Document 60

Case 1:19-cr-00490-RMB Document 60 Filed 07/18/25 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK United States of America v. Jeffrey Epstein, Defendant. 1:19-cr-490 (RMB) NOTICE OF APPEARANCE The undersigned attorney respectfully requests the Clerk to note his appearance in this case and to add him as a Filing User to whom Notices of Electronic Filing will be transmitted in this case. Please transmit electronic filings to Jordan.Fox@usdoj.gov. Respectfully submitted, /s/ Todd Blanche TODD BLANCHE Deputy Attorney General (202) 514-2101 1 DOJ-OGR-00000731 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 60 Filed 10/06/20 Page 1 of 3 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 October 6, 2020 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter to request that the Court grant the Government permission to delay disclosure to the defense of certain photographs of and documents regarding victims of sexual abuse by Jeffrey Epstein. These materials relate to abuse that post-dated the time period charged in the Indictment, and the Government does not intend to offer them at trial. Although the Government intends to produce these materials to the defendant in advance of trial, premature disclosure of these materials could jeopardize the Government's ongoing investigation and would reveal sensitive victim information months in advance of trial. For these reasons and as set forth below, the Government respectfully submits, pursuant to Federal Rule of Criminal Procedure 16(d)(1), that good cause exists to delay disclosure of these items to defense counsel until eight weeks prior to trial.1 The Government has conferred with defense counsel, who have indicated that they object to this request and intend to submit a letter in opposition. As the Court is aware, the superseding indictment in this case (the "Indictment") charges the defendant in six counts. Count One of the Indictment charges Maxwell with conspiring with Epstein and others to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. 1 Federal Rule of Criminal Procedure 16 provides for the production of discovery to a defendant, upon request, of certain materials, such as documents that are material to the preparation of the defense and documents the Government intends to use in its case-in-chief at trial. However, Rule 16(d)(1) also provides that: At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. A finding of good cause "must be based on a particular factual demonstration of potential harm, not on conclusory statements.'" United States v. Gangi, No. 97 Cr. 1215 (DC), 1998 WL 226196, at *2 (S.D.N.Y. May 4, 1998) (quoting Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986)). DOJ-OGR-00001779 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 60 Filed 10/07/20 Page 1 of 3 U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew's Plaza New York, New York 10007 October 6, 2020 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, New York 10007 Re: United States v. Ghislaine Maxwell, 20 Cr. 330 (AJN) Dear Judge Nathan: The Government respectfully submits this letter to request that the Court grant the Government permission to delay disclosure to the defense of certain photographs of and documents regarding victims of sexual abuse by Jeffrey Epstein. These materials relate to abuse that post-dated the time period charged in the Indictment, and the Government does not intend to offer them at trial. Although the Government intends to produce these materials to the defendant in advance of trial, premature disclosure of these materials could jeopardize the Government's ongoing investigation and would reveal sensitive victim information months in advance of trial. For these reasons and as set forth below, the Government respectfully submits, pursuant to Federal Rule of Criminal Procedure 16(d)(1), that good cause exists to delay disclosure of these items to defense counsel until eight weeks prior to trial.1 The Government has conferred with defense counsel, who have indicated that they object to this request and intend to submit a letter in opposition. As the Court is aware, the superseding indictment in this case (the "Indictment") charges the defendant in six counts. Count One of the Indictment charges Maxwell with conspiring with Epstein and others to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. 1 Federal Rule of Criminal Procedure 16 provides for the production of discovery to a defendant, upon request, of certain materials, such as documents that are material to the preparation of the defense and documents the Government intends to use in its case-in-chief at trial. However, Rule 16(d)(1) also provides that: At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. A finding of good cause "must be based on a particular factual demonstration of potential harm, not on conclusory statements." United States v. Gangi, No. 97 Cr. 1215 (DC), 1998 WL 226196, at *2 (S.D.N.Y. May 4, 1998) (quoting Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986)). SO ORDERED, 10/7/20 Alison J. Nathan, U.S.D.J. The Defendant shall file any opposition to the Government's request by October 14, 2020. The Government's reply, if any, is due by October 20, 2020. SO ORDERED. USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: DATE FILED: 10/7/20 DOJ-OGR-00001784 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page1 of 58 20-3061 United States Court of Appeals for the Second Circuit UNITED STATES OF AMERICA, Plaintiff-Appellee, —against— GHISLAINE MAXWELL, Defendant-Appellant. