18‐2868; 16‐3945‐cv(L)
Brown v. Maxwell; Dershowitz v. Giuffre




                                          In the
             United States Court of Appeals
                            for the Second Circuit

                                 AUGUST TERM 2018

                                    No. 18‐2868‐cv

                   JULIE BROWN, MIAMI HERALD COMPANY,
                            Intervenors‐Appellants,

                                            v.

                                GHISLAINE MAXWELL,
                                 Defendant‐Appellee,

                                            v.

                                VIRGINIA L. GIUFFRE,
                                  Plaintiff‐Appellee.




                                 No. 16‐3945‐cv(L)
                                 No. 17‐1625 (CON)
                                 No. 17‐1722(CON)

    ALAN M. DERSHOWITZ, MICHAEL CERNOVICH, DBA CERNOVICH
                            MEDIA,
                    Intervenors‐Appellants,
                                         V.


                              VIRGINIA L. GIUFFRE,
                                Plaintiff‐Appellee,

                                         v.

                              GHISLAINE MAXWELL,
                               Defendant‐Appellee.*



              On Appeal from the United States District Court
                  for the Southern District of New York



                            ARGUED: MARCH 6, 2019
                             DECIDED: JULY 3, 2019



Before: CABRANES, POOLER, and DRONEY, Circuit Judges.




      Intervenors‐Appellants Alan Dershowitz, Michael Cernovich,
and the Miami Herald Company (with reporter Julie Brown) appeal
from certain orders of the United States District Court for the Southern
District of New York (Robert W. Sweet, Judge) denying their respective
motions to unseal filings in a defamation suit. We conclude that the


      *   The Clerk of Court is directed to amend the captions as set out above.




                                          2
District Court failed to conduct the requisite particularized review
when ordering the sealing of the materials at issue. At the same time,
we recognize the potential damage to privacy and reputation that may
accompany public disclosure of hard‐fought, sensitive litigation. We
therefore clarify the legal tools that district courts should use in
safeguarding the integrity of their dockets. Accordingly, we VACATE
the District Court’s orders entered on November 2, 2016, May 3, 2017,
and August 27, 2018, ORDER the unsealing of the summary judgment
record as described further herein, and REMAND the cause to the
District Court for particularized review of the remaining sealed
materials.

      Judge Pooler concurs in this opinion except insofar as it orders
the immediate unsealing of the summary judgment record without a
remand.




                         SANFORD L. BOHRER (Christine N. Walz,
                         Madelaine J. Harrington, New York, NY, on
                         the brief), Holland & Knight LLP, Miami, FL,
                         for Intervenors‐Appellants Julie Brown and
                         Miami Herald.

                         TY GEE (Adam Mueller, on the brief),
                         Haddon, Morgan and Foreman, P.C.,
                         Denver, CO, for Defendant‐Appellee Ghislaine
                         Maxwell.




                                    3
                         PAUL G. CASSELL (Sigrid S. McCawley, Boies
                         Schiller Flexner LLP, Ft. Lauderdale, FL, on
                         the brief), S.J Quinney College of Law,
                         University of Utah, Salt Lake City, UT, for
                         Plaintiff‐Appellee Virginia L. Giuffre.

                         ANDREW G. CELLI JR. (David A. Lebowitz, on
                         the brief), Emery, Celli, Brinckerhoff &
                         Abady LLP, New York, NY, for Intervenor‐
                         Appellant Alan M. Dershowitz.

                         MARC RANDAZZA (Jay Marshall Wolman,
                         Las Vegas, NV, on the brief), Randazza Legal
                         Group, PLLC, Hartford, CT, for Intervenor‐
                         Appellant Michael Cernovich.




JOSÉ A. CABRANES, Circuit Judge:

      Intervenors‐Appellants Alan M. Dershowitz (“Dershowitz”),
Michael Cernovich (“Cernovich”), and the Miami Herald Company
(with reporter Julie Brown, jointly the “Herald”) appeal from certain
orders of the United States District Court for the Southern District of
New York (Robert W. Sweet, Judge) denying their respective motions
to unseal filings in a defamation suit. We conclude that the District
Court failed to conduct the requisite particularized review when
ordering the sealing of the materials at issue. At the same time, we




                                   4
recognize the potential damage to privacy and reputation that may
accompany public disclosure of hard‐fought, sensitive litigation. We
therefore clarify the legal tools that district courts should use in
safeguarding the integrity of their dockets. Accordingly, we VACATE
the District Court’s orders entered on November 2, 2016, May 3, 2017,
and August 27, 2018, ORDER the unsealing of the summary judgment
record as described further herein, and REMAND the cause to the
District Court for particularized review of the remaining sealed
materials.

