TGP Reply Brief Hitting Back at John Doe Argument in Epstein Case

Case 22-1836, Document 45, 03/20/2023, 3486438, Page1 of 28
22-1836
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
VIRGINIA L. GUIFFRE,
Plaintiff,
- v. -
GHISLAINE MAXWELL,
Defendant,
- and -
TGP COMMUNICATIONS, LLC d/b/a
THE GATEWAY PUNDIT,
Intervenor-Appellant.
- and -
JOHN DOE,
Appellee.
On Appeal from the United States District Court for the Southern
District of New York, Case No. 15-cv-7433 (LAP)
REPLY BRIEF OF INTERVENOR-APPELLANT TGP

COMMUNICATIONS, LLC d/b/a THE GATEWAY PUNDIT
Marc J. Randazza John C. Burns

Jay M. Wolman BURNS LAW FIRM
Randazza Legal Group, PLLC P.O. Box 191250
30 Western Avenue St. Louis, Missouri 63119
Gloucester, MA 01930 (314) 329-5040
(888) 887-1776 john@burns-law-firm.com
ecf@randazza.com
Counsel for Intervenor-Appellant
Intervenor-Appellant Requests Oral Argument
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................... III
ARGUMENT............................................................................................... 1
1.0 NO ONE CONTESTS THE DOCUMENTS SOUGHT TO BE UNSEALED

SHOULD BE UNSEALED .............................................................................. 3
2.0 TGP COMMUNICATIONS MUST BE PERMITTED TO INTERVENE ......... 5
2.1 The Motion to Intervene was Timely ......................................... 6
2.1.1 No Party is Prejudiced by Intervention .................................. 8
2.1.2 Intervention to Unseal is Always Timely ............................. 10
2.1.3 The Knowledge of Appellant or its Counsel is Irrelevant ... 12
2.2 Intervenors are Not Adequately Represented ......................... 15
2.3 Intervention is Otherwise Proper ............................................ 19
CONCLUSION ......................................................................................... 21
CERTIFICATE OF SERVICE ................................................................. 22
CERTIFICATE OF COMPLIANCE ........................................................ 23
ii
TABLE OF AUTHORITIES
CASES
Beckman Indus., Inc. v. Int’l Ins. Co.,

966 F.2d 470 (9th Cir. 1992) ................................................................. 20
Blum v. Merrill Lynch Pierce Fenner & Smith Inc.,

712 F.3d 1349 (9th Cir. 2013) ......................................................... 10, 11
Brown v. Maxwell,
929 F.3d 41 (2d Cir. 2019) .................................................................... 16
Cf. Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel,

861 F.3d 1278 (11th Cir. 2017) ............................................................... 7
Consumers Union v. Periodical Correspondents’ Ass'n,

365 F. Supp. 18 (D.D.C. 1973) .............................................................. 17
Consumers Union v. Periodical Correspondents’ Ass'n,

515 F.2d 1341 U.S. App. D.C. 370 (D.C. Cir. 1975) ............................. 17
E.E.O.C. v. National Childrens Center, Inc.,

146 F.3d 1042 (D.C. Cir. 1998) ............................................................. 11
Elrod v. Burns,
427 U.S. 347 (1976) ................................................................................. 6
Estate of Ungar v. Palestinian Auth.,

332 Fed. Appx. 643 (2d Cir. 2009) .......................................................... 5
Floyd v. City of New York,

770 F.3d 1051 (2d Cir. 2014) .................................................................. 8
Flynt v. Lombardi,
782 F.3d 963 (8th Cir. 2015) ................................................................. 20
Giuffre v. Dershowitz,
2021 U.S. Dist. LEXIS 218528 (S.D.N.Y. Nov. 10, 2021) .................... 20
Giuffre v. Maxwell,
16-3945-cv (2d Cir.) ............................................................................... 12
iii
Giuffre v. Maxwell,
17-1722-cv (2d Cir.) ............................................................................... 12
Giuffre v. Maxwell,
827 Fed. Appx. 144 (2d Cir. 2020) .......................................................... 9
Hartford Courant Co. v. Pellegrino,

380 F.3d 83 (2d Cir. 2004) .................................................................. 4, 5
In re Pineapple Antitrust Litigation,

2015 U.S. Dist. LEXIS 122438 (S.D.N.Y. Aug. 7, 2015)...................... 12
Innovation Ventures LLC v. Pittsburg Wholesale Grocers Inc.,

