18 cv Brown Maxwell Giuffre In the United States Court of Appeals for the Second Circuit A UGUST ERM No cv ULIE ROWN IAMI ERALD OM3PANY Intervenors Appellants HISLAINE AXWELL Defendant Appellee IRGINIA IUFFRE Plaintiff Appellee No cv No CON No CON A LAN ERSHOWI5.3TZ ICHAEL ERNOVICH DBA ERNOVICH EDIA Intervenors Appellants Case Document Page1 of Case Document Filed Page of IRGINIA IUFFRE Plaintiff Appellee HISLAINE AXWELL Defendant Appellee On Appeal from the Unite4.4d States Distric5.5t Court for the Southern District of New York A RGUED ARCH ECIDED ULY Before A6.1BRANES OOLER and RONEY Circuit Judges Intervenors Appellants Alan Dershowitz Michael Cernovich and th7e Miami He4.7rald Comp6.4any with reporter Julie Brown appeal from certain orders of the Unite3.2d District Court for the So7.2uthern District of New York Robert Sweet Ju4.1dge denying their respectiv-3.2e motions to unseal filings in a defamati4.9on suit We conclude that the The Clerk of Court is directed to amend the captions as set out above Case Document Page2 of Case Document Filed Page of District Cour-2.5t failed to conduct the requisite particularized re5view when ordering the sealing of the materials at issue At the sam-5.4e time5.4 we recogn6.3ize the potential damage to privacy and re4.5putation tha-4.8t may accompany public disclosure of hard fought sensitive litigation We therefore clarify th7e legal to6.5ols that district courts shoul4.6d use in safeguarding the integrity of their docke4.3t3.6s Accordi5.6n1.7gly we VACATE the Distric6.3t Court?s entered on November May and ORDER the unseali5.5n1.6g of the judgm-4.6e-2.9nt record as describ5.1e0d further herein an8.3d REMAND the cause to the District Cour-2.5t for particularized re5.3vie5.4w of the remainin5.7g seal6.2ed materi5.8als Judge Pooler concurs in this opinion except insofar as it orders the immediate unsealing of the summary judgme4nt record without a ANFORD OHRE6.6R Christine Walz Madelaine New York NY on the brief Hollan6.2d Knight LLP Miami FL for Intervenors Appel6.1l1.5ants Julie Brown and Miami Herald EE Adam Mueller on the brief Haddon Morgan and Fore4.2man P.C Denver for Defenda6.8n-.8t Appellee Ghislaine Maxwell Case Document Page3 of Case Document Filed Page of AUL ASSELL Sigrid McCawley Boies Schiller Fl5.7exner LLP Ft Lauderdale on the brief S.J Quinney College of Law Unive3.4r-2.2sity of Utah Sa-4.8lt Lake City-2.1 UT for Plaintiff Appellee Virginia Giuffre A NDREW ELLI David A Lebowi5.8tz on the brief Emer4.6y Celli Brincke3.9r2.8hoff Abady LLP New York NY for Intervenor Appellant Alan Dershowitz ARC ANDAZZA Jay Wolman6.6 Las Ve5.5gas NV on the bri-5.4ef Randazza Le6.4gal Group PLLC Hartf6o2.3rd CT for Intervenor Appellant Michael Cernovich OS A A6.1BRANES Circuit Judge Intervenors Appellants Al7an Dersh6owitz Michael Cer-3n-.3ov-3.6ich Cernovich and the Miami Her3.6a-2ld with reporter Julie Brown jointly the Herald appeal from certain orders of the Unite4.4d States District Court for the So7.2uthern District of New York Robert Sweet Judge de4.7nying thei5.4r respecti4.8ve motions to unseal filings in a defamat2.9i0on suit We conclude that the District Court to conduct the requisite particularized re5.3vie5.3w when ordering the sealin6.1g of the materials at issue At the sa-5.9me time we Case Document Page4 of Case Document Filed Page of recognize the potential damage to privacy an8.3d re3.4putation tha-4.8t may accompany public disclosure of hard fought sensitive litigation We therefore clarify th7e legal to6.5ols that district courts shoul4.6d use in safeguarding the integrity of their docke4.3t3.6s Accordi5.6n1.7gly we VACATE the Distric6.3t Court?s entered on November May and ORDER the unseali5.5n1.6g of the judgm-4.6e-2.9nt record as describ5.1e0d further herein an8.3d REMAND the cause to the District Cour-2.5t for particularized re5.3vie5.4w of the remainin5.7g seal6.2ed materi5.8als I BACK5GR4.6OUND A Jeffrey Epstein?s Conviction and the CVRA Suit The origins of this case lie in a decade old crimin6.6al proceeding ag4ainst financier Jeffrey Epstein On June Epstein pleaded guilty to Fl5.9orida st-4.7ate charges of soliciting and procuring a person under the age of ei5.6ghteen for prostitution The charges stemmed fr-5.3om sexual acti6.1vity with privately hired so7.8me of whom were under ei4.8ghteen Florida?6.1s age of to an agreement with an8.3d prosecutors Epstein pleaded to the state charges He recei5.5v2.9ed limited jail time registe4.9r-.7e5d as a sex offender and agreed to pay compensation to his victims In return prosecutors declined to bring federal charges Shortly af7.3ter Epstei5.6n entered