                         I.    BACKGROUND

      A. Jeffrey Epstein’s Conviction and the CVRA Suit

      The origins of this case lie in a decade‐old criminal proceeding
against financier Jeffrey Epstein (“Epstein”). On June 30, 2008, Epstein
pleaded guilty to Florida state charges of soliciting, and procuring a
person under the age of eighteen for, prostitution. The charges
stemmed from sexual activity with privately hired “masseuses,” some
of whom were under eighteen, Florida’s age of consent. Pursuant to
an agreement with state and federal prosecutors, Epstein pleaded to
the state charges. He received limited jail‐time, registered as a sex
offender, and agreed to pay compensation to his victims. In return,
prosecutors declined to bring federal charges.

      Shortly after Epstein entered his plea, two of his victims,
proceeding as “Jane Doe 1” and “Jane Doe 2,” filed suit against the
Government in the Southern District of Florida under the Crime
Victims’ Rights Act (“CVRA”). The victims sought to nullify the plea




                                   5
agreement, alleging that the Government failed to fulfill its legal
obligations to inform and consult with them in the process leading up
to Epstein’s plea deal.1

       On December 30, 2014, two additional unnamed victims—one
of whom has now self‐identified as Plaintiff‐Appellee Virginia Giuffre
(“Giuffre”)—petitioned to join in the CVRA case. These petitioners
included in their filings not only descriptions of sexual abuse by
Epstein, but also new allegations of sexual abuse by several other
prominent individuals, “including numerous prominent American
politicians, powerful business executives, foreign presidents, a well‐
known Prime Minister, and other world leaders,” as well as
Dershowitz (a long‐time member of the Harvard Law School faculty
who had worked on Epstein’s legal defense) and Defendant‐Appellee
Ghislaine Maxwell (“Maxwell”).2

       Dershowitz moved to intervene, seeking to “strike the
outrageous and impertinent allegations made against him and to
request a show cause order to the attorneys that have made them.”3
Exercising its authority to “strike from a pleading an insufficient


       1   On February 21, 2019, the Florida District Court ruled that federal
prosecutors had violated the CVRA by failing to adequately notify the two victims‐
plaintiffs of the plea deal. The District Court has not yet determined the appropriate
remedy. See Doe 1 v. United States, 359 F. Supp. 3d 1201, 1204–17 (S.D. Fla. 2019).
       2 Doe 1 v. United States, No. 08‐CV‐80736‐KAM, 2015 WL 11254692, at *2 (S.D.
Fla. Apr. 7, 2015) (internal quotation marks omitted).
       3   Id. (internal quotation marks and brackets omitted).




                                           6
defense or any redundant, immaterial, impertinent, or scandalous
matter . . . on its own,”4 the Florida District Court (Kenneth A. Marra,
Judge) sua sponte struck all allegations against additional parties from
the pleadings, including those against Dershowitz, and therefore
denied Dershowitz’s motion as moot.5

      The stricken allegations, however, quickly found their way into
the press, and several media outlets published articles repeating
Giuffre’s accusations. In response to the allegations, on January 3,
2015, Maxwell’s publicist issued a press statement declaring that
Giuffre’s allegations “against Ghislaine Maxwell are untrue” and that
her “claims are obvious lies.”6

      B. Giuffre Sues Maxwell

      On September 21, 2015, Giuffre filed the underlying action
against Maxwell in the Southern District of New York. Giuffre alleged
that Maxwell had defamed her through this and other public
statements. Extensive and hard‐fought discovery followed. Due to the
volume of sealing requests filed during discovery, on August 9, 2016,
the District Court entered a Sealing Order that effectively ceded
control of the sealing process to the parties themselves. The Sealing
Order disposed of the requirement that the parties file individual letter
briefs to request sealing and prospectively granted all of the parties’


      4   Fed. R. Civ. P. 12(f).
      5   Doe 1, 2015 WL 11254692, at *2–3.
      6   See Giuffre v. Maxwell, 325 F. Supp. 3d 428, 434 (S.D.N.Y. 2018).