2019 U.S. Dist. LEXIS 169753 (S.D.N.Y. Sept. 30, 2019) ................... 14
Khatri v. Garland,
2023 U.S. App. LEXIS 497 (2d Cir. 2023) .............................................. 4
La Rouche v. FBI,
677 F.2d 256 (2d Cir. 1982) .................................................................... 8
Leucadia, Inc. v. Applied Extrusion Techs., Inc.,

998 F.2d 157 (3d Cir. 1993) .................................................................. 10
McDonald v. E. J. Lavino Co.,

430 F.2d 1065 (5th Cir. 1970) ................................................................. 8
Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo,

418 U.S. 241 (1974) ................................................................................. 7
NML Capital, Ltd. v. Republic of Arg.,

2014 U.S. Dist. LEXIS 173780 (D. Nev. Dec. 12, 2014) ........................ 6
Pansy v. Borough of Stroudsburg,

23 F.3d 772 (3d Cir. 1994) .............................................................. 10, 11
Pub. Citizen v. Liggett Group, Inc.,

858 F.2d 775 (1st Cir. 1988) ................................................................. 11
Schwab v. Philip Morris USA, Inc.,

2005 U.S. Dist. LEXIS 22564 (S.D.N.Y. Oct. 6, 2005)......................... 13
iv
Sinclair v. Am. Media, Inc.,

2018 U.S. Dist. LEXIS 154116 (S.D.N.Y. Sep. 7, 2018) ...................... 18
TGP Communs., LLC v. Sellers,

2022 U.S. App. LEXIS 33641 (9th Cir. Dec. 5, 2022) .......................... 17
United Nuclear Corp. v. Cranford Ins. Co.,

905 F.2d 1424 (10th Cir. 1990) ............................................................. 10
United States v. Bank of Am.,

303 F.R.D. 114 (D.C.D. Mar. 18, 2014) ................................................ 14
United States v. Pitney Bowes, Inc.,

25 F.3d 66 (2d Cir. 1994) ........................................................................ 8
United States v. Yonkers Bd. of Education,

801 F.2d 593 (2d Cir. 1985) .................................................................... 8
Walters v. City of Atlanta,

803 F.2d 1135 (11th Cir. 1986) ............................................................. 12
Yueqing Zhang v. Gonzales,

426 F.3d 540 (2d Cir. 2005) .................................................................... 4
OTHER AUTHORITIES
9A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2459 (3d ed. 2008) ............................................................... 5
Benjamin Brown, National Enquirer kept safe full of potentially

damaging stories about Trump: report, FOXNEWS, (Aug. 24, 2018) ... 18
v
ARGUMENT
Two rich, powerful, and politically connected people ran an
international sex trafficking enterprise. To say that the criminal case
involving Jeffrey Epstein was handled oddly is an understatement. For
the most part, he escaped justice until the matter became so prevalent
that he was re-arrested. Maxwell avoided justice until public attention
made it impossible to ignore her any further. However, this is the first
sex trafficking operation in history that apparently has victims, but no
clients. How is that possible? Everything in this case points to the clients
being more rich and powerful men with the ability to warp justice with
power and money. The people deserve to know who has such power that
they have remained above the law for decades.
John Doe is a non-party, with no demonstrated standing. He is
proceeding pseudonymously without leave to do so. Doe resists the
disclosure of the Epstein Client List by arguing that a media entity
waited too long to seek to have a narrow set of records unsealed. There
is no such thing as a media entity waiting too long—whenever the media
wants access to previously sealed records, that very desire makes the
request timely. There is no statute of limitations on journalism.
1
The Gateway Pundit hoped that it would not have had to take
matters into its own hands, but prior media intervenors have been either
ineffective or had their needs met. Appellee Doe fails to explain his
interest in this matter. However, it would not be unfair to presume that
he might be one of these clients, who prefers to remain anonymous. Doe
offers no valid reason why Gateway Pundit should not be able to
intervene. Doe seeks to have the Court create a “journalistic statute of
limitations” that lets Epstein’s clients remain anonymous. The Court
should decline this invitation, even if it is not curious as to why Doe cares
at all, unless his name is on that list And if his name is on that list, then
why shouldn’t the public know?
The sealed documents at issue were filed over the course of eight
and a half months. It has been three years and eight and a half months
since Judge Preska was assigned the underlying case for the sole purpose
of unsealing documents that were improperly sealed. What should have
been prioritized for unsealing, the most important of issues—who were
Epstein’s clients—has been relegated behind a cumbersome process that
bears no semblance of reason. It is a process that did not differentiate
between people whose names happened to be mentioned and those who
2
provided information in reliance on a discovery confidentiality order. It
is a process that outright avoided the simple task of unsealing documents
where the subject offered no objection despite notice and opportunity. It
is a process that has seen the sole media entity participating to be
arguing blindly, with the Herald being content to attempt to litigate
without even knowing whether any arguments supporting continued
sealing are legitimate. It is a process that has seen no appeals of denials
of unsealing—not even where the District Court acted in direct
contravention of this Court’s mandate.
The order denying intervention should be reversed and the Epstein
Client List should be immediately unsealed—and that list ought to begin
with Appellee John Doe’s identity, unless he has some other interest in
this litigation that TGP Communications is unaware of.
1.0 No One Contests the Documents Sought to be Unsealed