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 20-CR-330 (AJN) Ghislaine Maxwell's Opening Brief Ty Gee Adam Mueller HADDON, MORGAN AND FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 Tel. 303.831.7364 Attorneys for Defendant-Appellant Ghislaine Maxwell --- PAGE BREAK --- § 371. Count Two of the Indictment charges Maxwell with enticing a minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 2422 and 2. Count Three of the Indictment charges Maxwell with conspiring with Epstein and others to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371. Count Four of the Indictment charges Maxwell with transporting minors to participate in illegal sex acts, in violation of 18 U.S.C. § 2423 and 2. Counts Five and Six charge Maxwell with perjury, in violation of 18 U.S.C. § 1623. Counts One through Four focus on conduct between approximately 1994 and 1997. The charges in the Indictment arose out of a broader investigation into Epstein’s sexual abuse of minors, which covered time periods beyond that included in the Indictment. During the course of that broader investigation, the Government has interviewed dozens of victims who were sexually abused by Epstein. As part of that broader investigation, the Government has obtained a limited number of sensitive documents and photographs regarding certain victims who were sexually abused by Epstein after 1997 (the “Materials”). These Materials include, for example, school photographs of certain victims and records, such as bank and travel records, for certain victims. The Government does not anticipate offering these Materials as evidence at trial in this case, and the Materials do not relate to individuals whom the Government currently anticipates calling as witnesses at trial. Moreover, the Materials post-date the time period charged in the Indictment. The Government has reviewed the Materials for any potentially exculpatory material, and has found none. Nevertheless, because the Government is taking an expansive approach to disclosures in this case, the Government intends to produce these Materials to the defendant along with 3500 material for non-testifying witnesses sufficiently in advance of trial in order to enable the defendant to review and, if appropriate, make use of the Materials in her defense. In particular, the Government intends to produce to the defendant, pursuant to a protective order, statements of all witnesses the Government has interviewed during its broader investigation, even if the Government does not intend to call those witnesses at trial. Should the Court grant the instant application, the Government would produce the Materials, along with any witness statements pertaining to the victims identified in the Materials, at the same time as all other statements by non-testifying witnesses. The Government is prepared to make that production as early as eight weeks in advance of trial. Because the volume of the Materials is limited to approximately 40 photographs and approximately 40 pages of documents, defense counsel’s review of the Materials is unlikely to be unduly time consuming, thus minimizing any potential prejudice to the defendant from the delayed production. Delayed disclosure of the Materials is warranted because they include identifying information for victims who are not expected to testify in this case and who have provided information as part of the Government’s ongoing investigation, the immediate disclosure of which would risk interfering with the Government’s ongoing investigation. See United States v. Mannino, 480 F. Supp. 1182, 1188 (S.D.N.Y. 1979) (permitting delayed production of documents whose immediate disclosure to the defense would interfere with ongoing investigation); cf. United States v. Smith, 985 F. Supp. 506, 531-32 (2d Cir. 2013) (risk of interference with ongoing investigation sufficient good cause for entry of Rule 16 protective order). Immediate disclosure of these materials would have the effect of prematurely revealing to the defendant the identities of certain Epstein victims who are not referenced in the Indictment but who have spoken with the Government. DOJ-OGR-00001780 --- PAGE BREAK --- § 371. Count Two of the Indictment charges Maxwell with enticing a minor to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 2422 and 2. Count Three of the Indictment charges Maxwell with conspiring with Epstein and others to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371. Count Four of the Indictment charges Maxwell with transporting minors to participate in illegal sex acts, in violation of 18 U.S.C. § 2423 and 2. Counts Five and Six charge Maxwell with perjury, in violation of 18 U.S.C. § 1623. Counts One through Four focus on conduct between approximately 1994 and 1997. The charges in the Indictment arose out of a broader investigation into Epstein’s sexual abuse of minors, which covered time periods beyond that included in the Indictment. During the course of that broader investigation, the Government has interviewed dozens of victims who were sexually abused by Epstein. As part of that broader investigation, the Government has obtained a limited number of sensitive documents and photographs regarding certain victims who were sexually abused by Epstein after 1997 (the “Materials”). These Materials include, for example, school