Case 20-2413, Document 25, 07/31/2020, 2897547, Page1 of 14

20-2413
United States Court of Appeals
for the Second Circuit
VIRGINIA L. GIUFFRE,
Plaintiff-Appellee,
—against—

GHISLAINE MAXWELL,
Defendant-Appellant,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
15-CV-7433 (LAP)

Ghislaine Maxwell’s Reply to the Miami Herald’s Response to Ms.

Maxwell’s Motion to Stay Pending Appeal

Ty Gee
Laura Menninger
Adam Mueller
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Tel 303.831.7364
Fax 303.832.2628
tgee@hmflaw.com; lmenninger@hmflaw.com; amueller@hmflaw.com
Attorneys for Defendant-Appellant Ghislaine Maxwell
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Table of Contents
Table of Authorities ................................................................................................. ii

Introduction ............................................................................................................. 1

Argument ................................................................................................................. 4

I. Ms. Maxwell will suffer irreparable harm absent a stay because the denial of a
stay will moot her appeal. ................................................................................... 4

II. Ms. Maxwell has more than a substantial possibility of success on the merits. .. 5

III. A stay will cause no meaningful harm to plaintiff or the Miami Herald. ............ 6

IV. The public interest favors a stay. ....................................................................... 8

Conclusion ............................................................................................................... 9

Certificate of Service ............................................................................................... 11

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Table of Authorities
Cases

Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) .......................................................... 2

Dubose v. Pierce,
761 F.2d 913 (2d Cir. 1985) ................................................................................ 3

Martindell v. Int’l Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) .............................. 6

Mohammed v. Reno, 309 F.3d 95 (2d Cir. 2002).................................................... 3, 5

Nken v. Holder, 556 U.S. 418 (2009) ........................................................................ 9

Patterson v. Colorado ex rel. Attorney General of Colo.,

205 U.S. 454 (1907) ........................................................................................... 9

Providence Journal Co. v. FBI, 595 F.2d 889 (1st Cir. 1979) ...................................... 4

Constitutional Provisions

U.S. CONST. amend. V ......................................................................................... 2, 4

U.S. CONST. amend. VI ....................................................................................... 2, 4

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Introduction
As Ms. Maxwell said in her Motion to Stay, “[t]he media has all but

convicted her.” Mot. at 1. In hindsight, this appears to have been an

understatement.

If the Miami Herald is to be believed, “The documents at issue have been

improperly sealed for years—in a way that allowed . . . Ms. Maxwell[’s] . . . abuse

of young girls to go on unchallenged and unpunished, and allowed a legal system

that protected perpetrators over victims to go unquestioned.” Resp. at 12. This

unqualified statement of Ms. Maxwell’s alleged guilt is precisely the type of unfair

and unconstitutional pretrial publicity that will result should the district court’s

unsealing order go into effect.

Far from undermining Ms. Maxwell’s motion for a stay pending appeal, the

Herald’s opposition underscores why a stay is essential. And the disconnect

between the Herald’s Response and the procedural history of this case is

remarkable.

First, if the Herald is willing to announce its conclusion that Ms. Maxwell

“abused” young girls even before having access to the sealed deposition materials,

that is only a harbinger of what media coverage will result should the material be

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unsealed, coverage that will prejudice Ms. Maxwell’s constitutional right to a fair

trial by an impartial jury. U.S. CONST. amends. V, VI.

Second, the Herald is wrong to imply that Ms. Maxwell is solely responsible

for the material being sealed in the first place. The Protective Order in this case was

a stipulated Protective Order. Plaintiff herself consented to the Protective Order,

and she never once challenged a “confidential” designation under the Protective

Order. Is the Miami Herald suggesting that plaintiff is to blame for “hiding” her

own alleged abuse?

Third, a highly experienced district court judge enforced the Protective

Order according to its terms. Although this Court ultimately concluded that the

district court erred, Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019), that does not

mean Ms. Maxwell or Judge Sweet acted in any way other than good faith.

Finally, the Herald entirely ignores its own conduct. The Herald complains

that the deposition material has been “improperly sealed for years.” Resp. at 12.

But the Herald did not move to unseal anything in this case until 2018, one year

after the case was closed. Again, the not-so-subtle implication of the Herald’s

complaints is anything but true.

