18

‐ 2868; 16

‐ 3945

‐ cv(L)

Brown v. Maxwell; Dershowitz v. Giuffre



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2018

No. 18

‐ 2868

‐ cv

J ULIE B ROWN

, M IAMI H ERALD C OMPANY

, Intervenors

‐ Appellants

,

v.

G HISLAINE M AXWELL

,

Defendant

‐ Appellee

,

v.

V IRGINIA L. G IUFFRE

, Plaintiff

‐ Appellee

.

No. 16

‐ 3945

‐ cv(L)

No. 17

‐ 1625 (CON)

No. 17

‐ 1722(CON)

A LAN M. D ERSHOWITZ

, M ICHAEL C ERNOVICH

, DBA C ERNOVICH

M EDIA

, Intervenors

‐ Appellants

,2 V

.

V IRGINIA L. G IUFFRE

, Plaintiff

‐ Appellee

,

v.

G HISLAINE M AXWELL

,

Defendant

‐ Appellee

. *

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : M ARCH 6, 2019

D ECIDED : J ULY 2, 2019

Before: C ABRANES

, P OOLER

, and D RONEY

, Circuit Judges

.

Intervenors

‐ Appellants Alan Dershowitz, Michael Cernovich,

and the Miami Herald Company (with reporter Julie Brown) appeal

from certain orders of the United States District Court for the Southern

District of New York (Robert W. Sweet, Judge ) denying their respective

motions to unseal filings in a defamation suit. We conclude that the

* The Clerk of Court is directed to amend the captions as set out above.3 District Court failed to conduct the requisite particularized review

when ordering the sealing of the materials at issue. At the same time,

we recognize the potential damage to privacy and reputation that may

accompany public disclosure of hard

‐ fought, sensitive litigation. We

therefore clarify the legal tools that district courts should use in

safeguarding the integrity of their dockets. Accordingly, we VACATE

the District Court’s orders entered on November 2, 2016, May 3, 2017,

and August 27, 2018, ORDER the unsealing of the summary judgment

record as described further herein, and REMAND the cause to the

District Court for particularized review of the remaining sealed

materials.

Judge Pooler concurs in this opinion except insofar as it orders

the immediate unsealing of the summary judgment record without a

remand.

S ANFORD L. B OHRER (Christine N. Walz,

Madelaine J. Harrington, New York, NY, on

the brief ), Holland & Knight LLP, Miami, FL,

for Intervenors

‐ Appellants Julie Brown and

Miami Herald.

T Y G EE (Adam Mueller, on the brief ),

Haddon, Morgan and Foreman, P.C.,

Denver, CO, for Defendant

‐ Appellee Ghislaine

Maxwell.4 P AUL G. C ASSELL (Sigrid S. McCawley, Boies

Schiller Flexner LLP, Ft. Lauderdale, FL, on

the brief ), S.J Quinney College of Law,

University of Utah, Salt Lake City, UT, for

Plaintiff

‐ Appellee Virginia L. Giuffre.

A NDREW G. C ELLI J R

. (David A. Lebowitz, on

the brief ), Emery, Celli, Brinckerhoff &

Abady LLP, New York, NY, for Intervenor

‐

Appellant Alan M. Dershowitz.

M ARC R ANDAZZA (Jay Marshall Wolman,

Las Vegas, NV, on the brief ), Randazza Legal

Group, PLLC, Hartford, CT, for Intervenor

‐

Appellant Michael Cernovich.

J OSÉ A. C ABRANES

, Circuit Judge :

Intervenors

‐ Appellants Alan M. Dershowitz (“Dershowitz”),

Michael Cernovich (“Cernovich”), and the Miami Herald Company

(with reporter Julie Brown, jointly the “ Herald ”) appeal from certain

orders of the United States District Court for the Southern District of

New York (Robert W. Sweet, Judge ) denying their respective motions

to unseal filings in a defamation suit. We conclude that the District

Court failed to conduct the requisite particularized review when

ordering the sealing of the materials at issue. At the same time, we5 recognize the potential damage to privacy and reputation that may

accompany public disclosure of hard

‐ fought, sensitive litigation. We

therefore clarify the legal tools that district courts should use in

safeguarding the integrity of their dockets. Accordingly, we VACATE

the District Court’s orders entered on November 2, 2016, May 3, 2017,

and August 27, 2018, ORDER the unsealing of the summary judgment

record as described further herein, and REMAND the cause to the

District Court for particularized review of the remaining sealed

materials.

