A federal judge repeatedly lost her patience with an attorney representing Alan Dershowitz during a Tuesday hearing over two separate but related defamation cases concerning Jeffrey Epstein and his alleged global elite-servicing sex trafficking operation.
The specific subject of the hearing was a recent Dershowitz motion to modify a years-old protective order in the settled defamation case between Epstein survivor Virginia Roberts Giuffre and Ghislaine Maxwell, Epstein’s alleged groomer. While the actual controversy between Giuffre and Maxwell ended in 2015, Giuffre and her legal team have fought for years—occasionally alongside attorneys for the media–to unseal the documents in that case.
The process of sealing, unsealing and eventually releasing those documents has been controlled by a protective order issued by the Southern District of New York (SDNY) in 2016. A pitched legal battle has been fought in recent years to have those documents released to the public due to the highly sensitive allegations they likely contain.
Those documents, colloquially known as just some of many secret Epstein files controlled by various courts, are widely believed to contain the names of many high-profile men in politics, finance and the arts who are presumably involved in the alleged child sex-trafficking scheme.
Giuffre has long alleged that Dershowitz, who previously worked as of Epstein’s lawyers, was one of the men who took part in Epstein’s alleged network of young girls. She also alleges that Dershowitz had sex with her approximately six times. Dershowitz has consistently maintained his innocence and repeatedly called Giuffre a liar. He said they’ve never met.
In early 2019, Giuffre sued Dershowitz over his “false and defamatory” denials of her sexual abuse claims. Dershowitz counter-sued for defamation in late 2019. In a recent motion, he asked for access to the full tranche of files from the original lawsuit against Maxwell as well as additional discovery documents from both Giuffre “and others” because, he says, those files will help his defense.
This background brings us to the controversy Tuesday.
“This is not an issue of public disclosure,” Dershowitz attorney Howard Cooper told the court during Tuesday’s hearing. Cooper said that his client simply wants to join the extant protective order—in other words, he wants to be able to access the documents—from the Maxwell case. This is proper, Cooper argued, because that protective order was “not the final word” and because the Second Circuit Court of Appeals may have changed the whole issue of party reliance when issuing the ruling to release the files after Epstein’s summer 2019 arrest.
Senior U.S. District Judge Loretta Preska was unimpressed.
The judge interrupted Cooper to note that the original protective order was clear that it was for one case and one case only: the defamation controversy between Giuffre and Maxwell.
Cooper responded that Giuffre has repeatedly made claims against Dershowitz that implicate the files in the protective order—including that Dershowitz engaged in a sex-trafficking conspiracy with Epstein. The attorney went on to note that his client would continue to seek the release of those files because they believe Giuffre is a bad actor by continuing to make claims against Dershowitz.
Maxwell attorney Laura Menninger responded to Cooper’s assertions by saying it was patently false and ridiculous for Dershowitz to argue no one has relied on the original protective order or that the reliance issued have substantially changed due to the ongoing unsealing process mandated by the appeals court. Maxwell herself relied on the order, Menninger said, when she agreed to provide evidence to Giuffre in the underlying case.
Menninger went on to complain that Dershowitz has, in fact, gained access to some documents covered by the scope of the original protective order and noted that Maxwell was upset because Giuffre’s new attorneys have access to those original documents covered by the protective order. It appears that Giuffre’s attorneys have produced some discovery to Dershowitz in the second defamation case and, per Menninger, this goes against prior rulings.
An attorney for Giuffre said she was retained for both cases and shrugged off the question of access by noting that she is working on both cases. She added that the protective order has barred them from producing some documents to Dershowitz; however, Preska ordered some discovery — so they went by that.
Given a second chance to make his case, Cooper said the situation was “unfair and inequitable,” alleging that the protective order has produced a “completely unfair tactical advantage in litigation” for one side only.
“I believe there is a compelling need here,” he said, citing Dershowitz’s constitutional right to defend himself, “while facing an adversary who has in her custody, possession or control, all of the materials he seeks.”
Cooper also raised eyebrows by claiming that the original protective order was “improvidently granted.”
Judge Preska quickly shot that line of argument down.
Issues about the order of document classification and particularized analysis, in hindsight, do not “mean the protective order was improvidently granted at the outset,” the judge said, because some documents were not public at the time the order was enacted. She ended that discussion by noting that “no protective order can possibly foresee” every single document potentially covered.
Preska then quizzed an attorney representing a John Doe as to why Dershowitz’s request was out of the question. Doe, a non-party, filed a letter motion arguing against Dershowitz’s request with the SDNY on Monday.
Doe’s attorney Nick Lewin appeared largely flabbergasted by Dershowitz’s basic legal position. Lewin said the request was neither efficient nor proportional.
“There’s no such thing,” Lewin said, noting that the protective order was about a completely different and distinct case. “That’s not how protective orders work.”
Menninger also chimed in to say that Maxwell doesn’t want Giuffre’s current attorneys to have access to all the documents. They should give them back, she advised, and that would cure the alleged inequity cited by Cooper—before dismissing the idea of letting Dershowitz access the documents.
“The fox would be guarding the hen house,” Menninger said.
Judge Preska offered Cooper another opportunity to make his case by asking if there was “a more targeted way” or a “narrowly tailored” way to produce certain documents to Dershowitz. Cooper responded by ignoring the question and essentially making the case for his client’s innocence against Giuffre’s claim.
Annoyed, the judge interrupted him again and replied “thank you for that, counselor, but let’s get on to what we’re here to talk about.”
Cooper, a bit chastised, then went off on a tangent about “a deposition I’m not allowed to talk about” concerning several lurid allegations against Dershowitz including rape, sex trafficking and conspiracy. Miami Herald journalist Julie K. Brown says this deposition also implicates “former Israeli [prime minister] Ehud Barak [and] Victoria’s Secret’s Les Wexner.”
Finally, Cooper answered the question directly.
“That suggested tailoring, you honor, is so narrow it would preclude Dershowitz from establishing the extent of the defamation of which he is being accused,” Cooper said when pressed by the judge to stay on topic. He went on to suggest a quasi-exhaustive release of documents requiring court notice from anyone who has documents that might mention or concern Dershowitz.
That response didn’t work out well for Cooper either.
“But how is he going to know?!” Preska yelled into her phone.
The judge then suggested all the proposed non-parties and third parties wouldn’t just give up their discovery documents and that Dershowitz wouldn’t have any workable way of sifting through the entire tranche of documents just to find those relevant to his case.
The hearing ended after Lewin agreed with Preska that Cooper’s proposal was unworkable.
The judge ultimately reserved her judgment for later.
[Image via Alan Dershowitz via ABC screengrab]
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