Giuffre V Maxwell
24-182 (L)
Giuffre v. Maxwell
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2024
Nos. 24-182-cv(L), 24-203-cv(CON)
VIRGINIA GIUFFRE,
Plaintiff-Appellant,
JULIE BROWN, MIAMI HERALD MEDIA CO.
Intervenors-Appellants,
v.
GHISLAINE MAXWELL,
Defendant-Appellee.
__________
On Appeal from the United States District Court
for the Southern District of New York
__________
SUBMITTED: APRIL 14, 2025
DECIDED: JULY 23, 2025
________________
Before: CABRANES, RAGGI, and PÉREZ, Circuit Judges.
________________
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
2
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.
_________________
Sigrid S. McCawley, Boies Schiller Flexner LLP,
Fort Lauderdale, FL, for Plaintiff-Appellant.
Christine N. Walz, Scott D. Ponce, Cynthia A.
Gierhart, Holland & Knight LLP, New York, NY,
Miami, FL, Washington, D.C., for Intervenors-
Appellants.
Adam Mueller, Haddon, Morgan & Foreman, P.C.,
Denver, CO, for Defendant-Appellee.
3
Marion H. Little, Jr., Matthew S. Zeiger, Zeiger,
Tigges & Little LLP, Columbus, OH, for Amicus
Curiae John Doe 183, in support of Defendant-Appellee.
Michael G. McGovern, Ropes & Gray LLP, New
York, NY, for Amicus Curiae John Doe 133, in support
of Defendant-Appellee.
________________
PER CURIAM:
Following this court’s remand in Brown v. Maxwell (“Maxwell I”), 929
F.3d 41 (2d Cir. 2019), the United States District Court for the Southern
District of New York (Loretta A. Preska, Judge) reviewed hundreds of sealed
documents in this now-settled defamation action and, after considering the
privacy interests of more than a hundred third-parties, issued a series of
orders directing that a large number of the documents be unsealed either in
whole or in part. 1 Plaintiff Virginia Giuffre, now deceased, and Intervenors
the Miami Herald Media Company and Miami Herald reporter Julie Brown
(jointly, the “Herald”) appeal from those parts of the district court’s orders
declining to unseal certain documents. 2 They submit that the district court
1The documents were sealed on order of now-deceased Judge Robert W. Sweet,
who had presided over the defamation action before its settlement. On remand,
the case was reassigned to Judge Preska.
2On May 5, 2025, Giuffre’s counsel informed the court of her client’s April 25, 2025
death in Australia. Due to pending probate proceedings in Australia, counsel has
now filed a motion seeking an extension of time to move for substitution beyond
the August 4, 2025 deadline established by Fed. R. Civ. P. 25(a)(1) and Fed. R. App.
P. 43(a)(1). Because most of Giuffre’s arguments have been adopted by the Herald,
and no party has objected, we here consider such arguments without regard to
which party raised them initially.
4
erred as a matter of law 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, 3 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 ruling on intervention; (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 that the countervailing privacy
interests of various pseudonymized third-parties outweighed any
presumption of public access to parts of judicial documents containing
identifying information; (5) declining to make public a redacted list of
pseudonymized third-parties that the district court had used in conducting
its unsealing review; and (6) declining to make public the submissions of
certain pseudonymized third-parties made in support of continued sealing.
Defendant Maxwell argues that this court is without jurisdiction to
review Appellants’ challenges to the district court’s orders of December 16,
2019, and January 19, 2020, as no timely appeal was taken from either order.
See Order, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Dec. 16, 2019) (the
“December 2019 Order”); Giuffre v. Maxwell, No. 15-cv-7433, 2020 WL 133570
(S.D.N.Y. Jan. 13, 2020) (the “January 2020 Order”). In any event, Maxwell
submits that the district court did not err in any of the respects argued on
this appeal.
3 See Edwards v. Dershowitz, 15-00072 (Fla. 17th Jud. Cir. Ct.).
5
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.
BACKGROUND
This appeal has its origins in a 2015 defamation action brought in the
Southern District of New York by plaintiff Virginia Giuffre, a victim of
sexual trafficking by financier Jeffrey Epstein. Giuffre charged defendant
Ghislaine Maxwell, an Epstein associate, with defaming her by publicly
calling her statements implicating Maxwell in Epstein’s trafficking “obvious
6
lies.” Maxwell I, 929 F.3d at 46. 4 In the extensive discovery conducted in
that action, several hundred documents were produced, prompting
multiple sealing motions to Judge Sweet, which resulted in “nearly one-fifth
of the docket” being filed under seal. Id. 5 Those documents, which included
all filings pertaining to Maxwell’s summary judgment motion, remained
under seal when, on May 24, 2017, the parties executed a settlement
agreement, prompting the district court to close the case the following day.
Both before and after closure of Giuffre’s defamation action against
Maxwell, various third-parties sought to intervene to seek the unsealing of
numerous documents filed in that case. Among these parties was the Herald,
which so moved on April 6, 2018. The district court allowed most third-
parties (including the Herald) to intervene, but denied their motions for
unsealing. On a consolidated appeal from those denials, this court ruled
that materials submitted in connection with Maxwell’s denied summary
judgment motion in the defamation action were judicial documents subject
to a strong presumption of public access, determined that the presumption
was not overcome by countervailing interests, and ordered the materials
4 Epstein and Maxwell were each federally indicted on various charges related to
a scheme of sexually trafficking minors. See United States v. Maxwell, 118 F.4th 256,
262 & n.5 (2d Cir. 2024); In re Wild, 994 F.3d 1244, 1249 (11th Cir. 2021) (en banc).