I. BACKGROUND

A. Jeffrey Epstein’s Conviction and the CVRA Suit

The origins of this case lie in a decade

‐ old criminal proceeding

against financier Jeffrey Epstein (“Epstein”). On June 30, 2008, Epstein

pleaded guilty to Florida state charges of soliciting, and procuring a

person under the age of eighteen for, prostitution. The charges

stemmed from sexual activity with privately hired “masseuses,” some

of whom were under eighteen, Florida’s age of consent. Pursuant to

an agreement with state and federal prosecutors, Epstein pleaded to

the state charges. He received limited jail

‐ time, registered as a sex

offender, and agreed to pay compensation to his victims. In return,

prosecutors declined to bring federal charges.

Shortly after Epstein entered his plea, two of his victims,

proceeding as “Jane Doe 1” and “Jane Doe 2,” filed suit against the

Government in the Southern District of Florida under the Crime

Victims’ Rights Act (“CVRA”). The victims sought to nullify the plea6 agreement, alleging that the Government failed to fulfill its legal

obligations to inform and consult with them in the process leading up

to Epstein’s plea deal. 1

On December 30, 2014, two additional unnamed victims—one

of whom has now self

‐ identified as Plaintiff

‐ Appellee Virginia Giuffre

(“Giuffre”)—petitioned to join in the CVRA case. These petitioners

included in their filings not only descriptions of sexual abuse by

Epstein, but also new allegations of sexual abuse by several other

prominent individuals, “including numerous prominent American

politicians, powerful business executives, foreign presidents, a well

‐

known Prime Minister, and other world leaders,” as well as

Dershowitz (a long

‐ time member of the Harvard Law School faculty

who had worked on Epstein’s legal defense) and Defendant

‐ Appellee

Ghislaine Maxwell (“Maxwell”). 2

Dershowitz moved to intervene, seeking to “strike the

outrageous and impertinent allegations made against him and to

request a show cause order to the attorneys that have made them.” 3

Exercising its authority to “strike from a pleading an insufficient

1 On February 21, 2019, the Florida District Court ruled that federal

prosecutors had violated the CVRA by failing to adequately notify the two victims

‐ plaintiffs of the plea deal. The District Court has not yet determined the appropriate

remedy. See Doe 1 v. United States

, 359 F. Supp. 3d 1201, 1204–17 (S.D. Fla. 2019).

2 Doe 1 v. United States

, No. 08

‐ CV

‐ 80736

‐ KAM, 2015 WL 11254692, at *2 (S.D.

Fla. Apr. 7, 2015) (internal quotation marks omitted).

3 Id. (internal quotation marks and brackets omitted).7 defense or any redundant, immaterial, impertinent, or scandalous

matter

. . . on its own,” 4 the Florida District Court (Kenneth A. Marra,

Judge ) sua sponte struck all allegations against additional parties from

the pleadings, including those against Dershowitz, and therefore

denied Dershowitz’s motion as moot. 5

The stricken allegations, however, quickly found their way into

the press, and several media outlets published articles repeating

Giuffre’s accusations. In response to the allegations, on January 3,

2015, Maxwell’s publicist issued a press statement declaring that

Giuffre’s allegations “against Ghislaine Maxwell are untrue” and that

her “claims are obvious lies.” 6

B. Giuffre Sues Maxwell

On September 21, 2015, Giuffre filed the underlying action

against Maxwell in the Southern District of New York. Giuffre alleged

that Maxwell had defamed her through this and other public

statements. Extensive and hard

‐ fought discovery followed. Due to the

volume of sealing requests filed during discovery, on August 9, 2016,

the District Court entered a Sealing Order that effectively ceded

control of the sealing process to the parties themselves. The Sealing

Order disposed of the requirement that the parties file individual letter

briefs to request sealing and prospectively granted all of the parties’

4 Fed. R. Civ. P. 12(f).

5 Doe 1

, 2015 WL 11254692, at *2–3.