Should be Unsealed
Appellee Doe explicitly states that he is not contesting that portion
of TGP Communications’ appeal addressed to whether the records should
be unsealed. (Opp. Brief at 19 (“John Does therefore does not address
TGP’s arguments on the merits of unsealing”)). “[I]ssues not argued in
briefs are waived”. Khatri v. Garland, 2023 U.S. App. LEXIS 497, *3 (2d
3
Cir. 2023) (citing Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1 (2d
Cir. 2005)). TGP Communications expressly filed a “Notice of Motion to
Intervene and Unseal” (AA-260) (emphasis added). It explicitly requested
an order allowing intervention and that the District Court “unseal and
make public and unredacted any and all documents that identify the men
who abused the girls trafficked by Jeffrey Epstein and Defendant
Maxwell (‘the Epstein Client List’).” Id. The motion was not denied in
part by the District Court, limited to the intervention portion, it was
denied in whole. (AA-285). This appeal is taken from the entirety of that
order, which denied both intervention and unsealing. (AA-286).
In another case addressing unsealing of records, this Court
recognized that it has “the authority to decide issues that were argued
before but not reached by the district court.” Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 90 (2d Cir. 2004). In Hartford Courant, this
Court asserted that it is “particularly appropriate” to do so where “[t]he
existence of the First Amendment right…is a matter of law suitable for
determination by an appellate tribunal in the first instance” and the
Court is “eager to avoid the delay that remanding on the First
Amendment quest would occasion.” 380 F.3d at 90-91.
4
The Court in Harford Courant cited as a third factor the appellee
having recognized the right of access. Id. Here, similarly, the appellee
does not contest any of the unsealing arguments and he has waived any
opposition thereto. The only issue Doe contests on appeal is whether TGP
Communications may intervene. Thus, upon reversing the denial of
intervention, this Court can and should instruct the District Court to
immediately unseal the Epstein Client list.
2.0 TGP Communications Must be Permitted to Intervene
This Court should not give consideration to the arguments of a Non-
Party with no demonstrated standing. There is no reason why the
District Court should have considered Doe’s arguments, and there is no
proper basis in which Doe is an appellee. One might view TGP’s motion
as the functional equivalent of a subpoena for court records, and this
Court has long established that one must have some “personal right or
privilege” to contest a subpoena to a third party. Compare Estate of
Ungar v. Palestinian Auth., 332 Fed. Appx. 643, 645 (2d Cir.
2009)(quoting 9A Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2459 (3d ed. 2008)). TGP Communications
raised Doe’s lack of standing in its opening brief. See Appellant’s Brief
5
at 16 & 17 n.11. Doe, who is neither a plaintiff, defendant, nor intervenor
does not argue he has standing—his brief is silent on the issue. Thus, as
with unsealing, Doe has waived the issue and no proper party has
opposed intervention.
Even if this Court were to entertain Doe’s arguments, those
arguments are entirely misplaced. Doe’s principal argument is that the
motion to intervene was untimely. It was not.
2.1 The Motion to Intervene was Timely
There is no statute of limitations on journalism. Denial of the First
Amendment right of access is an ongoing harm for which Appellant may
seek rectification. Compare Elrod v. Burns, 427 U.S. 347, 373 (1976)
(“The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury.”) “When a member
of the public moves to intervene to unseal judicial records, the motion to
intervene is timely as long as the documents remain under seal because
sealing places the public’s interest in open access in controversy.” NML
Capital, Ltd. v. Republic of Arg., 2014 U.S. Dist. LEXIS 173780, *11 (D.
Nev. Dec. 12, 2014). None of the cases cited by Doe to suggest Appellant’s
motion was untimely considered a media entity seeking access to sealed
6
court records. There is no deadline to seek to intervene in any case, let
alone for unsealing purposes. Cf. Salvors, Inc. v. Unidentified Wrecked
& Abandoned Vessel, 861 F.3d 1278, 1294 (11th Cir. 2017) (finding
intervention timely even though the contested order was entered 33 years
earlier). Intervention in 2022, or even 2322, is timely.1 The media has
an ongoing duty to the public to report on matters of public concern. The
rapists who consorted with Epstein do not get to hide behind the fact that
TGP Communications patiently waited for the Miami Herald to expose
this information. Apparently, making a directed request of the District
Court or seeking the assistance of this Court to obtain this information
is not in the Herald’s editorial plans, and it cannot be compelled to
publish it if it does not want to. See Miami Herald Pub. Co., Div. of
Knight Newspapers, Inc. v. Tornillo, 418 U.S. 241 (1974). But, whatever
the Herald’s current plans are regarding publishing the Epstein client
list, TGP Communications has an independent right (and a
responsibility) to seek that information and publish it.
1 Appellant briefly notes that there are no argued “unusual