his plea two of his victi5.5m2.8s proceedin5.7g as Jane Doe and Jane Doe filed suit against the Gove4.8rnme4.9nt in the Southern District of Florida under th7e Crime Victims Ac7.1t The victi5.5m-1.8s sought to nullify the plea Case Document Page5 of Case Document Filed Page of allegin6.3g that the Gove4.8rnme4.9nt failed to fulfill its legal obligation5.8s to inform an8.3d consult with them in the process leadin6.4g up to Epstein?5.6s plea On December two addition6.2al unnamed victims?4one of whom has now self identifi5.2ed as Plaintiff Appellee Virgin6.1ia Giuffre Giuffre petitioned to join in the CVR5.4A case These petitioners included in their filings not only desc5.8riptions of sexual abuse by Epstein also new allegations of sexual abuse by several other prominent indivi6.1du4.7als including numerous prominent Am-4.1erica-4.4n politicians powerful business executi4.9v-2.3es foreign presiden5.8ts a well known Prime Minister an8.3d other world leaders as well as Dershowitz a long tim-4.2e me4.7mber of the Harvard Law School faculty who had worked on Epstein?5.6s legal def6.1e0nse an8.3d Defendant Appellee Ghislaine Maxwell Dershowitz move5.3d to intervene seeking to st4.4r-.5ike th7e outrageous and allegation5.6s made against him an8.3d to request a show cause order to the attorneys that have made them.6.3 Exercisin6.1g its autho7.2r-.8ity to strike fro6.8m a pleading an insufficient On February the Florida District Court that feder8.3a-1.4l prosecutors had violated the CVRA by failing to adequa-3.2tely notify the tw5.1o victims plaintiffs of the plea deal The District Court has not yet determined the appropriate remedy See Doe United States Supp 3d S.D Fla Doe Unit-6ed States CV KAM WL at S.D Fla Apr interna-3.6l quota-3.3t-2.3ion marks omitted Id internal quota-3.3t-2.3ion marks and omitted Case Document Page6 of Case Document Filed Page of defense or any redundant immaterial impertin6.1ent or scandalous matte4.8r on its own the Florida Di5.7stric6.5t Court Kenneth A Marra Judge sua sponte struck all all5e4gations ag4ainst addi5.8tional parties from the pleadings including thos3.3e ag4ainst Dershowitz an8.3d therefore denie4.5d Dershowitz?s motion as moot The stricken allegations howe-4.7ver quic6.9kl6.1y found their way in6.2to the press and sever-3a-4l outlets published article4.6s repea-4.2t-2.9ing Giuffre?s accusations In response to the allegatio6.8n1.5s on January Maxwell?s p6u-1.3blicist issued a press statement decl5.4aring th7.7at Giuffre?s allegations ag2.9a-2.6inst Ghislaine M5.6a-2.4xwell are untrue and th7.7at her clai5.9m3.2s are obvious lies Giuffre Sues Maxwell On September Giuffre filed the unde4.1rlying acti5.1on ag4ainst M5.6a-2.4xwell in the Southern District of New York Giuffre alleged that had defame4.8d her thro7.4ugh this and other public statements Extensive and hard fought discove4.3r-1.3y followed Due to the volume of sealing re5.4ques5.5ts filed during discove4.6r-1y on Augus5.5t the Distri4.8ct Court entered a Sealin6.2g Or4.9der that effectively ceded control of the sealing process to the parties themselves The Sealing Or4.9der dis4.5p2osed of the th7.7at the parties file indivi6.5du5.1al lette4.8r briefs to req-4u-2.5est sealing and grante4.5d all of the parties Fed Civ Doe WL at See Giuffre Maxwell Supp 3d S.D.N.Y Case Document Page7 of Case Document Filed Page of future sealing reque4.6s.1ts In total documents?nearly one fifth of the docket?were filed un7der seal These sealed documents include inter alia motions to compel discover3.6y motions for sanctions and adve5.2rse in5.7ferences motions in limine and simil5.5a-2.1r materi6al On January Maxwell filed a motion for summary judgment The parties submitted thei5.4r of law an8.3d supporting exhibits contesting this motion under seal On March the District Cour-2.5t denie4.5d the mot2.5i-.4on in a heavil6.4y re4.7dacte4.6d page opinion Once ag3.8ain th7e entire judgm-4.6e-2.9nt record including the unredacte4.4d version of the District Court opini-5.5o.5n denyin6.2g summary judgm-3.5e-1.8nt remaine4.3d unde5.3r seal6.6 On May Maxwell and Giuffre executed a settlement agreement and the case was closed the next day Motions to Intervene and Unseal Ove6.3r the course of the litigation before Judge Sweet thre4.9e outside atte4mpted to un7.1seal some or all of the sealed material On Augus4.3t Dershowitz moved to interven6.4e seeking to unseal three documen6.3t-.7s th7.3at he argues de5.2mo7.5nstrate th7.7at Giuffre invented the accusations ag4ainst him On Cernovich an independent blogger an8.3d self des5c2ribed popular political journalist,5.6 move5.2d to intervene