6 See Giuffre v. Maxwell

, 325 F. Supp. 3d 428, 434 (S.D.N.Y. 2018).8 future sealing requests. In total, 167 documents—nearly one

‐ fifth of

the docket—were filed under seal. These sealed documents include,

inter alia

, motions to compel discovery, motions for sanctions and

adverse inferences, motions in limine

, and similar material.

On January 6, 2017, Maxwell filed a motion for summary

judgment. The parties submitted their memoranda of law and

supporting exhibits contesting this motion under seal. On March 22,

2017, the District Court denied the motion in a heavily redacted 76

‐

page opinion. Once again, the entire summary judgment record,

including the unredacted version of the District Court opinion

denying summary judgment, remained under seal. On May 24, 2017,

Maxwell and Giuffre executed a settlement agreement, and the case

was closed the next day.

C. Motions to Intervene and Unseal

Over the course of the litigation before Judge Sweet, three

outside parties attempted to unseal some or all of the sealed material.

On August 11, 2016, Dershowitz moved to intervene, seeking to unseal

three documents that, he argues, demonstrate that Giuffre invented

the accusations against him. On January 19, 2017, Cernovich, an

independent blogger and self

‐ described “popular political

journalist,” 7 moved to intervene, seeking to unseal the summary

judgment record, and Dershowitz joined his motion. On April 6, 2018,

after the case had settled, the Herald moved to intervene and unseal

7 Br. Appellant (Cernovich) 4.9 the entire docket. The District Court granted each of these motions to

intervene, but denied the related requests to unseal in orders entered

November 2, 2016, May 3, 2017, and August 27, 2018, respectively.

The Appellants timely appealed from each of the orders

denying their respective motions to unseal. Although each Appellant

seeks the release of a different set of documents, all argue that the

District Court failed to analyze the documents individually or

properly apply the presumption of public access to court documents.

We therefore ordered that the appeals be heard in tandem and held

argument on March 6, 2019.

On March 11, 2019, we issued an order to show cause why we

“should not unseal the summary judgment motion, including any

materials filed in connection with this motion, and the District Court’s

summary judgment decision.” 8 The parties timely filed their

responses.

II. DISCUSSION

There are two categories of sealed material at issue in these

appeals: (1) the summary judgment record, which includes the parties’

summary judgment briefs, their statements of undisputed facts, and

incorporated exhibits; and (2) court filings made in the course of the

discovery process and with respect to motions in limine

. In this

Opinion, we explain that our law requires the unsealing of the

8 Giuffre v. Maxwell, No. 18

‐ 2868

‐ cv, Docket No. 138.10 summary judgment materials and individualized review of the

remaining sealed materials.

While the law governing public access to these materials is

largely settled, we have not yet adequately addressed the potential

harms that often accompany such access. These harms are apparent.

Over forty years ago, the Supreme Court observed that, without

vigilance, courts’ files might “become a vehicle for improper

purposes.” 9 Our legal process is already susceptible to abuse.

Unscrupulous litigants can weaponize the discovery process to

humiliate and embarrass their adversaries. Shielded by the “litigation

privilege,” 10 bad actors can defame opponents in court pleadings or

depositions without fear of lawsuit and liability. Unfortunately, the

presumption of public access to court documents has the potential to

exacerbate these harms to privacy and reputation by ensuring that

damaging material irrevocably enters the public record.

We therefore take the opportunity to describe the tools available

to district courts in protecting the integrity of the judicial process, and

emphasize the courts’ responsibility to exercise these powerful tools.

We also caution the public to critically assess allegations contained in

judicial pleadings.

9 Nixon v. Warner Commc ʹ ns, Inc.

, 435 U.S. 589, 598 (1978).

10 See notes 46–47 and accompanying text, post

.11 A. Standard of Review

When reviewing a district court’s decision to seal a filing or

maintain such a seal, “we examine the court’s factual findings for clear

error, its legal determinations de novo, and its ultimate decision to seal

or unseal for abuse of discretion.” 11

B. The Summary Judgment Materials

With respect to the first category of materials, it is well

‐ settled

that “documents submitted to a court for its consideration in a

summary judgment motion are—as a matter of law—judicial

documents to which a strong presumption of access attaches, under

both the common law and the First Amendment.” 12 In light of this

strong First Amendment 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.” 13

11 Bernstein v. Bernstein Litowitz Berger & Grossmann LLP

, 814 F.3d 132, 139

(2d Cir. 2016).

