In an Order filed on October 16, 2026 in the case of Jane Doe v. Cornell University, Inc. et al, No. 161704/2026 (Sup. Ct. N.Y. Cty. Oct. 16, 2026), the Court declined to sign defendant Diego Sarabia’s Order to Show Cause seeking to “enjoin[] all parties and their attorneys from making certain extrajudicial statements, including to the media, and prohibiting the disclosure, republishing, or dissemination of certain statements or documents exchanged in this case.”
Noting that it ordinarily does not detail its reasons to decline to sign an order to show cause, the “weighty issues involved and the dynamic circumstances of this case” warranting doing so here.
From the decision:
Absent a rigorous factual showing of necessity for a restraint on an individual’s ability to speak freely, the imposition of a gag order upon attorneys and other participants in a trial is constitutionally impermissible (see New York Times Co. v Rothwax, 143 AD2d 592, 592 [1st Dept 1988]). Orders such as the one sought here “are not generally permitted,” especially in civil proceedings (see generally Lowinger v Lowinger, 264 AD2d 763, 763 [2d Dept 1999]; see also Barker v Victorious Life Christian Church, 72 Misc.3d 898, 901-902 [Sup. Ct., Albany County 2021]).
When considering the drastic remedy of whether to subordinate certain First Amendment Rights to interests that arise in the trial setting, the Court weighs three questions: (1) whether the restriction is justified by a serious risk of prejudice to an ongoing judicial proceeding; (2) whether there are less restrictive means that could address the risk of prejudice; and (3) whether the restriction is narrowly tailored to address the potential prejudice (see Trump v Merchan, 227 AD3d 518, 519-520 [1st Dept 2024] citing United States v Trump, 88 F.4th 990, 1007 [DC Cir. 2023]).
The initial supporting papers on the proposed order to show cause do not meet the rigorous requirements to even entertain a briefing schedule on the relief sought. Expressing opinions on the case or reporting on how the litigation has impacted clients cannot alone serve as a factual basis for limiting an individual’s First Amendment rights. While the Court agrees that Mr. Giuffra should not make statements that certain parties spoliated evidence, especially where, as here, no discovery has yet to take place, those isolated statements, without more, are insufficient to show the serious risk of prejudice required by precedent and the United States Constitution. Indeed, there is nothing stopping defendants from demonstrating through the course of litigation that those statements are false, and in civil litigation there are numerous examples of curative jury instructions to ensure a jury does not consider impermissible or unfounded statements made during trial or in the course of pre-trial proceedings. A review of the statements of which Mr. Sarabia complains shows that the majority of statements would be understood by an ordinary listener to express nothing more than Mr. Giuffra’s opinions. That is insufficient to justify the drastic relief proposed in the order to show cause. Thus, on its face, the proposed order to show cause fails to show a ‘serious risk of prejudice to an ongoing judicial proceeding.”
Moreover, as noted by counsel for Cornell University, Inc. (“Cornell”) the requested prohibitions on disclosure of specified information are incredibly broad and would infringe on certain intuitional defendants’ ability to comply with mandatory reporting requirements (see, e.g. NS. v Frankenhoff, 215 AD3d 592,593 [1st Dept 2023] [restraint on disclosure was overly broad thus warranting vacatur]). Mr. Sarabia’s proposed restrictions thus are not the “least restrictive means” to address the prejudice and certainly are not narrowly tailored. Thus, the proposed order to show cause fails on all three inquiries adopted by the First Department in Trump v. Merchan, 227 A.D.3d 518 (1st Dept 2024). Accordingly, the Court declines to sign Mr. Sarabia’s proposed order to show cause.
Not to mention, the parties’ attorneys, being bound by the rules of professional conduct, should not need a gag order to properly litigate this case. The Court has concerns that Mr. Sarabia’ s proposed order to show cause is a “side show” meant to muddy the waters and distract from the merits of the claims and defenses involved in this case. The Court declines, at this juncture, to get involved in constantly adjudicating who can say what and how they can say it. Otherwise, this case will become less about the relevant claims and defenses and will become bogged down in litigation about whether attorneys have crossed the line when talking to the media.
The court concluded by “strongly encourag[ing] the parties, in the spirit of professionalism and collegiality, to work with each other to submit a proposed framework for future Court filings and statements” and expressed its belief “that given the notoriety of doxing related to this case, it would serve all parties’ interests to work together to ensure their clients and others may be safeguarded, to the extent possible, from being inundated with threats or harassment from malicious outside actors.”