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Document 120366006380

AI Analysis

Summary: The document is a court filing arguing against the government's opposition to modifying a protective order regarding sealed materials in a criminal case involving Ms. Maxwell. It disputes the government's characterization of its actions as 'standard practice' and asserts that the protective order can be modified as circumstances change. The filing cites relevant case law to support its arguments.
Significance: This document is potentially important because it reveals a dispute between the government and Ms. Maxwell regarding the government's use of subpoenas and the modification of protective orders, highlighting the tension between the government's investigative powers and the defendant's rights.
Key Topics: The government's use of subpoenas in a criminal case Modification of protective orders in relation to sealed materials The procedure for the government to access civil materials subject to protective orders
Key People:
  • Alison J. Nathan - Judge presiding over the case
  • Ms. Maxwell - Defendant in the criminal case
Document Type
Court Filing
Date
August 24, 2020
Pages
2
Folder
IMAGES007

Full Text

The Honorable Alison J. Nathan August 24, 2020 Page 2 The government's ad hominem suggestion that Ms. Maxwell has "cherry-pick[ed] materials" to seek an "advantage in their efforts to defend against accusations of abuse" or "delay court-ordered disclosure of previously sealed materials" reveals a fundamental (or feigned) lack of understanding . It also begs the question, to be fleshed out at a later time, . Ms. Maxwell simply seeks to alert the judicial officers in the related Civil Litigation to facts about which her adversary is already aware. Issuance of the Subpoenas Not "Standard Practice": Second, the government tries to normalize, without citation to authority, its conduct as "standard practice." Resp. at 2. To the contrary, the controlling case in this Circuit, Martindell v. Int'l Telephone & Telegraph Corp., 594 F.2d 291, 293 (2d Cir. 1979), mandates a wholly different procedure: the use of a non-ex parte subpoena with an opportunity for the aggrieved party to move to quash. Similar cases in this district demonstrate the "non-standard" nature of the government's conduct regarding these subpoenas. For example, Judge Koeltl observed when considering whether to release a single deposition transcript to the government: "the Second Circuit has made clear that the Government may not use its 'awesome' investigative powers to seek modification of a protective order merely to compare the fruits of the plaintiff's discovery in a civil action with the results of a prosecutorial investigation in a criminal action." Botha v. Don King Prods., Inc., No. 97 CIV. 7587 (JGK), 1998 WL 88745, at *3 (S.D.N.Y. Feb. 27, 1998) (citing Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 743 (2d Cir. 1987) and Martindell, 594 F.2d at 297). App.116 DOJ-OGR-00019575 --- PAGE BREAK --- The Honorable Alison J. Nathan August 24, 2020 Page 5 Protective Orders May Be Modified As Circumstances Change Finally, the government suggests in a myriad of ways without directly arguing that this Protective Order cannot be modified, that Ms. Maxwell somehow waived her ability to seek modification by agreeing to a Protective Order before she knew what was contained in the criminal discovery, or that there is no precedent for such a modification. These suggestions are disingenuous. Of course, the Government ignores that the Protective Order itself provides that it may be modified "by further order of the Court." Id., ¶ 18(b). There is no precedence for this case. That is true because the Second Circuit has outlined a process for the government to seek civil materials subject to protective orders for use in grand jury investigations, a process the government circumvented. It also is true because typically, the government is the party to intervene in civil cases and seek a stay where materials the government has marked "Confidential" may be disclosed publicly or where the government contends the rules of criminal discovery will be circumvented. Finally, there is no other case that defense counsel has located where That Ms. Maxwell did not know what was in the sealed materials before she signed the Protective Order, or proposed a draft, is self-evident. That a Court can modify a protective order at any time is likewise well-established. Fed. R. Crim. P. 16(d)(1) authorizes the Court to regulate discovery through protective orders and modification of those orders. See Smith Kline Beecham Corp. v. Synthon Pharmaceuticals, Ltd., 210 F.R.D. 163, 166 (M.D.N.C. 2002) ("[c]ourts have the inherent power to modify protective orders, including protective orders arising from a stipulation by the parties"); see also United States v. Gurney, 558 F.2d 1202, 1211 n.15 (5th Cir. 1977) (trial court's decisions as to which documents "will be placed in the public domain, and which are entitled to privacy and confidentiality" are discretionary and "form an integral part of trial management"); United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007), as amended (July 2, 2007) ("it would have been proper for the District Court to unseal the records pursuant to its general discretionary powers"); Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 & 535 (1st Cir. 1993). "The standard of review for a request to vacate or modify a protective order depends on the nature of the documents in question. There is a presumptive right of public access to judicial App.119 DOJ-OGR-00019578

