Ghislaine Maxwell - Docket #25 - 2nd Circuit
Ghislaine Maxwell - Docket #25 - 2nd Circuit
Ghislaine Maxwell - Docket #25 - 2nd Circuit
20-2413
United States Court of Appeals
for the Second Circuit
VIRGINIA L. GIUFFRE,
Plaintiff-Appellee,
—against—
GHISLAINE MAXWELL,
Defendant-Appellant,
Ty Gee
Laura Menninger
Adam Mueller
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Tel 303.831.7364
Fax 303.832.2628
tgee@hmflaw.com; lmenninger@hmflaw.com; amueller@hmflaw.com
Attorneys for Defendant-Appellant Ghislaine Maxwell
Case 20-2413, Document 25, 07/31/2020, 2897547, Page2 of 14
Table of Contents
Table of Authorities ................................................................................................. ii
Introduction ............................................................................................................. 1
Argument ................................................................................................................. 4
I. Ms. Maxwell will suffer irreparable harm absent a stay because the denial of a
stay will moot her appeal. ................................................................................... 4
II. Ms. Maxwell has more than a substantial possibility of success on the merits. .. 5
III. A stay will cause no meaningful harm to plaintiff or the Miami Herald. ............ 6
Conclusion ............................................................................................................... 9
i
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Table of Authorities
Cases
Dubose v. Pierce,
761 F.2d 913 (2d Cir. 1985) ................................................................................ 3
Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) .............................. 6
Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979) ...................................... 4
Constitutional Provisions
ii
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Introduction
As Ms. Maxwell said in her Motion to Stay, “[t]he media has all but
understatement.
improperly sealed for years—in a way that allowed . . . Ms. Maxwell[’s] . . . abuse
unqualified statement of Ms. Maxwell’s alleged guilt is precisely the type of unfair
and unconstitutional pretrial publicity that will result should the district court’s
Far from undermining Ms. Maxwell’s motion for a stay pending appeal, the
between the Herald’s Response and the procedural history of this case is
remarkable.
First, if the Herald is willing to announce its conclusion that Ms. Maxwell
“abused” young girls even before having access to the sealed deposition materials,
that is only a harbinger of what media coverage will result should the material be
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unsealed, coverage that will prejudice Ms. Maxwell’s constitutional right to a fair
Second, the Herald is wrong to imply that Ms. Maxwell is solely responsible
for the material being sealed in the first place. The Protective Order in this case was
and she never once challenged a “confidential” designation under the Protective
Order. Is the Miami Herald suggesting that plaintiff is to blame for “hiding” her
Order according to its terms. Although this Court ultimately concluded that the
district court erred, Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), that does not
mean Ms. Maxwell or Judge Sweet acted in any way other than good faith.
Finally, the Herald entirely ignores its own conduct. The Herald complains
that the deposition material has been “improperly sealed for years.” Resp. at 12.
But the Herald did not move to unseal anything in this case until 2018, one year
after the case was closed. Again, the not-so-subtle implication of the Herald’s
In turn, on the law governing a stay pending appeal, the Herald has little to
offer in response. The Herald does not—and cannot—deny that Ms. Maxwell will
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suffer irreparable harm absent a stay, since the unsealing of the deposition material
As for Ms. Maxwell’s arguments on the merits of the unsealing order, the
Herald says: “Ms. Maxwell cannot demonstrate that the district court abused its
discretion in ordering the documents unsealed; thus, she cannot succeed on the
In asking for a stay pending appeal, Ms. Maxwell need only show “a
Dubose v. Pierce, 761 F.2d 913, 920 (2d Cir. 1985), vacated on other grounds, 487 U.S.
percent.” Mohammed v. Reno, 309 F.3d 95, 102 (2d Cir. 2002). Measured against
the proper standard, Ms. Maxwell has more than met her burden.
pending appeal. The Herald itself is partially responsible for how long the
documents have been under seal, having waited until a year after the case was
closed to move for unsealing. And when weighed against the harm Ms. Maxwell
will suffer absent a stay—the loss of her right to appeal, plus the injury to her Fifth
impartial jury, U.S. CONST. amends. V, VI—the question isn’t even close.
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Argument
I. Ms. Maxwell will suffer irreparable harm absent a stay because the
denial of a stay will moot her appeal.
Maxwell will suffer irreparable harm absent a stay because her “right of appeal here
will become moot unless the stay is continued pending determination of the
appeal[]. Once the documents are [disclosed] pursuant to the lower court’s order,
confidentiality will be lost for all time. The status quo could never be restored.” See
Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979).
Almost as an aside, the Herald claims Ms. Maxwell will suffer only “minor
embarrassment” if the deposition material is unsealed. Resp. at 11. Really only two
First, the Herald cannot possibly know the extent of the damage that will be
done by unsealing because the Herald does not have access to the deposition
material.1 Second, Ms. Maxwell did not claim irreparable harm from the
1
If the Herald means to say that the district court concluded only “minor
embarrassment” will result from unsealing, that just begs the question: Was the
district court’s unsealing order correct? Ms. Maxwell asks the Court for the
opportunity to appeal to test the correctness of the district court’s order. The
Herald hopes to deny Ms. Maxwell that right.
