United States: Second Circuit Addresses Requirements And Considerations For Sealing (And Unsealing) Allegedly Sensitive Documents Filed In Lawsuits

Reversing a series of decisions by the U.S. District Court for the Southern District of New York that sealed a number of court filings in a defamation action related to the allegations of sexual misconduct against financier Jeffrey Epstein, the Second Circuit Court of Appeals has ordered some documents unsealed, and thus open to public inspection. The Second Circuit has further ordered the district court to carefully review other filings to determine, on a document-by-document basis, whether those documents should remain under seal.

In Brown v. Maxwell, No. 18-2868-cv (2d Cir. July 3, 2019), the Second Circuit addressed not only standards for sealing court documents but also considerations courts must evaluate in seeking to satisfy First Amendment interests in public access to court documents, in respecting privacy issues and in limiting the prospect of litigants using court filings to make defamatory allegations.

In 2008, Epstein pleaded guilty to state charges in Florida of soliciting and procuring a minor for prostitution. In return, federal prosecutors declined to bring charges against him. After Epstein entered his plea, two of his alleged victims sued the government under the Crime Victims' Rights Act (CVRA), seeking to nullify Epstein's plea on the basis that the government had, in violation of the CVRA, failed to inform and consult with the alleged victims during the process leading up to the plea deal. On December 30, 2014, two more alleged Epstein victims petitioned to join the CVRA case (including Virginia Giuffre, the plaintiff in the case underlying the Second Circuit decision). Giuffre and the other individual included in their petitions to join the CVRA case allegations of sexual abuse not only by Epstein, but also others, including some powerful, prominent individuals. Some of those allegations were directed at Ghislaine Maxwell, Epstein's former partner. Maxwell's publicist made a statement to the press declaring that Giuffre's allegations "against Ghislaine Maxwell are untrue" and that Giuffre's "claims are obvious lies."

Giuffre sued Maxwell for defamation in the Southern District of New York on September 21, 2015, based on the statements quoted above, among others. In response to the large number of sealing requests filed during discovery, on August 9, 2016, District Court Judge Robert Sweet entered a sealing order that, according to the Second Circuit, "effectively ceded control of the sealing process to the parties themselves." The sealing order provided that, rather than making a request by letter to the court each time a party wanted to seal a document filed with the court, all parties' future sealing requests were granted. Nearly one-fifth of the documents filed in the case were filed under seal, and therefore inaccessible to public view, including a summary judgment motion. On May 24, 2017, Maxwell and Giuffre settled the defamation lawsuit and the case was closed.

Over the course of the litigation, two individuals made motions to intervene in the case and to unseal some of the sealed documents. On April 6, 2018, nearly a year after the case ended, the Miami Herald also made a motion to intervene and to unseal all of the filings in the lawsuit. The district court denied the requests to unseal, noting the potential for embarrassment "given the highly sensitive nature of the underlying allegations." Each of the requestors appealed.

The Second Circuit's decision overturning those denials divided the sealed materials into two categories: the summary judgment motion papers and decision, and other court filings made during concerning discovery and evidentiary issues. The Second Circuit recognized that, while the law governing public access to court files "is largely settled, we have not yet adequately addressed the potential harms that accompany such access." More specifically, and as set forth by the Second Circuit over a dozen years ago in Lugosch v. Pyramid Co. of Onondaga, 453 F.3d 110, 121 (2d Cir. 2006), judicial documents, including summary judgment motions, carry a "strong presumption of access...  under both the common law and the First Amendment." In light of that 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." Id.

With respect to the summary judgment filings, the Second Circuit stated that the district court had not given proper weight to that presumption of access, and that rather than making specific, on-the-record findings that sealing the records was necessary to preserve higher values, the district court had instead made generalized statements about privacy interests implicated by the entire court record. The Second Circuit also reviewed the specific summary judgment documents and determined that, beyond some items that would be redacted before public release (including personally identifying information, names of alleged minor victims and testimony concerning intimate matters where the questions eliciting the testimony were likely only permitted because of a strong expectation of continued confidentiality), there was no countervailing privacy interest that warranted continued sealing.

