The judge overseeing a settled lawsuit against convicted sex offender Ghislaine Maxwell now has to decide whether the identities of those mentioned in the suit will be revealed.
The decision stems from a 2015 defamation lawsuit brought by Virginia Roberts Giuffre, who claimed Jeffrey Epstein sexually abused her while she was a minor and that Maxwell aided in the abuse. The case was settled in 2017 and placed under a protective order.
But parts of it have been unsealed since then, as Giuffre, Maxwell and a number of third-party figures have debated what should and shouldn’t be released to the public.
The latest update in the yearslong case came last week, when Maxwell’s attorneys said they would no longer fight to keep secret the names of eight “John Does” and will leave it to the court to decide whether their names should be unsealed.
US District Judge Loretta Preska now will have to rule on how to handle those eight Does and how to balance the public’s interest with their privacy rights.
It’s the type of decision judges must make all the time in the course of their jobs, but that doesn’t make it simple, said Sarah Krissoff, a partner at Day Pitney and a former Assistant U.S. Attorney for the Southern District of New York.
“It’s really a document by document process,” Krissoff said. “It’s incredibly intensive.”
What is this case?
The case began in 2015 when Giuffre sued Maxwell for defamation related to public comments about Giuffre’s alleged sexual abuse in 2001, and the case was settled and sealed in 2017.
However, the US Court of Appeals for the Second Circuit unsealed hundreds of pages of documents on August 9, 2019 — a day before Epstein died in prison — ruling that the district court judge had improperly sealed hundreds of filings. That judge has since died.
The Court of Appeals also remanded the case back to the District Court to go through the rest of the documents individually and determine what can be unsealed.
Judge Preska, who has since taken over the case, ruled to unseal more documents in July 2020, including Maxwell’s 2016 deposition related to the lawsuit as well as emails and depositions by others.
In her ruling, she said that the public’s right to have access to the information carried heavier weight than the “annoyance or embarrassment” to Maxwell.
“In the context of this case, especially its allegations of sex trafficking of young girls, the court finds any minor embarrassment or annoyance resulting from Ms. Maxwell’s mostly non-testimony … is far outweighed by the presumption of public access,” she said.
However, Preska ruled that several medical records included in the court filings would remain sealed. In addition, she noted that the multiple anonymous women — “Jane Does” who accused Epstein of abuse but had not publicly spoken out — would continue to have their identities redacted in the documents.
Though the defamation case was a civil lawsuit, it ultimately led to criminal charges against Maxwell. She was charged with two counts of perjury for her 2016 civil deposition in the case.
Maxwell, 60, faces up to 65 years in prison after she was found guilty last month in a New York federal court on five federal charges, including sex trafficking of a minor. The two perjury counts were severed from the sex trafficking trial, and prosecutors agreed to dismiss them pending an appeal on her guilty verdicts.
What about these John Does?
In a September 2021 ruling, Preska said there were 16 “non-party objectors,” or people not party to the suit who objected to their identities being released. Preska decided to deal with eight of them first, followed by the next eight.
The identities of these Does are, of course, not clear. Broadly, though, they are people whose names were mentioned in the earlier defamation case.
Maxwell’s attorneys had argued to keep those identities secret, but last week told the court they no longer wished to address the objections further.
“Each of the listed Does has counsel who have ably asserted their own respective privacy rights. Ms. Maxwell therefore leaves it to this Court to conduct the appropriate review.”
Giuffre’s attorneys have argued for their identities to be unsealed, noting that several of the Does simply didn’t want their names associated with the case.
“[G]eneralized aversion to embarrassment and negativity that may come from being associated with Epstein and Maxwell is not enough to warrant continued sealing of information. This is especially true with respect to this case of great public interest, involving serious allegations of the sex trafficking of minors,” Giuffre attorney Sigrid McCawley wrote last week.
“Now that Maxwell’s criminal trial has come and gone, there is little reason to retain protection over the vast swaths of information about Epstein and Maxwell’s sex-trafficking operation that were originally filed under seal in this case.”
What issues will the judge consider in this decision?
Judges always have to balance the public’s right to know with issues of privacy, Krissoff noted. Generally, this is made on a document by document or even line by line basis rather than in one broad decision.
“It’s a very particularized determination whether a specific document should be under seal or not under seal, and within that document, whether portions should be redacted or not,” she said.
In this case, these decisions are being made years after the fact by a judge who was not part of the initial proceedings. That challenge helps explain why this process has moved so slowly, Krissoff explained.
“When doing it later and having to look back and re-create what happened and do some sleuthing, it takes a lot longer,” she said.
What is the timing for a ruling?
The exact timing of a ruling isn’t quite clear, but a court document in November set out the timeline for each side’s responses.
Giuffre and Maxwell were ordered to respond no later than two weeks after the end of Maxwell’s criminal trial. The trial ended in late December, and the parties dutifully filed their responses last week.
The Miami Herald, which has closely covered the Epstein saga, may file a responsive brief no later than two weeks after that, the ruling states. That would correlate to January 26.
Non-party objectors may file a reply to those briefs a week after that. The parties shall then file any replies no later than two weeks after that, the ruling states, putting the timetable into mid-February. A ruling would then come some time after that.