photographs of certain victims and records, such as bank and travel records, for certain victims. The Government does not anticipate offering these Materials as evidence at trial in this case, and the Materials do not relate to individuals whom the Government currently anticipates calling as witnesses at trial. Moreover, the Materials post-date the time period charged in the Indictment. The Government has reviewed the Materials for any potentially exculpatory material, and has found none. Nevertheless, because the Government is taking an expansive approach to disclosures in this case, the Government intends to produce these Materials to the defendant along with 3500 material for non-testifying witnesses sufficiently in advance of trial in order to enable the defendant to review and, if appropriate, make use of the Materials in her defense. In particular, the Government intends to produce to the defendant, pursuant to a protective order, statements of all witnesses the Government has interviewed during its broader investigation, even if the Government does not intend to call those witnesses at trial. Should the Court grant the instant application, the Government would produce the Materials, along with any witness statements pertaining to the victims identified in the Materials, at the same time as all other statements by non-testifying witnesses. The Government is prepared to make that production as early as eight weeks in advance of trial. Because the volume of the Materials is limited to approximately 40 photographs and approximately 40 pages of documents, defense counsel’s review of the Materials is unlikely to be unduly time consuming, thus minimizing any potential prejudice to the defendant from the delayed production. Delayed disclosure of the Materials is warranted because they include identifying information for victims who are not expected to testify in this case and who have provided information as part of the Government’s ongoing investigation, the immediate disclosure of which would risk interfering with the Government’s ongoing investigation. See United States v. Mannino, 480 F. Supp. 1182, 1188 (S.D.N.Y. 1979) (permitting delayed production of documents whose immediate disclosure to the defense would interfere with ongoing investigation); cf. United States v. Smith, 985 F. Supp. 506, 531-32 (2d Cir. 2013) (risk of interference with ongoing investigation sufficient good cause for entry of Rule 16 protective order). Immediate disclosure of these materials would have the effect of prematurely revealing to the defendant the identities of certain Epstein victims who are not referenced in the Indictment but who have spoken with the Government. DOJ-OGR-00001785 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page2 of 58 Table of Contents Table of Contents .......................................................i Table of Authorities ......................................................iii Statement of the Case and the Facts .......................................1 The indictment ...............................................................1 The civil case ................................................................1 The subpoena ................................................................2 The order declining to modify the criminal protective order ........8 The appeals ....................................................................9 Jurisdictional Statement......................................................10 Issue Presented ...............................................................22 Summary of the Argument ...................................................22 Argument.......................................................................23 I. Judge Nathan erred in refusing to modify the protective order for the limited purpose of allowing Ms. Maxwell to share with Judge Preska, under seal, material information .......................23 A. Preservation and standard of review ...............................26 B. The district court erred in declining to modify the protective order.......26 Conclusion .....................................................................33 Certificate of Compliance with Rule 32(A)...............................35 Certificate of Service.......................................................35 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 60 Filed 10/06/20 Page 3 of 3 Page 3 Government as part of its ongoing investigation, well in advance of any trial in this matter. Premature disclosure of these witnesses' identities and sensitive information about those witnesses risks jeopardizing the Government's ongoing investigation in at least two respects. First, disclosure would tend to reveal to the defendant the scope of and evidence gathered during the Government's ongoing investigation, the details of which are not currently public or known to the defendant. Second, an order requiring the immediate production of these Materials would risk deterring other victims from coming forward to be interviewed and from providing evidence to the Government. Victims who may be considering cooperating with the Government's investigation may decline to do so if they believe that the information they provide—even information outside the period charged in the Indictment—must be immediately disclosed to the defense in this case. Given the sensitivity of the Materials, the need to protect the