Document 292

Case 1:20-cr-00330-PAE Document 292 Filed 05/25/21 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, v. GHISLAINE MAXWELL, Defendant. S2 20 Cr. 330 (AJN) NOTICE OF MOTION ORAL ARGUMENT REQUESTED DEFENDANT GHISLAINE MAXWELL'S NOTICE OF MOTION TO OBTAIN THE RELIEF SPECIFIED IN HER SUPPLEMENTAL PRETRIAL MOTIONS RELATING TO THE S2 SUPERSEDING INDICTMENT PLEASE TAKE NOTICE that, upon the accompanying omnibus memorandum of law and exhibits, Defendant Ghislaine Maxwell, through counsel, hereby moves for the relief requested in her supplemental pretrial motions relating to the S2 Superseding Indictment. Dated: May 7, 2021 New York, New York Respectfully submitted, COHEN & GRESSER LLP /s/ Christian R. Everdell Christian Everdell ceverdell@cohengresser.com 800 Third Avenue, 21st Floor New York, NY 10022 Phone: (212) 957-7600 Fax: (212) 957-4514 Jeffrey S. Pagliuca Laura A. Menninger HADDON, MORGAN & FOREMAN P.C. 150 East 10th Avenue DOJ-OGR-00004264 --- PAGE BREAK --- Case 1:19-cv-10455-LGS Document 292 Filed 05/18/20 Page 1 of 3 David Boies Telephone: (914) 749-8200 Email: dboies@bsfllp.com May 18, 2020 VIA ECF The Honorable Debra C. Freeman Daniel Patrick Moynihan United States Courthouse 500 Pearl St. New York, NY 10007-1312 Re: Annie Farmer v. Darren K. Indyke, Richard D. Kahn, & Ghislaine Maxwell, 19-10475-LGS-DCF Dear Judge Freeman: Pursuant to Individual Rule I.D, Plaintiff Annie Farmer hereby responds to Defendant Ghislaine Maxwell's request for a pre-motion conference in connection with her anticipated motion to stay discovery in this matter. The Court should deny Maxwell's motion for a pre-motion conference and deny her anticipated motion in its entirety because, as explained below, each of Maxwell's reasons for staying discovery is meritless and the motion is simply another attempt to unjustifiably delay this litigation. First, a pending criminal investigation of Maxwell does not justify a stay of discovery. "[A] stay of a civil case to permit conclusion of a related criminal prosecution has been characterized as an extraordinary remedy." Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012) (internal quotation marks omitted). In this Circuit, courts balance the following six factors when considering whether to stay a civil case pending related criminal proceedings: 1) the extent to which the issues in the criminal case overlap with those presented in the civil case; 2) the status of the case, including whether the defendants have been indicted; 3) the private interests of the plaintiffs in proceeding expeditiously weighed against the prejudice to plaintiffs caused by the delay; 4) the private interests of and burden on the defendants; 5) the interests of the courts; and 6) the public interest. Id. at 99. And according to the very case Maxwell cites in support of staying this action pending a criminal investigation: "The weight of authority in this Circuit indicates that courts will stay a civil proceeding when the criminal investigation has ripened into an indictment, but will deny a stay of the civil proceeding where no indictment has issued." In re Par Pharm., Inc. Sec. Litig., 133 F.R.D. 12, 13-14 (S.D.N.Y. 1990) (emphasis added) (internal citations omitted). The Court should deny Maxwell's motion for a stay without prejudice to her ability to renew her application if she is arrested. Until that happens, however, there are no grounds for a stay. BOIES SCHILLER FLEXNER LLP 333 Main Street, Armonk, NY 10504 | (t) 914 749 8200 | (f) 914 749 8300 | www.bsflp.com DOJ-OGR-00019317 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 292 Filed 05/25/21 Page 2 of 2 Denver, Colorado 80203 Phone: 303-831-7364 Bobbi C. Sternheim Law Offices of Bobbi C. Sternheim 33 West 19th Street - 4th Floor New York, NY 10011 Phone: 212-243-1100 Attorneys for Ghislaine Maxwell 2 DOJ-OGR-00004265 --- PAGE BREAK --- The Honorable Alison J. Nathan July 27, 2020 Page 2 referenced in the discovery and guard against prejudicial pretrial publicity, while still ensuring that Ms. Maxwell and defense counsel may adequately prepare and present a full defense at trial. Legal Standard Where the government seeks to curtail the use of pretrial discovery, Rule 16(d)(1) of the Federal Rules of Criminal Procedure requires that it "show good cause for the issuance of a protective order." United States v. Annabi, No. 10 Cr. 7 (CM), 2010 WL 1253221, at *1 (S.D.N.Y. Mar. 24, 2010). To establish that good cause exists for proposed restrictions in a protective order, the government must show that disclosure will cause "a clearly defined and serious injury." United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007). A finding of harm "must be based on a particular factual demonstration of potential harm, not on conclusory statements." United States v. Gangi, 1998 WL 226196, at *2 (S.D.N.Y. May 4, 1998) (citations and internal quotations omitted). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." Wecht, 484 F.3d at 211. Courts must be careful not to impose a protective order that is "broader than is necessary" to accomplish its goals. United States v. Lindh, 198 F. Supp. 2d 739, 742 (E.D. Va. 2002) (citation and internal quotation marks omitted). Thus, courts are instructed to "weigh the impact" of requested protections and their extent against a defendant's "due process right to prepare and present a full defense at trial." Id. Discussion 1. Restrictions on Use of Discovery Materials The government and the defense agree that the protective order should include a restriction prohibiting Ms. Maxwell and defense counsel from (i) using discovery materials "for any civil proceeding or any purpose" other than defending or preparing for this criminal action; or (ii) posting discovery materials on the Internet. See Ex. A ¶¶ 1(a), 5. The defense's proposed protective order would make those same restrictions applicable to potential government witnesses and their counsel so that they are on equal footing with the defense. See Ex. A ¶¶ 3, 5. The government has indicated that it cannot agree to such a restriction, despite acknowledging that it will very likely share discovery materials with those individuals during the course of trial preparation. As the Court is aware, there is active ongoing civil litigation between Ms. Maxwell and many of the government's potential witnesses. Moreover, numerous potential witnesses and their counsel have already made public statements about this case to the media since Ms. Maxwell's arrest. There is a substantial concern that these individuals will seek to use discovery materials to support their civil cases and future public statements. It is therefore vital that the government's potential witnesses and their counsel be subject to the same restrictions as Ms. App.040 DOJ-OGR-00019499 --- PAGE BREAK --- The Honorable Alison J. Nathan July 27, 2020 Page 4 For the reasons set forth above, we respectfully submit that the Court should enter Ms. Maxwell's proposed protective order. Respectfully submitted, /s/ Christian R. Everdell Mark S. Cohen Christian R. Everdell COHEN & GRESSER LLP 800 Third Avenue, 21st Floor New York, New York 10022 (212) 957-7600 cc: All counsel of record (via ECF) App.042 DOJ-OGR-00019501