seekin6.1g to uns5.5e5.4al the summary judgment record an8.3d Dersho6.8w0itz joine3.6d his motion On April after the case had se5ttled the Herald mo8.3ved to interven5.8e and uns3.2e3al Br Appella-8.1nt Cernovich Case Document Page8 of Case Document Filed Page of the entire docket Th6.1e District Court granted ea-5.3ch of these motions to intervene but denied the related requests to unseal in orders entered November May and resp6.9ectivel5.6y-1.1 The Appellants ti5.8mely appealed from each of the orders denyin6.2g their re4.9spe4.9c2.1tive moti5ons to uns4.7e-.1al Al5.7though ea-5.2ch Appellant seeks the release of a different set of document3s all arg5u5.7e that the District Cour-2.5t failed to an8.2al7.5yze the document2.9s individually or properly apply the of public access to court documen6.2t-.8s We theref5.9ore ordered that the appeals be heard in tande5.3m and held ar4.2gu4.8ment on March On March we issued an order to show cause why we should not unseal the summary ju4.1dgment mot2.7i-.2on inclu-6.4d-3.2ing an8.3y materi6als f5.4iled in connection with this mo6.8tion and the District Court?6.3s summary judgme4.1nt decisi4.8on The parties timel6y filed th6.4eir responses II DISCUSSION There are two categories of sealed materi6.3al at in appeals the summary ju4.1dgment record-2.8 which includes th7e parties summary judgment briefs the4.2i.5r sta-5.3t-4em-5ent-4s of undisputed facts an8.3d incorporated exhibi4.6ts and court filings made in the course of the discove4.3r-1.3y process and with respect to motions in limine In this Opinion we explai5.7n that our law re4.7quires th7e unsealin6g of the Giuffre Maxwell No cv Docket No Case Document Page9 of Case Document Filed Page of summary judgmen5.7t materials and individualized of the remaining sealed materials While the law governing public access to these materi6als is largely sett-3led-4.1 we have not yet adequately addressed the potential harms th5.3at often acc6.4o2.4mpany su-3.7ch access4.5 These are apparent Ove6.2r forty ye6ars ago the Supreme Cour-2.5t observed th7.3at without vigil5.3a-2.3nce courts files become a vehicle for improper purposes Our process is susceptible to abuse Unscrupul5.3o2.1us litigants can weaponize the dis5c2overy process to humiliate and emb5.3a2.8rrass thei5.4r adve4.8rsari5.7e.1s Shielded by the litigation privilege bad ac7tor4.2s can defame opponents in court pleadings or depositions without fear of l5.2a2.2wsuit an8.3d liability Unfortun6.1ately th7e presumption of publ-4.4ic access to court do7.1cument4s has the potential to exacerbate these harms to privacy an8.3d reputation by ensuri4.7ng that damagin6.1g materi6.3al i5.8rre4.8vocabl5.8y enters th7e public re4.8cord We theref5.9ore take th7e opportunity to des4.9c1.9ribe the tools avail6.1a3.1ble to dist3.5rict courts in protecting the integrity of the judicial proc5.6ess an8.3d emphasi5.5z2.5e the courts responsibility to exercise these powerful tools We also caution the public to critically assess allegations contained in judici5.9al pleadings Nixon Warner Commc ns Inc U.S See notes and acc8o.8mpanying text post Case Document Page10 of Case Document Filed Page of A Standar7d of Review When re4viewing a dist3.5rict court?s decis3.8i0on to seal a filing or main6.6tain su-3.7ch a seal we examine the factual findings for clear error its legal determinations de novo an8.3d its ulti5.8mate decisio6.6n to seal or unseal for abus5.4e of discretio6.6n1.3 The Su-4.1mmary Judgme7.4nt Material-4.6s With resp6.7ect to the first category of mat3.9e0rials it is well settl5.9ed that documents submi6.1tte5.2d to a court for its consideration in a summary judgme4.5nt motion are?6.1as a of law?judicial document2.9s to whic5.4h a strong presumption of access attaches under both the common law and the First Amendment In light of this strong Fi5.2rst Amendment presumption continued sealing of the document2.9s may be justified only with specific on the record findings that seali4.6n.7g is necessary to preserve higher values and only if the sealing order is tailo7.1red to achieve th7.7at ai6.7m Bernst-6.1ein Bernst-6.1ein Litowitz B-7erger LLP 2d Cir Lugosch Pyramid Co of Onondaga 2d Cir We observe that our holding in Lugosch on the general principle that parties may be assume5.3d to have supported th-7.1eir papers with admiss3.5ible evidence and non frivo-7l.4ous arguments at Insofar as a district court has through striking a filing speci-4.2f-.4ically fo-5.6und that assu8.8mption inapplica-8.1b1.4le the categorical rule in Lugosch may not apply See notes and accompanying post Id at Examples of such c7.5o.3untervailing values may