Government's ongoing investigation, and the minimal (if any) relevance of the Materials to the offenses charged in the Indictment, the Government respectfully submits that good cause exists pursuant to Rule 16(d) to delay their disclosure. Accordingly, the Government respectfully requests that the Court approve the Government's request to delay disclosure of these Materials. Respectfully submitted, AUDREY STRAUSS Acting United States Attorney By: ___________________________ Maurene Comey / Allison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Tel: (212) 637-2324 Cc: All Counsel of Record (By ECF) --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 60 Filed 10/06/20 Page 3 of 3 Page 3 Government as part of its ongoing investigation, well in advance of any trial in this matter. Premature disclosure of these witnesses' identities and sensitive information about those witnesses risks jeopardizing the Government's ongoing investigation in at least two respects. First, disclosure would tend to reveal to the defendant the scope of and evidence gathered during the Government's ongoing investigation, the details of which are not currently public or known to the defendant. Second, an order requiring the immediate production of these Materials would risk deterring other victims from coming forward to be interviewed and from providing evidence to the Government. Victims who may be considering cooperating with the Government's investigation may decline to do so if they believe that the information they provide—even information outside the period charged in the Indictment—must be immediately disclosed to the defense in this case. Given the sensitivity of the Materials, the need to protect the Government's ongoing investigation, and the minimal (if any) relevance of the Materials to the offenses charged in the Indictment, the Government respectfully submits that good cause exists pursuant to Rule 16(d) to delay their disclosure. Accordingly, the Government respectfully requests that the Court approve the Government's request to delay disclosure of these Materials. Respectfully submitted, AUDREY STRAUSS Acting United States Attorney By: _______________________________ Maurene Comey / Allison Moe / Lara Pomerantz Assistant United States Attorneys Southern District of New York Tel: (212) 637-2324 Cc: All Counsel of Record (By ECF) --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page3 of 58 Attachment A, United States v. Maxwell, No. 20-cr-330, ECF Dkt. 51, Order Denying Motion to Modify Protective Order Attachment B, Doe v. Indyke et al., No. 20-cv-00484, ECF Dkt. 81, 9/14/2020 Order Granting Motion to Stay. ii DOJ-OGR-00019402 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page4 of 58 Table of Authorities Cases Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2009)...............................................20 Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019)...............................................4, 5, 10, 12 Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949)...............................10 Flanagan v. United States, 465 U.S. 259 (1984)...............................................12, 13, 14 In re City of N.Y., 607 F.3d 923 (2d Cir. 2010)..................................................20 In re Roman Catholic Diocese of Albany, N.Y., 745 F.3d 30 (2d Cir. 2014)................21 In re Telligent, Inc., 640 F.3d 53 (2d Cir. 2011)..................................................3 Koon v. United States, 518 U.S. 81 (1996)........................................................26 Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83 (2d Cir. 2012) ..............28, 30 Martindell v. International Telephone and Telegraph Corp., 594 F.2d 291 (2d Cir. 1979) ..............................................................................passim Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989)..................................12 Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739 (2d Cir. 1987) ................10 Pichler v. UNITE, 585 F.3d 741 (3d Cir. 2009)....................................................10 Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993) ...10 SEC v. Boock, No. 09 Civ. 8261(DLC), 2010 WL 2398918 (S.D.N.Y. June 15, 2010)...............................................................................30 Trs. of Plumbers & Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134 (S.D.N.Y.1995)......................................................28 United States v. Caparros, 800 F.2d 23 (2d Cir. 1986)...........................................15, 16 iii DOJ-OGR-00019403 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page5 of 58 United States v. Pappas, 94 F.3d 795 (2d Cir. 1996) .............................15, 16, 17, 20 United States v. Salameh, 992 F.2d 445 (2d Cir. 1993) .............................17 Wilk v. Am. Med. Ass'n, 635 F.2d 1295 (7th Cir. 1980) .............................20 Will v. Hallock, 546 U.S. 345 (2006) ........................................................10, 13, 17, 19 Rules Fed. R. Crim. P. 16(d)(1)...........................................................................26 Fed. R. Crim. P. 6(e)(2)(A)........................................................................6 Fed. R. Evid. 201(c)(2) ...............................................................................29 Statutes 28 U.S.C. § 455(b)(1)..................................................................................5 