12 Lugosch v. Pyramid Co. of Onondaga

, 435 F.3d 110, 121 (2d Cir. 2006). We

observe that our holding in Lugosch relies on the general principle that parties may

“be assumed to have supported their papers with admissible evidence and non

‐

frivolous arguments.” Id. at 122. Insofar as a district court has, through striking a

filing, specifically found that assumption inapplicable, the categorical rule in

Lugosch may not apply. See notes 42–43 and accompanying text, post.

13 Id. at 124. Examples of such countervailing values may include,

depending on the circumstances, preserving “the right of an accused to

fundamental fairness in the jury selection process,” Press

‐ Enter. Co. v. Superior Court12 In this case, the District Court erred in several respects. 14 First, it

failed to give proper weight to the presumption of access that attaches

to documents filed in connection with summary judgment motions.

The District Court reasoned that the summary judgment materials

were “entitled to a lesser presumption of access” because “summary

judgment was denied by the Court.” 15 In assigning a “lesser

presumption” to such materials, the District Court relied on a single

sentence of dicta from our decision in United States v. Amodeo

. 16 We

have since clarified, however, that this sentence was based on a

“quotation from a partial concurrence and partial dissent in the D.C.

Circuit

. . . [and] is thus not the considered decision of either this court

or the D.C. Circuit.” 17 In fact, we have expressly rejected the

proposition that “different types of documents might receive different

of California, Riverside Cty.

, 464 U.S. 501, 510 (1984); the protection of attorney

‐ client

privilege, Lugosch

, 435 F.3d at 125; “the danger of impairing law enforcement or

judicial efficiency,” SEC. v. TheStreet.Com

, 273 F.3d 222, 232 (2d Cir. 2001); and “the

privacy interest of those who resist disclosure,” id.

14 Our discussion here focuses specifically on the District Court’s denial of

the Herald’s motion to unseal the entire record. Because this decision grants relief

to all Appellants, we need not discuss any separate, additional error in the District

Court’s denial of the earlier motions to unseal.

15 Giuffre, 325 F. Supp. 3d at 444.

16 71 F.3d 1044, 1049 (2d Cir. 1995) (“ Amodeo II ”) (“One judge [in the District

of Columbia Circuit] has pointed out, for example, that where a district court

denied the summary judgment motion, essentially postponing a final determination

of substantive legal rights, the public interest in access is not as pressing.” (internal

quotation marks omitted; emphasis in original)).

17 Lugosch

, 435 F.3d at 121.13 weights of presumption based on the extent to which they were relied

upon in resolving [a] motion [for summary judgment].” 18

Second, in contravention of our precedent, the District Court

failed to review the documents individually and produce “specific, on

‐

the

‐ record findings that sealing is necessary to preserve higher

values.” 19 Instead, the District Court made generalized statements

about the record as a whole. 20 This too was legal error.

Finally, upon reviewing the summary judgment materials in

connection with this appeal, we find that there is no countervailing

privacy interest sufficient to justify their continued sealing. Remand

with respect to these documents is thus unnecessary. Accordingly, and

to avoid any further delay, 21 we order that the summary judgment

documents (with minimal redactions) be unsealed upon issuance of

our mandate. 22

18 Id. at 123.

19 Id. at 124.

20 See, e.g.

, Giuffre, 325 F. Supp. 3d at 445 (summarily concluding that all

“[t]he Summary Judgment Judicial Documents openly refer to and discuss these

allegations [of sexual assault and sexual trafficking] in comprehensive detail, and

that those allegations “establish[] a strong privacy interest here”).

21 Cf. Lugosch

, 435 F.3d at 127 (ordering that “the mandate shall issue

forthwith” to expedite the unsealing process).

22 Upon issuance of our mandate, a minimally redacted version of the

summary judgment record will be made accessible on the Court of Appeals docket.