circumstances” warranting denial of intervention; Doe’s brief merely
rehashes its other arguments on the subject. (Opp. Brief at 41).
7
2.1.1 No Party is Prejudiced by Intervention
Nobody should be bothered by intervention unless they are on the
Client List. And nobody on the List is a party to this case. “The most
important consideration in determining timeliness is whether any
existing party to the litigation will be harmed or prejudiced by the
proposed intervenor’s delay in moving to intervene.” McDonald v. E. J.
Lavino Co., 430 F.2d 1065, 1073 (5th Cir. 1970) (citations omitted). This
Court has cited McDonald favorably. La Rouche v. FBI, 677 F.2d 256,
257 (2d Cir. 1982). Neither Giuffre nor Maxwell claim harm. The Miami
Herald has not asserted any harm. Even Doe has not articulated any
harm to him or anyone else, just a nebulous citation to cases about how
jeopardizing a settlement agreement or consent decree would prejudice
the parties, which has nothing to do with this case. Opp. Brief at 32-33,
citing United States v. Pitney Bowes, Inc., 25 F.3d 66 (2d Cir. 1994),
United States v. Yonkers Bd. of Education, 801 F.2d 593 (2d Cir. 1985),
and Floyd v. City of New York, 770 F.3d 1051 (2d Cir. 2014). In contrast
to those inapposite cases, no one would be harmed by TGP
Communications intervening now—the only people who could be
“harmed” in any sense are the Epstein Clients, who have been improperly
8
shielded by an overbroad and unconstitutional sealing order. It is time
for the sunshine to fall upon them.
Neither is “the orderly interest of justice” undermined by
intervention. To the contrary, it is the disorderly violation of the First
Amendment and derogation of the common law right of access by the late
Judge Sweet, that the parties took advantage of, that has necessitated
TGP Communications’ intervention. That those same parties are the
ones primarily responsible for litigating the unsealing, with the Miami
Herald appearing to participate blindly, hardly builds confidence in the
process. As Doe confesses, it took the parties seven months to come up
with a protocol to unseal only 8.5 months of documents. (Opp. Brief at
35). The District Court’s unsealing to date would not be “for naught”
(Opp. Brief at 36) if Appellant intervenes; to the contrary, it would build
on what has been done and target what remains.
This Court has not endorsed the plodding pace of the unsealing
process. Contrary to Doe’s assertion, all this Court has done is approved
of the legal standard by which the District Court unsealed one document.
Opp. Brief at 35, citing Giuffre v. Maxwell, 827 Fed. Appx. 144, 145 (2d
Cir. 2020). Doe claims intervention will disrupt the interest of finality
9
(Opp. Brief at 38), but the unsealing process is ongoing and nowhere near
final. And, until the Epstein Client List is released to the public, the
unsealing process should not be deemed “final.” There is no prejudice to
intervention now.
2.1.2 Intervention to Unseal is Always Timely
Federal courts impose no time limit on intervention for the purpose
of unsealing documents. “[M]otions to intervene for the purpose of
seeking modification of a protective order in long-concluded litigation are
not untimely.” Blum v. Merrill Lynch Pierce Fenner & Smith Inc., 712
F.3d 1349, 1353 (9th Cir. 2013). As summarized by the Ninth Circuit
Court of Appeals in Blum:
In 1993, the Third Circuit recognized “the growing consensus

