so i think that context really sets the stage for the narrowness of this appeal despite its narrowness it's extremely important because what we're talking about is most prominently the entire four hundred and eighteen page transcript of my client's deposition now that transcript was attached by the plaintiff's ministry for a two hour routine discover this court should rule and can rule as a matter of law that the deposition material should not be released the st point i want to make is about the presumption of access that applies here we don't dispute that this is a traditional d document as defined by the court under its cases and most recently in brown but the presumption of access for the patches is much more limited than the presumption of access to the cash to summary judgment serial i think th thing about what material should or should not be subject to discovery it was about how many depositions permitted and there's just no justification for attaching the entire deposition transcripts to that motion if this the room for the deposition because it was going to be confidential and seal to under the protective order so if you put those yourself a mismatch post position it really isn't a question about whether she reasonably relied on the protective order in this case so all the record evidence is that she recently rely on the protective order and frankly there's no evidence that that reliance was on reasonable and this court in the brown decision has already had reasonable reliance maxwell was even stronger and finally even if it had gone to trial we had no idea what evidence would have come out so i don't think the fact that this was not that important both permanent protective order really very much on question and with that i'm  you certainly intended to your i don't dispute that these are judicial documents subject to a presumption of access our view is that it's basically the lowest presumption that can apply and we think that's consistent with what this court said in brown that it's little if i apologize i just pressed the said that some of the findings technically may not have been required i believe it was i mean i'm paraphrasing loosely but i think technically may not have been a part as pretty close to what she said what i mean she acknowledged made to the court was take a look at the kind of ad series that miss maxwell was giving in her initial deposition and according to mr french coun that showed that there was a need to compel her to answer more precisely did i misunderstand that that was the entire thrust of them the motion so there are two motions filed by mr freeze attorneys  presumptive ten deposition limit and that's the motion to which the entire their position as maxwell was attached and then there was a separate motion to compel mr maxwell to answer questions and deposition womens and again i think that argument can easily be made on a procedural level without all four hundred and eighteen patients well i think interested to hear what your adversary has to say about that characterization of the motion practice but i have one other question to ask you if it seeks clarification of what i think was the response you gave to catch pooler i thought i wrote down as you were making me whether you were taking a different position in one of your responses to judge pooler so what does your position on the presumption again as i was taking notes from your main argument i thought was that a presumption applies you just think it's one that's weaker than applies to summary judgment materials is that right that's right so you're not denying that there is a presumption of access here just that it shouldn't be given the same weight as one that would apply if these were summary judgment material especially right on ok thank you thank you judge brown of thank you count five just a couple of quick questions to make sure i there with us the moment somebody is grinding who knows grinding coffee perhaps being used as i understand the objections and they're getting excerpts to further evaluating whether further objections are and let me go on it it was possible was it not to challenge the designation of materials as confidential under the protective order it was possible your honor and no objections ever now during the deposition itself there was no going vocation of those rights was there there was no indication of the th amendment rights because we understood the protective order answer any questions about a consensual sexual activities involving adults was not accurate some of the questions we declined to answer but there were questions and answers given and i pointed to the court some of is in addition to doing that conduct and i will take to the expect there it was either i don't remember answers or i'm not going to answer or no negative answers the question and about privacy matters that even if you take the answer out of the equation are problematic and we said revealing of private or sensitive or confidential information how so matter not having engaged in conduct certain certain conduct implies maybe that you can gauge other conduct or and certainly why you didn't do that which is a product matter and even if the question is a leading question d to which no what what's your view of this here that she's not to my knowledge of any activity involving on the range one you know i'm hesitant to answer the question only because the moment the definition is sealed the court inquired as to the whether there had been objections by the wanted to i believe counsel was clear but i want to be certain that is that the objections that were lodged were soley related to the use of the name they did not object to the release of the transcripts of the deposition of this they simply wanted their names removed particular had to provide specific objections to specific portions of the documentation and ms maxwell has not done that neither in the district court nor to this court does this maxwell attempt to go through as counsel said earlier page by page or line by line and demonstrate what the interest is and why that interest outweighs the presumption of access counsel criticized the district court for not doing a page by page or line by line out reason the district court did not do a page by page line by line analysis is because the burden was on ms maxwell to attempt to  ntify page by page and line by line specifically what it was that was being objected to and what the basis of that objection was and ms maxwell failed failed to do that into court and all that pulled the document there was not a judicial there was no reasonable expectation of privacy by its very terms the order was applicable only to the pretrial stages of the litigation and would be reconsidered upon commencement of the trial now in this case the protective reconsidered it does not apply so that any reliance here would be inconsistent with the terms of