Case 1:15-cv-07433-LAP Document 1019 Filed 01/15/20 Page 1 of 4

January 15, 2020

By ECF

The Honorable Loretta A. Preska

United States District Judge
Southern District of New York
500 Pearl Street, Room 2220
New York, NY 10007-1312

Re: Giuffre v. Maxwell, 15 Civ. 07433 (LAP)

Dear Judge Preska:

We write on behalf of an anonymous non-party, John Doe, in advance of the conference

in the above-referenced matter scheduled for tomorrow.

The purpose of this conference, as set forth by the Court, is to “discuss next steps that
will enable the Court to conduct an individualized review of relevant documents” for potential
unsealing. Order, dated Dec. 16, 2019 (DE 1016), at 1. The Court has further explained that
those next steps include – in addition to evaluating the weight of any presumption of public
access that applies to judicial documents – identifying and assessing “any countervailing factors
that function to limit the weight of the presumption of public access.” Id. And the Court has
specifically explained that, as part of evaluating those countervailing factors, it intends to
“address notification of third parties named in the documents.” Id. at 2.

We write to renew our request that, as the Court establishes an individualized review
process, it consider the protocol we initially proposed in our letter to the Court dated September
3, 2019 (DE 980). We have appended a revised proposed protocol hereto, which seeks to
incorporate the progress made by the Court and parties since then.

Respectfully Submitted,
KRIEGER KIM & LEWIN LLP

By: _________________________
Nicholas J. Lewin
Paul M. Krieger

Encl.

cc (by ECF): All counsel of record

Case 1:15-cv-07433-LAP Document 1019 Filed 01/15/20 Page 2 of 4

EXHIBIT

REVISED PROPOSED PROTOCOL

The Court previously held that “only motions actually decided by Judge Sweet –
along with documents relevant to Judge Sweet’s decisions on those motions – are properly
considered judicial documents to which a presumption of public access attaches.” Order, dated Dec.
16, 2019 (DE 1016). Such materials are referred to herein as the “Sealed Materials.” The Court will
conduct an individualized review of these Sealed Materials to evaluate the weight of any
presumption of public access that applies, and to identify and weigh countervailing factors that
function to limit the weight of that presumption of public access. To assist in this process and afford
parties identified in the Sealed Materials the opportunity to participate, the Court should adopt the
following protocol:

(1) Parties Identify Non-Parties: Pursuant to the Court’s Order, dated Oct. 28,
2019 (DE 998), at ¶ 2, Plaintiff Virginia Giuffre and Defendant Ghislaine Maxwell (collectively,
the “Original Parties”) shall continue to jointly identify any non-parties whose privacy or
reputational rights may be implicated by the unsealing of the Sealed Materials (each, a “Non-
Party,” and collectively, the “Non-Parties”). The Non-Parties identified by the Original Parties
should include, but not be limited to: (a) those persons who produced or answered discovery
based upon the representation or understanding that the discovery would be subject to the
Protective Order previously issued in this action; (b) persons who are identified as having
allegedly engaged in sexual acts with Plaintiff, or other alleged victims, or allegedly facilitated
such acts; (c) persons whose intimate, sexual, or private conduct is described in the Sealed
Materials; and (d) persons who are alleged to have been victimized by Jeffrey Epstein or
Defendant.

(2) Notification to This Court: To the extent not already completed, see id.,
the Original Parties shall apprise the Court of the identities of the Non-Parties by making a joint
submission, under seal, identifying each such Non-Party and noting where in the Sealed Materials
each Non-Party is identified or referenced. To the extent not already done, the Original Parties’
submission to the Court should also include the following:

• In order to facilitate an orderly adjudication of the privacy interest of each Non-Party,

the Original Parties’ sealed submission to the Court shall assign to each Non-Party a
numerical identifier (e.g. J. Doe #1, J. Doe #2, and J. Doe #3).

• The Original Parties shall be required to exercise best efforts to identify and
provide to the Court available contact information or addresses for each Non-
Party or his or her legal counsel.

