ROCKINGHAM, SS SUPERIOR COURT BLYTHE BROWN,€¦ · STATE OF NEW HAMPSHIRE ROCKINGHAM, SS SUPERIOR COURT BLYTHE BROWN, Plaintiff, v. DANIEL GERHARD BROWN, Defendant. Case No. 218-2020-CV-00673

STATE OF NEW HAMPSHIRE

ROCKINGHAM, SS SUPERIOR COURT

BLYTHE BROWN,

Plaintiff,

v.

DANIEL GERHARD BROWN,

Defendant.

) ) ) ) ) ) ) ) ) ) )

Case No. 218-2020-CV-00673

DEFENDANT DANIEL G. BROWN’S REPLY IN SUPPORT OF HIS MOTION FOR LEAVE TO USE REDACTED DIVORCE DOCUMENTS IN PUBLIC FILINGS

In reply to Plaintiff’s Objection to Defendant’s Motion for Leave to Unseal and Use

Redacted Divorce Documents in Public Filings, Defendant Daniel Brown (“Defendant”) says the

following:

1. Two separate and distinct bases exist for granting Defendant’s Motion for Leave

to Use Redacted Divorce Documents in Public Filings (“Motion”), and Plaintiff’s Objection does

not overcome either of them: First, Plaintiff cannot use the current sealed status of the Divorce

Documents as both a sword and a shield. Second, the Divorce Documents are presumptively

public -- not confidential as Plaintiff would have the Court believe -- and Plaintiff has not met

her burden of providing a compelling reason why (as she proposes) every line of the Divorce

Documents should remain confidential. See Associated Press v. State, 153 N.H. 120, 135–36,

143 (2005). Therefore, Defendant respectfully requests that the Court grant his Motion.

FiledFile Date: 8/4/2020 12:17 PMRockingham Superior Court

E-Filed Document

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2. The sword and the shield: Plaintiff thrust the Divorce Documents into the

limelight when she sued Defendant for allegedly perjuring himself in the financial affidavit

contained in the Divorce Documents. See Cmplt., Counts I-VII. Indeed, Plaintiff even took

media-savvy steps to ensure that the public at large would be made aware of her allegations that

Defendant lied in his financial affidavit, including by issuing a statement and having her attorney

comment to the Boston Globe on the same day she filed her Complaint.1 See Ex. D (attached)

(Boston Globe summary of both Plaintiff’s statement alleging that she was stunned by

Defendant’s “deceit and betrayal,” and of her attorney’s statement referring to Defendant’s

“dishonesty”). Plaintiff did this with full awareness that the current sealed status of the Divorce

Documents left Defendant unable, at least for the moment, to parry her public attacks.

3. But now, having used that confidentiality as a sword, Plaintiff seeks to use it as a

shield by objecting to making public the very same documents that she has mischaracterized in

her Complaint. Defendant must use the redacted Divorce Documents -- shorn of personal

identifiers (street addresses, birth dates, social security numbers, bank names, and all but the last

few digits of bank accounts) that could compromise identity or safety -- to defend against the

false allegations that he lied in his financial affidavit. Plaintiff posits that he should be limited to

doing so before the Court, while the public (currently informed by Plaintiff’s statements) is

1 Plaintiff’s publicity campaign worked. Many high-profile news outlets reported the salacious details of her Complaint and her public statement. See, e.g., Kenzie Bryant, Dan Brown Private Divorce Goes Public: Alleged Affairs, Holland, and a Nearly Half a Million Dollar Horse, Vanity Fair (July 2, 2020), https://www.vanityfair.com/style/2020/07/dan-brown-blythe-brown-divorce-drama; Rachel DeSantis, Author Dan Brown’s Ex-Wife Files Suit Accusing Him of Using Marital Assets to Fund Affairs, People (June 30, 2020), https://people.com/books/dan-brown-ex-wife-lawsuit-removing-assets-fund-multiple-affairs/; Jeffery Martin, ‘Da Vinci Code’ Author Dan Brown Had Affairs, Hid Millions of Dollars from Ex-Wife, Lawsuit Says, Newsweek (June 30, 2020), https://www.newsweek.com/da-vinci-code-author-dan-brown-had-affairs-hid-millions-dollars-ex-wife-lawsuit-says-1514554; Allegations of Divorce Controversy for ‘Da Vinci Code’ Author, Good Morning America (July 3, 2020), https://www.goodmorningamerica.com/culture/story/allegations-divorce-controversy-da-vinci-code-author-71593190.

