Professional Documents
Culture Documents
Giuffre v. Ghislaine Maxwell, No. 15 Civ. 7433 (LAP)
Giuffre v. Ghislaine Maxwell, No. 15 Civ. 7433 (LAP)
Paragraphs 4-5 of the October 28 Order provide that the proponents of sealing shall
submit a letter “informing the Court of their views of the effect of a motion’s being undecided
on whether the motion papers are or are not a judicial document.” On behalf of defendant
Ghislaine Maxwell, we submit that undecided motions are non-judicial documents for the
In defining “judicial records and documents,” the Second Circuit “ha[s] 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.’” Brown v. Maxwell, 929 F.3d 41, 49
(2d Cir. 2019) (emphasis supplied; footnote omitted; quoting United States v. Amodeo, 44 F.3d
141, 145 (2d Cir. 1995) (“Amodeo I”)). Amodeo I, the inception of the Second Circuit’s
appointed Court Officer tasked with an investigation for the District Court for the Southern
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District of New York prepared and filed with the court a sealed report of her investigation.
Newsday moved to unseal the report. After the court released an edited and redacted copy of
If its mere filing transformed the report into a judicial document, Amodeo I would have
been categorical and succinct. It was neither. The decision turned on the Second Circuit’s
lengthy discussion of the First and Third Circuits’ divergent approaches to the question, when
is a mere document transformed into a judicial one? The Third Circuit’s focus was “‘on the
technical question of whether a document is physically on file with the court.’” Amodeo I, 44
F.3d at 145 (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 782 (3d Cir. 1994)). In that
circuit if a document is filed with a court, it is a judicial document; otherwise it is not. See id.
(citing Pansy, 23 F.3d at 782). The Amodeo I court cited two other Third Circuit cases
America National Trust and Savings Association v. Hotel Rittenhouse Association, 800 F.2d 339,
344-45 (3d Cir. 1986) (“Once a settlement is filed in the district court, it becomes a judicial
record, and subject to the access accorded such records.”); Leucadia, Inc. v. Applied Extrusion
Technologies, Inc., 998 F.2d 157, 161-62 (3d Cir. 1993) (listing cases in which “other courts have
also recognized the principle that the filing of a document gives rise to a presumptive right of
The First Circuit “has taken a somewhat different approach,” id. In that circuit
“documents must have a role in the adjudication process in order to be accessible and . . .
documents that have no such role, such as those used in discovery, cannot be reached.” Id.
(citing Anderson v. Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986)). Amodeo I found instructive
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Honorable Loretta A. Preska
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F.T.C. v. Standard Financial Management Corp., 830 F.2d 404 (1st Cir. 1987). In F.T.C. a
district court relied upon financial records referenced in a proposed consent decree in deciding
whether to approve the decree. The First Circuit held the financial records were judicial
documents because they were submitted to the court as part of the decree-approval process,
they were “‘relevant and material” to the process, and the district court “relied upon the
documents in assessing the reasonableness of the order, i.e., in determining the litigants’
substantive rights, and in performing its adjudicatory function.’” Id. (quoting F.T.C., 830 F.2d
at 410).
We think 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. We think that 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.
Id. Brown was building on Amodeo I’s holding when it said, “As our precedent makes clear, a
court “‘perform[s] the judicial function’ . . . when it rules on motions currently before it.” Brown,
929 F.3d at 49 (emphasis supplied; footnote omitted; quoting Amodeo I, 44 F.3d at 145). And it
was building on Amodeo I when it said, “A 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 . . . .” Id. (emphasis supplied; footnote omitted; quoting Amodeo I, 44 F.3d at 145).
Both Brown accretions to the Amodeo I principle are themselves dependent upon the principle.
If a motion is not “currently before” the district court, then a fortiori the court is not
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“perform[ing] the judicial function.” And if a motion is not currently before the court, then
Brown’s holding was hardly a surprise. It followed S.E.C. v. TheStreet.Com, 273 F.3d
222, 233 (2d Cir. 2001). There the Second Circuit held that documents that “did not ‘directly
affect an adjudication’ nor . . . significantly ‘determine litigants’ substantive rights’” were not
judicial documents. (Brackets omitted; quoting United States v. Amodeo, 71 F.3d 1044, 1049
Intervenors Dershowitz and Miami Herald have argued that lapsed motions—motions
filed and never decided by the district court—nonetheless are judicial documents.
Mr. Dershowitz argued that Brown “rejected” the view that a submission never ruled on can
be a judicial document. In support he cites page 50, where the Brown court said “‘the proper
inquiry is whether the documents are relevant to the performance of the judicial function, not
whether they were relied upon.’” Doc.992, at 4 (emphasis supplied; quoting Brown). The Miami
Herald makes the same argument and uses the same quotation. Doc.994, at 6. Both Mr.
Dershowitz’s and the Miami Herald’s argument depend upon taking the Brown quotation
In Brown the Second Circuit addressed Judge Sweet’s order sealing certain summary
judgment materials. Judge Sweet ruled that the evidentiary materials in support of and
opposition to the summary judgment motion, which it denied, properly were sealed because
they “‘were neither relied upon by the [district court] in the rendering of an adjudication, nor
necessary to or helpful in resolving a motion.’” Brown, 929 F.3d at 50 (quoting district court’s
ruling).
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That is a very different question from the one the Court raised in its October 28 Order.
In the case before the Brown court Judge Sweet actually had reviewed the summary judgment
motion (and the supporting materials) before denying it. In contrast here the court is
considering the question whether motions (and supporting materials) Judge Sweet never
reviewed and never ruled on are judicial documents. It does not help answer the question for
Mr. Dershowitz and the Miami Herald to point to Brown for the proposition that documents
may be judicial ones even if never “relied upon.” It is a straw man. Brown teaches that a
court’s reliance on a document is irrelevant to whether it is a judicial one. But no one has
argued the lapsed motions are non-judicial documents because Judge Sweet did not rely on
them.
or not, but because it functionally is no different from one never filed. Neither involves a
situation in which a court is “rul[ing] on motions currently before it” and neither “would
reasonably have the tendency to influence” a district court’s decisions. See Brown, 929 F.3d at
49. In short a lapsed motion is “[ir]relevant to the performance of the judicial function” and
not at all “useful in the judicial process,” id. It therefore has no “resultant value . . . to those
monitoring the federal courts,” id., as there is nothing judicial to see there.
achieve the status of a negligibly judicial document merely by acquiring a file stamp and a hope
of judicial attention, it surely is disqualified when, as here, all hope is lost—the case is settled,
dismissed with prejudice, and closed years ago. It may retain its status as a filed document, but
Ty Gee