Epstein died, apparently by his own hand, before the case against him came to
trial. See In re Wild, 994 F.3d at 1249. Maxwell stood trial, was found guilty by a
jury, and sentenced to a term of 240 months’ incarceration, which she is presently
serving. See United States v. Maxwell, 118 F.4th at 263.
5In Maxwell I, this court noted that “[d]ue to the volume of sealing requests filed
during discovery,” the district court entered a sealing order that “disposed of the
requirement that the parties file individual letter briefs to request sealing and
prospectively granted all of the parties’ future sealing requests,” thereby
“effectively ced[ing] control of the sealing process to the parties themselves.” Id.
7
unsealed (subject to minimal redactions). See id. at 47–48, 53. This court
further ruled that materials submitted in connection with and relevant to
certain non-dispositive motions, including discovery and in limine motions,
were also judicial documents entitled to a “substantial” presumption of
public access, albeit a lesser one than that accorded dispositive motions. Id.
at 53. Accordingly, we vacated the district court’s orders denying unsealing
of such documents and remanded the case to the district court with
directions that the court individually review and unseal them as warranted
after balancing the presumption of public access against any countervailing
privacy interests. See id. at 50–51, 53. 6
Toward that end, on September 4, 2019, the district court directed the
parties to identify the sealed materials by docket number and to categorize
them according to their status as judicial or non-judicial documents. After
considering the parties’ submissions, on December 16, 2019, the district
court made the first ruling challenged on this appeal, i.e., that “only motions
actually decided by Judge Sweet—along with documents relevant to Judge
Sweet’s decision on those motions—are properly considered judicial
documents to which a presumption of public access attaches.” December
2019 Order at 1. The reasons for this decision were set forth in a January 13,
2020 opinion & order, which stated in the converse that any motions that
“were not decided” by Judge Sweet at the time the defamation action was
settled had become moot and, therefore, the motions and materials related
6In so ruling, this court recognized the potential for persons to use court files “to
promote scandal arising out of unproven potentially libelous statements,” and
described various methods available “to protect the judicial process from being
coopted for such purposes.” Id. at 51–52 (internal quotation marks omitted). No
such concerns are raised on this appeal.
8
to them were “not judicial documents subject to the presumption of public
access.” January 2020 Order, 2020 WL 133570, at *4. Thus, the district court
did not review undecided motion documents individually or order any
unsealed.
Thereafter, on March 31, 2020, the district court issued an unsealing
protocol for its individual review of the large number of remaining
materials. Pursuant thereto, the district court and the parties agreed upon
“a list of non-parties whose privacy, reputational or other interests may be
implicated by the unsealing.” Order and Protocol for Unsealing Decided
Motions at 1, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Mar. 31, 2020).
These parties’ identities were pseudonymized by referring to them on the
public record as “Does,” i.e., “Doe 1,” “Doe 2,” and so on.
Over the next few years, the district court individually reviewed
hundreds of sealed documents, considered the asserted privacy interests of
more than a hundred third-parties, conducted additional hearings, and
issued further decisions as to unsealing, some of which prompted appeals
to this court challenging orders to unseal. 7
On December 18, 2023, the district court entered its final unsealing
order. See Giuffre v. Maxwell, No. 15-cv-7433, 2023 WL 8715697 (S.D.N.Y.
Dec. 18, 2023). Approximately two weeks later, on January 5, 2024, the
district court issued a further order denying the Herald’s and Intervenor
7 See, e.g., Doe 171 v. Giuffre, No. 22-3050, 2023 WL 4926196, at *1 (2d Cir. Aug. 2,
2023) (summary order) (affirming unsealing of certain documents); Doe 107 v.
Giuffre, No. 22-3042, 2023 WL 4926195, at *1 (2d Cir. Aug. 2, 2023) (summary order)
(remanding for further consideration of whether to maintain certain documents
under seal); Giuffre v. Maxwell, 827 F. App’x 144, 145 (2d Cir. 2020) (summary
order) (affirming unsealing of certain documents).
9
Alan Dershowitz’s requests to release the list of Does involved in this action
that the court used in tracking the reviewed materials. See Giuffre v. Maxwell,
No. 15-cv-7433, 2024 WL 68373, at *1 (S.D.N.Y. Jan. 5, 2024). On January 17,
2024, Giuffre and the Herald each filed notices of appeal challenging certain
denials of unsealing reflected in these two orders; the earlier December 2019
and January 2020 Orders; and various oral rulings pronounced on January
19, 2021, July 1, 2021, April 19, 2022, and November 18, 2022. See Notices of
Appeal, Giuffre v. Maxwell, 15-cv-7433 (S.D.N.Y. Jan. 17, 2024); see also
Transcripts, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Nov. 18, 2022; Apr.
19, 2022; July 1, 2021; Jan. 19, 2021). This court consolidated their appeals.
