Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 1 of 13

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
VIRGINIA L. GIUFFRE,
Plaintiff,

No. 19 Civ. 3377 (LAP)

-againstALAN DERSHOWITZ,
Defendant.
VIRGINIA L. GIUFFRE,
Plaintiff,

No. 15 Civ. 7433 (LAP)

-against-

MEMORANDUM & ORDER

GHISLAINE MAXWELL,
Defendant.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is a request by Defendant Alan Dershowitz
(“Mr. Dershowitz”) to modify the protective order entered in
Giuffre v. Maxwell, No. 15 Civ. 7433 (S.D.N.Y.), to permit him
access to “all filings and discovery materials, including thirdparty discovery” from that case. (See Dershowitz Letter Requesting
Pre-Motion Conference on Motion to Modify the Protective Order
(“Dershowitz June 12 Letter”), dated June 12, 2020 [dkt. no. 133
in 19 Civ. 3377].)

Mr. Dershowitz originally sought the Court’s

leave to fully brief a motion to modify the protective order in
Maxwell pursuant to Rule 2.A of this Court’s individual practices.
The parties from both Giuffre v. Dershowitz, No. 19 Civ. 3377
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 2 of 13

(S.D.N.Y.), and Maxwell submitted a number of letters in response
to Mr. Dershowitz’s request and participated in oral argument on
June 23, 2020.1

In light of that developed record, the Court

elects to rule on Mr. Dershowitz’s request on the merits without
further briefing.
For the reasons that follow, Mr. Dershowitz’s request is
denied.

In addition, the Court rules that certain discovery

materials from the Maxwell case are not properly in possession of
Plaintiff Virginia Giuffre’s (“Ms. Giuffre”) current counsel and
thus must be destroyed under the plain terms of the Maxwell
protective order.
1. The Maxwell Protective Order
At the heart of the dispute is the protective order entered
in Maxwell by Judge Robert W. Sweet.

(See Protective Order (the

“Maxwell Protective Order”), dated March 17, 2016 [dkt. no. 62 in
15 Civ. 7433].)2

1

(See Giuffre Response to Dershowitz Letter (“Giuffre June 17
Letter”), dated June 17, 2020 [dkt. no. 141 in 19 Civ. 3377];
Maxwell Response to Dershowitz Letter, dated June 17, 2020 [dkt.
no. 1059 in 15 Civ. 7433]; Dershowitz Reply to June 17 Giuffre
Letter, dated June 18, 2020 [dkt. no. 142 in 19 Civ. 3377];
Dershowitz Reply to June 17 Maxwell Letter, dated June 18, 2020
[dkt. no. 1060 in 15 Civ. 7433]; John Doe Response to Dershowitz
Letter, dated June 22, 2020 [dkt. no. 1062 in 15 Civ. 7433];
Transcript of June 23 Oral Argument (“Transcript”), dated June 26,
2020 [dkt. no. 1069 in 15 Civ. 7433].)
2 Given the parties’ familiarity with them, the Court will not
otherwise recount the facts underlying either the Maxwell or the
Dershowitz action.
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 3 of 13

The Maxwell Protective Order, despite the angst it is now
causing,

is

unremarkable

in

form

and

function.

Like

many

protective orders, Judge Sweet entered the Maxwell Protective
Order in 2016 to “protect the discovery and dissemination of
confidential
annoy,

information

embarrass,

or

or

information

oppress

any

providing discovery in [Maxwell].”

that

party,
(Id.)

will

witness,

improperly
or

person

The order accordingly

permits the parties to designate as CONFIDENTIAL certain materials
produced in discovery that “are confidential” and that implicate
“common law and statutory privacy interests” of Ms. Giuffre and
Maxwell Defendant Ghislaine Maxwell (“Ms. Maxwell”).

(Id. ¶ 3.)

