United States District Court, S.D. New York
VIRGINIA L. GIUFFRE, Plaintiff,
GHISLAINE MAXWELL, Defendant.
OPINION & ORDER
Loretta A. Preska, Senior United States District Judge.
December 16, 2019 Order, the Court concluded 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." (See dkt. no.
1016.) The Court now writes to explain the basis for that
point, Plaintiff Virginia Giuffre ("Ms. Giuffre"),
Defendant Ghislaine Maxwell ("Ms. Maxwell"),
Intervenor Miami Herald Media Company ("the
Herald"), and Interested Party John Doe
("Doe," and, collectively with Ms. Giuffre, Ms.
Maxwell, and the Herald, "the Parties") are more
than well-versed in the facts and procedural history of this
case. Accordingly, the Court sees no reason for an in-depth
rehashing of that factual background in this opinion.
essential note, the Court ordered the Parties on October 28,
2019 to "inform the Court by letter ... of the motions
that were decided in this case." (See Order on Decided
Motions, dated October 28, 2019 [dkt. no. 998], at ¶ 1.)
In that same order, the Court instructed the parties to
submit to the Court "their views on the effect of a
motion's being undecided on whether the motion papers are
or are not a judicial document." (Id. ¶
4.) The Parties thereafter submitted letter briefing on
whether a motion's being decided (or not being decided)
had any-critical effect on whether that document should be
labeled a judicial document. (See Maxwell Brief
("Maxwell. Br."), dated November 12, 2019 [dkt. no.
1005]; Giuffre Brief ("Giuffre. Br."), dated
November 12, 2019 [dkt. no. 1008]; (see also John
Doe Brief ("Doe Br."), dated December 5, 2019 [dkt.
no. 1012]; Miami Herald Opposition to John Doe Brief
("Herald Br."), dated December 12, 2019 [dkt. no.
documents filed with a court implicates a common law and
qualified First Amendment right of access to such
documents." Trump v. Deutsche Bank AG, 940 F.3d
146, 150 (2d Cir. 2019) (citing cases). That "right of
public access to judicial documents is firmly rooted in our
nation's history." Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). The federal
courts, however, cannot be monitored "without access to
testimony and documents that are used in the performance of
[the courts'] Article III functions." U.S. v.
Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)
("Amodeo II"). Thus, the purpose behind
this presumption of public access is simple: it ensures that
"federal courts, although independent . . . have a
measure of accountability" and allows "for the
public to have confidence in the administration of
first step in the unsealing process-and the sole question
that the Court considers in this opinion--is to evaluate
whether documents in question are "judicial"
documents. Trump, 940 F.3d at 150. This is because
no common law right to public access can attach to documents
that are not "judicial" in nature. Lugosch, 435
F.3d at 119 ("Before any such common law right can
attach ... a court must first conclude that the documents at
issue are indeed ''judicial documents.'").
The Court of Appeals has made it clear that "the mere
filing of a paper or document with the court is insufficient
to render that paper a judicial document." United
States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)
("Amodeo I"). Instead, a document may be
coined a judicial document only if it is "relevant to
the performance of the judicial function and useful in the
judicial process." Id. The scope of this
limitation is significantly less clear.
natural place to start is with the question of what exactly
the "judicial function" is. The Court of Appeals
has stated that courts "perform the judicial function
. . . when [they] rule on motions currently before
[them]" and when they are "properly exercising
[their] inherent supervisory powers." Brown v.
Maxwell, 929 F.3d 41, 49 (2d Cir. 2019) (internal
quotations and citations omitted). That language speaks to
the constitutional authority of the federal courts. Indeed,
the Court of Appeals has explicitly explained that
"[d]ocuments that play no role in the performance of
Article III functions . . . lie entirely beyond the
[reach of the presumption of public access]." Amodeo
II, 71 F.3d at 1050 (emphasis added); see also Stand
Inv. Charted, Inc. v. Nat'l Ass'n of Sec. Dealers,
Inc., 621 F.Supp.2d 55, 63 (S.D.N.Y. 2007)
("Because the  documents did not in any way figure
into the Court's performance of its Article III
functions, the documents do not qualify as judicial.").
Thus, a document may only be judicial in nature--and thus
subject to the presumption of public access-if it is somehow
relevant to the exercise of the judicial power vested in the
federal courts by Article III of the Constitution of the
United States. See U.S. Const, art. Ill. § 1.
core of Article Ill's judicial power "is the right
to determine actual controversies arising between adverse
litigants, duly instituted in courts of proper
jurisdiction." Muskrat v. United States, 219
U.S. 346, 361 (1911); see also Murphy v. Nat' 1
Collegiate Athletic Ass'n, 138 S.Ct. 1461, 1485
(2018) (Thomas, J., concurring) (Traditionally, courts have
understood the judicial power to be "fundamentally, the
power to render judgments in individual cases."). The
essence of the judicial power is thus adjudicative. Article
Ill's case or controversy requirement, see U.S.
Const, art. Ill. § 2, cl. 1, however, underscores that
the judicial power does not--and cannot--exist in a vacuum.
Instead, it can only exist in the context of real disputes
between parties before the Court, i.e., situations
in which the courts are capable of "determining
litigants' substantive rights." Amodeo II,
71 F.3d at 1049. "Without a suit, without parties,"
however, "the judicial power is absent." Craig A.