iv DOJ-OGR-00019404 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page6 of 58 Statement of the Case and the Facts The indictment. In a superseding indictment, the government alleges that Ms. Maxwell: conspired with Jeffrey Epstein to entice minors to travel to engage in illegal sex acts (Count 1); enticed a minor to travel to engage in illegal sex acts (Count 2); conspired with Epstein to transport minors with the intent to engage in criminal sexual activity (Count 3); transported a minor with the intent to engage in criminal sexual activity (Count 4); committed perjury in the April 2016 deposition in Giuffre v. Maxwell, No. 15-cv-7433 (S.D.N.Y) (Count 5); and committed perjury in the July 2016 deposition in Giuffre v. Maxwell (Count 6). App. 13-30. The civil case. Giuffre v. Maxwell is a long-dismissed defamation case in which Virginia L. Giuffre alleged that Ms. Maxwell defamed her. The alleged defamation centered on a statement from Ms. Maxwell's attorney-hired press agent generally denying as "untrue" and "obvious lies" plaintiff's numerous allegations, over the span of four years, that Ms. Maxwell participated in a scheme causing her to be "sexually abused and trafficked" by Epstein. The case settled after discovery and before trial, and the district court dismissed the case with prejudice in May 2017. 1 DOJ-OGR-00019405 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page7 of 58 Ms. Maxwell sat for two depositions during discovery in Giuffre v. Maxwell, the transcripts of which were both designated “confidential” under a court-ordered protective order. App. 154-59. The transcripts of both depositions were filed with the court during the course of the case and sealed by the court under the terms of the protective order. In turn, the civil protective order prohibited attorneys and parties from sharing confidential information, including Ms. Maxwell’s depositions, with any third party, except as necessary for the preparation and trial of the case. App. 155-56. As originally proposed by Ms. Giuffre’s attorneys, the protective order would have allowed plaintiff to share confidential information with law enforcement. App. 125. Ms. Maxwell objected to this language, which was removed and never made part of a court order. App. 125 & n.4. The subpoena. So if the civil protective order did not allow plaintiff to share confidential information with law enforcement, and Ms. Maxwell did not provide the government with her deposition transcripts (which she didn’t), how did the government obtain them and bring a criminal indictment alleging that Ms. Maxwell committed perjury? 2 DOJ-OGR-00019406 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page8 of 58 3 DOJ-OGR-00019407 --- PAGE BREAK --- 9/18/2020 Case 20-3061, Document 60, Filed 09/18/2020, Page8 of 125 parties. See Dkt. No. 5. SO ORDERED. (Signed by Judge Alison J. Nathan on 7/7/2020) (jbo) (Entered: 07/07/2020) 07/08/2020 11 MEMO ENDORSEMENT as to Ghislaine Maxwell on 9 LETTER by USA as to Ghislaine Maxwell addressed to Judge Alison J. Nathan from Alex Rossmiller dated July 7, 2020 re: scheduling. ENDORSEMENT: The Court hereby sets the following briefing schedule. Defense response is due by 1:00 p.m. on July 10, 2020. The Government reply is due by 1:00 p.m. on July 13, 2020. Additionally, defense counsel is ordered to file notices of appearance on the docket by the end of the day today. SO ORDERED. (Responses due by 7/10/2020. Replies due by 7/13/2020.) (Signed by Judge Alison J. Nathan on 7/8/2020) (lnl) (Entered: 07/08/2020) 07/08/2020 12 NOTICE OF ATTORNEY APPEARANCE: Mark Stewart Cohen appearing for Ghislaine Maxwell. Appearance Type: Retained. (Cohen, Mark) (Entered: 07/08/2020) 07/08/2020 13 NOTICE OF ATTORNEY APPEARANCE: Christian R. Everdell appearing for Ghislaine Maxwell. Appearance Type: Retained. (Everdell, Christian) (Entered: 07/08/2020) 07/08/2020 14 NOTICE OF ATTORNEY APPEARANCE: Laura A. Menninger appearing for Ghislaine Maxwell. Appearance Type: Retained. (Menninger, Laura) (Entered: 07/08/2020) 07/08/2020 15 MOTION for Jeffrey S. Pagliuca to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20605229. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Ghislaine Maxwell. (Attachments: # 1 Exhibit Declaration of Jeffrey S. Pagliuca, # 2 Exhibit Certificate of Good Standing, # 3 Text of Proposed Order Proposed Order)(Pagliuca, Jeffrey) (Entered: 07/08/2020) 07/08/2020 17 (S1) SUPERSEDING INDICTMENT FILED as to Ghislaine Maxwell (1 count(s) 1s, 2s, 3s, 4s, 5s-6s. (jm) (Entered: 07/10/2020) 07/09/2020 >>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 15 MOTION for Jeffrey S. Pagliuca to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-20605229. Motion and supporting papers to be reviewed by Clerk's Office staff. The document has been reviewed and there are no deficiencies. (aea) (Entered: 07/09/2020) 07/09/2020 16 ORDER as to Ghislaine Maxwell. As discussed in its previous order, the Court will hold an arraignment, initial conference, and bail hearing in this matter remotely as a video/teleconference on July 14, 2020 at 1 pm. Members of the press and the public in the United States may access the live audio feed of the proceeding by calling 855-268-7844 and using access code 32091812# and PIN 9921299#. Those outside of the United States may access the live audio feed by calling 214-416-0400 and using the same access code and