Second Circuit Remands

The United States Court of Appeals for the Second Circuit affirmed and vacated in part a case involving Ghislaine Maxwell

Following this court’s remand in Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), the United States District Court for the Southern District of New York (Preska, J.) individually reviewed and unsealed voluminous documents in this now-settled defamation action. Plaintiff Virginia Giuffre and Intervenors the Miami Herald Media Company and Miami Herald reporter Julie Brown appeal from several district court orders declining to unseal certain documents. They submit that the district court erred in (1) holding that undecided motions rendered moot by the parties’ settlement of this case were categorically not “judicial documents” subject to a presumption of public access; (2) holding that the transcript of Giuffre’s deposition in a separate action, offered by a third-party in support of a motion to intervene in this case, was entitled to no more than a “barely cognizable” presumption of public access because the district court did not rely on it in granting the motion; (3) finding that as to parts of defendant Ghislaine Maxwell’s deposition concerning her sexual relationships with consenting adults, her privacy interests outweighed any presumption of public access; (4) finding the countervailing privacy interests of various pseudonymized third-parties to outweigh any public right of access to parts of judicial documents containing identifying information; (5) declining to make public the redacted list of all pseudonymized third-parties used by the district court in its unsealing review; and (6) declining to make public certain pseudonymized third-parties’ submissions made in support of continued sealing.

Defendant Maxwell argues that this court is without jurisdiction to review the first of these arguments, which challenges the district court’s orders of December 16, 2019, and January 13, 2020, because timely notices of appeal were not filed therefrom. In any event, she submits that the district court did not err in any of the respects argued on this appeal.

This court concludes that the December 2019 and January 2020 Orders were not final orders and, thus, that this court has jurisdiction to review all orders challenged on this appeal. Upon such review, we identify no error in the district court’s decisions not to unseal or make public many of the documents at issue. As to others, however, we here clarify that (1) the judicial nature of a document is properly determined at the time it is filed such that a motion that is a judicial document when filed does not cease to be so because, before the motion is decided, the case settles thereby making the motion moot; (2) the fact that a court does not rely on a particular judicial document in making a ruling does not, by itself, mean that the presumption of public access attending that document is only barely cognizable; and (3) a motion to seal or unseal judicial documents invokes the court’s supervisory judicial power and, thus, filings relevant to that motion are themselves judicial documents. To the extent the district court concluded otherwise, we vacate its denials of unsealing and remand for further individual review of sealed documents and unsealing as warranted consistent with this opinion. In all other respects, however, we affirm.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

Holding

For reasons stated in this opinion, we conclude that the December 2019 and January 2020 Orders were not final orders and, thus, this court has jurisdiction to review all orders challenged on this appeal. Upon such review, we identify no error in the district court’s decisions not to unseal or make public many of the documents here at issue. As to others, however, we here clarify that (1) the judicial nature of a document is properly determined at the time it is filed such that a motion that is a judicial document when filed does not cease to be so because, before the motion is decided, the case settles thereby making the motion moot; (2) the fact that a court does not rely on a particular judicial document in making a ruling does not, by itself, mean that the presumption of public access attending that document is only barely cognizable; and (3) a motion to seal or unseal judicial documents invokes the court’s supervisory judicial power and, thus, filings relevant to that motion are themselves judicial documents. To the extent the district court concluded otherwise, we vacate its denials of unsealing, and we remand for further individual review of sealed documents and unsealing as warranted consistent with this opinion. In all other respects, however, we reject the parties’ claims of error and affirm the orders of the district court.

(Mike Frisch)