                                           7
future sealing requests. In total, 167 documents—nearly one‐fifth of
the docket—were filed under seal. These sealed documents include,
inter alia, motions to compel discovery, motions for sanctions and
adverse inferences, motions in limine, and similar material.

      On January 6, 2017, Maxwell filed a motion for summary
judgment. The parties submitted their memoranda of law and
supporting exhibits contesting this motion under seal. On March 22,
2017, the District Court denied the motion in a heavily redacted 76‐
page opinion. Once again, the entire summary judgment record,
including the unredacted version of the District Court opinion
denying summary judgment, remained under seal. On May 24, 2017,
Maxwell and Giuffre executed a settlement agreement, and the case
was closed the next day.

      C. Motions to Intervene and Unseal

      Over the course of the litigation before Judge Sweet, three
outside parties attempted to unseal some or all of the sealed material.
On August 11, 2016, Dershowitz moved to intervene, seeking to unseal
three documents that, he argues, demonstrate that Giuffre invented
the accusations against him. On January 19, 2017, Cernovich, an
independent        blogger      and      self‐described   “popular   political
journalist,”7 moved to intervene, seeking to unseal the summary
judgment record, and Dershowitz joined his motion. On April 6, 2018,
after the case had settled, the Herald moved to intervene and unseal


      7   Br. Appellant (Cernovich) 4.




                                          8
the entire docket. The District Court granted each of these motions to
intervene, but denied the related requests to unseal in orders entered
November 2, 2016, May 3, 2017, and August 27, 2018, respectively.

      The Appellants timely appealed from each of the orders
denying their respective motions to unseal. Although each Appellant
seeks the release of a different set of documents, all argue that the
District Court failed to analyze the documents individually or
properly apply the presumption of public access to court documents.
We therefore ordered that the appeals be heard in tandem and held
argument on March 6, 2019.

      On March 11, 2019, we issued an order to show cause why we
“should not unseal the summary judgment motion, including any
materials filed in connection with this motion, and the District Court’s
summary judgment decision.”8 The parties timely filed their
responses.

                                II.    DISCUSSION

      There are two categories of sealed material at issue in these
appeals: (1) the summary judgment record, which includes the parties’
summary judgment briefs, their statements of undisputed facts, and
incorporated exhibits; and (2) court filings made in the course of the
discovery process and with respect to motions in limine. In this
Opinion, we explain that our law requires the unsealing of the



      8   Giuffre v. Maxwell, No. 18‐2868‐cv, Docket No. 138.




                                          9
summary judgment materials and individualized review of the
remaining sealed materials.

      While the law governing public access to these materials is
largely settled, we have not yet adequately addressed the potential
harms that often accompany such access. These harms are apparent.
Over forty years ago, the Supreme Court observed that, without
vigilance, courts’ files might “become a vehicle for improper
purposes.”9       Our legal process is already susceptible to abuse.
Unscrupulous litigants can weaponize the discovery process to
humiliate and embarrass their adversaries. Shielded by the “litigation
privilege,”10 bad actors can defame opponents in court pleadings or
depositions without fear of lawsuit and liability. Unfortunately, the
presumption of public access to court documents has the potential to
exacerbate these harms to privacy and reputation by ensuring that
damaging material irrevocably enters the public record.

      We therefore take the opportunity to describe the tools available
to district courts in protecting the integrity of the judicial process, and
emphasize the courts’ responsibility to exercise these powerful tools.
We also caution the public to critically assess allegations contained in
judicial pleadings.