PIN. These phone lines can accommodate approximately 500 callers on a first come, first serve basis. The Court will provide counsel for both sides an additional dial-in number to be used to ensure audio access to the proceeding for non-speaking co-counsel, alleged victims, and any family members of the Defendant. The United States Attorney's Office should email Chambers with information regarding any alleged victims who are entitled, pursuant to 18 U.S.C. §3771(a)(4), to be heard at the bail hearing and who wish to be heard. The Court will then provide information as to the logistics for their dial-in access. As the Court described in a previous order, members of the press and public may watch and listen to the live video feed in the Jury Assembly Room, at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street. See Dkt. No. 10. However, in light of COVID-19, seating will be limited to approximately 60 seats in order to enable appropriate social distancing and ensure public safety. Counsel for the Defendant and the Government may contact Chambers by email if there is a request to accommodate alleged victims or family members of the Defendant. Members of the credentialed in-house press corps may contact the District Executive's Office about seating. Otherwise, all seating will be allocated on a App.006 6/12 https://ecf.nysd.uscourts.gov/cgi-bin/DktRpt.pl?347708277129655-L_1_0-1 DOJ-OGR-00019465 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page9 of 58 during the pendency of the appeal in Brown v. Maxwell, No. 18-2868 (2d Cir.) before this Court, which challenged an earlier order in the civil case declining Alan Dershowitz's and Michael Cernovich's motions to modify the civil protective order and denying the Miami Herald's request to unseal the district court docket. Brown v. Maxwell, 929 F.3d 41, 44 (2d Cir. 2019). 4 DOJ-OGR-00019408 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page10 of 58 Judge Preska, who, after the passing of Judge Sweet, was assigned to preside over the remand from this Court in Brown to decide what material protected by the civil protective order should remain sealed.1 repeatedly downplayed and dismissed arguments made by Ms. Maxwell that the material should remain sealed because of the potential for a criminal investigation. Doc. 17, pp 4-5; Doc. 20, p 2.2 For example, when Ms. Maxwell moved to stay discovery in Farmer v. Indyke, No. 19-cv-10475 (LGS-DCF) (S.D.N.Y.), due to the pending criminal investigation, Ms. Giuffre's attorneys (who also represented plaintiff Annie Farmer) opposed the motion on the ground that Ms. Maxwell could not show the existence or scope of 1 2 Citations to “Doc.” are to documents filed in this appeal and publicly available on ECF. Citation's to “ECF Dkt.” are to the ECF documents filed in related cases as described in the individual citations. 5 DOJ-OGR-00019409 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page11 of 58 any such criminal investigation : Maxwell has provided no information about the subject matter of the criminal investigation into Epstein's co-conspirators, the status of the investigation, or even disclosed whether she herself is a target of the Southern District's investigation. When Plaintiff's counsel asked Maxwell's counsel for information about the criminal investigation during their meet and confer, Maxwell's counsel refused to provide any details. Doc. 20, p 2. 6 DOJ-OGR-00019410 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page13 of 58 unsealing process. Doc. 17, p 6. But because of the criminal protective order issued by Judge Nathan, all Ms. Maxwell could reveal to Judge Preska was that she was aware of critical new information. Doc. 17, p 6. She couldn’t tell Judge Preska what that information was. Doc. 17, p 6. Judge Preska declined to stay the unsealing process but said she would reevaluate if Judge Nathan modified the criminal protective order and allowed Ms. Maxwell to share with Judge Preska, under seal, all she had learned as described above. Doc. 17, p 6. The order declining to modify the criminal protective order. At Judge Preska’s suggestion, Ms. Maxwell filed a motion with Judge Nathan seeking modification of the criminal protective order. App. 124-31. All the motion asked was for permission to share with Judge Preska and with this Court, under seal, what Ms. Maxwell had learned [REDACTED] 8 DOJ-OGR-00019412 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page14 of 58 Judge Nathan denied the motion to modify, though she invited Ms. Maxwell to seek relief from two other judicial officers, . App. 99–103. The appeals. Pending before this Court in Giuffre v. Maxwell, No. 20-2413 (2d Cir.), is Ms. Maxwell’s appeal of Judge Preska’s order unsealing the deposition material. This appeal is from Judge Nathan’s order denying Ms. Maxwell’s motion to modify the criminal protective order to share with Judge Preska and this Court in Giuffre v. Maxwell, under seal, . App. 121. Ms. Maxwell has moved to consolidate both appeals. That motion remains pending. 