Document 311-1

Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 1 of 23 EXHIBIT D DOJ-OGR-00004894 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 2 of 23 xj3q1gra SEALED 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------x In re: Grand Jury Proceedings Ex Parte Conference --------------------------------------------------------x New York, N.Y. March 26, 2019 4:04 p.m. Before: HON. COLLEEN MCMAHON, District Judge APPEARANCES GEOFFREY S. BERMAN United States Attorney for the Southern District of New York BY: ALEX ROSSMILLER Assistant United States Attorney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000853 DOJ-OGR-00004895 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 3 of 23 xj3q1gra SEALED (In the robing room) THE COURT: The following proceeding is being conducted ex parte and under seal. The problem is, it's not being conducted in a matter, and that is one of my first questions to Mr. Rossmiller: Why was this not filed on the Court's docket with a miscellaneous number? We don't file things under U.S. Attorney numbers. This should have been brought as a miscellaneous matter. MR. ROSSMILLER: So, your Honor, it was originally submitted with Judge Sweet -- THE COURT: I understand what he did, but I will tell you that in the opinion that will never issue, because Judge Sweet died, but he had written, and now I'm stuck with this, Judge Sweet questioned why you had not made this an "In re: The Matter of Application of the Grand Jury" or something or other, with a proper miscellaneous docket number. The fact that it would have gone to Judge Sweet doesn't mean anything. I have no way to docket USAO No. 2018R01618. That's your reference number, not ours. MR. ROSSMILLER: I understand, your Honor. I think we had understood that the submission should be made to the court that had entered the protective order and that -- THE COURT: That's true, but that doesn't mean it doesn't get a miscellaneous docket number. The first thing that's going to happen, this is going to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000854 DOJ-OGR-00004896 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 4 of 23 xj3q1gra SEALED 1 to be re-legended and it's going to get a miscellaneous docket number. 2 3 MR. ROSSMILLER: Understood, your Honor. I apologize 4 for that oversight. 5 THE COURT: It's okay. 6 All right. Now my second question, which is a 7 procedural question, the government here has moved for relief 8 on behalf of a third party to whom a grand jury subpoena has 9 issued, and that third party would like to be relieved of its 10 obligations under the protective order, and that third party is 11 a law firm full of brilliant lawyers that are fully capable of 12 making a motion bringing a proceeding to be relieved from the 13 provisions of the protective order. Why are you doing this for 14 them? 15 16 Why doesn't Boies Schiller make an application for 17 permission to be relieved from the protective order? Because 18 it thought it was going to violate some duty that it had to its 19 client in the underlying actions? Did they give you a reason 20 why they weren't willing to come to court and -- 21 22 MR. ROSSMILLER: No, your Honor. So I can't speak to 23 why Boies Schiller in particular didn't make their own 24 application. 25 THE COURT: Because I understand that you don't think that Martindell is applicable here, but I do, and now I'm the judge. I wish I weren't. You know that the Second Circuit has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000855 DOJ-OGR-00004897 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 5 of 23 xj3q1gra SEALED very clearly said that, and Judge Broderick said in Chemical Bank the proper procedure is for somebody to make a motion to be relieved from the terms of the protective order. And it ain't you; it's somebody who's subject to the protective order. MR. ROSSMILLER: I think a little bit of context may help explain how the procedure developed, your Honor. Originally we had submitted an All Writs Act application to Judge Sweet, which we believe was appropriate given the sort of catch-all function of that -- THE COURT: Yes, I understand that, but it still has to have a docket number in order to be a proceeding in this court. MR. ROSSMILLER: Totally understand, your Honor. But just with respect to our supplemental submission, Judge Sweet had reached out to us and asked us to submit an argument in connection with our application, and so I think whether that was sort of past experience or his preference, that is why we proceeded -- THE COURT: So here's why I'm being so persnickety. Forgive me. Not only do I have to like come up to speed pretty quickly, but you know -- I assume you know, but I certainly know, and everybody who follows civil litigation knows -- that Judge Sweet is about to get reversed in connection with this protective order in the Second Circuit. I mean, I don't have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000856 DOJ-OGR-0000498 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 6 of 23 Xj3q1gra SEALED 1 that on any authority other than my reading of the tea leaves 2 after the extensive press reporting and the fact that the 3 Second Circuit has already issued an order giving the parties 4 until last week to say why the summary judgment papers and all 5 the supporting papers should not be unsealed by the Second 6 Circuit and indicating that there would be a further order with 7 respect to all the rest of the, I don't know, 150 or so sealed 8 documents in connection with the underlying litigation, but you 9 can hear it in the questioning, you can read it in the press 10 reports, you can intuit it from the order. I don't know if 11 you've seen the Second Circuit's order that issued last week, 12 but -- 13 MR. ROSSMILLER: I have, your Honor. 