Under the order, materials properly marked CONFIDENTIAL “shall not
be disclosed or used for any purpose except the preparation and
trial of [Maxwell],” (id. ¶ 4), and may only be disclosed to
specific enumerated groups, including “attorneys actively working
on this case” and “persons regularly employed or associated with
the attorneys who are working on this case,” (id. ¶¶ 5(a)-(h)).
The Maxwell Protective Order further provides that, upon the
conclusion of the Maxwell litigation, all materials (or copies of
materials) designated CONFIDENTIAL shall be returned to the party
that designated them CONFIDENTIAL or, alternatively, destroyed.
(Id. ¶ 12.)

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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 4 of 13

2. Cooper & Kirk’s Possession of the Maxwell Materials
Before

getting

to

the

heart

of

the

matter,

i.e.,

Mr.

Dershowitz’s request, 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,3

entirety.

the

Maxwell

materials

at

issue

in

their

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.”

(Transcript at 9:15-19.)

The Court is not privy to the full details of Ms. Giuffre’s
arrangement with Cooper & Kirk, but, in any event, they would do
little to obviate the Court’s concern.

The Maxwell Protective

Order “must be interpreted as it[s] plain language dictates.”
Geller v. Branic Intern. Realty Corp., 212 F.3d 734, 738 (2d Cir.
2000)(quoting City of Hartford v. Chase, 942 F.2d 130, 135 (2d
Cir.

1991)).

requesting

and

And,

whatever

obtaining

Cooper

the

&

Maxwell

3

Kirk’s

intentions

materials

from

in

Boies

This Court disqualified Boies Schiller Flexner from continued
representation of Ms. Giuffre in its October 16, 2019 Opinion &
Order. (See Opinion & Order re: Defendant’s Motion to Disqualify
Counsel for Plaintiff and to Dismiss the Complaint, dated October
16, 2019 [dkt. no. 67].)
Ms. Giuffre retained Cooper & Kirk to
represent her shortly thereafter.
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 5 of 13

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.

(See

Maxwell

Protective Order, ¶¶ 4, 5(a).)
Cooper & Kirk is sunk on either score.

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.

(See id.)

First, the Maxwell Protective Order

governs the “preparation and trial” of Ms. Giuffre’s since-settled
claims against Ms. Maxwell, (id. ¶ 4), meaning Cooper & Kirk
necessarily cannot play an active role in litigating them. Second,
even assuming arguendo that the Maxwell Protective Order could
permit the disclosure to Cooper & Kirk, and despite Cooper & Kirk’s
representation that it was retained to represent Ms. Giuffre in
Maxwell, the firm has not, from what the Court can tell, been
actively working on the case. To wit, no Cooper & Kirk attorney
has entered an appearance in Maxwell, no Cooper & Kirk attorney
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 6 of 13

has attended any of the (numerous) conferences that have taken
place in that matter since the firm was retained by Ms. Giuffre,
and no Cooper & Kirk attorney has filed any letter, brief, or
motion with the Court.

Whatever Cooper & Kirk’s participation in

the

litigation,

Maxwell

unsealing

it

does

not

appear

to

be

“active.”
Accordingly,

the

Court

concludes

that

Cooper

&

Kirk’s

possession of the Maxwell discovery materials violates the plain
terms of the Maxwell Protective Order.4

All of those materials

and any material, including work product, derived from the Maxwell
materials (other than the deposition of Ms. Giuffre in Maxwell5)
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.

4

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. 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.
5 At a hearing before the Court on December 2, 2019, the Court
ordered Ms. Giuffre to turn over her deposition transcript from
Maxwell to Mr. Dershowitz. (See Transcript at 21:2-7.)
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 7 of 13

3. Mr. Dershowitz’s Request to Modify the Maxwell Protective
Order
As mentioned above, see supra at 1, Mr. Dershowitz seeks to
modify the Maxwell Protective Order to gain access to all materials
from that litigation.

The Court concludes that modification is

not justified for a number of reasons.
The Court of Appeals has held that where there has been
reasonable reliance by a party or non-party in providing discovery
pursuant to a protective order, a district court should not modify
that order “absent a showing of improvidence in the grant of the
order or some extraordinary circumstance or compelling need.”
S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001).

