Thread by @KlasfeldReports

Good morning.

Ghislaine Maxwell's appeal seeking to block the release of a deposition that prosecutors allege shows her perjuring herself hits the Second Circuit this afternoon.

I will cover it live at 2 p.m. Eastern.

Background, @CourthouseNews courthousenews.com/second-circuit…

The docket also shows Maxwell will be challenging an order in her criminal case rejecting her bid to modify a protective order.

That will take place after the appeal over her deposition.

Given the pandemic, this live coverage will be virtual.

You can listen in to the Second Circuit livestream of the audio here.

Some faint noises in the background, little more yet. ww2.ca2.uscourts.gov/court.html

Today's panel consists of:

U.S. Circuit Judges José Cabranes, Rosemary Pooler, and Reena Raggi.

"Oyez, oyez, oyez."

We are about to begin.

Attorney Adam Mueller introduces himself on behalf of Ghislaine Maxwell, describing the files whose unsealing order is under appeal.

"We're talking about hundreds of pages, not thousands of pages."

He refers to Maxwell's "entire 418-page" deposition from April 2016.

Maxwell's attorney differentiates the deposition from the other unsealed files:

"The presumption of access that attaches is much more limited to the presumption of access that attaches to summary judgment material."

Maxwell's attorney Adam Mueller argues that his client relied on the confidentiality provisions in agreeing to be deposed in the defamation lawsuit brought by Virginia Giuffre.

"All the record evidence is that she reasonably relied upon the protective order," Mueller said.

Maxwell's attorney Adam Mueller says the confidentiality over the deposition is stronger because, in the civil case: "This case did not go to trial."

It led to a settlement—and of course, the protracted public-access battle that remains ongoing.

Judge Pooler: "Counsel, you concede that these are judicial documents."

Mueller responds yes.

Judicial documents are entitled to the presumption of access.

The crux of Ghislaine Maxwell's legal argument is that Judge Preska's order did not adequately address her claim that she relied upon the confidentiality protections in agreeing to the 2016 deposition in the first place.

Judge Raggi, the final member of the panel, is asking questions now.

Remember: Prosecutors claim that Maxwell perjured herself in her April 2016 deposition, which is why the stakes are high in this public-access battle.

Raggi: "You're not denying that there is a presumption of access here," but he's arguing that the doc should not be given the same weight as if it were summary judgment material.

Maxwell's attorney agrees.

Judge Cabranes asks whether Does 1 and 2 raised any objections.

Maxwell's attorney says they objected to their names being disclosed and wanted to have the ability to lodge other objections in the future.

Judge Cabranes asks whether Ghislaine Maxwell invoked her Fifth Amendment rights during the 2016 deposition.

Maxwell's attorney Adam Mueller says she did not because she relied upon the promised confidentiality protections.

Maxwell's attorney Adam Mueller claims that the deposition is filled with "'When did you stop beating your wife?'-type" questions.

"The question itself implies an answer, as all leading questions do," Mueller says.

Virginia Giuffre's counsel David Boies is now up, clarifying where things stand with Does 1 and 2:

"The objections that were lodged were solely on the use of the name. They did not object to the release of the transcripts and the depositions."

Boies goes to the heart of Maxwell's argument that she relied upon the confidentiality provisions of the protective order.

Citing the Agent Orange case, Boies says that confidentiality was limited.

Judge Pooler: "Your client, Ms. Giuffre, won the case, settled the case with Ms. Maxwell, correct?"

Boies: "Yes, your honor."

Judge Pooler: What is her interest in making it public? What does she care about it?

Boies concedes the media's claim to public access is stronger than hers.

Boies: "But one of the things that is particularly important to my client is that there not be selective unsealing."

Boies: "I think my client has a legitimate interest in saying that if certain portions of the sealed files are to be public... that the entire record be revealed so there is not a misleading impression, not misleading information."

Misleading who, Judge Pooler asks, noting that there is no more lawsuit, because of the settlement.

Pooler says she is looking into whether Ms. Giuffre has a legally cognizable interest in the release of the deposition that can be brought to the court.

(The media's interest is separate.)

