Document 54

Case 1:19-cr-00490-RMB Document 54 Filed 09/03/19 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA ) USA / Plaintiff(s) ) ) ) Case No. 19CR490 v. ) ) JEFFREY EPSTEIN ) Defendant(s) ) ) ) NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING held on 8/27/19 has been filed by the court reporter/transcriber in the above-captioned matter. Redaction responsibilities apply to the attorneys of record or pro se parties, even if the person requesting the transcript is a judge or a member of the public or media. The parties have seven (7) calendar days from the date of filing of this NOTICE to file with the court any NOTICE OF INTENT TO REQUEST REDACTION of this transcript. A copy of said NOTICE must also be served on the court reporter. If no such NOTICE is filed, the transcript may be made remotely electronically available to the public without redaction after ninety (90) calendar days. This process may only be used to redact the following personal data identifiers: Social Security numbers; dates of birth; minors' names; and financial account numbers. See Federal Rule of Civil Procedure 5.2, and Federal Rule of Criminal Procedure 49.1. Parties wishing to request redaction of other information may proceed by motion. I (we) certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. /s ROSE PRATER Court Reporter/Transcriber Date DOJ-OGR-00000725 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 Page 1 of 6 Haddon, Morgan and Foreman, P.C Jeffrey Pagliuca 150 East 10th Avenue Denver, Colorado 80203 PH 303.831.7364 FX 303.832.2628 www.hmflaw.com jpagliuca@hmflaw.com August 24, 2020 VIA EMAIL The Honorable Alison J. Nathan United States District Court Southern District of New York 40 Foley Square New York, NY 10007 Re: Reply in Support of Request to Modify Protective Order (Under Seal) United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan, Defendant Ghislaine Maxwell filed a simple request: that she be permitted to disclose under seal (the "Civil Litigation") the fact that her adversary already handed over to the U.S. Attorney's Office pursuant to a subpoena. The government proposes to keep in the dark about the fact and method of the disclosure. They claim the civil litigation is "unrelated," that issuance of the subpoena was "standard practice," and that disclosure will jeopardize an ongoing criminal investigation and "permit dissemination of a vast swath of materials." Each of the government's arguments lack merit. The Civil Litigation : First, the government claims the civil action is Resp. at 1. The assertion is frivolous. 1 Ms. Maxwell has filed a letter motion which seeks leave to file this reply under seal, while providing the unredacted version to the government and the Court. This reply describes and discusses sealed materials and materials subject to the Protective Order in this case. Ms. Maxwell also simultaneously files under separate cover her proposed redactions to her Request to Modify Protective Order (Aug. 17, 2020), and this Reply, in accordance with the Court's Order of August 18, 2020 (Doc. 44). DOJ-OGR-00001763 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page1 of 6 Nos. 20-2413 & 20-3061 United States Court of Appeals for the Second Circuit VIRGINIA L. GIUFFRE, Plaintiff-Appellee, v. GHISLAINE MAXWELL, Defendant-Appellant. On Appeal from the U.S. District Court for the Southern District of New York No. 15-CV-7433 (LAP) The Honorable Loretta A. Preska, U.S. District Judge UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GHISLAINE MAXWELL, Defendant-Appellant. On Appeal from the U.S. District Court for the Southern District of New York No. 20-CR-330 (AJN) The Honorable Alison J. Nathan, U.S. District Judge Ghislaine Maxwell's Response to Opposition to Motion to Consolidate DOJ-OGR-00019394 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 Page 2 of 6 The Honorable Alison J. Nathan August 24, 2020 Page 2 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). DOJ-OGR-00001764 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page2 of 6 The government and Ms. Giuffre insist this case and the criminal case are unrelated. But that's not so. The criminal case alleges that Ms. Maxwell committed perjury in the civil case. Two of the six counts are expressly based on the civil case. Moreover, _______________________ _______________________ _______________________ It's fanciful to say the two cases aren't related. The government says it "is not a party to the civil suit" (true), that it "has never intervened or appeared in the civil suit" (also true), that it "has had no role in the litigation that resulted in Judge Preska's order" (true again), and that it has no "legal interest in the relief Maxwell seeks in the civil case" (true and extraordinarily revealing). Doc. 113, ¶ 26. The government has not intervened in the civil case and it does not have an interest in the relief Ms. Maxwell seeks (keeping the deposition material sealed) because the government wants to argue that its violation of Martindell was harmless as soon as the April 2016 deposition transcript is released. After all, if the government were being consistent, it would have moved to intervene in the civil 2 DOJ-OGR-00019395 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 Page 3 of 6 The Honorable Alison J. Nathan August 24, 2020 Page 3 v. State of New York, 779 F.2d 861 (2d Cir. 1987); Abbott Laboratories v. Adelphia Supply USA, Case 2015-cv-5826 (CBA) (MDG), 2016 WL 11613256 (S.D.N.Y. Nov. 22, 2016) (“In the Second Circuit, there is a presumption in favor of enforcing protective orders against grand jury subpoenas.”); United States v. Kerik, 07 CR 1027, 2014 WL 12710346 (S.D.N.Y. July 23, 2014). It seems that a majority of courts in this district have rejected the claimed “standard practice” arguments made by the Government. A notable difference is that the other applications were not conducted ex parte. asking this Court to decide that question today. Ms. Maxwell is not But Ms. Maxwell is seeking The Government Does Not Explain How Any “Secret” Investigation Will be Compromised. Third, the government claims that the materials at issue are “Confidential” because the “full scope and details” of their very-public proclamations of an ongoing criminal investigation “have not been made public.” Resp. at 3. This argument too is nonsensical: the sealed materials that Ms. Maxwell seeks to file, under seal, Certainly the subpoena recipient, otherwise known as counsel for the adverse party to the Civil Litigation, knows the two things that Ms. Maxwell seeks to file under seal in DOJ-OGR-00001765 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page3 of 6 case and to stay the unsealing process, just as it moved to intervene and to stay discovery in Doe v. Indyke, a civil case in which Jane Doe alleges that Epstein and Ms. Maxwell abused and exploited her as a minor. According to the government, a stay of that case was necessary to “preserv[e] the integrity of the criminal prosecution against [Ms.] Maxwell.” Doe v. Indyke et al., No. 20-cv-00484, Doc. 81, p 4, 9/14/2020 Order Granting Motion to Stay. The court there agreed, and it granted Ms. Maxwell’s motion to stay. Id. at 12. This Court should not let the government engage in such obvious gamesmanship. The government insists that, in these two appeals, Ms. Maxwell is “ask[ing] this Court to rule on . . . the lawfulness of the Government’s applications to modify certain protective orders in other judicial proceedings.” Doc. 113, ¶ 27. That is not so. The government’s contention mischaracterizes Ms. Maxwell’s argument. As Ms. Maxwell said in her opening brief: The civil case is not the appropriate forum to litigate the government’s apparent violation of Martindell. Ms. Maxwell intends to make that argument to Judge Nathan in the criminal case. But if Judge Preska’s unsealing order is affirmed and Ms. Maxwell’s deposition is released, her ability to make that argument before Judge Nathan will be prejudiced. Keeping the deposition material sealed will preserve the status quo and protect Ms. Maxwell’s right to litigate Martindell and the Fifth Amendment in the criminal proceeding. Doc. 69, p 33. Only by mischaracterizing Ms. Maxwell’s argument can the government contend that she is “ask[ing] this Court to rule on . . . the lawfulness of 3 DOJ-OGR-00019396 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 Page 4 of 6 The Honorable Alison J. Nathan August 24, 2020 Page 4 that matter: . 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.") DOJ-OGR-00001766 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page4 of 6 the Government's applications to modify certain protective orders in other judicial proceedings." Ms. Maxwell's point is that, unless the unsealing order is reversed, she might not ever be able to litigate "the lawfulness of the Government's applications." Moreover, the motion to consolidate is not an attempt to circumvent Judge Nathan's order before this Court can reach the merits. The motion to consolidate simply endeavors to ensure that this Court does not find itself in the same position as the several judges below, where only some of the judges are privy to the relevant facts. There is no merit to Ms. Giuffre's argument that consolidation will cause meaningful delay. Doc. 123, pp 4-5. This Court has scheduled oral argument in both cases on the same day, as well as an argument on the motion to consolidate. Whether that motion is granted or not will have no effect on the dispatch with which this Court addresses the issues. This Court should grant the motion to consolidate. September 23, 2020. 4 DOJ-OGR-00019397 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 Page 5 of 6 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 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page5 of 6 Respectfully submitted, s/ Adam Mueller Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel 303.831.7364 Fax 303.832.2628 tgee@hmflaw.com amueller@hmflaw.com Counsel for Defendant-Appellant Ghislaine Maxwell 5 DOJ-OGR-00019398 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 54 Filed 09/08/20 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) DOJ-OGR-00001768 --- PAGE BREAK --- Case 20-3061, Document 54, 09/23/2020, 2937091, Page6 of 6 Certificate of Compliance with Rule 32(g) Counsel hereby certifies that this response brief complies with the type-volume limitation of Fed. R. App. P. 32(g) and it contains 670 words. s/ Adam Mueller Certificate of Service I certify that on September 23, 2020, I filed Ghislaine Maxwell's Response to Opposition to Motion to Consolidate with the Court via CM/ECF, which will send notification of the filing to all counsel of record. s/ Nicole Simmons 6 DOJ-OGR-00019399