In

determining whether such extraordinary circumstances exist, the
Court considers several factors, including: (1) the scope of the
protective order; (2) the language of the order itself; (3) the
level of inquiry the court undertook before granting the order;
and (4) the nature of reliance on the order. In re Ethylene
Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308,
318 (D. Conn. 2009).
At a broad level, Mr. Dershowitz has simply not demonstrated
the existence of an “extraordinary circumstance or compelling
need,” TheStreet.com, 273 F.3d at 229, that counsels in favor of
modification.

The thrust of Mr. Dershowitz’s request is that

wholesale production of the Maxwell materials to him will “promote
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 8 of 13

efficiency and avoid duplication” in his defense of Ms. Giuffre’s
claims.
good,

(See Dershowitz June 12 Letter.)
but

while

“fostering

judicial

That is all well and
economy

and

avoiding

duplicative discovery are laudable goals . . . they hardly amount
to extraordinary circumstances or compelling need.” Md. Cas. Co.
v. W.R. Grace & Co., No. 83 Civ. 7451 (SWK), 1994 WL 419787, at *9
(S.D.N.Y. Aug. 10, 1994).
Moreover, the Court is not convinced that the production of
the Maxwell materials to Mr. Dershowitz would even vindicate those
important objectives beyond making life easier for Mr. Dershowitz.
The sheer breadth of Mr. Dershowitz’s request is worth reiterating:
he seeks “all filings and discovery materials, including thirdparty discovery” from the Maxwell litigation, a years-long affair
with over a thousand docket entries.
(emphasis added)).

(Dershowitz June 12 Letter

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.
A brief comparison of the Maxwell and Dershowitz actions makes
this clear.

Ms. Giuffre’s now-settled action against Ms. Maxwell
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 9 of 13

alleged that Ms. Maxwell was a ringleader in Jeffrey Epstein’s
sex-trafficking scheme, a trusted lieutenant of Epstein’s who
facilitated

his

purported

prominent individuals.

trafficking

of

underage

girls

to

Ms. Giuffre’s defamation action against

Mr. Dershowitz alleges that Mr. Dershowitz was one of the prominent
individuals

who

took

trafficking

scheme

advantage

and

that

of

Ms.

Epstein

Giuffre

and

was

Ms.

forced

Maxwell’s
to

have

intercourse with Mr. Dershowitz when she was underage. Ms. Giuffre
alleges that Mr. Dershowitz’s false denial of such contact defamed
her.
the

To be sure, the two actions are related because they involve
alleged

behavior

of

individuals

who

were

in

Epstein’s

substantial orbit, but they are not coextensive, and Ms. Giuffre’s
action against Mr. Dershowitz relates primarily to a much narrower
range of conduct than what was at issue in her action against Ms.
Maxwell.

The Court is thus skeptical that judicial economy would

be served by handing Mr. Dershowitz a mountain of discovery from
a separate case that may not even be relevant to his defense or to
his counterclaims against Ms. Giuffre.
Furthermore, the requested modification might not serve the
interests of judicial economy because it would threaten to undercut
the ongoing unsealing process in Maxwell.

The Court spent months,

with substantial input from the parties, fashioning a procedure
for unsealing the Maxwell filings that properly takes into account
the privacy interests of the scores of third parties named in those
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 Case 1:15-cv-07433-LAP Document 1071 Filed 07/01/20 Page 10 of 13

documents.

(See dkt. nos. 1026-1044 in 15 Civ. 7433.)

That

process involves actively soliciting objections from non-parties
and extensive briefing from the parties in response to those
objections.

(See Unsealing Protocol, dated March 31, 2020 [dkt.

no. 1044 in 15 Civ. 7433].)

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.6

6

Bubbling underneath the debate about modification of the Maxwell
Protective Order is a more practical concern: the temptation that
the Maxwell materials might inspire for a litigant in Mr.
Dershowitz’s position.
As a general matter, Mr. Dershowitz’s
battle with Ms. Giuffre has proceeded in very public--and
frequently toxic--fashion.
See, e.g., Alan Dershowitz Twitter
Posts
from
June
22,
2020,
available
at
https://twitter.com/AlanDersh (suggesting that Ms. Giuffre should
be “prosecuted and sent to prison” for perjury). More importantly,
and perhaps reflecting Mr. Derhsowitz’s desire to defend himself
in the public eye, Counsel for Mr. Dershowitz noted at oral
argument
that
“Professor
Dershowitz
obviously
wants
all
(Footnote continues on following page.)
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Finally, to the extent that an analysis of the EPDM factors
is necessary, see supra at 7, the Court concludes that the fourth
factor--the nature of reliance on the order by producing parties
--alone

justifies

modification.
Maxwell

rejecting

Mr.

