UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK VIRGINIA GIUFFRE Plaintiff against Defendant No Civ LAP VIRGINIA GIUFFRE Plaintiff against GHISLAINE MAXWELL Defendant No Civ MEMORANDUM ORDER Defendant Alan Dershowitz Mr Dershowitz to modify the protective order entered in Giuffre Maxwell No Civ S.D.N.Y to permit him all filings and discovery materials including third party discovery from that case See Dershowitz Letter Request ing Pre Mo tion Conference on Motion to Modify the Protective Order Dershowitz June Letter dated June dkt no in Civ Mr Dershowitz originally sought the Court?s leave to fully brief a motion to modify the protective order in Maxwell pursuant to Rule of this Court?s individual practices The parties from both Giuffre Dershowitz No Civ Case Document Filed Page of S.D.N.Y and axwell submitted a number of letters in response to Mr Dershowitz?s request and participated in oral argument on June In light of that developed record the Court elects to rule on Mr Dershowitz?s request on the merits without further briefi ng 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 The Maxwell Protective Order At the heart of the dispute is the protective order entered in Maxwell by Judge Robert Sweet See Protective Order the Maxwell Protective Order dated March dkt no in Civ See Giuffre Response to Dershowitz Letter Giuffre June Letter dated June dkt no in Civ Maxwell Response to Dershowitz Letter dated June dkt no in Civ Dershowitz Reply to June Giuffre Letter dated June dkt no in Civ Dershowitz Reply to June Maxwell Letter dated June dkt no in Civ John Doe Response to Dershowitz Letter dated June dkt no in Civ Transcript of June Oral Argument Transcript dated June dkt no in Civ Given the parties familiarity with them th Court will not otherwise recount the facts underlying either the Maxwell or the Dershowitz action Case Document Filed Page of 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 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 Under the order materials properly marked CONFIDENTIAL shall not be disclosed or used for any purpose except the preparation and trial of Maxwell i 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 a The Maxwell Protective Order further provides that upon the conclus ion 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 Case Document Filed Page of 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 oral argument that replacement counsel for Giuffre Cooper Kirk had receive from Ms Giuffre?s former counsel Boies Schiller Flexner 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 Dershow itz and to represent her in conjunction with the Boies Schiller firm in the Maxwell case Transcript at The Court is not privy to the full details of Ms Giuffre?s arrangement with Cooper Kirk but in any event they would little to obviate the Court?s concern The Maxwell Protective Order must be interpreted as its plain language dictates Geller Branic Intern Realty Corp F.3d 2d Cir quoting City of Hartford Chase F.2d 2d ir And hatever Cooper Kirk?s intentions in requesting and obtaining the Maxwell materials from Boies This Court disqualified Boies Schiller Flexner from continued representation of Ms Giuffre in its October Opinion Order See Opinion Order re Defendant?s Motion to Disqualify Counsel for Plaintiff and to Dismiss the Complaint dated October dkt no Ms Giuffre retained Cooper Kirk to represent her shortly thereafter Case Document Filed Page of Schiller the Maxwell Protective Order explicitly provides that discovery materials designated CONFIDENTIAL cannot be disclosed or used outside of the confines of the Maxwell action and 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 a Cooper Kirk is sunk on either score As a practical matter the Court would be surprised shocked even if Cooper Kirk as 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 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 wit Cooper Kirk attorney has entered an appearance in Maxwell no Cooper Kirk attorney Case Document Filed Page of 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 as 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 A ll of those materials and any material including work product derived from the Maxwell materials other than the deposition of Ms Giuffre in Maxwell 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 The Court also notes as Mr Dershowitz?s counsel did at oral argument on June that it would be unfair for Ms Giuffre?s counsel to have access to the Maxwell discovery materials while 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 At a hearing before the Court on December the Court ordered Ms Giuffre to turn over her deposition transcript from Maxwell to Mr Dershowitz See Transcript at Case Document Filed Page of Mr Dershowitz?s Request to Modify the Maxwell Protective Order As mentioned above see supra at 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 TheStreet.com F.3d 2d Cir In determining whether such extraordinary circumst ances exist he Court considers several factor including the scope of the protective order the language of the order itself the level of inquiry the court undertook before granting the order and the nature of reliance on the order In re Ethylene Propylene Diene Monomer EPDM Antitrust Litig F.R.D Conn At a broad level Mr Dershowitz has simply not demonstrated the existence of an extraordinary circumstance or compelling need TheStreet.com F.3d at 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 Case Document Filed Page of efficiency and avoid duplication in his defense of Ms Giuffre?s claims See Dershowitz June Letter Th at 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 W.R Grace Co No Civ SWK at S.D.N.Y Aug 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 Letter emphasis added In other words i is not a targeted strike that Mr Dershowitz proposes but a carpet bombing And hile 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 indis criminate approach A brief comparison of the Maxwell and Dershowitz actions makes this clear Ms Giuffre?s now settled action against Ms Maxwell Case Document Filed Page of allege 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 Dershowit was one of the prominent individuals who took advantage of Epstein and Ms Maxwell?s trafficking scheme and th at 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 a nd 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 Case Document Filed Page of documents See dkt nos in Civ 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 dkt no in Civ 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 counterclai ms against Ms Giuffre more convenient The Court will not risk collateral damage to the Maxwell unsealing process by modifying the protective order Bubbling underneath the debate about modification of the Maxwell rotective rder 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 Tw itter Posts from June 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 publi eye Counsel for Mr Dershowitz noted at oral argument that Professor Dershowitz obviously wants all Footnote continues on following page Case Document Filed Page of Finally the extent that an analysis of the EPDM factors is necessary see supra at he 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 rotective rder prohibits i nformation designated as CONFIDENTIAL from being disclosed or used for any purpose except for the preparation and trial of the Maxwell case Maxwell Protective Order This provision functioned as a powerful mechanism for inducing part ies to provide discovery in a contentious litigation Indeed his Court has gone so far as to describe similar clauses as key provision of their respective protective orders Jose Luis Pelaez Inc Scholastic Inc Continued information contained in the Maxwell materials to be out there to be public because he believes it exonerates him Transcript at 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 letter requesting modificat ion arguably contained public characterizations of the sealed materials a fact that troubled Ms Giuffre Giuffre June 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 under mine the unsealing process in Maxwell Case Document Filed Page of Supp 3d S.D.N.Y The presence of such provisions accordingly prove 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 as entered may be a dispositive factor in denying modification of a protective order Nielsen Co U.S LLC Success Sys Inc Supp.3d S.D.N.Y see also Jose Luis Pelaez Supp 3d at Here there is no question that the plain terms of the Maxwell Protective Order would justify such an expectation he 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 pla ce The Court accordingly concludes that such reliance on the Maxwell Protective Order precludes modification Case Document Filed Page of CONCLUSION For the reasons discussed above Cooper Kirk shall destroy a all materials from Giuffre Maxwell No Civ currently in its possession save for the transcript of Ms Giuffre deposition in that case and 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 deposition transcript in its work on Ms Giuffre action against Mr Dershowitz Mr Dershow itz request to modify the Maxwell Protective Order dkt no in Civ is denied SO ORDERED Dated New York New York July Case Document Filed Page of
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