We have implemented minimal redactions to protect personally identifying

information such as personal phone numbers, contact lists, birth dates, and social14 C. The Remaining Sealed Materials

The law governing disclosure of the remaining sealed material

in this case is only slightly more complex. The Supreme Court has

recognized a qualified right “to inspect and copy judicial records and

documents.” 23 In defining “judicial records and documents,” we have

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.” 24 Instead, “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.” 25

As our precedent makes clear, a court “perform[s] the judicial

function” not only when it rules on motions currently before it, but

also when properly exercising its inherent “supervisory powers.” 26 A

security numbers. We have also redacted the names of alleged minor victims of

sexual abuse from deposition testimony and police reports, as well as deposition

responses concerning intimate matters where the questions were likely only

permitted—and the responses only compelled—because of a strong expectation of

continued confidentiality. See Fed. R. Civ. P. 5.2. While we appreciate the views

expressed in Judge Pooler’s separate opinion, the panel majority believes that the

efforts invested by three former district judges in reviewing these materials

adequately address those concerns.

23 Nixon

, 435 U.S. at 597–98.

24 United States v. Amodeo

, 44 F.3d 141, 145 (2d Cir. 1995) (“ Amodeo I ”).

25 Id.

26 Cf. United States v. HSBC Bank USA, N.A.

, 863 F.3d 125, 135 (2d Cir. 2017)

(explaining that, in considering whether the report of a monitor charged with

assessing compliance with a deferred prosecution agreement is a judicial15 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 or in the exercise of its supervisory powers, without

regard to which way the court ultimately rules or whether the

document ultimately in fact influences the court’s decision. 27

Accordingly, if in applying these standards, a court determines that

documents filed by a party are not relevant to the performance of a

judicial function, no presumption of public access attaches. 28

Once an item is deemed relevant to the exercise of judicial

power, “the weight to be given the presumption of access must be

governed by the role of the material at issue in the exercise of Article

III judicial power and the resultant value of such information to those

document, “[i]f the district court’s conception of its supervisory power in this

context were correct, the Monitor’s Report would quite obviously be relevant to the

performance of the judicial function and useful in the judicial process” (internal

quotation marks omitted)). Whether a specific judicial decision constitutes a

“performance of the judicial function” is a question of law. Accordingly, we review

such determinations de novo

. Id. at 134.

27 Amodeo I

, 44 F.3d at 145–46 (concluding that documents were relevant to

the performance of a judicial function because they would have “informed” the

district court’s decision whether to discharge or retain a Receiver); see also FTC. v.

Standard Fin. Mgmt. Corp.

, 830 F.2d 404, 409 (1st Cir. 1987) (citing Federal Rule of

Evidence 401’s “having any tendency” definition of relevance in determining

whether documents were “judicial documents”).

28 As we explain below, there are several (often preferable) tools beyond

sealing that district courts can use to protect their dockets from becoming a vehicle

for irrelevant—and potentially defamatory—accusations. See Section D, post.16 monitoring the federal courts.” 29 Thus, while evidence introduced at

trial or in connection with summary judgment enjoys a strong

presumption of public access, documents that “play only a negligible

role in the performance of Article III duties” are accorded only a low

presumption that “amounts to little more than a prediction of public

access absent a countervailing reason.” 30 Documents that are never

filed with the court, but simply “passed between the parties in

discovery, lie entirely beyond the presumption’s reach.” 31

The remaining sealed materials at issue here include filings

related to, inter alia

, motions to compel testimony, to quash trial

subpoenae, and to exclude certain deposition testimony. All such

motions, at least on their face, call upon the court to exercise its Article

III powers. Moreover, erroneous judicial decision

‐ making with respect

to such evidentiary and discovery matters can cause substantial harm.

Such materials are therefore of value “to those monitoring the federal

courts.” 32 Thus, all documents submitted in connection with, and

relevant to, such judicial decision

‐ making are subject to at least some

presumption of public access. 33

29 Amodeo II

, 71 F.3d at 1049.

30 Id. at 1050.

31 Id.

32 Id. at 1049.

33 In previous decisions, we have identified an important exception to this

general rule: the presumption of public access does not apply to material that is

submitted to the court solely so that the court may decide whether that same17 Although a court’s authority to oversee discovery and control

the evidence introduced at trial surely constitutes an exercise of

judicial power, we note that this authority is ancillary to the court’s

core role in adjudicating a case. Accordingly, the presumption of

public access in filings submitted in connection with discovery

disputes or motions in limine is generally somewhat lower than the

presumption applied to material introduced at trial, or in connection

with dispositive motions such as motions for dismissal or summary

judgment. 34 Thus, while a court must still articulate specific and

substantial reasons for sealing such material, the reasons usually need

not be as compelling as those required to seal summary judgment

filings.