DISCUSSION
I. Jurisdiction
Maxwell argues that this court is without jurisdiction to hear so much
of this appeal as challenges the district court’s December 2019 and January
2020 Orders because they constituted “a final judgment and not a collateral
order” which had to be appealed within 30 days of entry, making the
January 17, 2024 notices of appeal in this case untimely by several years.
Maxwell Br. at 14–18. We are not persuaded.
Appellate jurisdiction generally exists only over the “final decisions
of the district courts,” 28 U.S.C. § 1291, and only if a notice of appeal is filed
“within 30 days after entry of the judgment or order appealed from,” Fed.
R. App. P. 4(a)(1)(A); see Bowles v. Russell, 551 U.S. 205, 209 (2007) (holding
timely appeal requirement is “mandatory and jurisdictional” (internal
quotation marks omitted)). Once final judgment has been entered, however,
the parties may appeal “claims of district court error at any stage of the
10
litigation.” Amara v. Cigna Corp., 53 F.4th 241, 248 (2d Cir. 2022) (quoting
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996)).
In deciding whether a district court order is a final decision, we look
to “general finality principles,” id. at 250, which instruct that a final decision
is one that “ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment,” Vera v. Republic of Cuba, 802 F.3d 242, 246
(2d Cir. 2015) (internal quotation marks omitted). Applying those principles
to a challenged postjudgment order, we will defer appellate review of such
an order “until the district court has decided all related issues to prevent
piecemeal appeals of interlocutory orders in ongoing postjudgment
proceedings.” Amara v. Cigna Corp., 53 F.4th at 251 (emphasis in original)
(internal quotation marks omitted). Thus, we have held jurisdiction lacking
to review “postjudgment discovery orders,” but available to review
“postjudgment orders denying motions for recusal” or for “disqualif[ication
of] a court-appointed monitor” because in the first scenario the “relevant
final decision . . . is the subsequent judgment that concludes the . . .
proceedings,” while in the latter two scenarios “the district court had
reached its final disposition on the relevant issue.” Id. (internal quotation
marks omitted and alteration adopted). Similarly, we have held jurisdiction
lacking to review a finding of civil contempt until there has been actual
defiance and sanctions imposed, but we have held an order denying
contempt immediately appealable because “no further district court action
is necessary to give life” to the order. Id. (internal quotation marks omitted).
Maxwell argues that the district court’s postjudgment December 2019
and January 2020 Orders were final because they “categorically removed
the undecided motions . . . from the unsealing process.” Maxwell Br. at 17.
That is incorrect. In the January 2020 Order, the district court specifically
11
left open the possibility that the undecided motions and their attending
materials might be unsealed subject to further review:
Notwithstanding the fact that the undecided motions and the
papers associated with them are not judicial documents, they
may eventually be unsealed because they are in some way relevant
to Judge Sweet’s actual decisions—which are numerous—that
are certainly subject to the presumption of public access. Ms.
Giuffre raises such a possibility in her briefing, suggesting that
the undecided motions can fairly be assumed to have played a
role in Judge Sweet’s deliberations as to other rulings. At this
stage in the unsealing process, the Court declines Ms. Giuffre’s
invitation to assume categorically that the undecided motions
are germane to Judge Sweet’s rulings on the decided motions
but nonetheless acknowledges the realistic possibility that they are
relevant and thus ripe for unsealing.
January 2020 Order, 2020 WL 133570, at *4 (emphases added) (internal
quotation marks and citations omitted; alterations adopted).
Thus, the district court’s challenged December 2019 and January 2020
Orders were not final decisions denying unsealing but, rather, steps in the
process by which the district court would determine which documents
would be unsealed. These orders resulted in the materials not being
unsealed at that time, but they specifically left open the possibility of their
being unsealed later in the course of the district court’s ongoing review.
Our reasoning in Amara v. Cigna reinforces that conclusion. When
that appeal was heard, this court had already affirmed a final judgment
“ordering Cigna to reform its pension plan to pay greater benefits to” a large
class of plaintiffs. 53 F.4th at 245. Thereafter, the district court resolved the
parties‘ disputes over the calculation of those benefits in a series of
12
“Methodology Orders,” the last of which issued in November 2017. Id.
Amara’s counsel then sought attorneys’ fees based on the total benefits
recovered. See id. at 245–46. “In April 2019—almost six months after the
district court awarded attorney’s fees and over a year after the last
Methodology Order—Plaintiffs moved to enforce the Methodology Orders
and to hold Cigna in contempt and impose sanctions.” Id. at 246. After that
motion was denied, Amara sought to appeal “from both the Methodology
Orders and the Sanctions Order.” Id. at 246–47.
In dismissing that part of the appeal challenging the Methodology
Orders as untimely, this court concluded that those orders were final when
entered because (1) Cigna “relied on the Methodology Orders to calculate
[the] benefits” it had already disbursed, (2) the plaintiffs themselves had
acknowledged in December 2017 that “the district court had completed its
orders on the methodology for computing individual relief,” and (3) the
plaintiffs’ “motion for contempt and sanctions necessarily presuppose[d]
that the Methodology Orders were final” because “the district court could
not have revised the Methodology Orders and simultaneously held Cigna
in contempt and imposed sanctions for violating the newly revised orders.”
Id. at 254–55 (internal quotation marks omitted) (alteration adopted).