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“irreparable harm” in the form of losing her right to appeal, something the Herald
II. Ms. Maxwell has more than a substantial possibility of success on the
merits.
At this stage, Ms. Maxwell need not show that the district court erred. She
need not even show that it is more likely than not that the district court erred. She
district court erred. Mohammed, 309 F.3d at 102. Applying the correct burden, Ms.
Maxwell has more than made her case for a stay pending appeal.
The Herald asserts that Ms. Maxwell’s Motion was based exclusively “on
conclusory and speculative claims that releasing the information would result in
‘negative media publicity’ that would, in turn, taint a jury trial.” Resp. at 7. That’s
But even if it were, Ms. Maxwell’s “speculation” appears to have been well-
publicity” that will result. After all, even without access to the sealed deposition
material, the Herald has no problem claiming, in a publicly filed pleading, that
“Ms. Maxwell . . . abuse[d] . . . young girls.” Resp. at 12. Ms. Maxwell has not been
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innocent.
Ms. Maxwell will suffer more than “minor embarrassment” should the
deposition material be unsealed. And when her reliance on the Protective Order led
her to provide answers that are now being used as a basis for criminal perjury
F.2d 291 (2d Cir. 1979), the express language of the protective order, and any
afforded the opportunity to test in this Court the correctness of the district court’s
decision.
The ultimate merits of these arguments are not before the Court at this time.
The only issue before the Court is whether Ms. Maxwell has a shown a less-than-
50-percent chance of succeeding on the merits. She has. And were there any doubt,
this Court should resolve the doubt in favor of Ms. Maxwell, since there is no
III. A stay will cause no meaningful harm to plaintiff or the Miami Herald.
cause harm. Resp. at 11–12. But that’s not true, and it’s not the point.
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It’s not true because the Herald itself did not seek access to the district court
records until one year after the case was dismissed and closed, and two years after
the depositions themselves occurred. See Mohammed, 309 F.3d at 102 n.11
more than ten weeks between the District Court’s continuation of the stay and the
It’s not the point because any harm that the Herald might suffer must be
balanced against the harm to Ms. Maxwell and the public interest. On the Herald’s
side of the equation is brief delay in accessing the material.2 On the other side is
Maxwell’s and the public’s right to a fair trial by an impartial jury, and the
2
This assumes this Court will affirm the unsealing order. If this Court were
to reverse (as Ms. Maxwell contends it should), then the deposition material will
remain sealed.
Of course, if the Herald has its way, this Court will never get to make that
call, because the Herald seeks to moot any appeal and deprive this Court of
jurisdiction before the appeal can even be briefed.
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What’s more, Ms. Maxwell will be subject to a public trial, one which the
Miami Herald and other media outlets will surely cover with gusto. The Herald’s
right to attend and report on that trial substantially mitigates any claim of harm that
might result from continuing to keep the deposition material sealed until this Court
schedule.
The Herald has conspicuously little to say about the public interest, other
than to repeat the refrain that the public has an interest in access to the judicial
documents.
But there are other interests at stake as well. One paramount interest—
which the Herald ignores entirely—is this Court’s role as an appellate tribunal.
Absent a stay, Ms. Maxwell will lose her right to appeal, and this Court will be
deprived of jurisdiction to serves its essential role: To review a lower court decision
and evaluate its correctness. A stay pending appeal is simply a “means of ensuring
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that appellate courts can responsibly fulfill their role in the judicial process.” Nken
The Herald trivializes the public’s right to see that its justice system provide
fair trials. With Ms. Maxwell facing an imminent and very public trial, the justice
system should endeavor to do all it can to vindicate the “theory of our [trial]
evidence and argument in open court, and not by any outside influence, whether of
private talk or public print.” Patterson v. Colorado ex rel. Attorney General of Colo.,
205 U.S. 454, 462 (1907) (opinion for the Court by Holmes, J.).
Conclusion
For these reasons, as well as those given in the Motion, this Court should
stay pending appeal the district court’s order unsealing the deposition material.
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Respectfully submitted,
s/ Adam Mueller
Ty Gee
Laura Menninger
Adam Mueller
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Tel 303.831.7364
Fax 303.832.2628
tgee@hmflaw.com
lmenninger@hmflaw.com
amueller@hmflaw.com
Counsel for Defendant-Appellant Ghislaine
Maxwell
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Certificate of Service
I certify that on July 31, 2020, I served a copy of this Ghislaine Maxwell’s
Reply to the Miami Herald’s Response to Ms. Maxwell’s Motion to Stay Pending Appeal
via CM/ECF, which will send notification of the filing to all counsel of record.
s/ Nicole Simmons
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