Here, the precise basis for the District Court’s decision to deny

the motion to unseal these remaining materials is unclear. In the three

paragraphs devoted to the issue, the District Court emphasized the

potential for embarrassment “given the highly sensitive nature of the

underlying allegations,” and concluded that “the documents sealed in

the course of discovery were neither relied upon by [the District] Court

in the rendering of an adjudication, nor necessary to or helpful in

resolving a motion.” 35 It is therefore unclear whether the District Court

held that these materials were not judicial documents (and thus are

material must be disclosed in the discovery process or shielded by a Protective

Order. See TheStreet.Com

, 273 F.3d at 233.

34 Amodeo II, 71 F.3d at 1049–50.

35 Giuffre

, 325 F. Supp. 3d. at 442 (internal quotation marks and brackets

omitted).18 not subject to a presumption of public access), or found that privacy

interests outweighed a limited right of public access.

On either interpretation, however, the District Court’s holding

was error. Insofar as the District Court held that these materials are not

judicial documents because it did not rely on them in adjudicating a

motion, this was legal error. As explained above, the proper inquiry is

whether the documents are relevant to the performance of the judicial

function, not whether they were relied upon. 36 Indeed, decision

‐

makers often find that a great deal of relevant material does not

ultimately sway their decision. And insofar as the District Court held

that privacy interests outweigh the presumption of public access in

each of the thousands of pages at issue, that decision—which appears

to have been made without particularized review—amounts to an

abuse of discretion. 37

In light of the District Court’s failure to conduct an

individualized review of the sealed materials, it is necessary to do so

now. We believe the District Court is best situated to conduct this

review. The District Court can directly communicate with the parties,

and can therefore more swiftly and thoroughly consider particular

objections to unsealing specific materials. Relatedly, the District Court

can obtain the parties’ assistance in effecting any necessary redactions,

and in notifying any outside parties whose privacy interests might be

36 See text accompanying notes 12–18 and 26–28, ante.

37 See In re City of New York

, 607 F.3d 923, 943 n.21 (2d Cir. 2010) (explaining

that “abuse of discretion” is a nonpejorative, legal “term of art”).19 implicated by the unsealing. Accordingly, we remand the cause to the

District Court to conduct such a particularized review and unseal all

documents for which the presumption of public access outweighs any

countervailing privacy interests.

D. Protecting the Integrity of Judicial Proceedings

While we disagree with the District Court’s disposition of the

motions to unseal, we share its concern that court files might be used

to “promote scandal arising out of unproven potentially libelous

statements.” 38 We therefore describe certain methods courts can

employ to protect the judicial process from being coopted for such

purposes.

The Supreme Court has explained that “[e]very court has

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.” 39 This

supervisory function is not only within a district court’s power, but

also among its responsibilities.

In practice, district courts may employ several methods to fulfill

this function. They may, for instance, issue protective orders

forbidding dissemination of certain material “to protect a party or

person from annoyance, embarrassment, oppression, or undue

38 Giuffre

, 325 F. Supp. 3d at 447.

39 Nixon, 435 U.S. at 598 (internal quotation marks).20 burden” and require that filings containing such material be submitted

under seal. 40 If parties then seek to file such materials, the court may

deny them leave to do so. 41 District courts may also seek to counteract

the effect of defamatory statements by explaining on the record that

the statements appear to lack credibility. Moreover, under Federal

Rule of Civil Procedure 12(f), the district court may strike such

material from the filings on the grounds that it is “redundant,

immaterial, impertinent, or scandalous.” 42 Because such rejected or

stricken material is not “relevant to the performance of the judicial

function” it would not be considered a “judicial document” and would

enjoy no presumption of public access. 43 Finally, in appropriate

40 Fed. R. Civ. P. 26(c); see also TheStreet.Com

, 273 F.3d at 229–30.

41 See, e.g.

, S.D.N.Y. Electronic Case Filing Rules & Instructions, February 1,

2019 Edition, Rule 6.1,

http://nysd.uscourts.gov/ecf/ECF%20Rules%20020119%20Final.pdf.