(3) Initial Judicial Adjudication: The Court should then provide confidential
written notice to identified Non-Parties in order to permit such Non-Parties an opportunity to file,
under seal, objections to the release of the Sealed Materials. As set forth below, the notice to
Case 1:15-cv-07433-LAP Document 1019 Filed 01/15/20 Page 3 of 4

each affected Non-Party should furnish him or her with the assigned anonymous description and
numerical assignment, and set out the process for responding to such notice.

(4) Provision of Sealed Materials to Affected Non-Parties: Upon request, a

Non-Party so notified shall receive from the Original Parties the excerpts of the Sealed Materials
pertaining to him or her (the “Excerpts”). Such request should be made under seal and served
upon counsel for the Original Parties. The Original Parties shall hold all requests received as
strictly confidential and shall not disclose the request. Upon receipt, the Original Parties shall
jointly release the Excerpts to the requesting Non-Party, who must maintain the Excerpts as
confidential and not disclose the same, absent further order of this Court. The requesting Non-
Party may utilize the Excerpts only as part of its sealed objections, if any, submitted to this Court.

(5) Non-Party Objections: This Court should then set a fixed date for the
receipt of objections from Non-Parties. The Court should require that any such objections be: (a)
filed under seal; and (b) served upon the Original Parties. In order to ensure as transparent a
process as possible in these circumstances, in addition to filing under seal, the objecting Non-
Party shall publicly file a redacted objection on the Electronic Case Filing system (“ECF”)
reflecting the assigned J. Doe identifier. The redacted versions publicly filed on ECF must
remove all identifying information about the Non-Party, and any other referenced Non-Parties,
including from the Excerpts.

A Non-Party’s participation in this protocol is optional. Non-Parties are under no

obligation to object and a Non-Party’s decision not to do so shall not be deemed as consenting to
the unsealing of the Sealed Materials. The solicitation and receipt of objections from Non-Parties
who wish to participate is intended merely to aid the Court in balancing privacy interests against
the public’s right of access; it is not intended to substitute for that critical balancing test, which is
the responsibility of the Court in any event. See In re New York Times, 828 F.2d at 116 (“The
job of protecting [non-party privacy rights] rests heavily upon the shoulders of the trial judge . . .
.”). Accordingly, even if no objection is filed by a Non-Party, the Court still will undertake the
particularized review directed by the Court of Appeals.

(6) Responses of the Original Parties to Any Non-Party J. Doe Objections:

The Court should provide the Original Parties an opportunity to respond to any objections filed
by Non-Parties. Accordingly, the Original Parties shall have fourteen (14) days after the filing
of any Non-Party objection to file an opposition, and the objecting J. Doe shall have seven (7)
days after the Original Party’s opposition is filed to file a reply in support of his or her objection.
The Original Parties and J. Doe shall file their respective submissions under seal, and, as set out
above, file a redacted copy of their submissions on ECF, redacting the Sealed Materials (or
excerpts therefrom) and any personally identifying information concerning each J. Doe.

* * *

Unless expressly stated otherwise, all notices, submissions, and filings made
pursuant to this Order should remain permanently sealed inasmuch as they are submitted solely so

2
Case 1:15-cv-07433-LAP Document 1019 Filed 01/15/20 Page 4 of 4

that the Court may decide whether any Sealed Materials may be unsealed. See Brown v. Maxwell,
929 F.3d 41, 50 n.33 (2d Cir. 2019).

The process outlined herein is intended to afford Non-Parties the opportunity to

participate in this proceeding solely as to the issue of whether any Sealed Materials that identify
them should be unsealed. Thus, if a Non-Party files an objection, he or she will be treated as having
made a limited purpose appearance in this action. An order from this Court unsealing the Sealed
Materials, in whole or part, as to a Non-Party should be deemed to have affected the Non-Party’s
rights and interests for purposes of appeal.

Pending the Court’s in camera review, the Sealed Materials should remain sealed.
However, nothing set forth herein precludes any party from communicating, publicly or otherwise,
including to law enforcement agencies, so long as such disclosures do not reveal the contents of the
Sealed Materials. A party is, therefore, free and without any restraint whatsoever, to disclose any
information within their personal knowledge. He or she is only limited, pending the completion of
the Court’s inquiry, from proceeding in violation of the Protective Order and other direction of this
Court.