9 DOJ-OGR-00019413 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page15 of 58 Jurisdictional Statement This Court has jurisdiction under the collateral order doctrine to review a district court decision declining to modify the protective order. Pichler v. UNITE, 585 F.3d 741, 746 n.6 (3d Cir. 2009) (“We have jurisdiction under the collateral order doctrine to review the denial of the motion to modify the Protective Order and the denial of the motion to reconsider.”); Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 742 (2d Cir. 1987) (denial of motion to modify protective order is immediately appealable under the collateral order doctrine) (citing Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 (1949)); see also Brown v. Maxwell, 929 F.3d 41, 44 (2d Cir. 2019) (appeal by intervenors challenging denial of motions to modify protective order and unseal). Under the collateral order doctrine, an interlocutory order is immediately appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Will v. Hallock, 546 U.S. 345, 349 (2006) (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)). The district court’s order declining to modify the protective order meets all three requirements: the court conclusively decided not to modify the protective 10 DOJ-OGR-00019414 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page16 of 58 order, App. 99–103; the propriety of modifying the protective order is completely separate from the merits of the government’s criminal allegations against Ms. Maxwell; and appellate review of the order will be impossible following final judgment because a post-judgment appeal will be moot since, by that time, Judge Preska’s decision unsealing the deposition material in Giuffre v. Maxwell, Nos. 20-2413 (2d Cir.)/15-cv-7433 (S.D.N.Y.) will have gone into effect. That is the very point of this appeal, after all: to share with Judge Preska what Ms. Maxwell learned from What’s more, all of this happened while the 11 DOJ-OGR-00019415 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page17 of 58 civil case was on appeal and pending before this Court.3 Brown v. Maxwell, No. 18-2868. All Ms. Maxwell asks is for permission to share, under seal, the relevant facts with another Article III judge. The government argues there is no jurisdiction for this Court to consider this appeal. Doc. 37. Quoting Midland Asphalt Corp. v. United States, the government says the collateral order doctrine must be interpreted “with the utmost strictness in criminal cases.” 489 U.S. 794, 799 (1989) (quoting Flanagan v. United States, 465 U.S. 259, 265 (1984)). Doc. 37 at 8. According to the government, in criminal cases the doctrine applies only to orders denying a bond, orders denying a motion to dismiss on double jeopardy ground, orders denying a motion to dismiss under the Speech and Debate Clause, and orders permitting the forced administration of antipsychotic drugs to render a defendant competent for trial. Doc. 37 at 9. The government is wrong. To be sure, this appeal does not concern one of the four types of orders identified by the government. But that doesn’t mean the appeal isn’t proper under 3 The Miami Herald filed its notice of appeal in Brown v. Maxwell, No. 18-2868 (2d Cir.), on September 26, 2018, and this Court issued its decision on July 3, 2019, Brown v. Maxwell, 929 F.3d 41 (2d Cir.2019). 12 DOJ-OGR-00019416 --- PAGE BREAK --- the collateral order doctrine, particularly when there is no serious argument that it satisfies each of the doctrine's three requirements: Judge Nathan's order (1) conclusively determined the disputed question, (2) it resolved an important issue completely separate from the merits of the action, and (3) it is effectively unreviewable on appeal from a final judgment. See Will, 546 U.S. at 349. In Flanagan v. United States, the Supreme Court ruled that an order disqualifying criminal counsel pretrial was not immediately appealable under the collateral order doctrine. 465 U.S. 259, 266 (1984). The Court explained that unlike an order denying a motion to reduce bail, which “becomes moot if review awaits conviction and sentence,” an order disqualifying counsel is fully remediable posttrial. Id. Moreover, a motion to disqualify counsel is “not independent of the issues to be tried” because its “validity cannot be adequately reviewed until trial is complete.” Id. at 268. Finally, unlike an appeal of a bail decision, “an appeal of a disqualification order interrupts the trial,” and any delay in a criminal case “exacts a presumptively prohibitive price.” Id. at 269. In contrast to the disqualification order at issue in Flanagan, the appeal of Judge Nathan's order is like the appeal of an order denying a motion to reduce bail. First, this appeal will “become[] moot if review awaits conviction and sentence.” See id. at 266. Unless Ms. Maxwell is permitted to share with Judge Preska what --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page19 of 58 she learned from Judge Nathan, Judge Preska's order unsealing the deposition material will go into effect without Judge Preska's having the opportunity to reconsider her decision in light of the new information. And once the deposition material is unsealed, the cat is irretrievably out of the bag. That is precisely why this Court stayed Judge Preska's order pending appeal. Giuffre v. Maxwell, No. 20-2413 (2d Cir.), Doc. 30. Second, the appeal of Judge Nathan's order is entirely "independent of the issues to be tried" in the criminal case and its "validity can[] be adequately reviewed" now. See Flanagan, 465 U.S. at 268. There is nothing about Ms. Maxwell's request to share information with Judge Preska that must wait until the criminal trial is over. To the contrary, waiting until the criminal trial is over will moot the issue. Third, this appeal does not and will not delay the criminal case, which is proceeding apace notwithstanding the proceedings before this Court. See id. at 264 (explaining that interlocutory appeals in criminal cases are generally disfavored because of the "societal interest in providing a speedy trial").4 4 The fact that the criminal case is proceeding on course despite this appeal confirms that this appeal involves an issue completely separate from the merits of the criminal action. 