42 Fed. R. Civ. P. 12(f). Courts may strike material from the pleadings either

“on its own” or “ on motion made by a party.” Id. Although motions to strike

material solely “on the ground that the matter is impertinent and immaterial” are

disfavored, when material is also “scandalous,” no such presumption applies. Cf.

Lipsky v. Commonwealth United Corp.

, 551 F.2d 887, 893 (2d Cir. 1976); see also Talbot

v. Robert Matthews Distrib. Co.

, 961 F.2d 654, 664 (7th Cir. 1992)

(“Allegations may be stricken as scandalous if the matter bears no possible relation

to the controversy or may cause the objecting party prejudice.”); Wine Markets Int ʹ l,

Inc. v. Bass

, 177 F.R.D. 128, 133 (E.D.N.Y. 1998) (“Motions to strike are not generally

favored, except in relation to scandalous matters.”); Alvarado

‐ Morales v. Digital

Equip. Corp.

, 843 F.2d 613, 617–18 (1st Cir. 1988) (categorizing as scandalous “matter

which impugned the character of defendants”).

43 Amodeo I

, 44 F.3d at 145.21 circumstances, district courts may impose sanctions on attorneys and

parties under Federal Rule of Civil Procedure 11(c). 44

E. A Cautionary Note

We conclude with a note of caution to the public regarding the

reliability of court filings such as those unsealed today.

Materials submitted by parties to a court should be understood

for what they are. They do not reflect the court’s own findings. Rather,

they are prepared by parties seeking to advance their own interests in

an adversarial process. Although affidavits and depositions are

offered “under penalty of perjury,” it is in fact exceedingly rare for

anyone to be prosecuted for perjury in a civil proceeding. 45 Similarly,

44 In relevant part, Rule 11 provides:

By presenting to the court a pleading, written motion, or other paper

. . . an

attorney or unrepresented party certifies that

. . . it is not being presented

for any improper purpose, such as to harass, cause unnecessary delay, or

needlessly increase the cost of litigation

. . . . [T]he court may impose an

appropriate sanction on any attorney, law firm, or party that violated the

rule or is responsible for the violation

. . . . The sanction may include

nonmonetary directives; an order to pay a penalty into court; or, if imposed

on motion and warranted for effective deterrence, an order directing

payment to the movant of part or all of the reasonable attorney’s fees and

other expenses directly resulting from the violation.

Fed. R. Civ. P. 11. See also Amodeo II

, 71 F.3d at 1049 (describing sanctions available

to the court).

45 Sonia Sotomayor & Nicole A. Gordon, Returning Majesty to the Law and

Politics: A Modern Approach

, 30 Suffolk U. L. Rev. 35, 47 n.52 (1996) ( ʺ Perjury cases

are not often pursued

. . . .”).22 pleadings, complaints, and briefs—while supposedly based on

underlying evidentiary material—can be misleading. Such documents

sometimes draw dubious inferences from already questionable

material or present ambiguous material as definitive.

Moreover, court filings are, in some respects, particularly

susceptible to fraud. For while the threat of defamation actions may

deter malicious falsehoods in standard publications, this threat is non

‐

existent with respect to certain court filings. This is so because, under

New York law (which governs the underlying defamation claim here),

“absolute immunity from liability for defamation exists for oral or

written statements made

. . . in connection with a proceeding before a

court.” 46 Thus, although the act of filing a document with a court might

be thought to lend that document additional credibility, in fact,

allegations appearing in such documents might be less credible than

those published elsewhere. 47

46 Front, Inc. v. Khalil

, 24 N.Y.3d 713, 718 (2015); see also Kelly v. Albarino

, 485

F.3d 664, 666 (2d Cir. 2007) (adopting the reasoning of the District Court explaining

that this privilege is “the broadest of possible privileges”); Restatement (Second) of

Torts § 587 (1977) (“A party to a private litigation or a private prosecutor or

defendant in a criminal prosecution is absolutely privileged to publish defamatory

matter concerning another in communications preliminary to a proposed judicial

proceeding, or in the institution of or during the course and as a part of, a judicial

proceeding in which he participates, if the matter has some relation to the

proceeding. ” ). But see note 47, post.