      9   Nixon v. Warner Commcʹns, Inc., 435 U.S. 589, 598 (1978).
      10   See notes 46–47 and accompanying text, post.




                                          10
       A. Standard of Review

       When reviewing a district court’s decision to seal a filing or
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.”11

       B. The Summary Judgment Materials

       With respect to the first category of materials, it is well‐settled
that “documents submitted to a court for its consideration in a
summary judgment motion are—as a matter of law—judicial
documents to which a strong presumption of access attaches, under
both the common law and the First Amendment.”12 In light of this
strong First Amendment presumption, “continued sealing of the
documents may be justified only with specific, on‐the‐record findings
that sealing is necessary to preserve higher values and only if the
sealing order is narrowly tailored to achieve that aim.”13


       11 Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139
(2d Cir. 2016).
       12 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). We
observe that our holding in Lugosch relies on the general principle that parties may
“be assumed to have supported their papers with admissible evidence and non‐
frivolous arguments.” Id. at 122. Insofar as a district court has, through striking a
filing, specifically found that assumption inapplicable, the categorical rule in
Lugosch may not apply. See notes 42–43 and accompanying text, post.
       13Id. at 124. Examples of such countervailing values may include,
depending on the circumstances, preserving “the right of an accused to
fundamental fairness in the jury selection process,” Press‐Enter. Co. v. Superior Court




                                          11
        In this case, the District Court erred in several respects.14 First, it
failed to give proper weight to the presumption of access that attaches
to documents filed in connection with summary judgment motions.
The District Court reasoned that the summary judgment materials
were “entitled to a lesser presumption of access” because “summary
judgment was denied by the Court.”15 In assigning a “lesser
presumption” to such materials, the District Court relied on a single
sentence of dicta from our decision in United States v. Amodeo.16 We
have since clarified, however, that this sentence was based on a
“quotation from a partial concurrence and partial dissent in the D.C.
Circuit . . . [and] is thus not the considered decision of either this court
or the D.C. Circuit.”17 In fact, we have expressly rejected the
proposition that “different types of documents might receive different

of California, Riverside Cty., 464 U.S. 501, 510 (1984); the protection of attorney‐client
privilege, Lugosch, 435 F.3d at 125; “the danger of impairing law enforcement or
judicial efficiency,” SEC. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir. 2001); and “the
privacy interest of those who resist disclosure,” id.
        14Our discussion here focuses specifically on the District Court’s denial of
the Herald’s motion to unseal the entire record. Because this decision grants relief
to all Appellants, we need not discuss any separate, additional error in the District
Court’s denial of the earlier motions to unseal.
        15   Giuffre, 325 F. Supp. 3d at 444.
        1671 F.3d 1044, 1049 (2d Cir. 1995) (“Amodeo II”) (“One judge [in the District
of Columbia Circuit] has pointed out, for example, that where a district court
denied the summary judgment motion, essentially postponing a final determination
of substantive legal rights, the public interest in access is not as pressing.” (internal
quotation marks omitted; emphasis in original)).
        17   Lugosch, 435 F.3d at 121.




                                                12
weights of presumption based on the extent to which they were relied
upon in resolving [a] motion [for summary judgment].”18

       Second, in contravention of our precedent, the District Court
failed to review the documents individually and produce “specific, on‐
the‐record findings that sealing is necessary to preserve higher
values.”19 Instead, the District Court made generalized statements
about the record as a whole.20 This too was legal error.

       Finally, upon reviewing the summary judgment materials in
connection with this appeal, we find that there is no countervailing
privacy interest sufficient to justify their continued sealing. Remand
with respect to these documents is thus unnecessary. Accordingly, and
to avoid any further delay,21 we order that the summary judgment
documents (with minimal redactions) be unsealed upon issuance of
our mandate.22


       18   Id. at 123.
       19   Id. at 124.
       20 See, e.g., Giuffre, 325 F. Supp. 3d at 445 (summarily concluding that all
“[t]he Summary Judgment Judicial Documents openly refer to and discuss these
allegations [of sexual assault and sexual trafficking] in comprehensive detail, and
that those allegations “establish[] a strong privacy interest here”).
       21Cf. Lugosch, 435 F.3d at 127 (ordering that “the mandate shall issue
forthwith” to expedite the unsealing process).
       22Upon issuance of our mandate, a minimally redacted version of the
summary judgment record will be made accessible on the Court of Appeals docket.
We have implemented minimal redactions to protect personally identifying
information such as personal phone numbers, contact lists, birth dates, and social