the protective mask in addition to their protective order board the birth of a stablish ing that was entitled to confidential treatment the protective order gave no presumption that the information sought to be protected would be it would be accorded confidential all it did was allow things to be produced testimony could be given and then somebody couldn't just do a confidentiality provision and it simply kept everything confidential until the court could rule and when the court consider the burden was on the party seeking confidentiality now what that means is that when ms natural testified she had no expectation of privacy because the protective order e there was a you know while discovery motions and other dispositive motions are subject to a lesser but still substantial that we needed additional depositions beyond the town and to do that we had to show the judge why the depositions that had been taken over were not adequate and to do that the the court needed to look at the what we have argued from the beginning is that it is unfair to our client that only selected portions be unsealed so that the people who are looking at it don't have the entire context what some of the parties who have intervened and made motions for partial i'm stealing them argue for is argue is to release this letter or this completed however what it does do is it prejudiced or prejudiced for him in terms of the public if the public gets a misleading view of what the evidence was it would be one settle but i don't know whatever it is not all continuing in this case well what's continuing in this case is the is the protective order and with respect to the protective order i think i think my client has a legitimate interest in saying that if certain portions of the sealed record are going to be made public that the  and what i'm her chin a court to consider is that once you once you decide that you're going to release certain information then my client clearly has an interest in making sure that the information that is released is fair and in context and this is not a situation in which she gets her  everything or nothing if it were everything or nothing then my client's interest would be more attenuated but if some of it is going to be really and some of the stuff that has been cherry which people have tried to say we're going to release certain things out of context here we're going to we're going to release some of the document the some of the documents are going to show that my client was not truthful or my client made things up and the entire record in context is quite clear that my client did not make things that justifies any release of information if you're going to release some information we have an interest in having that interim information released in context we have an interest in making sure that as this court held in brown it's very possible for  covered all of the material and if what's going to happen is some of that material is going to be released then all of the material that is a judicial record expectation of privacy with respect to this material almost from the start is that is that the point you were just to embrace yes yes your honor all right what what i'm  til a court could rule on whether something was or was not to be protected and and so my understanding is that that would require some showing it wouldn't be that the priest would necessarily mean that there would be disclosure the party says entered into a protective order there'd have to be some shelling as to why they would why the protective order would not fin the burden was on the party seeking confidentiality you know i saw that part i saw that provision i saw that petition but there still someone would have to make a showing do you think it would be adequate to just for anybody to just knock on the court store and say would like access to this material yes your honor i think that is exactly what the protective order says that any party at any time can object to the designation of confidentiality we're not talking about a party here right right but i do think that the agreement between the parties contemplated rd parties are only between the two of them well i think it included any any intervene or any anybody who became a if there's no protective order in place that testimony can be immediately disseminated that is there's no chance for it to be protected i think i'll just show your client could not just the court and it would be kept confidential until the court ruled so that it protects her in that sense but but but it makes clear that when the reception objection  one other question you explained the argument you all sit develop in your papers about why you gauge the district court the entire deposition and you get in support of your motions because you need to show why you wanted to ask mrs maxwell further questions but your adversary fi understood him correctly said that you didn't attach the deposition to that part that motion you attached it to the rich to the motion seeking more than ten depositions is that an accurate statement of how it all played out and if so how does that support your argument we had we made a motion to exceed the  yes and that and that motion was what we attached the entire deposition transcript to because for that motion to succeed we had to convince the judge that we had not had an adequate amount of discovery and for that purpose the entire deposition transcript of the nd motion that we made was to comparable heard answer what's the status of the one and two with respect to their interest in preventing the feeling of mainz i think that is right now before the district court  ok i think i think whether the court agrees to delete the names is currently before the district court and has not been decided but that's it that is all that they are versus maxwell conducted the individualized review of the sealed documents and made to fix on the record finding that the documents at issue are judicial documents admitted as part of the party's arguments to the court in discover  motions that were ruled upon because these are judicial documents the presumption of access apply as discovery motions the presumption of access is somewhat less lady than on a dispositive motion but the district court concluded consistent with this court's instruction in grounds that there is a that there is a substantial presumption of public access and the district court also concluded that there were no specific or substantial reasons that outweighed the presumption including any of the countervailing interests identified by protective orders govern the exchange of information in discovery but the parties cannot by agreement override the presumption of access also  to now claim that her criminal trial will be impacted by the release of these documents have no support in this court's precedent as this court made clear and us vs graham and n b c vs