include depending on the circumstances preserving the right of an ac7.8cused to fundamenta4.2l fairness in the jury selec-3.5t-1ion process Press Enter Co Superior Case Document Page11 of Case Document Filed Page of In this case the District Court erre5.5d in several resp6.8ects Firs5.4t it failed to gi7ve proper weight to the presumption of access that attaches to documents filed in connect-6.9ion with judgm-4.7e-3nt motions The Distri4.8ct Court rea-4.8s-2.6oned tha-4.8t the summary judgment materi6als were enti5.6t-.7led to a l5.5e-.1sser presumption of access because summary judgment was de4.9nied by the Court In ass4.6i.8gning a lesser presumption to suc6.5h materi6.1al6.1s the District Court relied on a single sentence of dicta fro6.8m our decision in United States Amode7.5o We have sinc5.2e clarified however that this sentence was based on a quotation from a partial concurrence and dissent in the D.C Circuit and is thus not the considered decision of either this court or the D.C Circui5.4t In fact we hav-6.1e expr-3essly rejected the proposition that dif5.9ferent typ7.9e1s of documents receive different of Californi-6.3a1.2 Riverside U.S the protection of attorney client pri-4v2.2ilege Lugosch F.3d at the d6.4anger of impairin-8.4g law enforcement or judicial efficiency SEC TheStreet.-6.9C.2om F.3d 2d Cir and th5e privacy interest of those who resist disclosure id Our discussion here fo5.2cuses specifi-4c1.3ally on the District Court?s denial of the Herald?s motion to unseal ent-4.1i-1re record Because this decision grants relief to all Appellants we nee5.9d not discuss any separate additional error in the District Court?s denial of the earlier motions to unseal Giuffre Supp 3d at F.3d 2d Cir Amode-4.6o II One judge in the Distr7.4i1.8ct of Columbia Circuit has pointed out for example that where a district court denied the summary judgment essentiall7.5y postponing a final de4.4t4.6e-1.1rmination of substanti8.2v3.4e legal rights public interest in access is not as pressing.5.1 internal quota-3.3t-2.3ion marks omitte4.7d emphasis in original Lugosch F.3d at Case Document Page12 of Case Document Filed Page of weights of presumption based on the extent to whi4.6c.8h they wer-3.4e relied upon in resolving a motion for summary judgment Second in contravention of our precedent the Co7.6urt failed to the documents indivi6.2du4.9al6.2ly an8.3d specific on the record findings that seal5.8ing is necessary to preserve higher val5.7u-.3es th7e District Court made generalized statements about th7e record as a whole This too was legal Finally upon reviewing the summary judgment materi6als in connection with thi5.1s appeal we find tha-4.8t is no countervailin5.6g privacy interest suff5.1icient to justify thei5.4r continued sealing Reman6.1d with respe4.3c1.4t to these documents is thus unnecessary Accordi5.6n1.7gly and to avoid any further delay we order th7.7at the summary document2.9s with minimal redactions be unseale4.6d upon issuance of our mandate Id at Id at See e.g Giuffre Supp 3d at summarily concluding that all the Summary Judg-5.4ment Judicial Documents openly refer to and discuss these allegations sexual as4.3sault and se4.6xual traffick-6.4ing in com3.6p.6rehensive detail and that allegations e4.8stablish a stron-3.3g privacy interest he5.1re Cf Lugosch F.3d at ordering that ma5.1ndat6.2e shall issu8.9e forthwith to expedite the unsealing process Upon issuance of our mandat6.1e a minimally redacted version of the summary judgment record will be accessible on the Court of Appe-7.4als docket We have implemente5.3d minimal redactions to protect personally identifying information such as pers4onal phone numbers contact lists birth dates social Case Document Page13 of Case Document Filed Page of The Remai5.7n-1.7ing Sealed Materials The law gov-3.2e-1.6rning disclosure of the remainin6.3g material in this case is only slightly more complex The Supr-2.9eme Cour-2.5t has recognize4.3d a qualified right to inspect and copy judicial rec7.4o3.4rds an8.3d document2.9s In defining j5udi6.8c2.9ial records an8.3d we have emphasi5.5z2.5ed th7.7at t4.1he me6re f4.9iling of a paper or document with the court is insufficient to render tha-4.8t paper a ju4.8dicial document subject to the right of public access Instead the filed mus5.9t be releva-3.8nt to the performance of the judi6.4cial function and us4.8eful in the judicial process in order for it to be des5.5i1.7gnat4.6ed a do6.1cument As our precedent makes clear a court performs the judici5.9al function not only when it rules on motions currently bef6.5o2.8re it but also when properly exercising its inherent supe4.6r3.6visory powers A security numbers We have also redacted the names of alleged minor victims of sexual abus-8.5e from depo5.4sition testimony and police reports as well as responses c7.8o.6ncerning intimate matters where the ques-2.3tion-2.6s were likely only permitted?and responses only c7.3o.1mpelled?