In turn, on the law governing a stay pending appeal, the Herald has little to

offer in response. The Herald does not—and cannot—deny that Ms. Maxwell will

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suffer irreparable harm absent a stay, since the unsealing of the deposition material

will moot her appeal. Resp. at 10–11.

As for Ms. Maxwell’s arguments on the merits of the unsealing order, the

Herald says: “Ms. Maxwell cannot demonstrate that the district court abused its

discretion in ordering the documents unsealed; thus, she cannot succeed on the

merits.” Resp. at 3. That, of course, is not the standard.

In asking for a stay pending appeal, Ms. Maxwell need only show “a

substantial possibility, although less than a likelihood, of success” on the merits.

Dubose v. Pierce, 761 F.2d 913, 920 (2d Cir. 1985), vacated on other grounds, 487 U.S.

1229 (1988). A “substantial possibility” of success is “something less than 50

percent.” Mohammed v. Reno, 309 F.3d 95, 102 (2d Cir. 2002). Measured against

the proper standard, Ms. Maxwell has more than met her burden.

Finally, the Herald cannot claim to be meaningfully harmed by a stay

pending appeal. The Herald itself is partially responsible for how long the

documents have been under seal, having waited until a year after the case was

closed to move for unsealing. And when weighed against the harm Ms. Maxwell

will suffer absent a stay—the loss of her right to appeal, plus the injury to her Fifth

Amendment privilege against self-incrimination and the right to a fair trial by an

impartial jury, U.S. CONST. amends. V, VI—the question isn’t even close.

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This Court should stay the unsealing order pending appeal.

Argument
I. Ms. Maxwell will suffer irreparable harm absent a stay because the
denial of a stay will moot her appeal.

The Herald does not deny—and thereby implicitly concedes—that Ms.

Maxwell will suffer irreparable harm absent a stay because her “right of appeal here

will become moot unless the stay is continued pending determination of the

appeal[]. Once the documents are [disclosed] pursuant to the lower court’s order,

confidentiality will be lost for all time. The status quo could never be restored.” See

Providence Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979).

Almost as an aside, the Herald claims Ms. Maxwell will suffer only “minor

embarrassment” if the deposition material is unsealed. Resp. at 11. Really only two

things need be said in reply.

First, the Herald cannot possibly know the extent of the damage that will be

done by unsealing because the Herald does not have access to the deposition

material.1 Second, Ms. Maxwell did not claim irreparable harm from the

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If the Herald means to say that the district court concluded only “minor
embarrassment” will result from unsealing, that just begs the question: Was the
district court’s unsealing order correct? Ms. Maxwell asks the Court for the
opportunity to appeal to test the correctness of the district court’s order. The
Herald hopes to deny Ms. Maxwell that right.

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“embarrassment” of having the deposition material released. She claimed

“irreparable harm” in the form of losing her right to appeal, something the Herald

does not deny will happen absent a stay.

II. Ms. Maxwell has more than a substantial possibility of success on the
merits.

At this stage, Ms. Maxwell need not show that the district court erred. She

need not even show that it is more likely than not that the district court erred. She

need only show a substantial possibility—something less than 50 percent—that the

district court erred. Mohammed, 309 F.3d at 102. Applying the correct burden, Ms.

Maxwell has more than made her case for a stay pending appeal.

The Herald asserts that Ms. Maxwell’s Motion was based exclusively “on

conclusory and speculative claims that releasing the information would result in

‘negative media publicity’ that would, in turn, taint a jury trial.” Resp. at 7. That’s

not an accurate characterization of Ms. Maxwell’s motion. Mot. at 17–25.

But even if it were, Ms. Maxwell’s “speculation” appears to have been well-

founded, as the Herald’s Response is a perfect example of the “negative media

publicity” that will result. After all, even without access to the sealed deposition

material, the Herald has no problem claiming, in a publicly filed pleading, that

“Ms. Maxwell . . . abuse[d] . . . young girls.” Resp. at 12. Ms. Maxwell has not been

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convicted of anything (except by the media). She is constitutionally presumed

innocent.

Ms. Maxwell will suffer more than “minor embarrassment” should the

deposition material be unsealed. And when her reliance on the Protective Order led

her to provide answers that are now being used as a basis for criminal perjury

charges—contrary to Martindell v. International Telephone and Telegraph Corp., 594

F.2d 291 (2d Cir. 1979), the express language of the protective order, and any

conceivable conception of “reasonable reliance”—Ms. Maxwell ought to be

afforded the opportunity to test in this Court the correctness of the district court’s

decision.