The orders appealed from here are readily distinguishable in ways
that defeat Maxwell’s claim of finality. First, Maxwell has not argued any
detrimental reliance on the December 2019 and January 2020 Orders, much
less reliance akin to Cigna’s actual disbursements of benefits in Amara. Nor
has Maxwell pointed to anywhere in the record that Giuffre or the Herald
conceded that these orders were final with respect to the unsealing of
undecided motion materials. On the contrary, the district court
acknowledged that such materials might yet be unsealed as relevant to
13
decided motions. See supra at 11–12. Finally, unlike the subsequent motions
in Amara, which necessarily presupposed the finality of the Methodology
Orders, subsequent proceedings in this case did not depend on any
presumption of finality as to the December 2019 or January 2020 Orders.
Radio Station WOW v. Johnson, 326 U.S. 120 (1945), relied on by
Maxwell, warrants no different conclusion. There, the Supreme Court held
that a decision by a state’s highest court “not only direct[ing] a transfer of
property, but also order[ing] an accounting of profits from such property”
was “final,” notwithstanding that the order clearly contemplated ongoing
proceedings. Id. at 124–25. The December 2019 and January 2020 Orders
here at issue are not analogous. Certainly, they do not direct the immediate
transfer of any property. However apt that analogy might be if the district
court had ordered the undecided motion materials unsealed in 2019 or
2020—thus making them available for use by Giuffre and the Herald in a
way that might be impossible to unwind on an appeal heard several years
later—it cannot be drawn here where the district court maintained the
materials under seal while leaving open the possibility of unsealing upon
review of still other materials.
In sum, the district court’s ruling in the December 2019 and January
2020 Orders that motions undecided at the time of the defamation action’s
settlement were not judicial documents subject to a presumption of public
access was a step in the process for deciding what materials would be
unsealed. It was not a final decision from which an appeal had to be taken
within 30 days.
Accordingly, we have jurisdiction over all orders challenged on this
appeal, and we proceed to address the merits of the parties’ arguments.
14
II. The Challenged Denials of Unsealing
The law is well established that “[w]hen reviewing a district court’s
decision to seal a filing or to maintain such a seal, we examine the court’s
factual findings for clear error, its legal determinations de novo, and its
ultimate decision to seal or unseal for abuse of discretion.” Maxwell I, 929
F.3d at 47 (internal quotation marks omitted). Here, the record shows that,
on remand from our decision in Maxwell I, the district court devoted
considerable effort and time to the careful review of more than a hundred
sealed documents; that, as a result of that effort, the district court unsealed
and made publicly available a large number of those documents; and that it
acted well within its discretion in maintaining many others under seal. In a
few areas, however, we are compelled to identify legal errors and to remand
for further review of certain documents.
A. Undecided Motions and Attendant Materials
In deciding whether to seal or unseal filed materials, a court properly
conducts a three-step inquiry:
First, the court determines whether the record at issue is a
judicial document—a document to which the presumption of
public access attaches. Second, if the record sought is
determined to be a judicial document, the court proceeds to
determine the weight of the presumption of access to that
document. Third, the court must identify all of the factors that
legitimately counsel against disclosure of the judicial document
and balance those factors against the weight properly accorded
the presumption of access.
Stafford v. Int'l Bus. Machs. Corp., 78 F.4th 62, 69–70 (2d Cir. 2023), cert. denied,
144 S. Ct. 1011 (2024) (internal quotation marks and citations omitted); see
15
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119–20 (2d Cir. 2006)
(discussing same three-step analysis).
Giuffre and the Herald argue that the district court erred as a matter
of law at the first step when, in its December 2019 and January 2020 Orders,
the court ruled that motions undecided at the time the underlying
defamation action settled were categorically not judicial documents entitled
to a presumption of public access and, on that ground, declined to review
those documents individually for possible unsealing. We agree that no such
categorical conclusion was warranted. To the extent that error may be
attributable to any lack of clarity in this court’s precedents, see January 2020
Order, 2020 WL 133570, at *3 (referencing “lack of clear guidance from the
Court of Appeals”), we here state explicitly that a judicial document
determination is properly made by evaluating the relevant materials at the
time of their filing with the court. Where materials pertain to a motion, the
subsequent mooting of the motion is irrelevant to that determination.
To explain, we reiterate some basic principles pertinent to the
identification and public disclosure of judicial documents. As this court has
recognized, “[t]he common law right of public access to judicial documents
is firmly rooted in our nation’s history.” Lugosch v. Pyramid Co. of Onondaga,
435 F.3d at 119. The presumption of public access is based on the need for
independent federal courts “to have a measure of accountability and for the
public to have confidence in the administration of justice.” Id. (quoting
United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1048 (2d Cir. 1995)).
Thus, “professional and public monitoring” of the courts “is an essential
feature of democratic control” of the third branch of government, which
necessarily requires public “access to testimony and documents that are
16
used in the performance of Article III functions.” Id. (quoting Amodeo II, 71
F.3d at 1048).
While most material filed on a federal court’s docket in the ordinary
course of litigation will consist of judicial documents giving rise to a
presumption of public access, the conclusion does not necessarily apply to
every paper or document filed with a court. See United States v. Amodeo
(“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995); accord Maxwell I, 929 F.3d at 51–
52 (observing that material rejected or stricken by court as “redundant,
immaterial, impertinent, or scandalous . . . would not be considered a
judicial document and would enjoy no presumption of public access”
(internal quotation marks omitted)).