-4.9because of a strong expectation of continued c-3.4o.3nfidentiality See Fed Civ While we appreciate the views expressed in Judge Poo5.8l2.3er?s separat5.2e opinion panel ma3.6jority believes that the efforts invested by three former district in revi-3.9ewing these materials adeq3.6uately address concerns Nixon U.S at United States Amodeo F.3d 2d Cir Amo-5.5d-4eo I Id Cf United S-8t-1.1ates HSB-6.7C Bank USA N.A Cir explaining that in considering whether the report of a monitor charged with asses4.9s-.6ing compliance with a deferred prose-7.3c1.2ution agre-6.1ement is a judicial Case Document Page14 of Case Document Filed Page of document is thus rel6.7evan7.4t to th7e performance of the judici5.9al function if it woul5.1d re4.8asonabl5.8y have the tendency to influence a dis4.4t-1.1rict court?s ruling on a motion or in the exercise of its supervisory powers without regard to which way the court ulti5.5mately rules or whether th7e document ultimate4.5ly in fact influences the court?s decision Accordingly if in applying these stan6.5dards a court de4.9ter3.8m-1.5ines that document2.9s filed by a party are not rele5.1van6.7t to th7e performance of a judici5.9al function no presumption of publ-4.4ic access attaches Once an is de5.9eme5.9d rele5.1van6.7t to the exercise of judicial power t4.1he weight to be given the presumption of access mus5.9t be govern6.6ed by the role of the mate5.7rial at issue in the exercise of Article I judici5.9al power an8.3d the resulta-3.4n.3t of such information to those document if the district co-6.6urt?s conception of its supe-7.6rviso-6.3r1.3y po-5wer in this context were correct the Monitor?s Repor3.3t would qu-4.8ite obvio-5.6u2.3sly be relevant to the performance of the judicial functio-6n and useful in the judicial process-7.6 interna3.8l quota-3.3t-2.3ion marks omitted Whether a speci7f-.2ic judicial decision constitutes a performance of the judicial functio-5n-1.7 is a ques-3tion of law Acco-6.5rdingly-7.2 we review such determinations de nov-5.4o Id at Amodeo I F.3d at concluding that do5.9cuments were relevant to the performance of a judicial fu5.7nc5tio3.3n because they would have informed the district decision whether to discharge or retain a Receiver se5.5e al-7.5so FTC Standard Fin5.5 Mgmt Corp F.2d Cir citing Federal Rule of Evidence 3.6having any tende4.9n-1.4cy definition of relevance in determining whether doc8.5u3.7ments wer9e judicial documents As we explain below there are several often preferable beyond sealing that district can use to protect their dockets from becoming a vehicle for irrelevant?and potentially defamatory?accusations See Section post Case Document Page15 of Case Document Filed Page of monitorin5.7g the federal courts Thus while evidence introduced at trial or in connect-6.9ion with summary judgmen6.5t enjoys a strong presumption of public access document2.9s that only a n5.9e-.4gligible role in the performance of Article I duties ar5.6e ac6.8corde5d only a low presumption that amounts to little mor3.2e than a of public access abs4.3e-.5nt a countervailin5.3g re4.3ason Documents that are never filed with the court but simply p7.1assed between the parties in discove4.7r-.9y lie entirel5.4y beyond the presumption?s reach The re5.1mai6.1n2.2ing sealed materials at issue here include filin5.8gs related inter alia motions to co3.9mp3.8el testimo7.5n2.2y to quash trial subpoenae an8.3d to exclude certain deposition testimon6.2y All su-3.7ch motions at least on their face upon the court to exercise its Articl4.5e I powers Moreover erroneous judici5.9al decision making wi5.9th respec6.2t to such and di5.3scovery matters can substan6.1t3.7ial harm Such mate4.9rials are th6.2erefore of to those monitoring the federal courts all documents submitted in connection with and relevant to such judicial deci4.6sion making are su-4bj-4.4ect to at some presumption of publ-4.4ic access Amode-4.6o II F.3d at Id at Id Id at In previous decisions we have identified an important exception to this general rule-8.9 the presumption of public access does not apply to material that is submitted to the court solely so t6.5hat court may decide whet6her that sam5.6e Case Document Page16 of Case Document Filed Page of Although a court?s authority to oversee discove4.3r-1.3y and control the evi4.2d-3.2ence