (S.D.N.Y.), Order of November 11, 2021, p.1. https://epstein-data.com/EFTA00027661 ↩ ↩2 ↩3
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Brown v. Maxwell, separate opinion of Pooler, Circuit Judge, dissenting in part, p.26. https://epstein-data.com/EFTA00092308 ↩ ↩2
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Defendant’s objections to unsealing specified docket entries, Giuffre v. Maxwell, No. 15-cv-7433 (LAP) (S.D.N.Y.), Dkt. 1056, filed June 10, 2020, p.2. https://epstein-data.com/EFTA00022960 Nothing else in that filing is cited here. ↩ ↩2 ↩3