To qualify as a “judicial document” the materials at issue must be
“relevant to the performance of the judicial function and useful in the
judicial process.” Amodeo I, 44 F.3d at 145; accord Lugosch v. Pyramid Co. of
Onondaga, 436 F.3d at 119. In this context, “judicial function” refers to a
federal court’s exercise of power under Article III of the Constitution. See
Amodeo II, 71 F.3d at 1049–50.
In Lugosch, this court recognized that materials submitted for
consideration in an as-yet-undecided summary judgment motion constitute
judicial documents “as a matter of law” because the motion sought to have
the court “adjudicate[] substantive rights.” 435 F.3d at 121–22 (internal
quotation marks omitted). We specifically rejected an argument that it
would be “premature” to determine the judicial nature of a document before
a court “knows the disposition of the underlying motion.” Id. at 121. Insofar
as an earlier case had identified a decided summary judgment motion as a
judicial document, we identified no material distinction between decided
17
and undecided motions, stating that “nothing about that timing was relevant
to our conclusion” in the earlier case. Id. (emphasis added) (discussing Joy
v. North, 692 F.2d 880 (2d Cir. 1982)). Thus, in Lugosch, we ruled that
summary judgment documents “are judicial documents to which a
presumption of immediate public access attaches” even before the motion
has been decided. Id. at 126.
The district court distinguished Lugosch because that case’s “holding
specifically applied to ‘contested documents,’” which it construed to mean
documents pertaining to “a pending motion for summary judgment in
active litigation, not motions that were rendered moot by settlement of a
case.” See January 2020 Order, 2020 WL 133570, at *3 n.3 (quoting Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d at 123) (emphasis omitted). Lugosch,
however, did not use the phrase “contested documents” to refer to
undecided motion materials as such but, rather, to the documents whose
sealing was disputed in that case. 8
Even if Lugosch had used the term “contested documents” as the
district court understood it, that would not support a conclusion that
documents cease to be judicial when the motion to which they pertain
becomes moot. Certainly, Lugosch itself did not explicitly (or implicitly)
8This court described the documents at issue in Lugosch as consisting of “at least
twenty-five sealed documents or sets of documents, for a total volume of
approximately 4000 pages,” and thereafter referred to those documents as “the
contested documents.” 435 F.3d at 113–26; see id. at 115 (“[D]efendants called into
question, inter alia, the value of the contested documents to the district court in
ruling on the summary judgment motion. In turn, the plaintiffs[] . . . not[ed] that
they indeed intended to rely on some of the contested documents [i.e., the sealed
documents] at oral argument and [sought] guidance from the court on the use of
those documents at oral argument.”).
18
exclude such materials from its holding. Moreover, two subsequent
decisions of this court establish that the term “judicial documents” is not so
limited: Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132
(2d Cir. 2016), and Maxwell I.
At issue in Bernstein was a sealed complaint that the parties sought to
maintain under seal after their settlement of the case. In upholding the
district court’s denial of permanent sealing, this court “easily conclude[d]”
that the complaint was a “judicial document”: “A complaint, which initiates
judicial proceedings, is the cornerstone of every case, the very architecture
of the lawsuit, and access to the complaint is almost always necessary if the
public is to understand a court’s decision.” Bernstein v. Bernstein Litowitz
Berger & Grossmann LLP, 814 F.3d at 140 (internal quotation marks omitted).
Settlement of the case warranted no different conclusion for two reasons:
[1] It is true that settlement of a case precludes the judicial
determination of the pleadings’ veracity and legal sufficiency.
But attorneys and others submitting pleadings are under an
obligation to ensure, when submitting pleadings, that “the
factual contentions made have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or
discovery.”
Id. (alteration adopted) (quoting Fed. R. Civ. P. 11(b)(3)). This first reason is
not confined to pleadings because the rule applies equally to “a pleading,
written motion, or other paper.” Fed. R. Civ. P. 11(b).
[2] In any event, the fact of filing a complaint, whatever its
veracity, is a significant matter of record. Even in the
settlement context, the inspection of pleadings allows the
public to discern the prevalence of certain types of cases, the
19
nature of the parties to particular kinds of actions, information
about the settlement rates in different areas of law, and the
types of materials that are likely to be sealed. Thus, pleadings
are considered judicial records even when the case is pending
before judgment or resolved by settlement.
Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d at 140
(internal quotation marks and citations omitted; alteration adopted). As for
this second reason, Lugosch v. Pyramid Co. of Onondaga makes plain that it
applies to dispositive motions as well as pleadings. See 435 F.3d at 124 (“An
adjudication [including by summary judgment] is a formal act of
government, the basis of which should, absent exceptional circumstances,
be subject to public scrutiny.” (internal quotation marks and alteration
omitted)). Further, Maxwell I extends the reasoning to non-dispositive
motions—e.g., “motions to compel testimony, to quash trial subpoenae, and
to exclude certain deposition testimony”—holding that they qualify as
judicial documents “subject to at least some presumption of public access.”