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denied access to the critical documents. Given Plaintiff’s choice to use these proceedings to

attack Defendant’s reputation, even to the extent of accusing him of the crime of perjury, in

public filings and in statements to the press, and given that Defendant’s occupation is dependent

upon the public as the purchasers of his books, Defendant must be allowed to use publicly the

financial affidavit to rebut Plaintiff’s allegations that he lied. Similarly, to rebut Plaintiff’s

allegations that he treated her unfairly in the allocation of property at the time of the divorce, he

must be able to show the public the stipulated allocation of assets as accepted by the Family

Division in the divorce.

4. Yet, Plaintiff now protests that the Divorce Documents, even stripped of personal

identifiers, must remain under seal, and should not be fodder for public filings. Plaintiff cannot

have it both ways. Just as a litigant may not use the attorney-client privilege as both a sword and

a shield, Plaintiff cannot make public accusations about Defendant specifically relating to his

financial affidavit and the parties’ allocation of assets as accepted by the Family Division

without allowing the public to view and evaluate those very documents, even though they are

harmful to her case. See In re Keeper of the Records (XYZ Corp.), 348 F.3d 16, 24 (1st Cir.

2003) (“fairness” requires “disabl[ing] litigants from using” privileged information “as both a

sword and a shield,” so a litigant cannot “selectively disclose fragments helpful to its cause,

entomb other (unhelpful) fragments, and in that way kidnap the truth-seeking process”); Walker

v. N.H. Admin. Office of the Courts, 2013 U.S. Dist. LEXIS 24506, at *16 (D.N.H. Feb. 22,

2013) (noting it is “unfair and illogical” to allow litigants to rely on favorable allegedly-

confidential information while, “at the same time, withhold[ing] relevant evidence under the

guise of privilege”). The documents that Plaintiff seeks to conceal from public view include (a)

the financial affidavit that proves that Defendant disclosed the account from which the

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challenged expenditures were made, and (b) the allocation of assets that shows that Plaintiff

fared more favorably even than her presumptive entitlement under the law. The inference is

inescapable that Plaintiff’s desire to hide these documents from public view is tied to the fact that

they belie the allegations that she so publicly and intentionally made to damage Defendant’s

reputation and good standing.

5. The presumption of public access: Plaintiff fails to provide a compelling

reason, as she is required by law to do, why the Divorce Documents should remain confidential.

Although Plaintiff would have the Court believe otherwise, the Divorce Documents are

presumptively public under New Hampshire law. See Associated Press, 153 N.H. at 135–36,

143. Plaintiff bears the burden of establishing that there is a “sufficiently compelling reason that

would justify preventing public access” to the Documents. Id. at 143. Plaintiff must also show

that her proposal employs “the least restrictive means available” when concealing court records

from the public. Id.

6. Plaintiff mischaracterizes the applicable standard. The New Hampshire Supreme

Court has made clear that the presumption of public access applies specifically to RSA 458:15-b,

the financial affidavit statute at issue. See id. at 134, 138–39 (holding one section of the statute

unconstitutional because it impermissibly restricted public access to financial affidavits, since

“financial affidavits filed in domestic relations cases are subject to the constitutional right of

access”). Thus, although financial affidavits “may initially be made confidential” under the

statute, “the records always retain their status as presumptively open; when a member of the

public seeks access, the presumption in favor of disclosure must still be rebutted by the party

seeking to maintain closure.” Id. at 135–36 (emphasis added). Rather than square up to this

unusually clear and authoritative standard, Plaintiff instead mischaracterizes Associated Press by

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citing a legislative report quoted in the decision only in a section about severability. See Obj. at

3 (quoting Associated Press, 153 N.H. at 141–42). The New Hampshire Supreme Court did not

endorse the quoted statement, but rather cited it only as support for its conclusion that the

unconstitutional portion of the statute -- which impermissibly placed the burden of proof on the

party seeking public disclosure -- was severable from the rest of the statute.