among the courts of appeals that intervention to challenge
confidentiality orders may take place long after a case has
been terminated.” Pansy v. Borough of Stroudsburg, 23 F.3d
772, 779 (3d Cir. 1994); see also Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 161 n.5 (3d Cir. 1993)
(“[A] district court may properly consider a motion to
intervene permissively for the limited purpose of modifying a
protective order even after the underlying dispute between
the parties has long been settled.”). The First and Tenth
Circuits have also issued holdings finding motions to
intervene timely in such cases. See United Nuclear Corp. v.
Cranford Ins. Co., 905 F.2d 1424, 1427 (10th Cir. 1990) (“We
find nothing improper in allowing intervention to challenge a
protective order still in effect, regardless of the status of the
underlying suit.”); Pub. Citizen v. Liggett Group, Inc., 858
10
F.2d 775, 786 (1st Cir. 1988) (“Because Public Citizen sought
to litigate only the issue of the protective order, and not to
reopen the merits, we find that its delayed intervention
caused little prejudice to the existing parties in this case.”).
712 F.3d at 1353; accord E.E.O.C. v. National Childrens Center, Inc., 146
F.3d 1042, 1047 (D.C. Cir. 1998) (“[T]here is a ‘growing consensus among
the courts of appeals that intervention to challenge confidentiality orders
may take place long after a case has been terminated.’”) (quoting Pansy,
supra). This makes perfect logical sense. What if a court makes an
erroneous decision to seal, and because it sealed documents, nobody can
readily find out that it was in error? What if the case has no
newsworthiness for quite some time, but later events make it so? The
theory advanced by John Doe is that if the story isn’t told immediately,
it should never be told.
Not one of the cases cited by Doe in his brief on the issue of
timeliness related to intervention for the purpose of unsealing
documents. (Opp. Brief at 29-30). To the contrary, as another judge in
the Southern District of New York put it “there is no implication in the
caselaw or in common sense why the passage of more than three years
should disable a journalist from seeking unsealing.” In re Pineapple
Antitrust Litigation, 2015 U.S. Dist. LEXIS 122438, *7 (S.D.N.Y. Aug. 7,
11
2015). This Court should not use this occasion to create a circuit split
because a presumptive Epstein client wishes not to be exposed.
2.1.3 The Knowledge of Appellant or its Counsel is

Irrelevant
Whether TGP Communications may have known about the case or
should have known is immaterial. Mere knowledge that an action is
pending, without appreciation of the potential adverse effect an
adjudication of that action may have, does not preclude intervention. See
Walters v. City of Atlanta, 803 F.2d 1135, 1151 n.16 (11th Cir. 1986).
Here, Appellant had no appreciation that the District Court would take
over four times as long to unseal the records as it took to put them under
seal in the first place.
It does not matter that prior intervenor, Michael Cernovich d/b/a
Cernovich Media, was represented by some of the same counsel as
Appellant TGP Communications. In Giuffre v. Maxwell, 17-1722-cv (2d
Cir.) (lead case Giuffre v. Maxwell, 16-3945-cv (2d Cir.)), Mr. Cernovich
expressly and specifically sought that the summary judgment filings be
unsealed. His intervention was for that narrow purpose. Mr. Cernovich
succeeded in that endeavor and, as noted by Appellee Doe, Mr. Cernovich
ceased his involvement in the case on September 3, 2019. See SA-028.
12
That Appellant TGP Communications, when it wanted to intervene to
unseal other records, might seek to hire Mr. Cernovich’s successful
counsel, is hardly surprising or a “gotcha.”
Moreover, this imputation theory would deprive journalists of
experienced counsel of their choosing. John Doe expects this Court to
accept the argument that since TGP Communications saw counsel’s work
for Mr. Cernovich, and decided to hire that same firm, that it should not
be permitted to intervene. It is repugnant to the interests of justice that
the most capable counsel are the only ones the public cannot retain. It
would be like saying the Innocence Project cannot help anyone wrongly
convicted anymore because they have succeeded in obtaining
exonerations. The logic behind this argument makes no sense.
There are tens of thousands of journalists in America. The
knowledge of counsel to one journalist cannot be imputed to every other
unrelated journalist to determine whether a matter is timely. Compare
Schwab v. Philip Morris USA, Inc., 2005 U.S. Dist. LEXIS 22564, *14
(S.D.N.Y. Oct. 6, 2005) (“The knowledge of class counsel cannot be
imputed to the members of the class for the purposes of determining
whether this suit is barred by the statute of limitations.”) The case Doe
13
cites in support of imputation is Innovation Ventures LLC v. Pittsburg
Wholesale Grocers Inc., is one in which it appears counsel represented
the prior party and the intervenor simultaneously, and it is otherwise
not a case about unsealing documents. 2019 U.S. Dist. LEXIS 169753
(S.D.N.Y. Sept. 30, 2019); see also United States v. Bank of Am., 303
F.R.D. 114 (D.C.D. Mar. 18, 2014) (same). Neither is there any purchase
in the fact that the same counsel would use some of the same language
in its arguments that had proved successful. Taken to its natural
conclusion, Doe would have courts deny tolling of statutes of limitations
to abuse victims who would hire counsel who were extolled in the press
for successfully prosecuting the abusers. This is a theory repugnant to
the right of citizens to hire experienced and capable counsel. The Second
Circuit should not create a new rule that would limit attorneys’ right to
practice and the public’s right to seek out experienced counsel with no
other conflicts – simply because John Doe appears to not want the
Epstein Client List to be exposed to sunlight.
14
2.2 Intervenors are Not Adequately Represented
The existing parties, including Intervenor Miami Herald,2 do not
adequately represent the interests of TGP Communications. If they had
been adequate, Appellant would not have sought intervention—TGP
Communications has not rested on its rights, rather it had hoped the
District Court and the parties would act with due expedition.
Doe even highlights the parties’ inadequacy—the failure of the
Miami Herald to even attempt to appeal the District Court’s misguided
ruling that only motions actually ruled upon (and related documents)
were judicial documents (AA-123; AA-134-37). (Opp. Brief at 37). This
ruling by the District Court is directly contrary to what this Court
previously commanded:
The remaining sealed materials at issue here include filings