                                        13
       C. The Remaining Sealed Materials

       The law governing disclosure of the remaining sealed material
in this case is only slightly more complex. The Supreme Court has
recognized a qualified right “to inspect and copy judicial records and
documents.”23 In defining “judicial records and documents,” we have
emphasized that “the mere filing of a paper or document with the
court is insufficient to render that paper a judicial document subject to
the right of public access.”24 Instead, “the item filed must be relevant
to the performance of the judicial function and useful in the judicial
process in order for it to be designated a judicial document.”25

       As our precedent makes clear, a court “perform[s] the judicial
function” not only when it rules on motions currently before it, but
also when properly exercising its inherent “supervisory powers.”26 A

security numbers. We have also redacted the names of alleged minor victims of
sexual abuse from deposition testimony and police reports, as well as deposition
responses concerning intimate matters where the questions were likely only
permitted—and the responses only compelled—because of a strong expectation of
continued confidentiality. See Fed. R. Civ. P. 5.2. While we appreciate the views
expressed in Judge Pooler’s separate opinion, the panel majority believes that the
efforts invested by three former district judges in reviewing these materials
adequately address those concerns.
       23   Nixon, 435 U.S. at 597–98.
       24   United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (“Amodeo I”).
       25   Id.
       26Cf. United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017)
(explaining that, in considering whether the report of a monitor charged with
assessing compliance with a deferred prosecution agreement is a judicial




                                           14
document is thus “relevant to the performance of the judicial function”
if it would reasonably have the tendency to influence a district court’s
ruling on a motion or in the exercise of its supervisory powers, without
regard to which way the court ultimately rules or whether the
document ultimately in fact influences the court’s decision.27
Accordingly, if in applying these standards, a court determines that
documents filed by a party are not relevant to the performance of a
judicial function, no presumption of public access attaches.28

       Once an item is deemed relevant to the exercise of judicial
power, “the weight to be given the presumption of access must be
governed by the role of the material at issue in the exercise of Article
III judicial power and the resultant value of such information to those



document, “[i]f the district court’s conception of its supervisory power in this
context were correct, the Monitor’s Report would quite obviously be relevant to the
performance of the judicial function and useful in the judicial process” (internal
quotation marks omitted)). Whether a specific judicial decision constitutes a
“performance of the judicial function” is a question of law. Accordingly, we review
such determinations de novo. Id. at 134.
       27  Amodeo I, 44 F.3d at 145–46 (concluding that documents were relevant to
the performance of a judicial function because they would have “informed” the
district court’s decision whether to discharge or retain a Receiver); see also FTC. v.
Standard Fin. Mgmt. Corp., 830 F.2d 404, 409 (1st Cir. 1987) (citing Federal Rule of
Evidence 401’s “having any tendency” definition of relevance in determining
whether documents were “judicial documents”).
       28  As we explain below, there are several (often preferable) tools beyond
sealing that district courts can use to protect their dockets from becoming a vehicle
for irrelevant—and potentially defamatory—accusations. See Section D, post.




                                         15
monitoring the federal courts.”29 Thus, while evidence introduced at
trial or in connection with summary judgment enjoys a strong
presumption of public access, documents that “play only a negligible
role in the performance of Article III duties” are accorded only a low
presumption that “amounts to little more than a prediction of public
access absent a countervailing reason.”30 Documents that are never
filed with the court, but simply “passed between the parties in
discovery, lie entirely beyond the presumption’s reach.”31

       The remaining sealed materials at issue here include filings
related to, inter alia, motions to compel testimony, to quash trial
subpoenae, and to exclude certain deposition testimony. All such
motions, at least on their face, call upon the court to exercise its Article
III powers. Moreover, erroneous judicial decision‐making with respect
to such evidentiary and discovery matters can cause substantial harm.
Such materials are therefore of value “to those monitoring the federal
courts.”32 Thus, all documents submitted in connection with, and
relevant to, such judicial decision‐making are subject to at least some
presumption of public access.33


       29   Amodeo II, 71 F.3d at 1049.
       30   Id. at 1050.
       31   Id.
       32   Id. at 1049.
       33In previous decisions, we have identified an important exception to this
general rule: 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




                                          16
       Although a court’s authority to oversee discovery and control
the evidence introduced at trial surely constitutes an exercise of
judicial power, we note that this authority is ancillary to the court’s
core role in adjudicating a case. Accordingly, the presumption of
public access in filings submitted in connection with discovery
disputes or motions in limine is generally somewhat lower than the
presumption applied to material introduced at trial, or in connection
with dispositive motions such as motions for dismissal or summary
judgment.34 Thus, while a court must still articulate specific and
substantial reasons for sealing such material, the reasons usually need
not be as compelling as those required to seal summary judgment
filings.