14 THE COURT: Okay. You can intuit that something kind 15 of unfavorable to Judge Sweet is happening, it's in the process 16 of happening, it seems to me it's about to be happening, in 17 connection with this protective order and its enforceability. 18 Doesn't seem that way to you, Mr. Rossmiller? 19 MR. ROSSMILLER: Your Honor, I've read the same 20 articles and -- 21 THE COURT: I mean, really, Mr. Rossmiller? 22 MR. ROSSMILLER: So I would say, your Honor, that I 23 would expect that any order to disclose materials that were 24 filed in connection with, for example, the summary judgment 25 papers, if in fact they are released or if in fact the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000857 DOJ-OGR-00004899 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 7 of 23 xj3q1gra SEALED 1 protective order is overturned in some way, that those would be redacted as to individuals' names, personally identifying information -- 2 3 THE COURT: Probably. 4 5 MR. ROSSMILLER: -- which I would expect, your Honor. 6 I don't believe that any indication is that the underlying discovery materials are likely to be unsealed, and I'm not sure whether that's at issue, but in any event -- 7 8 9 THE COURT: I don't think it is. I think the only thing that's at issue in the case that the Second Circuit has heard is the publicly -- only here, not publicly -- filed litigation documents, which is essentially a lawsuit, a libel action that has been filed and litigated under seal. It was settled by terms that would have expired because the protective order doesn't extend until it goes on to a trial, but there wasn't a trial. 10 11 12 13 And I'm struggling with this for two reasons. 14 First of all, it's like how much deference to give to this protective order that was issued by some judge, not myself, on the basis of I don't know what, except that from the questions that the Second Circuit asked about the litigation documents, it seemed like they were being critical of Judge Sweet for not having a particularized inquiry into each document that was sought to be filed in accordance with the protective order as to why this contained confidential 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000858 DOJ-OGR-00004900 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 8 of 23 Xj3q1gra SEALED 1 information and what was confidential about this, and just reading the tea leaves, I'm thinking to myself, what am I supposed to do with this protective order that looks like it stands on precarious footing to begin with? Is this the so-called improvidently granted protective order? How could I know that? I'm trying to go back in the files to see what Judge Sweet relied on in granting the protective order. I have no idea if there was an opinion. I have no idea if there was -- I mean, he recited the magic words at the beginning of the protective order. But, you know, he was doing this for five years, and he's dead, and I can't ask him. And his law clerks weren't around when he did it, although they're trying to help me find stuff in the files. So I'm just trying to figure out if there's something that's going to happen in the Second Circuit that would help you out here or that would further your investigation in a way that would make it not necessary to deal with it. MR. ROSSMILLER: Your Honor, I'm very sympathetic to that consideration. I think that even were the Second Circuit to unseal the entirety of what I believe is at issue, which is, as the Court noted, as the Court just noted -- THE COURT: 150 litigation documents, and I don't think the Second Circuit is going to take the time that would be required to make the inquiry. I'm going to guess that, you know, some poor schlub in the district court is going to have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000859 DOJ-OGR-00004901 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 9 of 23 SEALED 1 to do that. And I hope it's not me. But -- 2 MR. ROSSMILLER: And I believe it will apply to the docketed filings in the case and not, for example, the underlying discovery materials, deposition materials, investigation materials. 5 THE COURT: Okay. 6 7 MR. ROSSMILLER: And so I think that, unfortunately, 8 for the circumstances, for perhaps all of us, that even were 9 the Second Circuit to grant sort of the most expansive 10 invalidation of the protective order or sort of release of 11 these materials, that our application would still be relevant 12 and pending and active. 