The remainder of the sealed documents consisted of, among other things, filings relating to motions on evidentiary and discovery issues. The Second Circuit explained that the presumption of access to judicial records and documents applied not to each paper or document filed with the court, but rather to items "relevant to the performance of the judicial function" in that they have "the tendency to influence a district court's ruling on a motion or in the exercise of its supervisory powers," and items that are "useful in the judicial process." (Emphasis in original.) How large of a role a document plays in the performance of these functions and how useful the information in these documents is to those monitoring federal courts would determine the strength of the presumption of public access. While the remaining documents might not carry as strong a presumption of access as the summary judgment filings, the Second Circuit did find that those documents, concerning decision-making about evidentiary and discovery issues that could result in substantial harm if wrongly decided, were therefore "subject to at least some presumption of public access." Because of this, the Second Circuit found that the district court abused its discretion in failing to make a particularized review of the documents that would allow it to articulate "specific and substantial reasons for sealing" that material, even though the reasons for sealing "usually need not be as compelling as those required to seal summary judgment findings." The Second Circuit therefore directed the district court to conduct an individualized review of the remaining sealed documents and unseal any for which the presumption of public access outweighed any countervailing privacy interests.

While it reversed the district court's denial of the motions to unseal the documents, the Second Circuit agreed with the Supreme Court of the United States' decision in Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978), warning that "without vigilance, courts' files might 'become a vehicle for improper purposes.'" It acknowledged that "[u]nscrupulous litigants can weaponize the discovery process to humiliate and embarrass their adversaries" or "defame opponents in court pleadings or at depositions without fear of lawsuit and liability" because of the protection from defamation liability given to statements made in litigation. In order to protect the integrity of the judicial process that might be abused by certain litigants, the Second Circuit, again agreeing with Nixon, reminded district courts that judges have not only the power, but also the responsibility to exert "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." To try to guard against this outcome, the Second Circuit said that the district courts' power and responsibility to supervise litigation can be exercised in several ways, including:

  • Issuing protective orders that protect against "annoyance, embarrassment, oppression, or undue burden" by forbidding the dissemination of such certain sensitive information and requiring that it be filed under seal, and then considering (and denying, if necessary) motions for leave to file documents under seal (including, presumably, a determination of whether the documents at issue meet the criteria of the protective order);
  • Explaining with on-the-record findings as to why a court believed that defamatory statements made before it appeared to lack credibility;
  • Striking "redundant, immaterial, impertinent, or scandalous" material from filings under Federal Rule of Civil Procedure 12(f)―because as such material would not be "relevant to the performance of the judicial function," it would not enjoy a presumption of public access; and
  • Sanctioning attorneys and parties where appropriate for filing papers submitted for an improper purpose.

The Second Circuit sounded "a note of caution to the public regarding the reliability of court filings" such as those the court ordered unsealed. Documents filed with a court, the Second Circuit pointed out, do not reflect a court's findings or guarantee their accuracy. Indeed, such documents in some respect are "particularly susceptible to fraud," because the litigation privilege protects statements in court filings from the defamation liability that attaches to malicious falsehoods in other publications. In a footnote, the Second Circuit opined "the judicial system would be well served" if the courts were to "revitalize" the qualification to the litigation privilege that, to qualify for the protection, a statement must be material and pertinent to the questions involved. The Second Circuit further reflected that a finding that material was appropriate to strike from a filing as "impertinent" or "immaterial" should also take it out of the protection of the litigation privilege.

Finally, the Second Circuit criticized the media's practice of referring to filings as "court papers" because this could give such filings a patina of reliability that they do not deserve. However, it also noted the service done by the media in contributing to public understanding of the rule of law and functioning as surrogates for the public and urged the media to "exercise restraint in covering potentially defamatory allegations." In so doing, the Second Circuit appeared to recognize that, while it was providing public access to a number of documents in a highly publicized controversy involving very sensitive subject matter, it was doing so in a way that counseled caution and careful reflection by the media and the public in reporting and consuming such information.

The Second Circuit's analysis in Brown provides valuable insight to trial courts (and the media) regarding future requests to seal (or unseal) documents used in legal proceedings. While documents relevant to the performance of the judicial function retain a presumption of access, courts have the ability to prevent the disclosure of scandalous and impertinent materials where they can articulate specific and substantial reasons to overcome the presumption of access.

For Further Information

If you have any questions about this Alert, please contact Cynthia L. Counts, Kenneth M. Argentieri, Amy C. Gross, any of the attorneys in the Media and Communications Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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