Court offers guidance on filing documents under seal

The Second Circuit has provided guidance on when it is appropriate for district courts to seal sensitive litigation material. It does so in the context of highly-publicized sexual misconduct allegations involving some well-known individuals, including Alan Dershowitz.

The case is Brown v. Maxwell, issued on July 2. The procedural history is complex. In 2008, financier Jeffrey Epstein pleaded guilty to sexual misconduct charges. Two of his victims sued the government seeking to nullify the plea agreement, claiming the government failed to inform and consult with them in the process leading up to the plea deal. Meanwhile, other victims (including Virginia Giuffre) petitioned the court to join that case, advancing new allegations against other prominent individuals, including Dershowitz,who worked on Epstein's legal defense. Dershowitz moved to intervene, successfully striking the allegations against him as immaterial, scandalous, et al. What next happened was that Giuffre sued Ghislaine Maxwell, who was among the notables accused of sexual misconduct. In the Giuffre case, the SDNY allowed the parties control over which documents to file under seal. Maxwell and Guiffre next settled their case after they briefed the summary judgment motion that Maxwell filed. The entire summary judgment motion was filed under seal. Dershowitz next petitioned the court to unseal that motion to demonstrate that Giuffre made up the allegations against him. The district court denied the motion to unseal the material.

The Court of Appeals (Cabranes, Pooler and Droney) resolves the appeal this way:

1. As for the summary judgment materials, the law presumes they are filed openly and not under seal, and that the court must arrive at specific and on-the-record findings that a narrowly-tailored sealing is necessary to preserve higher values. That did not happen here. The fact that the court denied the motion for summary judgment in the Maxwell case does not mean the materials may be kept under seal. The district court also failed to review the documents individually and make a particularized finding that the documents must remain under seal "to preserve higher values." The Court of Appeals decides to simply order that the summary judgment documents be unsealed for all the world to see.

2. As for the remaining sealed material, the Court of Appeals notes the presumption that judicial records should be open to all. Documents relating to motions to quash trial subpoenae and to exclude certain deposition testimony are therefore entitled to the public access presumption, as the public has the right to know how judges are resolving issues. In other words, documents related to judicial decision-making are usually available to all. But it is not clear why the district court kept these documents under seal. This issue returns to the district court to properly determine what documents may remain under seal.

The Second Circuit offers some commentary on all of this, as it shares the district court's concern that court files may be used to "promote scandal arising out of unproven potentially libelous statements." We know that anyone can say anything against anyone, even under oath. The Court notes that judges may issue protective orders forbidding dissemination of certain material to protect people from unfair embarrassment, etc. Trial judges may also note on the record that certain accusations lack credibility. And, there's always sanctions for lawyers and parties who abuse the process. The Court of Appeals also offers "a cautionary note" stating that materials submitted to a court may or not be true, and "do not reflect the court's own findings." This is all the more problematic because few people are actually prosecuted for perjury even when they file false affidavits. Also, court filings are susceptible to fraud, and you really can't sue someone for defamation for statements made in a court proceeding. The Court emphasizes that the media "does the public a profound disservice when it reports on parties' allegations uncritically." The Court concludes, "we therefore urge the media to exercise restraint in covering potentially defamatory allegations, and we caution the public to read such accounts with discernment." When the media or the public reads this cautionary tale or follows the Court's advise is another story.