From Judge Loretta Preska (S.D.N.Y.) in yesterday's Giuffre v. Maxwell:

On March 18, 2016, the late Judge Sweet issued a protective order … barring Plaintiff Virginia Giuffre, Defendant Ghislaine Maxwell, and their attorneys from sharing confidential discovery information produced as part of this case with any third party, including the Government. The Protective Order allowed the parties' attorneys, by designating a document as confidential, to represent that the document's contents implicated one or both of the parties' privacy interests and thus keep the document under seal unless the opposing party objected. The parties were thereafter permitted to file dozens of documents and motions largely or entirely under seal.

Paragraph 12 of the Protective Order provided that, at the conclusion of the case, all confidential documents and copies thereof were either to be returned to the party that designated it confidential or destroyed. However, Paragraph 14 of the Protective Order also provided that the "Protective Order may be modified by the Court at any time for good cause shown following notice to all parties and an opportunity for them to be heard."

While subject to the Protective Order, Maxwell was deposed in April and July of 2016. Plaintiff and Maxwell subsequently settled on confidential terms in May of 2017. All documents subject to the Protective Order remained under seal following the settlement….

In late 2018, after this litigation was settled, the United States Attorney's Office for this District began investigating Jeffrey Epstein for the unlawful trafficking of minors, among other crimes. As part of its investigation, the Government issued a grand jury subpoena … to Ms. Giuffre's attorneys at Boies Schiller Flexner LLP … requiring Boies Schiller to produce discovery materials from this matter….

During the follow-up investigation, the government successfully asked the court "to modify the Protective Order to allow Boies Schiller to comply with the Subpoena," and Boies Schiller turned the subpoenaed materials over to the government. Then, more recently, the government asked the court to modify the Protective Order further to allow it to publicly release the files under the Epstein Files Transparency Act, which requires the government to

make publicly available … all unclassified records, documents, communications, and investigative materials in the possession of the Department of Justice, including the Federal Bureau of Investigation and United States Attorneys' Offices' that relate to nine topics, including "Jeffrey Epstein" and "Ghislaine Maxwell."

And in yesterday's decision, the court granted the government's new motion, rejecting Maxwell's contrary arguments. A few excerpts from the long opinion:

The Epstein Files Transparency Act Overrides Rule 6(e) and Grand Jury Secrecy …

Maxwell … argues that, to the extent the Government seeks to publish materials gathered pursuant to a grand jury subpoena, Federal Rule of Criminal Procedure 6(e) prohibits such disclosure…. On the other hand, grand jury secrecy is not absolute. Rule 6(e) already authorizes grand jury disclosures in limited circumstances, and "Congress … has the power to modify the rule of secrecy" through legislation….

The Act Does Not Violate the Constitution's Separation of Powers …

Maxwell separately argues that the Act violates the Constitution's separation of powers in three ways: (1) it demands that courts reopen final judgments; (2) it prescribes rules of decision; and (3) it vests in the Executive Branch the authority to review the decisions of Article III courts. The Court rejects each of these constitutional arguments in turn….

The Act Does Not Violate Due Process

Maxwell also argues that the Act violates her due process rights by depriving her of a right vested in her by the Court's sealing decisions not at issue on remand…. [But] the Government's current request does not seek to reopen a "final judgment" but instead seeks to modify a protective order which, by its own terms, may be adjusted with the passage of time. At no point did Maxwell ever acquire a vested right to total and perpetual secrecy of the materials generated by this litigation….

The court modified the protective order, to add the following:

Notwithstanding any other order or action of this Court, including this Court's permitting the parties to file certain documents under seal, the Government may produce any and all documents that it received from Boies Schiller & Flexner LLP, in response to a grand jury subpoena and pursuant to the April 9, 2019, order … in accordance with the Government's obligations under the Epstein Files Transparency Act, and subject to the Government's withholding and/or redaction obligations under Section 2(c) of the Act…..

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