13 THE COURT: Would still be relevant and pending and 14 active. Okay. 15 And you can't explain to me why Boies Schiller didn't 16 make a motion. Because there's no question in my mind that 17 were this to be disclosed to the parties -- and I appreciate 18 that we're not going to do that, but were this to be disclosed 19 to the parties, Maxwell would protest, and the first thing that 20 Maxwell would do would be to say the government lacks standing, 21 it's not a party of the protective order, the issue can be 22 litigated, if Boies Schiller chooses to make a motion to seek 23 to be relieved from the protective order, or to quash the 24 subpoena or to do something, but the government has no 25 standing. It hasn't moved to intervene in the civil action. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000860 DOJ-OGR-00004902 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 10 of 23 Xj3q1gra SEALED 1 It hasn't done any of those things. So under Martindell, the 2 government lacks standing, because remember, in Martindell, the 3 government only had standing because all the parties were 4 familiar with the government's application. It wasn't a 5 secret. I don't know why it wasn't a secret, but it wasn't a 6 secret. And nobody objected. And so they said, ah, okay, 7 objection to standing waived. 8 So, you know, once again, Judge Sweet, I can tell you, 9 was somewhat troubled by the procedural posture of the case 10 even though, as I understand it, he was perhaps partly to blame 11 for the procedural posture of the case, but it's not like Boies 12 Schiller came in here and asked for relief from the protective 13 order. And I am curious about why Boies Schiller didn't do 14 that. 15 MR. ROSSMILLER: Your Honor, what I can tell you about 16 that is we, the government, thought that we were in a position 17 to make the application via the All Writs Act submission that 18 we originally made, that that would be an appropriate vehicle 19 for the relief that we, as the government, were seeking in 20 connection with the protective order. So I'm not sure -- 21 THE COURT: You're seeking to have a third party, to 22 have Boies Schiller, who were counsel for the plaintiffs in the 23 Maxwell action, be relieved from the protective order, but if 24 there's anybody on this planet who is capable of asking, 25 "Please relieve us from the strictures of this protective SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000861 DOJ-OGR-00004903 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 11 of 23 Xj3q1gra SEALED 10 order," it is David Boies and his partners. I mean, really. MR. ROSSMILLER: I'm sure you're right, your Honor, and -- THE COURT: They don't need the government's protection. MR. ROSSMILLER: Not that I don't begrudge the dozens of hours that I have spent on it in lieu of Boies Schiller, but I think -- and with apologies of perhaps being persnickety myself, but the relief that we are seeking is not precisely to allow Boies Schiller to do something but rather for the modification of the protective order that would then allow that, but we did think that we were able to make the application via the All Writs Act, and I think it was our general understanding from Judge Sweet's response asking us for support for our submission, rather than, for example, denying it based on lack of standing at the outset or simply asking us to have Boies Schiller make the application. I don't know what, if any, difference there would be in terms of the legal analysis from Boies Schiller, but I can say that I think the current posture does allow the government to explain why the investigation is extraordinary in the sense of how other decisions and courts have described it and where we, the government, are better able to explain -- THE COURT: But what do you mean by what you just said? I mean, you have an investigation into an allegation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000862 DOJ-OGR-00004904 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 12 of 23 xj3q1gra SEALED 1 human trafficking. I have no idea if you're up against a 2 statute of limitations so that I could take the time that 3 really is needed to kind of grapple with the procedural issues, 4 because you haven't told me that you're up against a statute of 5 limitations. 6 MR. ROSSMILLER: I can tell your Honor -- I'm sorry. 7 I didn't mean to interrupt. But I can tell you that, as most 8 of our investigations do, this is moving sort of as fast as 9 possible. This was a significant application that we 10 thoroughly considered before making and made originally nearly 11 two months ago, so we are hopeful to get an answer soon. 12 Nevertheless, let me say that -- 13 THE COURT: Unfortunately, but for the dead judge 14 opinion and the Supreme Court last month, you would have gotten 15 an answer, but -- 16 MR. ROSSMILLER: That said, I would not describe this 17 as an emergency application. There's not a particular day by 18 which we are requesting a response. We had hoped to hear back 19 from Judge Sweet -- 20 THE COURT: Before. 21 MR. ROSSMILLER: Before. Yes, your Honor. 22 THE COURT: Would that that had happened. 