The ultimate merits of these arguments are not before the Court at this time.

The only issue before the Court is whether Ms. Maxwell has a shown a less-than-

50-percent chance of succeeding on the merits. She has. And were there any doubt,

this Court should resolve the doubt in favor of Ms. Maxwell, since there is no

dispute that she will suffer irreparable harm absent a stay.

III. A stay will cause no meaningful harm to plaintiff or the Miami Herald.

According to the Herald, anything other than immediate disclosure will

cause harm. Resp. at 11–12. But that’s not true, and it’s not the point.

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It’s not true because the Herald itself did not seek access to the district court

records until one year after the case was dismissed and closed, and two years after

the depositions themselves occurred. See Mohammed, 309 F.3d at 102 n.11

(rejecting the Government contention of harm from delaying the removal of an

alien petitioner because the contention “substantially weakened” by the “gap of

more than ten weeks between the District Court’s continuation of the stay and the

Government’s motion to lift the stay”).

It’s not the point because any harm that the Herald might suffer must be

balanced against the harm to Ms. Maxwell and the public interest. On the Herald’s

side of the equation is brief delay in accessing the material.2 On the other side is

Ms. Maxwell’s Fifth Amendment privilege against self-incrimination, Ms.

Maxwell’s and the public’s right to a fair trial by an impartial jury, and the

undeniable interest in being able to rely on judicial promises of confidentiality, at

least until a superior court, in evaluating an appeal as of right, determines the

2
This assumes this Court will affirm the unsealing order. If this Court were
to reverse (as Ms. Maxwell contends it should), then the deposition material will
remain sealed.
Of course, if the Herald has its way, this Court will never get to make that
call, because the Herald seeks to moot any appeal and deprive this Court of
jurisdiction before the appeal can even be briefed.

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promise of confidentiality is no longer enforceable. The balance of this equation

plainly favors issuance of a stay pending appeal.

What’s more, Ms. Maxwell will be subject to a public trial, one which the

Miami Herald and other media outlets will surely cover with gusto. The Herald’s

right to attend and report on that trial substantially mitigates any claim of harm that

might result from continuing to keep the deposition material sealed until this Court

resolves the merits of this appeal.

And to reiterate, Ms. Maxwell has no objection to an expedited briefing

schedule.

IV. The public interest favors a stay.

The Herald has conspicuously little to say about the public interest, other

than to repeat the refrain that the public has an interest in access to the judicial

documents.

But there are other interests at stake as well. One paramount interest—

which the Herald ignores entirely—is this Court’s role as an appellate tribunal.

Absent a stay, Ms. Maxwell will lose her right to appeal, and this Court will be

deprived of jurisdiction to serves its essential role: To review a lower court decision

and evaluate its correctness. A stay pending appeal is simply a “means of ensuring

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that appellate courts can responsibly fulfill their role in the judicial process.” Nken

v. Holder, 556 U.S. 418, 427 (2009).

The Herald trivializes the public’s right to see that its justice system provide

fair trials. With Ms. Maxwell facing an imminent and very public trial, the justice

system should endeavor to do all it can to vindicate the “theory of our [trial]

system is that the conclusions to be reached in a case will be induced only by

evidence and argument in open court, and not by any outside influence, whether of

private talk or public print.” Patterson v. Colorado ex rel. Attorney General of Colo.,

205 U.S. 454, 462 (1907) (opinion for the Court by Holmes, J.).

Conclusion
For these reasons, as well as those given in the Motion, this Court should

stay pending appeal the district court’s order unsealing the deposition material.

July 31, 2020.

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Respectfully submitted,

s/ Adam Mueller
Ty Gee
Laura Menninger
Adam Mueller
HADDON, MORGAN AND FOREMAN, P.C.
150 East 10th Avenue
Denver, CO 80203
Tel 303.831.7364
Fax 303.832.2628
tgee@hmflaw.com
lmenninger@hmflaw.com
amueller@hmflaw.com
Counsel for Defendant-Appellant Ghislaine
Maxwell

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Certificate of Service
I certify that on July 31, 2020, I served a copy of this Ghislaine Maxwell’s
Reply to the Miami Herald’s Response to Ms. Maxwell’s Motion to Stay Pending Appeal
via CM/ECF, which will send notification of the filing to all counsel of record.

s/ Nicole Simmons

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