929 F.3d at 50 (noting that “[a]ll such motions, at least on their face, call upon
the court to exercise its Article III powers” of adjudication and are “of value
‘to those monitoring the federal courts’” (quoting Amodeo II, 71 F.3d at
1050)). Together, these precedents clarify that Bernstein’s second reason
does not establish a prerequisite for recognizing material as a judicial
document at the first step of analysis. Instead, it explains why pleadings
and dispositive motions that qualify as judicial documents bear a
particularly strong presumption of public access at the second step—
settlement before adjudication notwithstanding. Thus, because Maxwell I
recognized that the judicial authority invoked by some non-dispositive
motions “is ancillary to the court’s core role in adjudicating a case,” the
presumption of public access accorded to such motions is “generally
20
somewhat lower than the presumption applied to material introduced at
trial, or in connection with dispositive motions.” Id. For non-dispositive
motions, then, at the third and final step of analysis, “a court must still
articulate specific and substantial reasons for sealing such material, [but] the
reasons usually need not be as compelling as those required to seal
summary judgment filings,” trial evidence, or pleadings. Id.
Even more relevant here than Maxwell I’s explanation for why the
relative strength of the presumption of access may differ among different
kinds of judicial documents is its holding that that the identification of
motions—non-dispositive as well as dispositive—as judicial documents
does not depend on “which way the court ultimately rules” on the motion
“or whether the document ultimately in fact influences the court’s decision.”
Id. at 49. All that matters in identifying motion materials as judicial
documents “relevant to the performance of the judicial function” is that they
“would reasonably have the tendency to influence a district court’s ruling on
a motion.” Id. (emphasis in original) (internal quotation marks omitted).
That “tendency” determination is predictive and properly made by
reference to the motion papers when filed, not to when—or even if—the
motion is decided. Thus, a motion that is moot when filed is not properly
identified as a judicial document because it can have no tendency to
influence a district court’s exercise of adjudicatory power. But the same
conclusion does not obtain with respect to a motion that, when filed, sought
to secure a particular ruling within the court’s Article III power. Like the
complaint in Bernstein, such a motion and its attendant materials are
21
properly identified as judicial documents even if the motion remains
undecided when the case closes and is thereby rendered moot. 9
In sum, the identification of a judicial document is a binary decision
made as of the time of the document’s filing, i.e., filed material either is or is
not a judicial document depending on whether it could have a tendency to
influence the court in the exercise of its Article III powers. Subsequent
events do not alter that conclusion. Thus, insofar as the district court ruled
in its December 2019 and January 2020 Orders that the settlement of
Giuffre’s defamation action rendered pending motions in that case moot
such that they could no longer be deemed judicial documents, we identify
error, vacate those orders, and remand the case to the district court with
directions that it conduct an individual review of the motion materials
consistent with this opinion and order unsealing as appropriate.
9At the second and third steps of sealing analysis, events subsequent to filing may
warrant consideration. See generally Stafford v. Int’l Bus. Machs. Corp., 78 F.4th at 70
(stating that “presumption of access to judicial documents” related to petition to
confirm arbitration award was “weaker . . . because the petition to confirm . . . was
moot”). Stafford is distinguishable from this case, however, in an important
respect. Unsealing was sought with respect to materials assumed to have been
properly sealed in the first instance. See id. at 71 (noting “[c]onfidentiality is a
paradigmatic aspect of arbitration” (internal quotation marks omitted)). In that
context, the subsequent mootness of the petition to confirm was understood to
have reduced the weight of the presumption of access to the properly sealed
materials, thereby reinforcing the original sealing determination. By contrast,
here, the district court’s individual document review is intended to correct possible
error in the initial wholesale sealing of large numbers of documents. See supra n.5.
To the extent documents should never have been placed under seal at the start,
reducing the original presumption of access based on subsequent mootness does
not warrant allowing the error to stand.
22
B. Giuffre’s Florida Deposition Transcript
At the behest of certain “Does,” the district court in a November 18,
2022 oral ruling, declined to unseal those parts of Giuffre’s deposition
testimony given in a Florida action that had been submitted by Alan
Dershowitz in support of his motion to intervene in this case. 10 The district
court reasoned that the “document played no apparent role in the Court’s
decision on the motion” and, therefore, even if it was a judicial document,
“any presumption of public access to this document is barely cognizable.”
Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Nov. 18,
2022). This misapprehends our precedent.
First, a court should proceed cautiously in assuming that judicial
documents submitted to a district court in support of a motion “played no
apparent role” in the court’s ruling on that motion. Indeed, in Lugosch v.
Pyramid Co. of Onondaga, we endorsed a contrary assumption, i.e., that
submissions to a district court in support of or opposition to a motion “can
fairly be assumed to play a role in the court’s deliberations.” 435 F.3d at 123
(internal quotation marks omitted). Second, and in any event, this court has
“expressly rejected the proposition that ‘different types of documents might
receive different weights of presumption based on the extent to which they
were relied upon in resolving a motion.’” Maxwell I, 929 F.3d at 48 (quoting
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d at 123) (alteration adopted). In
Lugosch, we explained that “[i]f the rationale behind access is to allow the
public an opportunity to assess the correctness of the judge’s decision . . .
documents that the judge should have considered or relied upon, but did
not, are just as deserving of disclosure as those that actually entered into the
10 See supra n.3.
23
judge’s decision.” 435 F.3d at 123 (internal quotation marks and emphasis
omitted; ellipsis in original). In other words, “the proper inquiry is whether
the documents are relevant to the performance of the judicial function, not
whether they were relied upon.” Maxwell I, 929 F.3d at 50. That reasoning
obtains here.