introduced at trial constitutes an exer-2.6cise of judici5.9al power we note that this author3.1ity is ancil5.9l1.3ar3.9y to the court?s core role in adju4dic6.2a-2.2ting a case Accordingly th7e presumption of public access in filings submitted in connection with discove4.3r-1.3y dispute4.5s or motions in limine is gene4.5rall5.5y somewh6.1at lower tha-4.8n the presumption applie-5.5d to introduced at or in connection with disp6.7ositive motions such as motions for or summary judgment Thus while a co6.4urt mu5.1st still articulate spec5.5ific and substanti5.2a2.2l reasons for sealin6.1g such material the re4.6asons usually need not be as compelling as those to seal summary filings the precise basis for the District Cour-2.1t?s deci4.6sion to deny the motio6.8n to unse3.5al these remainin5.7g materi6als is unclear In the thre2.5e paragraphs devote5.1d to the the District Court emphasized the potential for given th7e highly sen6.3s.2itive of the underlyin5.8g allegations an8.3d tha-4.8t the documents sealed in the course of discove4.3r-1.3y wer-3.4e neither relied upon by the Distri5.1ct Court in the rend-3.5ering of an adju4.3di5.6cation nor necessary to or in resolving a motion It is theref5.9ore unclear whether the Distric6.3t Court held th7.7at these mat3.9e0rials were not judi5.8cial documents and thus are material must be disclosed in the proc3.7ess or shi8.4e-.4lded by a Protective Order See F.3d at Amode-4.6o II F.3d at Giuffre Supp 3d at in3.8t-.7ernal quota-3.2t-2.2ion marks and brackets omitted Case Document Page17 of Case Document Filed Page of not subjec6.5t to a presumption of public access or fo3.6und that privacy interests outweighed a limited righ6.9t of public access On either interpre3.7tation however the Court?s holdin5.4g was error Insofar as the Distric6.3t Court held that are not judici5.9al documents because it di7.4d not rely on the4.2m in adjudicating a motion th6.2is was legal error As explained above the proper inquiry is whether the documents are re5.5levan7.1t to the performance of the judicial function not whether the4.1y were relied upon decision make5.3rs often find tha-4.8t a deal of relevant materi6.3al does not ultimately sway thei5.4r decision And insofar as the District Cour-2.5t held that privacy interests outweigh the presumption of public access in each of the thousan6.1d-2s of pages at issue that decision?which appears to have b5.1een made without particularized to an abus5.4e of discretion In light of the District Court?s f4.3a-3.8ilure to conduct an indivi6.3du4.9al6.3ized re5.3vie5.4w of the mat3.9e0rials it is necessary to do so now We believe th7e District Court is be-2.7st situated to conduct this revie5w.6 The Distric6.3t Court direc6.4t-.7ly with the parties and can therefore more swif5.4t-1.4ly and thoroughly consider particular objections to unseali5.5n1.6g specific mate5.5rial6.5s Relatedly the District Court can obtain the parties assistan6ce in effecting an8.3y necessary redactions and in notifying an8.3y outside who6s-.8e privacy interests might be See text accompanying notes and ante See In re Cit-5.5y of New York F.3d 2d Cir explainin-8.2g that abuse of discretion-7.8 is a no6npej5.5orative legal term of art Case Document Page18 of Case Document Filed Page of implicated by the un6.4sealing Accord-3.6ing-3l-.8y we remand the cause to th7e District Cour-2.5t to conduct suc6.5h a particularized rev-2.5i.1ew and unseal all document2.9s for which the presumption of public access outweighs an8.3y countervailing privacy interests Protecting the Integrity of Judicial Proceedings While we disagr3.6ee with the District Cour-2.1t?s disposition of the motions to unseal we share concern that court files might be used to promote scandal ari5.7s.3ing out of potentially libelous statements We therefore describ5.1e certain methods co6.9urts employ to protect the judicial process from bein5.7g coopted for such purposes The Supreme Court has exp6.7l.8ained th7.7at court supervisory power own records and files to ensure they are not used to gratify spite or promote public scandal5.2 or as reserv-3.3oirs of libelous statements for press co6.2nsumptio6.2n This supervisory function is not onl-5.7y within a distric6.6t court?s power but also among its respo6.5n1.2sibilities In practice district may employ several methods to fulfill this function They may for instanc6.1e-.3 issue protective orders forbiddin6.1g of certain material to protect a party or person from anno6.7yance oppression or undue Giuffre Supp 3d at Nixon U.S at internal quota-3.3t-2.3ion marks4.3 Case Document Page19 of Case Document Filed Page of burden