       Here, the precise basis for the District Court’s decision to deny
the motion to unseal these remaining materials is unclear. In the three
paragraphs devoted to the issue, the District Court emphasized the
potential for embarrassment “given the highly sensitive nature of the
underlying allegations,” and concluded that “the documents sealed in
the course of discovery were neither relied upon by [the District] Court
in the rendering of an adjudication, nor necessary to or helpful in
resolving a motion.”35 It is therefore unclear whether the District Court
held that these materials were not judicial documents (and thus are

material must be disclosed in the discovery process or shielded by a Protective
Order. See TheStreet.Com, 273 F.3d at 233.
       34   Amodeo II, 71 F.3d at 1049–50.
       35   Giuffre, 325 F. Supp. 3d. at 442 (internal quotation marks and brackets
omitted).




                                             17
not subject to a presumption of public access), or found that privacy
interests outweighed a limited right of public access.

       On either interpretation, however, the District Court’s holding
was error. Insofar as the District Court held that these materials are not
judicial documents because it did not rely on them in adjudicating a
motion, this was legal error. As explained above, the proper inquiry is
whether the documents are relevant to the performance of the judicial
function, not whether they were relied upon.36 Indeed, decision‐
makers often find that a great deal of relevant material does not
ultimately sway their decision. And insofar as the District Court held
that privacy interests outweigh the presumption of public access in
each of the thousands of pages at issue, that decision—which appears
to have been made without particularized review—amounts to an
abuse of discretion.37

       In light of the District Court’s failure to conduct an
individualized review of the sealed materials, it is necessary to do so
now. We believe the District Court is best situated to conduct this
review. The District Court can directly communicate with the parties,
and can therefore more swiftly and thoroughly consider particular
objections to unsealing specific materials. Relatedly, the District Court
can obtain the parties’ assistance in effecting any necessary redactions,
and in notifying any outside parties whose privacy interests might be


       36   See text accompanying notes 12–18 and 26–28, ante.
       37See In re City of New York, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (explaining
that “abuse of discretion” is a nonpejorative, legal “term of art”).




                                          18
implicated by the unsealing. Accordingly, we remand the cause to the
District Court to conduct such a particularized review and unseal all
documents for which the presumption of public access outweighs any
countervailing privacy interests.

      D. Protecting the Integrity of Judicial Proceedings

      While we disagree with the District Court’s disposition of the
motions to unseal, we share its concern that court files might be used
to “promote scandal arising out of unproven potentially libelous
statements.”38 We therefore describe certain methods courts can
employ to protect the judicial process from being coopted for such
purposes.

      The Supreme Court has explained that “[e]very court has
supervisory power over its own records and files” to ensure they “are
not used to gratify private spite or promote public scandal” or “serve
as reservoirs of libelous statements for press consumption.”39 This
supervisory function is not only within a district court’s power, but
also among its responsibilities.

      In practice, district courts may employ several methods to fulfill
this function. They may, for instance, issue protective orders
forbidding dissemination of certain material “to protect a party or
person from annoyance, embarrassment, oppression, or undue

      38   Giuffre, 325 F. Supp. 3d at 447.
      39   Nixon, 435 U.S. at 598 (internal quotation marks).




                                              19
burden” and require that filings containing such material be submitted
under seal.40 If parties then seek to file such materials, the court may
deny them leave to do so.41 District courts may also seek to counteract
the effect of defamatory statements by explaining on the record that
the statements appear to lack credibility. Moreover, under Federal
Rule of Civil Procedure 12(f), the district court may strike such
material from the filings on the grounds that it is “redundant,
immaterial, impertinent, or scandalous.”42 Because such rejected or
stricken material is not “relevant to the performance of the judicial
function” it would not be considered a “judicial document” and would
enjoy no presumption of public access.43 Finally, in appropriate