Individual Pages

Page 2 - DOJ-OGR-00019575
The Honorable Alison J. Nathan August 24, 2020 Page 2 The government's ad hominem suggestion that Ms. Maxwell has "cherry-pick[ed] materials" to seek an "advantage in their efforts to defend against accusations of abuse" or "delay court-ordered disclosure of previously sealed materials" reveals a fundamental (or feigned) lack of understanding . It also begs the question, to be fleshed out at a later time, . Ms. Maxwell simply seeks to alert the judicial officers in the related Civil Litigation to facts about which her adversary is already aware. Issuance of the Subpoenas Not "Standard Practice": Second, the government tries to normalize, without citation to authority, its conduct as "standard practice." Resp. at 2. To the contrary, the controlling case in this Circuit, Martindell v. Int'l Telephone & Telegraph Corp., 594 F.2d 291, 293 (2d Cir. 1979), mandates a wholly different procedure: the use of a non-ex parte subpoena with an opportunity for the aggrieved party to move to quash. Similar cases in this district demonstrate the "non-standard" nature of the government's conduct regarding these subpoenas. For example, Judge Koeltl observed when considering whether to release a single deposition transcript to the government: "the Second Circuit has made clear that the Government may not use its 'awesome' investigative powers to seek modification of a protective order merely to compare the fruits of the plaintiff's discovery in a civil action with the results of a prosecutorial investigation in a criminal action." Botha v. Don King Prods., Inc., No. 97 CIV. 7587 (JGK), 1998 WL 88745, at *3 (S.D.N.Y. Feb. 27, 1998) (citing Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 743 (2d Cir. 1987) and Martindell, 594 F.2d at 297). App.116 DOJ-OGR-00019575
Page 5 - DOJ-OGR-00019578
The Honorable Alison J. Nathan August 24, 2020 Page 5 Protective Orders May Be Modified As Circumstances Change Finally, the government suggests in a myriad of ways without directly arguing that this Protective Order cannot be modified, that Ms. Maxwell somehow waived her ability to seek modification by agreeing to a Protective Order before she knew what was contained in the criminal discovery, or that there is no precedent for such a modification. These suggestions are disingenuous. Of course, the Government ignores that the Protective Order itself provides that it may be modified "by further order of the Court." Id., ¶ 18(b). There is no precedence for this case. That is true because the Second Circuit has outlined a process for the government to seek civil materials subject to protective orders for use in grand jury investigations, a process the government circumvented. It also is true because typically, the government is the party to intervene in civil cases and seek a stay where materials the government has marked "Confidential" may be disclosed publicly or where the government contends the rules of criminal discovery will be circumvented. Finally, there is no other case that defense counsel has located where That Ms. Maxwell did not know what was in the sealed materials before she signed the Protective Order, or proposed a draft, is self-evident. That a Court can modify a protective order at any time is likewise well-established. Fed. R. Crim. P. 16(d)(1) authorizes the Court to regulate discovery through protective orders and modification of those orders. See Smith Kline Beecham Corp. v. Synthon Pharmaceuticals, Ltd., 210 F.R.D. 163, 166 (M.D.N.C. 2002) ("[c]ourts have the inherent power to modify protective orders, including protective orders arising from a stipulation by the parties"); see also United States v. Gurney, 558 F.2d 1202, 1211 n.15 (5th Cir. 1977) (trial court's decisions as to which documents "will be placed in the public domain, and which are entitled to privacy and confidentiality" are discretionary and "form an integral part of trial management"); United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007), as amended (July 2, 2007) ("it would have been proper for the District Court to unseal the records pursuant to its general discretionary powers"); Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 & 535 (1st Cir. 1993). "The standard of review for a request to vacate or modify a protective order depends on the nature of the documents in question. There is a presumptive right of public access to judicial App.119 DOJ-OGR-00019578