related to, inter alia, motions to compel testimony, to quash
trial subpoenae, and to exclude certain deposition testimony.
All such motions, at least on their face, call upon the court to
exercise its Article III powers. Moreover, erroneous judicial
decision-making with respect to such evidentiary and
discovery matters can cause substantial harm. Such
materials are therefore of value “to those monitoring the
federal courts.” Thus, all documents submitted in connection
2 Although Mr. Cernovich has not “withdrawn”, there is no known

mechanism for a media intervenor to withdraw. He has not participated
in the process and cannot be considered to represent anyone’s interests.
15
with, and relevant to, such judicial decision-making are

subject to at least some presumption of public access.
Brown v. Maxwell, 929 F.3d 41, 50 (2d Cir. 2019). No party appealed the
District Court’s impermissible discarding of this Court’s determination.
This is not to criticize the Miami Herald, nor its counsel. The Herald has
its own agenda, its own publication desires, and it is entitled to make its
own litigation decisions. If the Miami Herald is interested in other
aspects of this case, other media should not have to line up behind the
Herald, hoping that the Herald will obtain and decide to publish what
those other sources want to publish. If an aviation publication like Plane
& Pilot Magazine wanted to write about Epstein’s plane–the Herald
would have no obligation to spend attorneys’ fees and effort to find
information about it. Even though technically subsumed within the
Herald’s request to unseal every document, it would be an independent
interest; so, too, are TGP Communications’ interest and right to
intervene independent of the Herald.
Doe’s theory is not dissimilar to discriminating among journalists,
which is an affront to the First Amendment. In obtaining an injunction
against such a practice, the Ninth Circuit recently confirmed Appellant’s
independent right to report the news, stating:
16
As the U.S. District Court for the District of Columbia has