7. The Family Division’s prior sealing of the Documents presents no compelling

reason to maintain that confidentiality now. See Obj. at 1–2. The Family Division agreed to

release the Documents under seal to the Superior Court in response to the parties’ stipulation to

that course of events; but, that stipulation came immediately on the heels of Defendant’s

unilateral motion to unseal the Documents so that this Court could consider making redacted

copies public.2 See Ex. E (Defendant’s Petition to Bring Forward and for Partial Unsealing of

Certain Documents, informing the Family Division that Defendant would “seek to redact for

public filing the addresses of real property and the names of custodial banks, while seeking to

make public the dollar amounts and the allocation of assets between” the parties); Ex. F (Family

Division Order agreeing to the parties’ stipulation). Even when the Family Division sealed the

Divorce Documents last year, it only did so in response to a joint motion filed by both Defendant

and Plaintiff. Circumstances have changed, to put it mildly. Plaintiff thrust the contents of the

Divorce Documents into the public realm and made them a matter of public interest. Defendant

now seeks to use them, with personal identifiers redacted, in order to rebut her allegations.

Simply stated, the public has a right to see the Documents that Plaintiff so liberally

mischaracterized, in her Court filings and in her communications with the press.

2 Because of the parties’ stipulation, the Family Division did not rule upon Plaintiff’s immediately preceding Motion.

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8. Nor does Plaintiff move the needle with her claim that the contents of the Divorce

Documents are irrelevant because her complaints only address what is allegedly omitted from

those Documents. See Obj. at 4. Plaintiff’s argument fails for three reasons.

9. First, Plaintiff again gets the burden wrong. Plaintiff bears the burden of proving

that the Court should preclude the public from seeing the redacted Divorce Documents; it is not

Defendant’s burden to prove their relevance. The public is presumptively entitled to see them.

10. Second, the Divorce Documents are in any event tied directly to Plaintiff’s claims.

Plaintiff falsely alleges that Defendant transferred “large sums” of money through secret bank

accounts. See, e.g., Cmplt. ¶ 42 (Defendant “transferred large sums through accounts he had

established with agents that Blythe knew nothing about”). The Divorce Documents -- even

redacted to hide all but the last few digits of the relevant accounts -- will allow the Court and the

public to evaluate which accounts Defendant disclosed, which include the accounts that he used

for the various alleged payments.3

11. Third, neither the Court nor the public can reasonably evaluate the propriety of

Defendant’s disclosures (or any alleged omissions) without reviewing the full Divorce

Documents, redacted only for personal identifiers. For example, Plaintiff alleges that Defendant

failed to disclose past expenditures, although she did not do so either as to her expenditures,

which were at least ten times greater. But, the financial affidavit form does not ask any

questions about past expenditures because assets are allocated as of a specific date in New

Hampshire, which is a common law property state, not a community property state. Plaintiff

3 It is unclear how, as Plaintiff claims, the Defendant “inaccurately recounts the history of the preparation of the Financial Affidavits.” Obj. at 4 n.1. Plaintiff’s counsel generated the first draft, after which the parties (through counsel) worked together to finalize a common asset summary that they each attached to their affidavits. As Defendant explained in his Motion, the parties included values in that summary that their mutual financial advisor provided, tied to a stipulated “as-of” date: July 8, 2019.

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would deprive the public of its right to see all questions which were asked, and not asked, in the

financial affidavit. This in turn would allow the public to determine that Defendant did not

answer any questions falsely.