       40   Fed. R. Civ. P. 26(c); see also TheStreet.Com, 273 F.3d at 229–30.
       41 See, e.g., S.D.N.Y. Electronic Case Filing Rules & Instructions, February 1,
2019                        Edition,                     Rule                     6.1,
http://nysd.uscourts.gov/ecf/ECF%20Rules%20020119%20Final.pdf.
       42  Fed. R. Civ. P. 12(f). Courts may strike material from the pleadings either
“on its own” or “on motion made by a party.” Id. Although motions to strike
material solely “on the ground that the matter is impertinent and immaterial” are
disfavored, when material is also “scandalous,” no such presumption applies. Cf.
Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976); see also Talbot
v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992)
(“Allegations may be stricken as scandalous if the matter bears no possible relation
to the controversy or may cause the objecting party prejudice.”); Wine Markets Intʹl,
Inc. v. Bass, 177 F.R.D. 128, 133 (E.D.N.Y. 1998) (“Motions to strike are not generally
favored, except in relation to scandalous matters.”); Alvarado‐Morales v. Digital
Equip. Corp., 843 F.2d 613, 617–18 (1st Cir. 1988) (categorizing as scandalous “matter
which impugned the character of defendants”).
       43   Amodeo I, 44 F.3d at 145.




                                            20
circumstances, district courts may impose sanctions on attorneys and
parties under Federal Rule of Civil Procedure 11(c).44

       E. A Cautionary Note

       We conclude with a note of caution to the public regarding the
reliability of court filings such as those unsealed today.

       Materials submitted by parties to a court should be understood
for what they are. They do not reflect the court’s own findings. Rather,
they are prepared by parties seeking to advance their own interests in
an adversarial process. Although affidavits and depositions are
offered “under penalty of perjury,” it is in fact exceedingly rare for
anyone to be prosecuted for perjury in a civil proceeding.45 Similarly,

       44   In relevant part, Rule 11 provides:

       By presenting to the court a pleading, written motion, or other paper . . . an
       attorney or unrepresented party certifies that . . . it is not being presented
       for any improper purpose, such as to harass, cause unnecessary delay, or
       needlessly increase the cost of litigation . . . . [T]he court may impose an
       appropriate sanction on any attorney, law firm, or party that violated the
       rule or is responsible for the violation . . . . The sanction may include
       nonmonetary directives; an order to pay a penalty into court; or, if imposed
       on motion and warranted for effective deterrence, an order directing
       payment to the movant of part or all of the reasonable attorney’s fees and
       other expenses directly resulting from the violation.

Fed. R. Civ. P. 11. See also Amodeo II, 71 F.3d at 1049 (describing sanctions available
to the court).
       45  Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and
Politics: A Modern Approach, 30 Suffolk U. L. Rev. 35, 47 n.52 (1996) (ʺPerjury cases
are not often pursued . . . .”).




                                           21
pleadings, complaints, and briefs—while supposedly based on
underlying evidentiary material—can be misleading. Such documents
sometimes draw dubious inferences from already questionable
material or present ambiguous material as definitive.

         Moreover, court filings are, in some respects, particularly
susceptible to fraud. For while the threat of defamation actions may
deter malicious falsehoods in standard publications, this threat is non‐
existent with respect to certain court filings. This is so because, under
New York law (which governs the underlying defamation claim here),
“absolute immunity from liability for defamation exists for oral or
written statements made . . . in connection with a proceeding before a
court.”46 Thus, although the act of filing a document with a court might
be thought to lend that document additional credibility, in fact,
allegations appearing in such documents might be less credible than
those published elsewhere.47


         46Front, Inc. v. Khalil, 24 N.Y.3d 713, 718 (2015); see also Kelly v. Albarino, 485
F.3d 664, 666 (2d Cir. 2007) (adopting the reasoning of the District Court explaining
that this privilege is “the broadest of possible privileges”); Restatement (Second) of
Torts § 587 (1977) (“A party to a private litigation or a private prosecutor or
defendant in a criminal prosecution is absolutely privileged to publish defamatory
matter concerning another in communications preliminary to a proposed judicial
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 relation to the
proceeding.”). But see note 47, post.
    47While common law courts have generally interpreted the litigation privilege
broadly, they nevertheless maintain an important (if rarely implemented)
limitation on its scope: to qualify for the privilege, a statement must be “material
and pertinent to the questions involved.” Front, 24 N.Y.3d at 718 (quoting Youmans