Stern, What's a Constitution Among Friends?
Unbalancing Article III, 146 U. Pa. L. Rev. 1043, 1055
case, the underlying litigation between Ms. Giuffre and Ms.
Maxwell has long since settled. Accordingly, "[a]11
disputes regarding the underlying merits of the action have
been rendered moot by the settlement." LaForest v.
Honeywell Intern. Inc., 569 F.3d 69, 74 (2d Cir. 2009).
There is thus is no live controversy to which the judicial
power can extend. With respect to motions left undecided by
Judge Sweet, there was never, and now never can be, a
judicial decision-making process that would trigger the
public's right to access the undecided motions and the
documents relevant to them.
argues that the documents at issue are nonetheless judicial
because they, at one point prior to the settlement of the
litigation between Ms. Giuffre and Ms. Maxwell, called on the
Court to exercise its Article III powers. (Giuffre Br. at 2
(citation omitted).) This argument relies heavily on this
Court's opinion in Eagle Star Ins. Co. Ltd. v.
Arrowood Indem. Co., in which Judge Baer found that
papers filed in connection with a fully briefed motion in a
case that settled prior to a decision on that motion were
judicial because "[a]t the time of filing . . . [they
were] filed for the Court's consideration in ultimately
adjudicating the case." No. 13 Civ. 3410, 2013 WL
5322573, at *2 (S.D.N.Y. Sept. 23, 2013). But this does not
appear to be a hard and fast rule-indeed, this Court has
previously taken the opposite tack to unsealing mooted
motions. For example, in Int'l Equity Invest., Inc.
v. Opportunity Equity Partners Ltd., Magistrate Judge
Ellis rejected an intervenor's request to modify a
protective order in order to access certain documents filed
in connection with a motion for a preliminary injunction that
was resolved via stipulation before a judicial ruling. Judge
Ellis found that the documents were not judicial, and
therefore not subject to the presumption of access, in part
because the Court could not "make a substantive
determination" of the issues in light of the
motion's mootness. No. 05 Civ. 2745(JGK)(RLE), 2010 WL
779314, at *3-4 (S.D.N.Y. Mar. 2, 2010}. District Judge
Koeltl later adopted Judge Ellis's ruling over objections
from the intervenor. See Mem. & Order, dkt. no.
663, No. Civ. 2745(JGK)(RLE) (S.D.N.Y. April 12,
with these two approaches and considering the lack of clear
guidance from the Court of Appeals,  the Court chooses the path
that adheres most closely to the overarching purpose of the
presumption of public access. That is, the presumption exists
to monitor judicial decision-making. See Amodeo
II, 71 F.3d at 1049 (Explaining that the existence of
the presumption is rooted in the need for "public
monitoring" of "the role [that the relevant]
documents played in determining litigants'"
substantive rights."). Here, however, there is simply no
decision to be made, no exercise of the judicial power that
can take place, and no court action for the public to
monitor. Ms. Giuffre suggests that, because the undecided
motions were submitted to the Court way back when, "they
can fairly be assumed to play a role in the court's
deliberations." (Giuffre Br. at 3.) But Ms. Giuffre
neglects to explain why her speculation as to Judge
Sweet's deliberations, without more, is sufficient to
render a document "judicial" where those
deliberations-if they even occurred- cannot result in a
judicial act of any sort.
the Court of Appeals has made it crystal clear that the
universe of documents that can be considered
"judicial" is not limitless. See Amodeo
II, 71 F.3d at 1048 ("[A]n abundance of statements
and documents generated in federal litigation actually have
little or no bearing on the exercise of Article III judicial
power."'); see also Newsday LLC v. County of
Nassau, 730 F.3d 156, 167 n.15 (2d Cir. 2013)
(Emphasizing that "the category of 'judicial
documents' should not be readily expanded."). Ms.
Giuffre, however, appears to argue that any document that (1)
has been filed with a court; (2) requests some manner of
relief; and (3) comes to a judge's attention in any way,
is a judicial document, whether decided, undecided,
justiciable, or nonjusticiable. (See Giuffre Br. at
3.) Such an approach would effectively obliterate any
limitation on what can be afforded the presumption of public
access. If every document that comes to a judge's
attention after filing is "relevant to the judicial
function," then practically every paper filed with the
Court would be judicial in nature. This flies in the face of
the Court of Appeals' directive that "mere filing of
a paper or document with the court is insufficient to render
that paper a judicial document." Amodeo I, 4 4
F.3d at 145.
the Court is mindful of the fact that there is a great deal
of public intrigue surrounding the unsealing of the documents
at issue here. With that in mind, the Court emphasizes that
this ruling is a narrow one. Notwithstanding the fact that
the undecided motions and the papers associated with them are
not judicial documents, they may eventually be unsealed
because they are in some way relevant to Judge Sweet's
actual decisions-which are numerous-that are certainly
subject to the presumption of public access. Ms. Giuffre
raises such a possibility in her briefing, suggesting that
the undecided motions can "fairly be assumed to [have
played] a role in [Judge Sweet's] deliberations as to
other rulings." (See Giuffre Br. at 4 (quoting
Lugosch, 435 F.3d at 123).) At this stage in the
unsealing process, the Court declines Ms. Giuffre's
invitation to ...