persuasively explained, “[w]hile it is perfectly true that
reporters do not have an unrestricted right to go where they
please in search of news . . . the elimination of some reporters
from an area which has been voluntarily opened to other
reporters for the purpose of news gathering presents a wholly
different situation.” Consumers Union v. Periodical
Correspondents’ Ass'n, 365 F. Supp. 18, 25-26 (D.D.C. 1973)
(citation omitted), rev'd on other grounds, 515 F.2d 1341, 169
U.S. App. D.C. 370 (D.C. Cir. 1975). For this reason, “[a]ccess
to news, if unreasonably or arbitrarily denied . . ., constitutes
a direct limitation upon the content of news.” Id.
TGP Communs., LLC v. Sellers, 2022 U.S. App. LEXIS 33641, *15-16 (9th
Cir. Dec. 5, 2022). It is unreasonable and arbitrary to say that the Herald
can adequately represent the interests of TGP Communications.
Notably, unlike the Herald, Appellants have made a targeted unsealing
request, whereas the Herald seeks broad unsealing,3 which itself may be
why this process has taken years and has no end in sight.
TGP Communications is not seeking to intervene to relitigate
issues—it is seeking to intervene to vindicate its First Amendment rights
and the public’s right to know. One member of the media is not a
substitute for TGP Communications. Journalists are not fungible. By
3To the extent the Court considers the presence of Mr. Cernovich in the
case, his intervention was for the limited purpose of unsealing the
summary judgment materials, which was accomplished.
17
Doe’s theory, a hypothetical “Epstein Tribune” could win the race to the
courthouse to purport to address the unsealing issue and successfully
thwart the First Amendment through intentional incompetence. There
is no case that has previously applied the “adequacy” requirement in a
way to exclude other journalists, and this Court should not make new
law. John Doe’s position that only a single publication should be the
gatekeeper seems tailor made to invite “catch and kill” on a story. “Catch
and Kill” is when the subject of a negative news report purchases the
rights to the story and then buries it. See Sinclair v. Am. Media, Inc.,
2018 U.S. Dist. LEXIS 154116, at *24 (S.D.N.Y. Sep. 7, 2018) (discussing
allegations that describe the practice). This was a frequent tactic
employed by former President Trump. See, e.g., Benjamin Brown,
National Enquirer kept safe full of potentially damaging stories about
Trump: report, FOXNEWS, (Aug. 24, 2018).4 The Herald is not well known
for playing the “catch and kill” game, and the undersigned would be
sorely disappointed if it ever did, as it is known for ethical journalism.
Nevertheless, John Doe wants a rule that once a single media company
4
Available at https://www.foxnews.com/politics/national-enquirer-kept-
safe-full-of-potentially-damaging-stories-about-trump-report (last
visited Mar. 16, 2023).
18
intervenes, “the media” is now represented. There should be no
competition? There should be no other journalists looking at different
angles? This would create a lucrative “catch and kill” market. Every
publication should rush to the courthouse to be the first to intervene, and
then auction off its “catch and kill” rights to the highest bidder.
Capitalism demands competition, but not a monopoly on the news
granted to the first entity to get into the land rush.
Again, has the Herald played “catch and kill?” Gateway Pundit
does not accuse it of such. Nevertheless, placing the public’s First
Amendment right to access in the hands of a single party is fraught with
potential for abuse, no matter how trustworthy it is.
2.3 Intervention is Otherwise Proper
To briefly address Doe’s remaining points (Opp. Brief at 41-44),
there is no proper basis on which the denial of intervention might
otherwise be affirmed. This excessively long process itself is “unusual
circumstances” necessitating Appellant’s intervention. There is no
undue prejudice to any party—none have even claimed it, and it is risible
to claim that Appellant’s intervention could delay a process when the
19
very purpose of intervention is because the existing parties (and Doe)
have allowed the process to take years.
A media entity need not have a “direct interest” that bears a “strong
nexus of fact or law” to warrant intervention for purposes of unsealing.
See Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015) (quoting
Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 474 (9th Cir. 1992)).
Notably, even Judge Preska has observed, in a related action, that media
intervention to unseal documents is proper. See Giuffre v. Dershowitz,
2021 U.S. Dist. LEXIS 218528, *11 (S.D.N.Y. Nov. 10, 2021) (“The Herald
has a direct interest in this case as a news organization serving its
function in collecting information about a matter of public interest.”)
But, as noted above, prior intervention by the Herald does not adequately
represent Appellant’s interests. The prior unsealing has not been
“carefully implemented” (Opp. Brief at 44); rather, it has been in
derogation of the public’s right to immediate disclosure of improperly
sealed materials, many of which lack any objection by the subjects to
unsealing. Thus, intervention by Appellants is necessary and proper.
20
CONCLUSION
No proper party opposes the intervention. And, no one opposes the
request that the Epstein Client list be immediately unsealed. This Court
should not create new law that conflicts with its sister circuits to thwart
the First Amendment for the purpose of shielding abusers from scrutiny.
The order should be reversed and the District Court should be
commanded to promptly unseal the Epstein Client list. The public has
waited long enough to find out who this privileged group of powerful men
is. This Court should not join the other government agencies that
shielded them from scrutiny. Let the sun in. Now.
Dated: March 20, 2023. Respectfully Submitted,
/s/ Marc J. Randazza /s/ John C. Burns

Marc J. Randazza John C. Burns
/s/ Jay M. Wolman Burns Law Firm
Jay M. Wolman P.O. Box 191250
St. Louis, Missouri 63119
Randazza Legal Group, PLLC Tel: 314-329-5040
30 Western Avenue Email: john@burns-law-firm.com
Gloucester, MA 01930
Tel: 888-887-1776
Email: ecf@randazza.com
Attorneys for Intervenor-Appellant,

TGP Communications, LLC d/b/a The Gateway Pundit
21
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 20, 2023, I electronically filed
the foregoing document with the Clerk of the Court using CM/ECF. I
further certify that a true and correct copy of the foregoing document
being served via transmission of Notices of Electronic Filing generated
by CM/ECF.
/s/ Marc J. Randazza

