Ghislaine Maxwell, Virginia Giuffre, Alan Dershowitz
A federal court in New York City has moved to further restrict access to long-sought-after secret files in the Jeffrey Epstein saga. In a Wednesday order, Senior U.S. District Judge Loretta Preska determined that attorneys for Epstein survivor Virginia Roberts Giuffre had improperly gained access to many of those highly-prized documents.
Preska determined that certain discovery materials covered by a years-old protective order “are not properly in possession” of Giuffre’s current legal team and “thus must be destroyed.” That means that they can’t have copies of the documents in question; it does not mean that all copies of the documents will be deleted from existence. Additionally, the law firm of Cooper & Kirk must provide “an affidavit detailing the steps that it took to destroy the materials.”
The ruling was also a setback for Harvard Law professor emeritus and former Epstein attorney Alan Dershowitz, who has repeatedly sought access to the full tranche of Epstein files and discovery materials.
“Mr. Dershowitz’s request is denied,” the court ruled.
At issue here are two separate legal controversies: (1) a protective order issued in 2015 by Judge Robert W. Sweet in a since-settled defamation case between Giuffre and Epstein’s alleged groomer and girlfriend Ghislaine Maxwell; and (2) a more recent series of extant defamation, back-and-forth claims between Giuffre and Dershowitz.
The Giuffre v. Maxwell protective order is the major legal lock-and-key which has long-protected the Epstein files. A process is currently underway for both sides to sift through those documents and eventually make many of them available for public consumption.
Dershowitz, however, recently requested unencumbered access to those files and more–asking the Southern District of New York (SDNY) to modify and make him a party to the original protective order because it would help him in his ongoing defamation lawsuit.
Such access was necessary, Dershowitz’s attorney argued during a hearing last week, because Giuffre’s attorneys in the defamation battle also have access to many of those documents covered by the Maxwell protective order. Judge Preska moved to rein in both sides.
“[T]the Court was troubled to learn at the June 23 oral argument that replacement counsel for Ms. Giuffre, Cooper & Kirk, had received from Ms. Giuffre’s former counsel, Boies Schiller Flexner, the Maxwell materials at issue in their entirety,” the judge chidingly explained. “Asked to explain how those materials came into the firm’s possession, attorneys from Cooper & Kirk explained that they had obtained access to the materials because Ms. Giuffre retained them ‘both to represent her in [Giuffre v. Dershowitz] and to represent her in conjunction with the Boies Schiller firm in the Maxwell case.'”
That explanation didn’t land well with the SDNY judge:
[W]hatever Cooper & Kirk’s intentions in requesting and obtaining the Maxwell materials from Boies Schiller, the Maxwell Protective Order explicitly provides that (1) discovery materials designated CONFIDENTIAL cannot be disclosed or used outside of the confines of the Maxwell action and (2) that properly designated discovery materials may only be disclosed to specific groups of individuals, including attorneys “actively working on” the Maxwell litigation.
“Cooper & Kirk is sunk on either score,” the judge reasoned. “As a practical matter, the Court would be surprised–shocked, even–if Cooper & Kirk was not in some sense ‘using’ the Maxwell discovery in its representation of Ms. Giuffre in her action against Mr. Dershowitz. And, even if it was not doing so, Cooper & Kirk is not ‘actively working on’ the Maxwell matter such that disclosure of discovery materials to it would be permissible under the plain terms of the protective order.”
Preska went on to explain that the protective order only provides access to the “preparation and trial” of Giuffre’s settled lawsuit against Maxwell and since that lawsuit is inactive, “Cooper & Kirk necessarily cannot play an active role in litigating them.”
The judge ordered the following course of action:
Accordingly, the Court concludes that Cooper & Kirk’s possession of the Maxwell discovery materials violates the plain terms of the Maxwell Protective Order. All of those materials and any material, including work product, derived from the Maxwell materials (other than the deposition of Ms. Giuffre in Maxwell) shall be destroyed. Counsel shall submit an affidavit detailing the steps taken to do so. Furthermore, to the extent that it is doing so, Cooper & Kirk shall cease use of the Maxwell materials in its preparation of Ms. Giuffre’s action against Mr. Dershowitz.
Wednesday’s decision presents a decidedly Kafkaesque turn of events for Giuffre and her legal team’s continued efforts.
By Preska’s newfound interpretation of the protective order, only Boies Schiller can access the Epstein files on Giuffre’s behalf. But in late 2019, Boies Schiller was disqualified–by another Preska order–from further representing the Epstein survivor. Which means Giuffre herself just lost meaningful access to many of those documents.
But the ruling made pains to both-sides the access issue.
“The Court also notes, as Mr. Dershowitz’s counsel did at oral argument on June 23, that it would be unfair for Ms. Giuffre’s counsel to have access to the Maxwell discovery materials while Mr. Dershowitz does not,” a footnote reasons. “While the Court rejects Mr. Dershowitz’s request to modify the Maxwell Protective Order, it will not in the same breath force him to litigate this action with one arm tied behind his back.”
While expressing dismay at Giuffre’s attorneys access to the Epstein files, Judge Preska employed an extended modern warfare metaphor to dismiss Dershowitz’s request for those same documents.
“The sheer breadth of Mr. Dershowitz’s request is worth reiterating,” the order notes, “he seeks ‘all filings and discovery materials, including third- party discovery’ from the Maxwell litigation, a years-long affair with over a thousand docket entries. In other words, it is not a targeted strike that Mr. Dershowitz proposes, but a carpet bombing. And, while Mr. Dershowitz contends it is ‘obvious’ that Ms. Giuffre ‘has made relevant . . . all of the discovery from Maxwell,’ he has not beyond conclusory assertions demonstrated a congruence between the Maxwell action and his own that would warrant such an indiscriminate approach.”
The order also reflected multiple parties’ views that granting the request would probably blow up the overall unsealing efforts:
Critically, the agreed-upon unsealing procedure can only work as intended if non-parties are willing to participate. Handing over to Mr. Dershowitz all of the materials from Maxwell, which would necessarily include all of the sealed filings that are the subject of the unsealing protocol, would threaten that balance. Non-parties may question the legitimacy of that process if Mr. Dershowitz can obtain, without any regard whatsoever for their interests, the sealed materials for the mere reason that disclosure would make mounting his defense and litigating his counterclaims against Ms. Giuffre more convenient.
“The Court will not risk collateral damage to the Maxwell unsealing process by modifying the protective order,” Preska determined–finally retiring the metaphor.
Law&Crime reached out to both and Cooper & Kirk and Dershowitz for comment and clarification on this story but no response was forthcoming at the time of publication.
Read the full order below:
Giuffre v. Maxwell and Giuffre v. Dershowitz Order by Law&Crime on Scribd
[Images via Laura Cavanaugh/Getty Images, YouTube/ The Guardian, YouTube/CBS This Morning screengrabs]
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