12. No compelling reason exists to maintain the Divorce Documents under seal,

especially given that personal identifiers are redacted to protect the security of the parties and

their assets. New Hampshire requires that courts use “the least restrictive means available” when

concealing court records from the public. Associated Press, 153 N.H. at 143. Plaintiff tramples

on this principle by seeking to hide from the public all 25 pages of the Divorce Documents.4

This request is dramatically at odds with New Hampshire’s presumption that the public should

be able to access court records, and its requirement that any nondisclosure be limited to the

greatest possible extent. The request also violates the principle that a court will not allow either

party to use privileged or confidential information as both a sword and a shield.

13. For these reasons, Defendant requests that the Court grant the relief requested in

his Motion, and adopt the proposed order appended to it.

DATED: August 4, 2020 Respectfully submitted,

DANIEL G. BROWN By his attorney

/s/ Joan A. Lukey Joan A. Lukey, Bar No. 16246 CHOATE HALL & STEWART LLP 2 International Place Boston, MA 02110 (617) 248-5000

[email protected]

4 Plaintiff requested in a footnote the opportunity to propose additional redactions should the Court grant Defendant’s Motion. Obj. at 5 n.2. Defendant opposes this request because it appears to be made, at least in part, to accomplish further delay, which is to Defendant’s detriment. However, if the Court grants this request, Defendant requests leave to respond to Plaintiff’s proposed further redactions.

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CERTIFICATE OF SERVICE

I, Joan A. Lukey, state that on this date I am sending a copy of this document as required by the rules of the court. I am electronically sending this document through the court’s electronic filing system to all attorneys and to all other parties who have entered electronic service contacts (email addresses) in this case. I am mailing or hand-delivering copies to all other interested parties.

Harvey J. Wolkoff Aliki Sofis Kathleen Marini QUINN EMANUEL URQUHART & SULLIVAN, LLP 111 Huntington Avenue, Suite 520 Boston, MA 02199 (617) 712-7100 [email protected] [email protected] [email protected] Joseph D. Steinfeld 130 Court Street Keene, NH 03431 (617) 285-3937 [email protected]

/s/ Joan A. Lukey Joan A. Lukey, Bar No. 16246 CHOATE HALL & STEWART LLP 2 International Place Boston, MA 02110 (617) 248-5000 [email protected]

Exhibit D

Boston Globe Article

7/13/2020 Ex-wife of ‘Da Vinci Code’ author Dan Brown files suit claiming ‘unlawful and egregious conduct’ - The Boston Globe

https://www.bostonglobe.com/2020/06/30/lifestyle/ex-wife-da-vinci-code-author-dan-brown-files-suit-claiming-unlawful-egregious-conduct/?event=even… 1/7

Ex-wife of ‘Da Vinci Code’ author DanBrown files suit claiming ‘unlawful andegregious conduct’"I have continually tried to absorb the shocking truth withheld duringour divorce that Dan had been leading a double life..."By Mark Shanahan Globe Staff, Updated June 30, 2020, 9:23 a.m.

Author Dan Brown and his now ex-wife Blythe Brown. E. CHARBONNEAU

Author Dan Brown, the New Hampshire native whose 2003 novel “The Da Vinci Code” is

one of the bestselling books of all time, is being sued by his ex-wife, who claims he

engaged in “unlawful and egregious conduct” that amounted to a “proverbial life of lies”

during the last several years of their marriage.

https://www.bostonglobe.com/staff/shanahan?p1=Article_Byline



Blythe Brown is suing the author for misrepresenting the couple’s wealth in a sworn

financial affidavit he signed as part of their divorce agreement, and for intentional and

negligent infliction of emotional distress.