23 MR. ROSSMILLER: And if I may, just very briefly. I 24 think with respect to the postural question, particularly 25 regarding Boies Schiller, Boies Schiller simply isn't in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000863 DOJ-OGR-00004905 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 13 of 23 12 xj3q1gra SEALED position to be able to describe the investigation in the way that we have in our submission. THE COURT: Well, that's clear. That's clear. I mean, were I Boies Schiller, I would have -- never mind. We won't say what I would have done. So I'm looking at the protective order itself, and of course not having been privy to any of the materials in the case -- and they're all under seal, so, I mean, I can dissolve the seal and get them, but there are 150 documents there that are under seal for filings, there are multiple documents that are under seal. MR. ROSSMILLER: Not to mention all the underlying materials, of course. THE COURT: Not to mention all the underlying materials. So you argue there isn't any truly confidential material in this, this isn't a trade secrets case, and obviously it's not a trade secrets case. It's a libel case. It would seem that the most scurrilous of accusations would have already floated across the face of the complaint. But since Maxwell can't object, how can I know that all this is about is information that would be, you know, embarrassing? MR. ROSSMILLER: I would point the Court in the first instance to the definition of "confidential materials" in the protective order itself, which describes "confidential SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000864 DOJ-OGR-00004906 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 14 of 23 xj3q1gra SEALED materials" as "information that is confidential and implicates common law and statutory privacy interests of plaintiff Virginia Roberts." THE COURT: I have absolutely no idea what that means, and you don't either, and none of us does. MR. ROSSMILLER: I don't, your Honor, but I think we argued in our submission that it, at least on its face, does not implicate the type of materials that are confidential business materials, trade secrets -- THE COURT: Ordinarily the subject of -- MR. ROSSMILLER: -- ordinarily the subject of the considerations developed in some of the cases that we cited. THE COURT: Okay. MR. ROSSMILLER: And I should also say that in responding to the subpoena, Boies Schiller has the ability to say that they will not produce certain materials because they are privileged, because they believe that there is some larger overarching confidentiality issue, at which point we would be in a different posture. I am not aware that they have identified any materials as confidential that they would withhold, but I do note that we would not ask for and would not expect to receive privileged materials. THE COURT: Okay. Did you provide Judge Sweet with a proposed order? MR. ROSSMILLER: We did, yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000865 DOJ-OGR-00004907 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 15 of 23 xj3q1gra SEALED 1 THE COURT: Could I see what you provided Judge Sweet. 2 MR. ROSSMILLER: Yes, of course. 3 And your Honor, just for the record, I'm handing over what was our initial sealed affirmation and application to the Court for an order under the All Writs Act, and that includes an affirmation and application that I signed with an exhibit attached of the original protective order, followed by which is a proposed order for entry by Judge Sweet, which we of course would be happy to submit to the Court in Word form or in revised form, subject to the Court's views. 4 THE COURT: Right. I just wanted to see if it had a certain provision. 5 MR. ROSSMILLER: If there is a provision that the Court thinks would address some of these issues, we would of course be happy to hear it. 6 THE COURT: Of course I'm not Judge Sweet, so I don't know exactly what was going on in his head. 7 I assume it would be the government's position that reliance on the nondisclosure of confidential materials to law enforcement in connection with a grand jury subpoena that has been duly authorized would be unreasonable. It wouldn't be reasonable reliance to assume that the protective order could never be modified to allow -- I mean, the parties to this negotiated the protective order, and the protective order does not contain the provision that is in every protective order I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000866 DOJ-OGR-00004908 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 16 of 23 xj3q1gra SEALED 1 sign, which is, you can disclose it without the permission of 2 the Court if, you know, law enforcement puts a gun to your head 3 and says produce it. That's not in here. 4 MR. ROSSMILLER: That's right, your Honor. 5 THE COURT: I don't know. It's my understanding that 6 it may have been negotiated out. 7 MR. ROSSMILLER: It may have been. I will only say 8 that I believe that -- I'm on less firm ground than in the 9 cases that we discussed specifically, but I believe that the 10 converse would be void for public policy; in other words, you 11 would not be able to put in -- 12 THE COURT: That was my question. 13 MR. ROSSMILLER: -- you may not disclose this to law 14 enforcement even given a duly authorized grand jury subpoena. 15 THE COURT: Thank you for saying the words "void for 16 public policy," because I was going there. I take it it would 17 be the government's position that because it would be void as 18 against public policy to absolutely prohibit the disclosure of 19 information to law enforcement, that if a party were to say, 20 "But I relied on this, that it would not be disclosed to law 21 enforcement," that that would not, in your view, be reasonable 22 reliance. 