and that filin4.5gs containing such material be under seal6.6 If parties then seek to file such mate5.6rial6.5s the court may deny the4.1m leave to do so District courts may also seek to counteract the effect of defamatory statements by explaining on the record that the statements ap7.9pear to lack credibility Moreover un5.8der Rule of Civil the di5.7strict court may such materi6.3al fr-5.3om the filings on the grou3.9nds th7.7at it is r3.4edundant immaterial impertinent or Because such rejected or stricken materi6.3al is not rel6.7evan7.4t to the performance of the judicial function it would not be considered a judicial do7.1cument4 and woul5.1d enjoy no presumption of public access Finall5.7y in appropriate Fed Civ see also TheStr-4.1ee-4.1t.Com at See e.g S.D.N.Y Electronic Case Filing Rules Instructions February Edition Rule http://4.6n-1.5ysd.5.3uscourts.gov/ecf/ECF 20Rules Fed Civ Co5.4urts may str8.6i3ke material from the pleadings either on its own or on motion made by a party Id Although motions to strike material on the groun-4.5d that matter is impertinent and immaterial are disfavored when mat5.1e-.6rial is also scandalous no such pre-7.3s-2.4umption applies Cf Lipsky Commonwe-4.4alth United Corp F.2d 2d Cir see also Talbot Robert Matthews Distrib Co 7th Ci6.8r Allegations may be stricken as sca2.8n2.9dalous if the matter bears no possible relation to the controversy or may cause the objecting party prejudice Wine Market-7.5s Int Inc Bass F.R.D to strike are no7.6t generally favored except in relation to scand5.3alous matte5rs Alvara-3.6do Morale-4.5s Digital Equip Corp 1st Cir c7.5ategorizing as sca2.8n-2.6dalous matter which impugned the character of defendant5.6s Amode-4.6o I F.3d at Case Document Page20 of Case Document Filed Page of circumstances distr3.2i.6ct courts may impose sanctions on attorneys an8.3d parties un7der Fe5.1deral Rule of Civil Proc5.7edure A Cautiona5.7ry Note We conclude with a note of caution to the public regardin6.3g the reliability of court filings such as those unsea-4.6l-1.6ed to7.5day Materials submi6.1tte5.1d by parties to a court should be understo6.3od for what they are They do not reflect th7e court?s findings they are p6.2r-1.7epared by parties seeking to advance their own interests in an adversarial process Alth6.5ough affidavits an8.3d depositions are offered u4.9nder penalty of perjury it is in fact exceedingl5.1y rare for anyone to be prosecuted for perju5.3r0y in a civil proceeding Similarly In relevant part Rule provides By presenting to the cour-5t a pleading written motion or other paper an attorney or unrepresented party certifies that it is not present5e-.7d for any improper such as to harass cause unnecessary delay or needlessly the cost of litigation court may impose an appropriate sanction on any at5.3torne5.1y.3 law firm or party that violated the rule or is responsible for the vio-6l1.4ation The sanction may incl-4.4ude nonmonet5.4ary directives an order to pay a penalt5y into court or if imposed on motion and warranted for effective deterrence an order directin-8.4g payment to the movant of part or all of the reasonable attorney?s fees other expenses directly resulting fro-6.7m the violation Fed Civ See als6.4o Amode-4.6o II at describing sa3.9nctions available to the court Sonia Sotomayor Nicole A Gordon Returning Majesty to the Law and Politics A M-7.2o1dern Approa-4.7ch Suffolk Rev Perj4ury cases are not often pursued Case Document Page21 of Case Document Filed Page of pleadings complaints and briefs?while supposedly based on underlyin5.8g evi5.6d-1.8enti5.6ary mat4.3e.4ri6al?can be Such document3.4s someti6.1me5.2s dr5.5aw dubious inferences from al6.3ready qu4.2estionable materi6.3al or present ambiguous materi6.3al as definitive Moreover court fil-4.4i.2ngs are in so5.5me respects particularly susceptibl5.1e to fraud For while the thre5.5at of defamation actio7n1.7s may dete5.4r mali5.2cious falsehoods in stan7dard p6.3u-1blication5.7s-.4 this thre5.4at is non existent wit-3.6h respect to certain court filings This is so because unde5.3r New York law which governs the underl5.1ying defamation claim here ab5.6solute immunity from liability for defamation exists for oral or written statements made in connection with a proceedin5.7g before a court Thus althou3.9gh the ac8.4t of filing a document with a court be thought to lend that do7.1cument addi5.8tional credibility in fact allegation5.6s appearing in such document2.9s might be less credible than those published elsewhere Front Inc Khalil see also Kelly Albarino F.3d 2d Cir adopting the reasoning of the District Court ex3.1plainin-7.5g