Dershowitz’s

request

for

Integral to this conclusion is the fact that the

Protective

Order

prohibits

information

designated

as

CONFIDENTIAL from being “disclosed or used for any purpose except
for the preparation and trial of [the Maxwell] case.”

(Maxwell

Protective Order ¶ 4.) This provision functioned as a powerful
mechanism

for

inducing

contentious litigation.

parties

to

provide

discovery

in

a

Indeed, this Court has gone so far as to

describe similar clauses as “key provision[s]” of their respective
protective orders.

Jose Luis Pelaez, Inc. v. Scholastic, Inc.,

(Continued) information [contained in the Maxwell materials] to be
out there, to be public . . . because he believes it exonerates
him.” (Transcript at 21:21-24.)
This raises concerns for reasons that should be obvious.
While the Court does not believe that Mr. Dershowitz would do
anything so brazen as purposely to publicize the Maxwell sealed
materials, the fact that he is defending his reputation might
incent him, naturally, to be more cavalier with the sealed
materials where they are helpful to him. The potential for this
has already reared its head--Mr. Dershowitz’s June 12 letter
requesting
modification
arguably
contained
public
characterizations of the sealed materials, a fact that “troubled”
Ms. Giuffre, (Giuffre June 17 Letter).
Thus, given the public
character of this litigation and what is at stake for the
litigants, production of the Maxwell materials to Mr. Dershowitz
would raise additional risk of leakage from the materials at issue
in the Maxwell unsealing process into filings in the Dershowitz
action.
This would further undermine the unsealing process in
Maxwell.
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312 F. Supp. 3d 413, 417 (S.D.N.Y. 2018).
provisions

accordingly

proves

critical

The presence of such
to

the

modification

analysis--that producing parties are “justified in believing that
a protective order would not be modified for purposes external to
the lawsuit in which it was entered” may be a dispositive factor
in denying modification of a protective order. Nielsen Co. (U.S.),
LLC v. Success Sys., Inc., 112 F. Supp.3d 83, 121 (S.D.N.Y. 2015);
see also Jose Luis Pelaez, 312 F. Supp. 3d at 416-17.
Here, there is no question that the plain terms of the Maxwell
Protective Order would justify such an expectation.
Protective
information

Order
in

incentivized

discovery

by

parties
explicitly

to

The Maxwell

provide

promising

sensitive
that

said

information would only be wielded in connection with litigating
the claims at issue in that case and that case only.

Had the

parties producing discovery in Maxwell under the auspices of the
protective

order

anticipated

that

their

information

could

eventually be turned over to make litigation of a related, but
entirely separate, case more convenient, they may have never
produced information in the first place.

The Court accordingly

concludes that such reliance on the Maxwell Protective Order
precludes modification.

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CONCLUSION
For the reasons discussed above:
(1)

Cooper & Kirk shall destroy (a) all materials from
Giuffre v. Maxwell, No. 15 Civ. 7433, currently in its
possession, save for the transcript of Ms. Giuffre’s
deposition in that case and (b) all work product derived
from the Maxwell materials. Cooper & Kirk shall submit
to the Court an affidavit detailing the steps that it
took to destroy the materials. In addition, to the extent
it is doing so, Cooper & Kirk shall cease all use of the
Maxwell materials--outside of Ms. Giuffre’s deposition
transcript--in its work on Ms. Giuffre’s action against
Mr. Dershowitz.

(2)

Mr. Dershowitz’s request to modify the
Maxwell
Protective Order [dkt. no. 133 in 19 Civ. 3377] is
denied.

SO ORDERED.
Dated:

New York, New York
July 1, 2020
__________________________________
LORETTA A. PRESKA
Senior United States District Judge

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