23 MR. ROSSMILLER: Yes, your Honor, I think that's 24 correct, and I think that that is borne out by the opinion in 25 Chemical Bank, which essentially says: You should have asked, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000867 DOJ-OGR-00004909 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 17 of 23 xj3q1gra SEALED 1 but of course this is fine for you to disclose this information to the government based on the validly issued grand jury subpoena, I think for the same type of reasons that the Court is describing. 2 3 THE COURT: Okay. So let me see what other million questions that I have. 4 5 It's a general subpoena. Did you take them for all discovery materials? I mean, everything that's in Boies Schiller's files, other than privileged documents, which of course you don't exclude from your subpoena but presumably they will exclude from their production. But it's literally everything. So remember, I know very little about the Maxwell case, both because it wasn't my case and, to the shock of nearly everyone that I talk to, we're all too busy to worry about some litigation that's being handled by somebody else; and second, it seems to have been litigated entirely under seal so how could I have found out anything about it. Everything I know about this case I learned from reading about the Second Circuit argument. Literally, everything. 6 7 So what assurance do I have that so broad a grand jury subpoena -- given that I have these competing interests between the terms of the protective order and the government's interest in conducting an investigation, what assurance do I have that you need all that stuff, that that's all somehow going to be relevant to your investigation? That is a concern from me 8 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000868 DOJ-OGR-00004910 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 18 of 23 Xj3q1gra SEALED 1 because I don't know anything about the case. 2 MR. ROSSMILLER: Okay, your Honor, and I think the 3 answer to that is in a couple parts. The first is, I would 4 point the Court towards some of the opinions that have talked 5 about the government's investigative ability and authority 6 being broad, and it is the case that sometimes we issue grand 7 jury subpoenas -- 8 THE COURT: But that was true in Martindell too. 9 MR. ROSSMILLER: Yes, of course, your Honor, but I 10 just need to say that it is entirely possible that, in any 11 grand jury subpoena, that materials will come back that are not 12 helpful to our investigation, are not relevant, for whatever 13 reason, that it was, however unintentionally, overbroad or 14 included unnecessary aspects. Here, we are essentially unable 15 to significantly narrow the request for information in part for 16 exactly the reasons that you describe. We have either little 17 or no additional information than the Court does in terms of 18 what materials there are, who was deposed, and that is in 19 marked contrast to some of the other cases. 20 THE COURT: Every other case in the whole world. 21 MR. ROSSMILLER: Of course, your Honor. Exactly. For 22 exactly the reasons we described. 23 So what I can say in terms of assurance is, we are not 24 sort of an ordinary third-party intervener. All of these 25 materials will be subject to the extraordinary protections of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000869 DOJ-OGR-00004911 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 19 of 23 xj3q1gra SEALED 1 Rule 60. We will be extremely restricted in our use of them. 2 To the extent that we receive materials that otherwise wouldn't 3 have been narrowly connected with our investigation, they will not go anywhere that they shouldn't; they will not be treated 4 in any way they should not be. 5 6 THE COURT: Let me ask a question that you may not wish to answer, and I'll appreciate it if you don't. 7 8 I know who the target of your investigation is, at least the one that you've identified. Is there any expectation 9 that these materials would be used to commence criminal proceedings against either of the parties to the libel case? 10 11 MR. ROSSMILLER: I can say that just as a general matter, that any materials that we gather in any part of any 12 investigation that appear to give rise to criminal liability for individuals implicated in those materials could cause us to 13 proceed with an investigation of any such individual. That's a little broad, your Honor, obviously, but -- 14 15 THE COURT: Oh, no. I understand what you're saying. 16 And I think Judge Sweet had some concerns about that. 17 18 MR. ROSSMILLER: But I don't think that there's any additional protection for the parties of the lawsuit as opposed 19 to nonparties' information. 