Document 12036600638

Case: 12036600638 Document: 081241251020 Filed: 08/09/2020 Page: 2 of 5 reference, but not file, other, or discovery material that the Government produced in this case. For the reasons that follow, Defendant's requests are DENIED. Under Federal Rule of Criminal Procedure 16(d)(1), a Court may enter a protective order only after it finds that good cause exists. Within this framework, the Federal Rules of Criminal Procedure leave it to the discretion of the Court to determine whether modification of an existing protective order is warranted.2 To make that decision, the Court takes into account all relevant factors, including the parties' reliance on the protective order and whether the moving party has sufficiently substantiated a request to deviate from the status quo in the instant matter. On July 30, 2020, this Court entered a protective order in this case, having determined that good cause existed. Dkt. No. 36. The parties agreed that a protective order was warranted. See Dkt. No. 35 at 1 (“The parties have met and conferred, resolving nearly all the issues relating to the proposed protective order.”). The Defendant's Proposed Protective Order included a provision that stated that all discovery produced by the Government “[s]hall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action.” Dkt. No. 29, Ex. A ¶ 1(a). That language was included in the Court's July 30, 2020 protective order. See Dkt. No. 36 ¶¶ 1(a), 10(a), 14(a). Shortly thereafter, the Government began to produce discovery. Upon receipt of some of the discovery, the Defendant filed the instant request, which seeks modification of the protective order in order to use documents produced in the criminal 2 In the civil context, there is a “strong presumption against the modification of a protective order.” In re Teligent, Inc., 640 F.3d 53, 59 (2d Cir. 2011) (citation omitted). Courts in the Second Circuit have applied the standard of protective orders in the civil context to the criminal context. See, e.g., United States v. Calderon, No. 3:15-CR-25 (JCH), 2017 WL 6453344, at *2 (D. Conn. Dec. 1, 2017) (applying the civil standard for the modification of a protective order in a criminal case); United States v. Kerik, No. 07-CR-1027 (LAP), 2014 WL 12710346 at *1 (S.D.N.Y. July 23, 2014) (same). See also United States v. Morales, 807 F.3d 717, 723 (5th Cir. 2015) (applying the standard for “good cause” in the civil context when evaluating whether to modify a protective order entered in a criminal case); United States v. Wecht, 484 F.3d 194, 211 (3rd Cir. 2007) (same). 2 App.100 DOJ-OGR-00019559 --- PAGE BREAK --- Case: 12036600638 The Honorable Alison J. Nathan August 17, 2020 Page 4 any subpoena. In or about February 28, 2019 the government first applied to for relief. During these ex parte proceedings, the government made numerous unchallenged factual assertions. To Ms. Maxwell's knowledge, no one disclosed the pendency of these applications to . Certainly, no one -- not the government, any court, or -- disclosed to Ms. Maxwell . The indictment On July 2, 2020, government arrested Ms. Maxwell. On July 8, the government filed a , the alleging that Ms. Maxwell "assisted, facilitated, and contributed" to Epstein's abuse of minors. the indictment alleges that in 2016 Ms. Maxwell made "efforts to conceal her conduct" by "repeatedly provid[ing] false and perjurious statements" in deposition testimony. Superseding Indictment, Doc. # 17 at 29 ¶ 8. On the two applications referenced above the two SDNY courts rendered a split decision. granted the ex 6 The first batch of discovery was provided by the government to NY counsel on August 5, 2020 in the late afternoon on a hard disk. Due to the time upload and securely transfer files, undersigned counsel for Ms. Maxwell (also counsel for her in the Giuffre case) only received these materials at 11:38 a.m. on Friday, August 7, 2020. App.107 DOJ-OGR-00019566 --- PAGE BREAK --- Case 12036600638 Doc 81 Filed 08/24/20 Page 4 of 5 The Honorable Alison J. Nathan August 24, 2020 Page 4 that matter: . 2 The government does not explain, because they cannot, how it will harm an ongoing criminal investigation to reveal the sealed materials under seal to two arbiters: . Clearly those judicial officers are fully capable of maintaining files under seal and confidences. Nor is there any support for the argument that this limited request will "permit dissemination of a vast swath of materials." Resp. at 3. The slippery slope contention is belied by the limited nature of Ms. Maxwell's request. The sealed materials are a discrete set of judicial documents, not a "vast swath of materials," and Ms. Maxwell seeks to file them under seal for those Courts to use in their determinations. Hyperbole aside, the request is appropriately limited. Further, the government's suggestion that "there is no impediment to counsel making sealed applications to Court-1 and Court-2, respectively, to unseal the relevant materials" is, at best, baffling. Resp. at 3 n.5. Such a "sealed application" in furtherance of her Civil Litigation would be "using" the materials for the civil case, exactly the conduct proscribed by the Protective Order here. If the Court disagrees, Ms. Maxwell is more than happy to make such sealed applications to those judicial officers. The government does not explain its thinking, nor did the government suggest this course of action during the conferral process. The Sealed Materials Are Important to Fourth, the government decries the sealed materials' lack of relevance to 2 Ms. Maxwell strenuously opposes the government's suggestion that it "further elaborate on the nature of the ongoing grand jury investigation" in a supplemental ex parte and sealed pleading. This Court is overseeing the criminal case pertaining to Ms. Maxwell and any ex parte pleading concerning this case to this judicial officer is inappropriate. See Standard 3-3.3 Relationship with Courts, Defense Counsel and Others, "Criminal Justice Standards for the Prosecution Function," American Bar Ass'n (4th ed. 2017) ("A prosecutor should not engage in unauthorized ex parte discussions with, or submission of material to, a judge relating to a particular matter which is, or is likely to be, before the judge.") App.118 DOJ-OGR-00019577 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 208 Filed 08/24/20 Page 6 of 6 The Honorable Alison J. Nathan August 24, 2020 Page 6 documents, that is, documents that are 'relevant to the performance of the judicial function and useful in the judicial process.'" Kerik, 2014 WL 12710346, at *1 (S.D.N.Y. July 23, 2014), (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). The Materials that Ms. Maxwell seeks to disclose (to judicial officers under seal) are, without question, judicial documents. And, at a minimum, Ms. Maxwell's opponent in the Civil Litigation knows both that the Government obtained an ex parte order to subpoena the information and what was produced. Accordingly, the argument that somehow grand jury secrecy will be compromised by disclosure, under seal to judicial officers reviewing the very material at issue, is absurd. Ms. Maxwell has demonstrated good cause for her very limited request to present a discrete set of sealed materials under seal to The government has not articulated a cogent reason for that information to be kept from the other judicial officers. Sincerely, Jeffrey S. Pagliuca CC: Counsel of Record (via ECF) App.120 DOJ-OGR-00019579 --- PAGE BREAK --- The Honorable Alison J. Nathan August 17, 2020 Page 8 ).8 Conclusion Ms. Maxwell requests that this Court modify the Protective Order to allow her to refer to and file under seal in the Material at issue in this letter motion. Respectfully Submitted, Jeffrey S. Pagliuca CC: Counsel of Record (via Email) App.111 DOJ-OGR-00019570