In urging otherwise, Maxwell attempts to distinguish Lugosch on the
ground that the materials there at issue “were summary judgment
documents, which enjoy the strongest presumption of access,” whereas
Giuffre’s Florida deposition transcript “had nothing to do with the merits of
Giuffre’s defamation claim.” Maxwell Br. at 34 (emphasis omitted). That
argument elides the district court’s reasoning, which focused—
erroneously—on the extent to which the district court relied on the
deposition transcript, not on the type of motion to which the transcript
pertained and, hence, on the extent to which the motion called on the court
to exercise Article III judicial power. We need not here decide how the
degree of judicial power exercised in ruling on a motion to intervene
compares to that exercised on a dispositive motion. It suffices to say that
the former as well as the latter invokes a court’s Article III judicial power to
secure a desired ruling. See generally Floyd v. City of New York, 770 F.3d 1051,
1057 (2d Cir. 2014) (“On timely motion, the court must permit anyone to
intervene who . . . claims an interest relating to the property or transaction
that is the subject of the action.” (emphasis in original) (internal quotation
marks omitted)).
For reasons discussed in the preceding section, this means that the
intervention motion filings here at issue are judicial documents. See supra
at 16–22. And while the presumption of access attached to such documents
may not be as “strong” as that attached to summary judgment filings,
24
Maxwell I, 929 F.3d at 49–50, it cannot be characterized as “barely
cognizable,” Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y.
Nov. 18, 2022), and certainly not on the ground that a document supporting
that motion appears not to have been relied on by the district court in ruling
on that motion.
Accordingly, we vacate the November 18, 2022 ruling to the extent
that it declined to unseal the submitted parts of Giuffre’s Florida deposition
transcript and remand for the district court to conduct a further review
consistent with this opinion.
C. The Does’ Sealing Submissions
The Herald argues that the district court erred in sealing “the Does’
objections to the unsealing of their information, on which the Court based
its unsealing rulings,” despite the Herald’s request for such materials to be
placed on the public docket. Herald Br. at 33; see App’x at 584 (requesting
that “nature and quantity of comments received be reflected on the public
docket”); id. at 601 (requesting that “Court place all non-party objections on
the docket[] [and] permit the parties a brief period to respond”). 11
In support, the Herald points to “the district court’s own unsealing
protocol,” Herald Br. at 33, which states that the court would “make
appropriate redactions . . . and file” the Does’ submissions via the court’s
electronic filing system. Order and Protocol for Unsealing Decided Motions
at 4, Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y. Mar. 31, 2020); accord
Updated Order and Protocol for Unsealing Decided Motions at 4, Giuffre v.
11Because the Herald made these requests, we are satisfied that its arguments on
this point are preserved, contrary to the arguments of Amicus Curiae Doe 183.
25
Maxwell, No. 15-cv-7433 (S.D.N.Y. Apr. 17, 2020) (reiterating same in
updated protocol). We note that the unsealing protocol also provides that,
“[u]nless expressly stated otherwise, all notices, submissions, and filings
made pursuant to this [unsealing protocol] shall remain permanently sealed
inasmuch as they are submitted solely so that the Court may decide whether
any Sealed Materials should be unsealed.” Id.
We need not here resolve any possible ambiguity in these two
provisions because, in any event, the parties have not cited any order of the
district court ruling on the Herald’s request for the Does’ sealing submissions
to be made public, nor have we identified any such order on the extensive
district court docket. Under these circumstances, we would normally
remand for the district court to rule in the first instance on the Herald’s
request. See Melendez v. City of New York, 16 F.4th 992, 1046 (2d Cir. 2021)
(remanding for consideration of argument “advanced in plaintiff’s” brief on
which district court did not rule). Before doing so, however, we address the
merits of the parties’ arguments in the interest of easing the burden this
unsealing process has already placed on the district court.
In arguing for maintaining the Doe filings under seal, Amicus Curiae
Doe 183 relies on a footnote in Maxwell I stating that “the presumption of
public access does not apply to material that is submitted to the court solely
so that the court may decide whether that same material must be disclosed.”
Doe 183 Br. at 7 (emphasis omitted) (quoting Maxwell I, 929 F.3d at 50 n.33).
That reliance is misplaced for at least two reasons. First, Doe 183’s quotation
is a truncation of the cited footnote which, read in full, addresses “whether
[the relevant disputed] material must be disclosed in the discovery process or
shielded by a Protective Order.” Maxwell I, 929 F.3d at 50 n.33 (emphasis
added). Footnote 33 did not address material submitted in connection with
26
motions to seal documents already disclosed in discovery and filed with the
court.
Second, and more to the point, Maxwell I defines a judicial document
as material filed with a court that “would reasonably have the tendency to
influence [not only] a district court’s ruling on a motion . . . [but also] the
exercise of its supervisory powers.” 929 F.3d at 49 (emphasis omitted); see
id. (“[A] court performs the judicial function not only when it rules on
motions currently before it, but also when properly exercising its inherent
supervisory powers.” (internal quotation marks omitted and alteration
adopted)). The sealing or unsealing of court filings is an exercise of
supervisory power over the court’s docket. See id. at 51 (“Every court has
supervisory power over its own records and files . . . .” (quoting Nixon v.
Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978)) (internal quotation marks
and alteration omitted)).
The Doe filings here at issue qualify as judicial documents because
they were submitted to “influence [the] district court’s ruling[s]” as to
whether other judicial documents submitted throughout the defamation
litigation should be maintained under seal; they were not submitted “solely
so that the court may decide whether that same material”—i.e., the Doe
filings—“must be disclosed in . . . discovery.” Id. at 49, 50 & n.33 (emphasis
added); cf. SEC v. TheStreet.Com, 273 F.3d 222, 232–33 (2d Cir. 2001) (holding
deposition transcript not judicial document when submitted only so district
court could determine whether that transcript met protective order’s
definition of “confidential information” so as to be excused from filing on
public docket). Accordingly, a presumption of public access attaches to the
Doe filings, and the district court on remand can proceed to the second and
27
third steps of analysis, i.e., determining the weight of the presumption and
balancing the presumption against countervailing interests.
Because the Doe filings invoked the court’s supervisory powers with
respect to its maintenance of other documents on its docket, the filings are
incrementally more attenuated from and “ancillary to the court’s core role
in adjudicating a case,” Maxwell I, 929 F.3d at 50, and, thus, entitled to a
somewhat lower presumption of public access. How much lower depends
on the underlying judicial documents at issue. The more those documents
implicate a court’s core adjudicative role, the stronger the presumption of
access that applies to them and, by extension, to filings seeking to seal or
unseal them. The more removed the underlying documents are from a
court’s core adjudicative role, the more reduced the presumption of access
that applies to them, and to sealing filings pertaining to them. See Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d at 119 (referencing “continuum” on
which judicial document’s presumption of access is governed by “role of the
material at issue in the exercise of Article III judicial power” (internal
quotation marks omitted)). Thus, where filings urging the court to seal or
unseal pertain to documents that themselves play only a “negligible role” in
a court’s performance of its Article III duties, those documents are accorded
only a low presumption of public access—“little more than a prediction”—
and the related filings to seal or unseal no more so. Maxwell I, 929 F.3d at
49–50 (internal quotation marks omitted). These different weights—both
for sealing filings and the documents to which they pertain—reflect
differences not only in the degree to which the materials implicate core
judicial functions but also in the “resultant value of such information to
those monitoring the federal courts.” Id. at 49 (internal quotation marks
omitted).
28
We are confident that, on remand, the able district judge will consider
these factors in individually reviewing the Doe filings and the underlying
documents to which they pertain, assigning an appropriate weight to the
presumption of public access applicable to the filings, weighing that
presumption against any countervailing interests, and then deciding which
filings (or parts of filings) can be unsealed.
D. Remaining Challenges
We have reviewed Giuffre’s and the Herald’s further arguments
challenging the district court’s decisions to maintain under seal parts of
Maxwell’s deposition and parts of documents identifying certain Does, and
its decision not to release the list of Does it used in its unsealing review. We
identify neither legal error nor abuse of discretion in these decisions and,
thus, we reject the arguments challenging them on the merits.
CONCLUSION
To summarize, we hold as follows:
1. This court has jurisdiction to review the district court’s December
2019 and January 2020 Orders notwithstanding Giuffre’s and the
Herald’s failure to file notices of appeal within 30 days of their
entry because these orders were not final and, thus, are properly
reviewed on timely appeal of the district court’s final unsealing
orders issued on December 18, 2023 and January 5, 2024.
2. In maintaining certain documents under seal or refusing to make
other documents public, the district court erred in the following
ways:
a. The district court concluded that materials filed in connection
29
with motions subsequently mooted by settlement of the
underlying case were categorically not “judicial documents”
entitled to some presumption of public access. Whether such
materials are properly identified as judicial documents is
determined as of the time of filing and that determination is not
affected by subsequent mootness.
b. The district court concluded in its November 18, 2022 oral
ruling that Giuffre’s Florida deposition transcript offered in
support of a third-party motion to intervene was entitled to
only a “barely cognizable” presumption of access because the
“document played no apparent role in the Court’s decision on
the motion.” Transcript at 9–10, Giuffre v. Maxwell, No. 15-cv-
7433 (S.D.N.Y. Nov. 18, 2022). Documents do not “receive
different weights of presumption based on the extent to which
they were relied upon in resolving a motion.” Maxwell I, 929
F.3d at 48 (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
at 123) (alteration adopted).
c. The district court failed to treat briefs and supporting
documents filed in connection with sealing or unsealing
motions as judicial documents. Insofar as such materials have
the tendency to influence sealing rulings, which are an exercise
of judicial supervisory power, they constitute judicial
documents. The weight of the presumption of access
applicable to filings implicating a court’s supervisory power
may be less than that applicable to documents relevant to a
court’s exercise of adjudicatory power. That weight may also
30
vary according to the weight of the presumption applicable to
the underlying material.
3. In all other respects, appellants’ claims of error are without merit.
For the forgoing reasons, we VACATE the district court’s December
2019 and January 2020 Orders in their entirety, and its November 18, 2022
oral ruling to the extent set forth above, and we REMAND the case to the
district court for individualized review of materials consistent with this
opinion. In all other respects, we AFFIRM the appealed orders and rulings.
31