miers threats to a defendant's right to a fair trial must go beyond mere speculation to overcome the presumption of public access it is not required that there be an absence of media publicity for a defendant to have a fair trial and enhanced public awareness of the case alone is not a sufficient reason to allow judicial record like those that issue in this appeal to be sealed finally you have one minute left and if maxwell's arguments regarding privacy are too big to be given any the presumption of access especially where the judicial document issue involves matters of the most public important accusations of sex trafficking of young girls for years at the hands of the wealthy in the powerful but have been kept secret for far too long and we do not believe that their right to a fair trial is at all implicated by this and that there are other means that district court can use in order to ensure that she be believe that is true but again that whether macmac well it is a victim or not is irrelevant to whether the documents that issue should be released here not be viewed or should have ever been should have ever become judicial talking minutes whether it was even necessary for them to be part of the motion practice in this case what's your client position on that as it may affect your your application for feeling of the documents once those documents were attached to a motion and the court can that or that motion entitled to the material says that basically your position yes we believe there is a public right of access to the materials that attached when those documents were filed in the court ruled upon the motion and unless there is a specific  one and two have not had the opportunity to make a full analysis of whether they should object or not because they haven't been given all the excerpts that are issue so those are now being provided to those one and two and under press because order once those excerpts are received they will have fourteen they need to make objections that can go beyond just their names and we know for example that there are details about medical conditions as one example that would we think confidential designation and so the court never ruled on anything whether it should be confidential or not and therefore mismatch so its reliance was eminently reasonable under the circumstances because once a designation is made it is confidential unless and until there is an objection and then the court rules and there was no objection in this case ever number two there was never a trial so the fact that the protective order a trial would not apply trial is simply irrelevant to the question and  field recognized reasonable reliance by miss maxwell and by multiple rd parties and noted as a factual matter that the settlement in this case was contingent on confidentiality which echoes the confidential confidentiality features of the protective order and those factual findings were not disturbed by this court and i think they carry the day the final four and make is about fair trial and i think the court need only look at the trial happen we don't want to be in a case where there are multiple appeals and things are delayed we are confident in our ability should there be a fair trial to defend miss macks and with that i would turn it back to the court to see if there are any been suggested that any concern to you might have on that front or appropriately doubts with when there's jury selection and if there can't be a jury picked then you have your been there's no reason to be concerned here why why should we be making assumptions about how your client will or will not be prejudice to trial in reviewing this concerned about whether there would be an ability to secure yet another fair trial that's after everything's already been aired in in the st trial and so here really what we're just talking about is preserving the status quo and the fair trial argument of course has to be balanced against the presumption of access which we again concede applies but we're talking about a limited prism for the access and what we would contend is basically the minimal presumption of access so in that context we don't think that it's asking too much to simply preserve the status quo and the course there's going to be a public criminal trial and there will be this will all be aired in open court and the media will  assume for purposes of my question that even before your client's trial there will be a fair amount of press interest in her and her in the events that lead up to her criminal prosecution i nevertheless i'm not sure why given given that key will be the subject of considerable press attention the question of whether the one seal this is a maintain the status quo question or whether it's a question that look looks to the judges to decide how much prejudice risk they think here i mean as i understand it one or both judges suggested that your client did not witnesses and the testimony offered by witnesses will change as a result of the public disclosure of or their testimony deposition testimony before trial and we don't want the situation where witnesses are conforming their testimonies to other people's recollections about events that happened in some cases twenty years ago thirty years ago if there is a talking point as well as are you going to go it is going to say that would never be grounds for not allowing the press to print stories that they've obtained through other investigative reporting and maybe they wouldn't and we would never put any kind of a gag order on their ability to presumption they're entitled to but i'm not sure why one of our concerns should be that witnesses in the criminal trial might conform their testimony you know through through another avenue is not at issue where he is not analogous to what we're talking about your because we're talking about whether something should be released d in the st instance we're not talking about muzzling d the media or something they were reporting i something they already have so i don't i don't think the situations are comparable in that respect but i do think there is a concern in courts do exercise care all the time in terms of what's what information is released prior to trial both to protect the ability to obtain a fair and impartial jury and to protect ongoing investigations and in this case we will d be talking about shortly we have a criminal protective order which is in place to prevent and one of those issues in this case is marvellous to talk about briefly but the manner in which the government obtained this max was definition is going to be an issue before judge nathan and we're simply asking the status quo be preserved see that the government conspicuously does not do not intend to argue that if the depositions were released no harm no foul because now we have the deposition sir independent source d or anything you might have done is proper i