Marc Randazza, Esq.
22
CERTIFICATE OF COMPLIANCE
This brief complies with the word limit of Local Rule 32.1(a)(4)(B)
because, excluding the portions exempted by Fed. R. App. R. 32(f), this
brief contains 4,379 words.
This brief also complies with the typeface requirements of Fed. R.
App. P. 32 (a)(5) and the type-style requirements of Fed. R. App. P.
32(a)(6) because this brief has been prepared in a proportionally spaced
typeface using Microsoft Word in 14-point Century Schoolbook font.
/s/ Marc J. Randazza

Marc J. Randazza
23

TGP Reply Brief Hitting Back at John Doe Argument in Epstein Case

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TGP Reply Brief Hitting Back at John Doe Argument in Epstein Case

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Case 22-1836, Document 45, 03/20/2023, 3486438, Page1 of 28

REPLY BRIEF OF INTERVENOR-APPELLANT TGP

Marc J. Randazza John C. Burns

TABLE OF AUTHORITIES .................................................................... III

1.0 NO ONE CONTESTS THE DOCUMENTS SOUGHT TO BE UNSEALED

2.0 TGP COMMUNICATIONS MUST BE PERMITTED TO INTERVENE ......... 5

2.1 The Motion to Intervene was Timely ......................................... 6

2.1.1 No Party is Prejudiced by Intervention .................................. 8

2.1.2 Intervention to Unseal is Always Timely ............................. 10

2.1.3 The Knowledge of Appellant or its Counsel is Irrelevant ... 12

2.2 Intervenors are Not Adequately Represented ......................... 15

2.3 Intervention is Otherwise Proper ............................................ 19

CERTIFICATE OF SERVICE ................................................................. 22

CERTIFICATE OF COMPLIANCE ........................................................ 23

Beckman Indus., Inc. v. Int’l Ins. Co.,

Blum v. Merrill Lynch Pierce Fenner & Smith Inc.,

Cf. Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel,

Consumers Union v. Periodical Correspondents’ Ass'n,

Consumers Union v. Periodical Correspondents’ Ass'n,

E.E.O.C. v. National Childrens Center, Inc.,

Estate of Ungar v. Palestinian Auth.,

Floyd v. City of New York,

Hartford Courant Co. v. Pellegrino,

In re Pineapple Antitrust Litigation,

Innovation Ventures LLC v. Pittsburg Wholesale Grocers Inc.,

Leucadia, Inc. v. Applied Extrusion Techs., Inc.,

McDonald v. E. J. Lavino Co.,

Miami Herald Pub. Co., Div. of Knight Newspapers, Inc. v. Tornillo,

NML Capital, Ltd. v. Republic of Arg.,

Pansy v. Borough of Stroudsburg,

Pub. Citizen v. Liggett Group, Inc.,

Schwab v. Philip Morris USA, Inc.,

Sinclair v. Am. Media, Inc.,

TGP Communs., LLC v. Sellers,

United Nuclear Corp. v. Cranford Ins. Co.,

United States v. Bank of Am.,

United States v. Pitney Bowes, Inc.,

United States v. Yonkers Bd. of Education,

Walters v. City of Atlanta,

Yueqing Zhang v. Gonzales,

9A Charles Alan Wright & Arthur R. Miller, Federal Practice and

Benjamin Brown, National Enquirer kept safe full of potentially

Two rich, powerful, and politically connected people ran an

international sex trafficking enterprise. To say that the criminal case

involving Jeffrey Epstein was handled oddly is an understatement. For

that he was re-arrested. Maxwell avoided justice until public attention

sex trafficking operation in history that apparently has victims, but no

they have remained above the law for decades.

John Doe is a non-party, with no demonstrated standing. He is

proceeding pseudonymously without leave to do so. Doe resists the

disclosure of the Epstein Client List by arguing that a media entity

is no such thing as a media entity waiting too long—whenever the media

request timely. There is no statute of limitations on journalism.

interest in this matter. However, it would not be unfair to presume that

he might be one of these clients, who prefers to remain anonymous. Doe

offers no valid reason why Gateway Pundit should not be able to

intervene. Doe seeks to have the Court create a “journalistic statute of

limitations” that lets Epstein’s clients remain anonymous. The Court

why shouldn’t the public know?

of unsealing documents that were improperly sealed. What should have

been prioritized for unsealing, the most important of issues—who were

Epstein’s clients—has been relegated behind a cumbersome process that

bears no semblance of reason. It is a process that did not differentiate

between people whose names happened to be mentioned and those who