                                            22
       We have long noted that the press plays a vital role in ensuring
the public right of access and in enhancing “the quality and safeguards
the integrity of the factfinding process.”48 When faithfully observing
its best traditions, the print and electronic media “contributes to public
understanding of the rule of law” and “validates [its] claim of
functioning as surrogates for the public.”49

       At the same time, the media does the public a profound
disservice when it reports on parties’ allegations uncritically. We have
previously observed that courts cannot possibly “discredit every
statement or document turned up in the course of litigation,” and we
have criticized “the use by the media of the somewhat misleading term
‘court records’ in referring to such items.”50 Even ordinarily critical




v. Smith, 153 N.Y. 214, 219–20 (1897)). It follows, then, that immaterial and
impertinent statements are (at least nominally) actionable, particularly when they
are “so needlessly defamatory as to warrant the inference of express malice.” Id.
(same). It seems to us that when a district court strikes statements from the record
pursuant to Fed. R. Civ. P. 12(f) on the ground that the matter is “impertinent” and
“immaterial,” it makes the very same determination that permits a defamation
action under the common law. We think the judicial system would be well served
were our common law courts to revitalize this crucial qualification to the litigation
privilege.
       48Westmoreland v. Columbia Broad. Sys., Inc., 752 F.2d 16, 23 (2d Cir. 1984)
(quoting Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 606
(1982)).
       49Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572–73 (1980) (plurality
opinion) (internal quotation marks omitted).
       50   Amodeo II, 71 F.3d at 1049.




                                          23
readers may take the reference to “court papers” as some sort of
marker of reliability. This would be a mistake.

      We therefore urge the media to exercise restraint in covering
potentially defamatory allegations, and we caution the public to read
such accounts with discernment.

                                III. CONCLUSION

      To summarize, we hold as follows:

      (1) Materials submitted in connection with a motion for
            summary judgment are subject to a strong presumption of
            public access.

      (2) The summary judgment record at issue will be unsealed
            upon issuance of our mandate, subject to minimal
            redactions.51

      (3) Materials submitted in connection with, and relevant to,
            discovery motions, motions in limine, and other non‐
            dispositive motions are subject to a lesser—but still
            substantial— presumption of public access.

      (4) The District Court is directed to review the remaining sealed
            materials individually and unseal those materials as
            appropriate.



      51   See note 22, ante.




                                      24
      (5) District courts should exercise the full range of their
         substantial powers to ensure their files do not become
         vehicles for defamation.

      For the foregoing reasons, we VACATE the orders of the
District Court entered on November 2, 2016, May 3, 2017, and August
27, 2018, ORDER the unsealing of the summary judgment record as
described herein, and REMAND the cause to the District Court for
particularized review of the remaining materials.

      In undertaking this task, the District Court may be well‐served
by ordering the parties to submit to the Court unredacted, electronic
copies of the remaining sealed materials, as well as specific, proposed
redactions. The District Court may also order the parties to identify
and notify additional parties whose privacy interests would likely be
implicated by disclosure of these materials.

      In the interests of judicial economy, any future appeal in this
matter shall be referred to this panel.




                                    25
POOLER, Circuit Judge, dissenting in part:

      I join the Court’s opinion in every respect but one: the decision to unseal

the summary judgment record ourselves. I agree that all or most of the material

must be unsealed. Nevertheless, in my view, the district court is better suited to

the task. As the Court’s opinion recognizes in connection with the remaining

sealed materials, the district court is better positioned to communicate with the

parties and any nonparties whose privacy interests might be affected by

unsealing. On that score, it is worth clarifying here the breadth of the Court’s

unsealing order: it unseals nearly 2000 pages of material. The task of identifying

and making specific redactions in such a substantial volume is perilous; the

consequences of even a seemingly minor error may be grave and are irrevocable.

Moreover, although I share the majority’s concern about avoiding delay, I would

alleviate that concern through other means—perhaps with an order directing the

district court to act expeditiously and by making clear what types of limited

redactions are and are not appropriate. In sum, I would unseal the district court’s

summary judgment decision only and leave the remainder of the materials for

the district court to review, redact, and unseal on remand.