20 21 THE COURT: They're the ones who relied on the protective order. Of course you say it's not reasonable to 22 rely, but they're the ones who relied on the protective order 23 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000870 DOJ-OGR-00004912 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 20 of 23 x j3q1gra SEALED 1 in order to give whatever in discovery they gave, whether it 2 was deposition testimony they gave or -- then again, I can't 3 fathom why anybody who has any criminal exposure would not have 4 taken the Fifth Amendment in response to questions in a civil 5 deposition, but I don't know. MR. ROSSMILLER: So just taking that very briefly in 6 order, your Honor, I do not know, but I think it is entirely 7 possible that what we are seeking is page after page of people 8 taking the Fifth. That is entirely possible. But to the 9 extent that it is not or there are other materials -- and this 10 may be bad for our argument, but in all transparency and 11 candor, I think there may be other individuals who also relied 12 on the protective order. In other words, anyone other than the 13 parties who were deposed may have, in theory, and perhaps 14 unreasonably, relied on it. THE COURT: For example, the target of your 15 investigation. MR. ROSSMILLER: For example, the target of our 16 investigation. But I don't think that the parties would be 17 differently situated in terms of their rights, and there are 18 certainly many cases that talk about how the government has the 19 ability to grant immunity in a criminal investigation, but not, 20 of course, through restricting materials -- THE COURT: But that's the whole point of the 21 government needing to follow the procedure, the proper 22 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000871 DOJ-OGR-00004913 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 21 of 23 xj3q1gra SEALED 1 procedure of either having the target of the subpoena make a 2 motion to quash or a motion for relief or the government moving 3 for relief to intervene, instead of engaging in self-help. 4 There isn't an application like this in any case except the 5 Chemical Bank case, and in the Chemical Bank case, it all was 6 ex post facto and it all happened. 7 MR. ROSSMILLER: Right. And I'll just note, without 8 wanting to be defensive at all about the posture -- I 9 understand the Court's questions about that -- I cannot recall 10 whether it was Martindell or one of the other cases, but one of 11 the original cases in this line, one of the issues was that the 12 court had gotten on the phone with the judge and requested it, 13 you know, sort of informally, right? 14 THE COURT: Yes. 15 MR. ROSSMILLER: Despite our errors in the precise 16 procedure, we did want to have a formal application with 17 reasons and then subsequently, at the request of Judge Sweet, 18 supporting law. And so I do apologize for the precise posture. 19 We took the approach that we did in the hopes that we could 20 avoid the types of problems that had been engendered by other 21 types of applications which I think were made by the government 22 in other cases, and so that's what we did here as well. 23 THE COURT: Okay. All right. Well, I'll tell you one 24 thing that I am going to do. I am going to ask the clerk of 25 the court to assign a miscellaneous number to this case and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000872 DOJ-OGR-00004914 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 22 of 23 xj3q1gra SEALED 1 everything will be filed under seal, and it will be "In Re Grand Jury," you know, the usual, and it will have the treatment that "In Re Grand Jury" materials get, and everything will be filed under seal. But that way I at least have a place to put this, okay? MR. ROSSMILLER: I appreciate that, your Honor. I think we had expected that had the order been either granted or denied, that consistent with our usual All Writs application, that it would have then been identified with a number, but frankly, I'm not in the clerk's office, so -- THE COURT: Okay. But it has to have one, and I'm particularly acutely desirous of making sure that this is filed under a docket number with this court because I am concerned about the way everything has happened to date, given the Second Circuit's kind of, it seems to me, obvious displeasure with the fact that this whole thing has been litigated under seal. So grand jury material, absolutely. But let's be sure that there is a docket, you know, that we don't have something that's off the radar screen. MR. ROSSMILLER: Totally understood, your Honor, and I appreciate that, and we're grateful to the Court for that. THE COURT: Great. Okay. And you'll get your answer by early next week. I have to go to the annual meeting of the chief district judges. MR. ROSSMILLER: I don't envy the Court that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000873 DOJ-OGR-00004915 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 311-1 Filed 07/02/21 Page 23 of 23 xj3q1gra SEALED 1 THE COURT: It would be fine, but my biggest problem, frankly, is I don't know when Judge Sweet's funeral is and I'm trying to figure out when I need to be here for Judge Sweet's funeral. 2 MR. ROSSMILLER: We're very grateful -- 3 THE COURT: This goes to the top of the pile. I appreciate that this should have been dealt with sooner, and I'm sorry that it wasn't dealt with a week sooner or you would have had an answer. 4 MR. ROSSMILLER: We're grateful for the Court's attention and certainly appreciate the opportunity to explain how we ended up here. 5 THE COURT: Okay. Thank you. 6 MR. ROSSMILLER: Thank you, your Honor. 7 THE COURT: I appreciate it, Mr. Rossmiller. 8 oOo SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000874 DOJ-OGR-00004916