47 While common law courts have generally interpreted the litigation privilege

broadly, they nevertheless maintain an important (if rarely implemented)

limitation on its scope: to qualify for the privilege, a statement must be “material

and pertinent to the questions involved.” Front

, 24 N.Y.3d at 718 (quoting Youmans23 We have long noted that the press plays a vital role in ensuring

the public right of access and in enhancing “the quality and safeguards

the integrity of the factfinding process.” 48 When faithfully observing

its best traditions, the print and electronic media “contributes to public

understanding of the rule of law” and “validates [its] claim of

functioning as surrogates for the public.” 49

At the same time, the media does the public a profound

disservice when it reports on parties’ allegations uncritically. We have

previously observed that courts cannot possibly “discredit every

statement or document turned up in the course of litigation,” and we

have criticized “the use by the media of the somewhat misleading term

‘court records’ in referring to such items.” 50 Even ordinarily critical

v. Smith

, 153 N.Y. 214, 219–20 (1897)). It follows, then, that immaterial and

impertinent statements are (at least nominally) actionable, particularly when they

are “so needlessly defamatory as to warrant the inference of express malice.” Id.

(same)

. It seems to us that when a district court strikes statements from the record

pursuant to Fed. R. Civ. P. 12(f) on the ground that the matter is “impertinent” and

“immaterial,” it makes the very same determination that permits a defamation

action under the common law. We think the judicial system would be well served

were our common law courts to revitalize this crucial qualification to the litigation

privilege.

48 Westmoreland v. Columbia Broad. Sys., Inc.

, 752 F.2d 16, 23 (2d Cir. 1984)

(quoting Globe Newspaper Co. v. Superior Court for Norfolk Cty.

, 457 U.S. 596, 606

(1982)).

49 Richmond Newspapers, Inc. v. Virginia

, 448 U.S. 555, 572–73 (1980) (plurality

opinion) (internal quotation marks omitted).

50 Amodeo II

, 71 F.3d at 1049.24 readers may take the reference to “court papers” as some sort of

marker of reliability. This would be a mistake.

We therefore urge the media to exercise restraint in covering

potentially defamatory allegations, and we caution the public to read

such accounts with discernment.

III. CONCLUSION

To summarize, we hold as follows:

(1) Materials submitted in connection with a motion for

summary judgment are subject to a strong presumption of

public access.

(2) The summary judgment record at issue will be unsealed

upon issuance of our mandate, subject to minimal

redactions. 51

(3) Materials submitted in connection with, and relevant to,

discovery motions, motions in limine

, and other non

‐

dispositive motions are subject to a lesser—but still

substantial— presumption of public access.

(4) The District Court is directed to review the remaining sealed

materials individually and unseal those materials as

appropriate.

51 See note 22, ante.25 (5) District courts should exercise the full range of their

substantial powers to ensure their files do not become

vehicles for defamation.

For the foregoing reasons, we VACATE the orders of the

District Court entered on November 2, 2016, May 3, 2017, and August

27, 2018, ORDER the unsealing of the summary judgment record as

described herein, and REMAND the cause to the District Court for

particularized review of the remaining materials.

In undertaking this task, the District Court may be well

‐ served

by ordering the parties to submit to the Court unredacted, electronic

copies of the remaining sealed materials, as well as specific, proposed

redactions. The District Court may also order the parties to identify

and notify additional parties whose privacy interests would likely be

implicated by disclosure of these materials.

In the interests of judicial economy, any future appeal in this

matter shall be referred to this panel.POOLER, Circuit Judge, dissenting in part :

I join the Court’s opinion in every respect but one: the decision to unseal

the summary judgment record ourselves. I agree that all or most of the material

must be unsealed. Nevertheless, in my view, the district court is better suited to

the task. As the Court’s opinion recognizes in connection with the remaining

sealed materials, the district court is better positioned to communicate with the

parties and any nonparties whose privacy interests might be affected by

unsealing. On that score, it is worth clarifying here the breadth of the Court’s

unsealing order: it unseals nearly 2000 pages of material. The task of identifying

and making specific redactions in such a substantial volume is perilous; the

consequences of even a seemingly minor error may be grave and are irrevocable.

Moreover, although I share the majority’s concern about avoiding delay, I would

alleviate that concern through other means—perhaps with an order directing the

district court to act expeditiously and by making clear what types of limited

redactions are and are not appropriate. In sum, I would unseal the district court’s

summary judgment decision only and leave the remainder of the materials for

the district court to review, redact, and unseal on remand.