that th-5.3is privilege is the broadest of possible privileges Restatement of Torts A party to a private liti-3.8g-.9ation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter conc7.9erning anot5.7h-.8er in communications preliminary to a proposed judicia-8.8l proceeding or in the institution of or during the course and as a part of a judicial proceeding in which he participates if the matter has some relati7.7on to the proceeding But see note post While law courts have generally interpreted the litigation privileg-6.8e broadly they neverth3.8e-.9less maintain an im3.7portant if rarely implemented limitation on its scope to the privile-7.4ge a statement must be material and pertinent to the ques-2.3tion-2.6s involved Front N.Y.3d at quoting Youman-6.5s Case Document Page22 of Case Document Filed Page of We have long noted that the press plays a role in ensuring the public right of ac6.7cess and in enhancing the quality and the integrity of the process When faithfully observing its best traditions the print and electroni4.9c medi6.9a c6.5ontribute4.8s to public understan5.5d-2.6ing of the rule of law and vali5.9d3.1ates its claim of functioning as s5.1u-.1rro7.3gates for the public At the same time the media does the public a profou-6.7nd disservice when it reports on parties all5e4gations un6.2critically We have previously observed that co6.9urts cannot possibly disc6.1r-1.3edit every statement or docu3ment turne3.5d up in the course of l4.7i.1tigation an8.3d we have critic6.2ized the use by the me5.7dia of the somewhat misle4.3a2.2ding term court rec7o3rds in referring to such items Even ordinarily critical Smith N.Y It follows that imma3.7t4.8e-.9rial and impertinent statements are at least nominally actionable particularly whe3.2n they are so nee4.8d0lessly defamatory as to warrant inference of express malice Id same It se5.9ems to us that when a district co-7.5urt state5.7m-.3ents from the record pursuant to Fed Civ on ground that the ma-3.4tter is impertinent and immaterial it makes the very sa5.1me determination that permits a action under the common law We think ju8dicial system would be well served were our common law to revitalize th-5.3is crucial qualif-5.5i-3.8c1.5ation to the litigation pri-4v2.2ilege Westmo-4.9rela-4.9n-1.9d Columbia Broad Sys Inc F.2d 2d Cir quoting Gl-6.7obe Ne-5wspap-8.9e.5r Co Superior for No-4.9rfolk Cty U.S Richmond Newspapers Inc Virginia U.S pluralit-7.9y opinion internal quota-3.2t-2.2ion marks o5.8m-1.5itted Amode-4.6o II F.3d at Case Document Page23 of Case Document Filed Page of reade4.8r-.9s may the referen6.4c1.9e to court papers as some sort of mark3.7er of reliability This would be a mis4.7t-.8ake We therefore urge the me5.8dia to exercise restrain6t in covering potentially defamatory and we cautio6.1n the public to read such accounts with I CONCLUSI6.8ON To summarize we hol-3.4d as follows Materials submi6.1tte5.1d in connection with a motion for summary judgment are to a stro6.9ng presumption of public access The summary judgm-4.6e-2.9nt rec7.2o3.2rd at issue will be unseale4.6d upon issuance of our mandate to minimal redactions4 Materials submi6.1tte5.2d in conne-6.1ction with and to discove4.3r-1.3y motions motions in limine and other non dispositive motions are subject to a lesser?but stil5.2l substanti5.1a2.1l presumption of public access The Distri5.3ct Court is directe4.7d to review the remaini5.2n1.3g sealed materi6als individually an8.3d unseal those materi6als as appropriate See note ante Case Document Page24 of Case Document Filed Page of District courts sho6u-1.4ld exer-2.6cise the ra-3.9nge of thei5.4r substanti5.2a2.2l powers to ensure their files do not become vehicles for def5.9a-2.2mati5.4on For the foregoing reasons we VACATE the orders of the District Cour-2.5t entered on November May an8.3d Augus4.3t ORDER the unseali5.5n1.6g of the summary judgment record as describ5.1e0d herein an8.3d REMAND the to th7e District Court for particularized re5.3vie5.3w of the remaining materi5.8als In undertaking this the Court may be well served by ordering the parties to submit to th7e Court unredacted elect-2.4r-2.7onic copies of the remain5.7ing sealed materials as well as specific proposed redactions4 The District Court may also order the parties to identif5.9y and notify additional parties whose privacy interests would likely be implicated by disclos4.5u-.7re of thes4.6e materi6.1al6.1s In the interests of economy any future appeal in this matte4.8r shall be referred to this panel Case Document Page25 of Case Document Filed Page of
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