“This lawsuit is about standing up for myself and asserting my self-worth. I have

continually tried to absorb the shocking truth withheld during our divorce that Dan had

been leading a double life for years during our marriage, all while coming home to me,”

Blythe Brown told the Globe in a statement Monday. “I trusted this man for decades as

my life’s love. We worked so hard together, struggling to build something meaningful... I

don’t recognize the man that Dan has become. It is time to reveal his deceit and betrayal.

After so much pain, it is time for truth. It is time to right these wrongs.”

In a bombshell lawsuit filed Monday in Rockingham Superior Court in New Hampshire,

Blythe Brown alleges that the 56-year-old author, to whom she was married from 1997

until last December, “secretly siphoned” off vast sums of money “to conduct sordid,

extra-marital affairs” with women, including a Dutch horse trainer on whom he lavished

extravagant gifts.

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In a statement, Dan Brown told the Globe he’s “stunned” that his ex-wife is “making false

claims” and says he was fair and truthful in their divorce settlement.

“On the day that Blythe and I married, I never remotely thought that we eventually

would grow so far apart,” he wrote.

Brown, who was raised in Exeter, N.H., and graduated from Amherst College, was a

songwriter and, briefly, a teacher, before taking up writing full-time. His first three

novels didn’t find an audience, but “The Da Vinci Code” did. A fast-paced thriller about a

fictional Harvard “symbologist” who investigates a murder at the Louvre and stumbles

upon an ancient society that guards dark secrets about Jesus and the Holy Grail, the

book was an international sensation. It has sold more than 80 million copies and been

adapted into a movie, starring Tom Hanks, which has grossed more than $760 million

worldwide. In all, Brown’s seven novels have sold more than 250 million copies.

In her lawsuit, Blythe Brown says she was not merely a bystander to her ex-husband’s

phenomenal success. She claims she was the “lead researcher” and “developed the

premise of the critical concepts, historical emphases, and complex plot twists” for “The

Da Vinci Code” and for all of Brown’s subsequent books, a string of bestsellers that

includes “The Lost Symbol,” “Inferno,” and “Origin.” Together, she says, the couple

“brainstormed the storylines and plot twists” of the novels. (Blythe Brown says she also

helped with “Angels & Demons,” which was published in 2000, before “The Da Vinci

Code,” but republished later.)

In interviews, Dan Brown has spoken often about his ex-wife’s role in crafting his books.

In 2017, he told the Daily Mail: “I was writing about the Louvre and the Grail, but it was

Blythe who said I should write about Mary Magdalene, too. I probably wouldn’t have

written [The Da Vinci Code] without her. She’s a great researcher.” And in the

acknowledgements of “The Da Vinci Code,” the author cites: “my wife, Blythe — art

historian, painter, front-line editor, and without a doubt the most astonishingly talented

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woman I have ever known.”

In her lawsuit, Blythe Brown includes a sworn statement made by her ex-husband in an

unrelated 2005 legal action in England alleging he plagiarized portions of “The Da Vinci

Code.” In that case, which Brown won, the author credited his then-wife for refining the

themes and plot of the bestselling book.

“[Blythe Brown] lobbied hard for me to find a way to use a theory which concerned the

legend of the Holy Grail — the so-called ‘bloodline theory’... Initially, I was reluctant...

finding it too incredible and inaccessible to readers — I thought it was a step too far,”

Brown says in the court filing. “However... after much discussion and brainstorming with

Blythe, I eventually became convinced that I could introduce the idea successfully.”

Despite his celebrity — Brown was one of TIME’s 100 Most Influential People in the

World in 2005 — his public persona is conspicuously cerebral. In a 2004 profile of the

author, The Guardian described him as “mundane,” “unexciting,” and “not exactly a riot

of hedonism,” suggesting that biographers would be disappointed if they investigated

Brown with as much verve as his fictional hero, Robert Langdon, searches for the holy

grail.

“The life and times of Dan Brown imply not every tale has a sting,” wrote The Guardian.