Judge Raggi is now up, asking about Boies' position that Ms. Maxwell had no reasonable expectation of privacy:

"What is the purpose of these parties entering into a protective order if there's no protection?"

Boies' answer has to do with the passage of time:

"When Maxwell gives her testimony, if there's no protective order in place, then that testimony could be immediately disseminated."

For example, Boies said, a once-confidential deposition could figure in a case that goes to trial.

(Again, this 2015 defamation suit settled and did not go to trial, and the open-records fight is over the sealed files over that litigation.)

Judge Cabranes: "What decree would you ask us to enter that would achieve your objectives?"

Boies essentially asks him to affirm the district court's ruling allowing the release of the deposition.

Cabranes: So you're seeking the unsealing of the deposition material's in their entirety with the exception of Doe 1 and 2.

Boies answers yes.

The Miami Herald is now up, with Christine Walz arguing for the paper and @JKBJournalist.

"Ms. Maxwell's reliance argument is entirely misplaced," Walz says, adding the parties cannot override the presumption of public access.

Walz for the Herald and Julie Brown:

"It is not required that there be an absence of media publicity for a defendant to have a fair trial."

Judge Pooler:

"I am very impressed with the work that @JKBJournalist and the Miami Herald have done in this case."

Pooler adds that the Herald and Julie Brown's work have been helpful to the victims, before asking whether Ms. Maxwell may be a victim too.

Walz says she disagrees with that notion, but she says that the question is, in any event, irrelevant.

Judge Cabranes asks whether the Herald and Julie Brown are the only intervenors in the case.

Walz notes that @Cernovich has joined in their position on the briefings.

Rebuttal argument from Adam Mueller for Ghislaine Maxwell:

"Judge Sweet in his order which this court reviewed in the first appeal ... noted that the settlement was contingent upon confidentiality."

He moves on: "The final point is about fair trial."

Maxwell's attorney Adam Mueller:

"We want a fair trial to happen," Mueller says, adding he does not want multiple appeals to hold up the process.

Judge Raggi presses him on the fair trial argument.

Maxwell's attorney adds:

"We don't think it's asking too much to simply preserve status quo," Mueller says.

"Of course there will be a public criminal trial."

This will all be aired then, he adds.

Maxwell's attorney also cites the risk of witnesses potentially conforming their testimony to released materials.

Judge Raggi does not appear to be convinced, noting: "We would never put a gag order on their ability to publish on those grounds."

The panel reserves decision on Giuffre v. Maxwell.

They now turn to Maxwell's related criminal case.

Adam Mueller back up, saying he has a constraint on his oral arguments:

The protective order constrains him from arguing exactly how he would like to amend the protective order.

Given the secrecy surrounding the protective order, oral arguments on the criminal case's appeal are elliptical.

Maxwell's attorney Adam Mueller is arguing that the cases should be consolidated.

Live-tweeting here will be sporadic as I file a story on the civil appeal.

Judge Cabranes presses prosecutors on why Ghislaine Maxwell cannot share sealed information that she obtained via her criminal discovery under seal with Judge Preska, who is presiding over the civil case.

Judge Nathan, who is presiding over the criminal case, allowed Maxwell to provide summaries of information that she learned via her prosecution with Judge Preska under seal for her civil case.

This does not allow her to share the files themselves, the government says.

To anyone listening in, the second appeal involving Ghislaine Maxwell's criminal prosecution is on a bit of an arcane issue.

The protective order prevents the parties from describing just what information prosecutors do not want Maxwell to share with the judge in her civil case.

Prosecutors claim that allowing Ghislaine Maxwell to share info she learned from her criminal case with the judge in her civil case would risk exposing that info.

Maxwell's team says that's not true: She is only asking to share the former info under seal with a judge, they say.

Judge Raggi appears skeptical of that claim.

Why would Judge Preska agree to an ex-parte submission under seal in adversarial proceedings, she asks.

Raggi calls it "disingenuous" to suggest that there's no risk that the info would go beyond Judge Preska.

Both of the Maxwell appeals have ended.

The judges do not issue an immediate ruling. Court is adjourned.

Story ahead.