Document 120366008380

case in other civil proceedings. She bases her request on the premise that disclosure of the Documents to the relevant judicial officers is allegedly necessary to ensure the fair adjudication of issues being litigated in those civil matters. But after fourteen single-spaced pages of heated rhetoric, the Defendant proffers no more than vague, speculative, and conclusory assertions as to why that is the case. She provides no coherent explanation of what argument she intends to make before those courts that requires the presentation of the materials received in discovery in this criminal matter under the existing terms of the protective order in this case. And she furnishes no substantive explanation regarding the relevance of the Documents to decisions to be made in those matters, let alone any explanation of why modifying the protective order in order to allow such disclosure is necessary to ensure the fair adjudication of those matters. In sum, the arguments the Defendant presents to the Court plainly fail to establish good cause. The Defendant's request is DENIED on this basis. Indeed, good cause for the requested modification of the protective order is further lacking because, as far as this Court can discern, the facts she is interested in conveying to the judicial decisionmakers in the Civil Cases are already publicly available, including in the Government's docketed letter on this issue. See Dkt. No. 46. In the opening paragraph of her reply letter dated August 24, 2020, the Defendant states that she is essentially seeking to disclose under seal to certain judicial officers the following factual information: 1. Grand jury subpoenas were issued to an entity ("Recipient") after the Government opened a grand jury investigation into Jeffrey Epstein and his possible co-conspirators; 2. The Recipient concluded that it could not turn over materials responsive to the grand jury subpoena absent a modification of the civil protective orders in the civil cases; 3 App.101 DOJ-OGR-00019560 --- PAGE BREAK --- The Honorable Alison J. Nathan August 17, 2020 Page 3 The Material The government apparently contacted at some time before February 2019 Based on some discussion with , the government served with a subpoena to produce . Ms. Maxwell was not served with App.106 DOJ-OGR-00019565 --- PAGE BREAK --- Case 120366008380 The Honorable Alison J. Nathan August 24, 2020 Page 3 Respectfully Submitted, Jeffrey S. Pagliuca CC: Counsel of Record (via Email) App.114 DOJ-OGR-00019573 --- PAGE BREAK --- Case 120366008380 Document 81-1 Filed 02/20/20 Page 4 of 5 3. In February 2019, the Government, ex parte and under seal, sought modification of those civil protective orders so as to permit compliance with the criminal grand jury subpoenas; 4. In April 2019, one court ("Court-1") permitted the modification and, subsequently, another court ("Court-2") did not; 5. That as a result of the modification of the civil protective order by Court-1, the Recipient turned over to the Government certain materials that had been covered by the protective order; and 6. That the Defendant learned of this information (sealed by other courts) as a result of Rule 16 discovery in this criminal matter. With the exception of identifying the relevant judicial decision makers and specific civil matters, all of the information listed above is available in the public record, including in the letter filed on the public docket by the Government on this issue. See Dkt. No. 46. Although this Court remains in the dark as to why this information will be relevant to those courts, so that those courts can make their own determination, to the extent it would otherwise be prohibited by the protective order in this matter, the Court hereby permits the defendant to provide to the relevant courts under seal the above information, including the information identifying the relevant judicial decision makers and civil matters. In addition, the Government has indicated that "there is no impediment to counsel making sealed applications to Court-1 and Court-2, respectively, to unseal the relevant materials." Dkt. No. 46 at 3 n.5. In her reply, the Defendant asserts that she is amenable to such a solution if the Court agrees with the Government that doing so would not contravene the protective order in this case. To the extent it would otherwise be prohibited by the protective order in this case. 4 App.102 DOJ-OGR-00019561 --- PAGE BREAK --- The Honorable Alison J. Nathan August 17, 2020 Page 6 There are at least three compelling reasons to modify the Protective Order. First, The partial secrecy surrounding the Material has also fundamentally undermined the fairness of the adversarial process. Although the grand jury subpoena and government investigation were known to "The rule does not impose any obligation of secrecy on witnesses." Fed. R. Crim. P. 6, Advisory Committee Note to Subdivision 6(e)2. Too many questions remain unanswered including exactly what was said between the government and , when was it said, and precisely what was turned over. Without the ability to use the Material in the very limited fashion proposed Ms. Maxwell she is unfairly disadvantaged Moreover, instead of candidly revealing the fact of the subpoena Second, App.109 DOJ-OGR-00019568 --- PAGE BREAK --- Case: 120366008380 Document #8123412520 Filed 08/17/20 Page 7 of 13 The Honorable Alison J. Nathan August 17, 2020 Page 7 Further, and as this Court knows, ample Second Circuit authority supports staying a civil case pending the resolution of a related criminal case. See SEC v. Blaszczak, No. 17-CV-3919 (AJN), 2018 WL 301091, at *1 (S.D.N.Y. Jan. 3, 2018) (granting motion to stay civil case and holding that "[a] district court may stay civil proceedings when related criminal proceedings are imminent or pending, and it will sometimes be prudential to do so" (quoting Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012))). Among other things, the stay vindicates the Fifth Amendment and guards against witnesses learning information in the civil case and then "conforming" their testimony in the criminal case to what was disclosed in the civil case. This concern is all the more real when Ms. Maxwell further anticipates the very immediate need to disclose the Materials to Notably, the Material at issue is not accuser-related or sensitive in any regard. These ex parte pleadings, hearings, and rulings are already known to . These materials, absent sealing, would enjoy a presumptive right of public access as judicial documents. Given that the Material has been disclosed in this case by the government under the terms of this Court's Order, and without any application to the sealing courts, the government has conceded that this Court has the authority to authorize use of the Material under the terms of this Court's Protective Order. And, the government has previously agreed that the appropriate forum to consider issues related to the civil Protective Order is in the civil litigation, positing the opinion "that neither it nor this Court is well-positioned to, or should, become the arbiter of what is appropriate or permissible in civil cases." Doc. # 33 at 7. What Ms. Maxwell asks is that she be allowed to disclose, under seal, the Material so that The Protective Order in this case The Material, as part of the court files in the United States District Court for the Southern District of New York, App.110 DOJ-OGR-00019569