But Blythe Brown claims in her suit that she noticed changes in her husband in 2014:

“He started to act distant, dressed differently, and instigated arguments... over

inconsequential matters for no apparent reason.” In 2018, Blythe Brown says, her

husband told her he was unhappy in the marriage and wanted a separation. According to

the lawsuit, Brown told his wife they’d “grown apart,” but could “remain best friends.”

Blythe Brown says she reluctantly moved out of the couple’s home in Rye Beach, N.H., in

August 2018. She claims Brown wanted to avoid “a protracted public [divorce]

proceeding” and “persuaded” her that, at the time of their divorce, she had “full

knowledge” of the vast wealth the couple had accumulated during their marriage.



“This was untrue,” the lawsuit states. “Dan had, for a number of years, secretly siphoned

funds from their marital assets, at least in part to finance his activities with his

mistresses, including... a young horse trainer who lived in Holland.”

The horse trainer is a Friesian horse specialist and talented dressage rider whom Blythe

Brown brought to the United States from Holland in 2013 to train a Friesian horse

owned by the Browns. The lawsuit states that after the Browns’ divorce was finalized, in

December 2019, Blythe Brown discovered that her ex-husband had begun an affair with

the horse trainer, identified in the suit by the initials “JP,” in 2014 while the trainer was

recuperating from shoulder surgery at the couple’s home in New Hampshire.

Unbeknownst to his then-wife, according to the lawsuit, Brown secretly took large sums

of money from the couple’s accounts to buy gifts for the horse trainer, including a prize-

winning Friesian horse named “LimiTed Edition” whose price tag was $345,000, as well

as a new car, a two-horse transport truck, and renovations to the woman’s apartment in

Holland.

“The net effect of these transgressions substantially reduced the marital estate,”

according to the lawsuit.

The suit states that in January 2020, Blythe Brown confronted her ex-husband about the

secret wire transfers and he replied: “I’ve done bad things with a lot of people.” Brown,

according to the suit, admitted having an affair with a local hairdresser and also with the

horse trainer, telling his ex-wife that his relationship with the horse trainer “has and will

continue.”

According to the lawsuit, Blythe Brown subsequently discovered that Brown had used

marital assets to finance affairs with “a political official” at the couple’s vacation home on

Anguilla, and with his personal trainer.

The lawsuit further claims that, at the time of the couple’s divorce, Brown told his wife



that he didn’t have any upcoming projects. Blythe Brown says she later learned that

Brown was working on several new projects, including a television series, “Langdon,”

based on the novels the couple “created together” and which NBCUniversal Studios has

picked up.

“Dan stands to make millions from these projects, which is undoubtedly why he hid them

from Blythe,” the lawsuit states.

“Blythe Brown agreed to a quiet divorce last year from her longtime husband Dan

Brown,” her attorney, Harvey J. Wolkoff, Boston head of Quinn Emanuel, said in a

statement. “Only afterward did she learn that, for years, he had been deceiving her.

Blythe asks that her ex-husband be held accountable for his dishonesty. She hopes for a

legal reckoning with the harm inflicted by his conduct.”

Brown, meanwhile, insists the financial affidavit he signed was a complete list of the

couple’s assets at the time of the divorce.

“I swore to the truthfulness of what was contained on that list, and I stand by that

financial statement today,” Brown said in his statement to the Globe. “We were very

fortunate that we equally were blessed with very substantial assets with which to move

forward after that.”

Through his attorney, Joan Lukey, Brown has filed a motion to unseal the confidential

financial information in the divorce settlement to rebut his ex-wife’s claim that he

concealed assets during their marriage.

“I am saddened that there is not enough goodwill from 21 years of marriage to temper

her unfortunate actions,” he said.

Mark Shanahan can be reached at [email protected]. Follow him on Twitter @MarkAShanahan

mailto:[email protected]://www.twitter.com/MarkAShanahan

Exhibit E

Defendant’s Petition

to Bring Forward and for Partial Unsealing of Certain Documents (Redacted Pursuant to

Sup. Ct. Rule 13B(c)(4)(A))

Exhibit F

Family Division Order