14 DOJ-OGR-00019418 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page20 of 58 The government's contentions to the contrary rely on two easily distinguishable cases and misunderstand Ms. Maxwell's arguments. Start with the two cases on which the government relies. Doc. 37, p 11 (citing United States v. Caparros, 800 F.2d 23, 24 (2d Cir. 1986); United States v. Pappas, 94 F.3d 795, 798 (2d Cir. 1996)). According to the government, Caparros and Pappas hold that "protective orders regulating the use of documents exchanged by the parties during a criminal case are not subject to interlocutory appeal." Doc. 37, p 11. That is not correct. In Caparros, this Court dismissed an appeal of a protective order issued in a criminal case preventing the defendant from making public certain documents allegedly concerning public safety. 800 F.2d at 23-24. According to the defendant, the prohibition on public disclosure was an unconstitutional prior restraint of speech. Id. at 24. This Court dismissed the appeal because it did not satisfy the three conditions precedent to interlocutory review, in particular the requirement that the issue must be effectively unreviewable on appeal from a final judgment. Id. at 24-26. Said the Court: [The issue] will not become moot on conviction and sentence or on acquittal because the order will have continuing prohibitive effect thereafter and the purported right to publish the documents, to the extent it now exists, will also continue. This is not a situation where an order, to be reviewed at all, must be reviewed before the proceedings 15 DOJ-OGR-00019419 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page21 of 58 terminate. Nor is there any allegation of grave harm to appellant if the order is not immediately reviewed. Id. at 26 (internal citations omitted). This case is not like Caparros. For one thing, Ms. Maxwell does not seek to make anything public. To the contrary, she seeks to provide documents to judicial officers—under seal—to ensure that all the Article III decisionmakers are on the same page regarding the relevant facts and that Judge Preska does not continue to remain in the dark. For another thing, this appeal will become moot if review awaits a final judgment in the criminal case, even if the protective order continues to have prohibitive effect following the criminal trial. That's because what Ms. Maxwell seeks is permission to share information with Judge Preska now, information that should be part of Judge Preska's decisionmaking in the unsealing process and any decision whether to stay that process. And unless Ms. Maxwell can share the information now, the request will become moot because there is no way to "re-seal" a document Judge Preska prematurely unseals without the benefit of knowing all the facts. Pappas also doesn't help the government. In Pappas, this Court dismissed in part an appeal challenging a protective order prohibiting the defendant from disclosing classified information he obtained from the government as part of discovery. 94 F.3d at 797. At the same time, the Court accepted jurisdiction over the 16 DOJ-OGR-00019420 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page22 of 58 portion of the appeal that challenged the protective order's bar on disclosure of information the defendant acquired from the government prior to the litigation. Id. at 798. This Court distinguished the differing results based on the breadth of the protective order's ban. Id. As this Court said, "to the extent that the order prohibits Pappas from disclosure of information he acquired from the Government prior to the litigation, the order is not a typical protective order regulating discovery documents and should be appealable because of the breadth of its restraint." Id. (citing United States v. Salameh, 992 F.2d 445, 446-47 (2d Cir. 1993)). Beyond standing for the proposition that interlocutory appeals are the exception and not the rule (which Ms. Maxwell doesn't dispute), Pappas has nothing to add to the analysis here. Even strictly construing the three requirements for collateral order jurisdiction, see Will, 546 U.S. at 349, the order here meets the test. The balance of the government's argument against jurisdiction misunderstands Ms. Maxwell's position. For example, according to the government, "it is not entirely clear that all of the issues Maxwell seeks to raise in this appeal have been finally resolved." Doc. 37, p 17. Ms. Maxwell's argument, says the government, is "primarily focused on attacking the legitimacy of the 17 DOJ-OGR-00019421 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page23 of 58 Government's methods of obtaining evidence that it intends to use to prosecute the criminal case through the Subpoenas to" Doc. 37, p 17. Based on this understanding, the government claims that Ms. Maxwell "seeks to have this Court reach the merits of her arguments on that issue in the context of the civil appeal, and before they have been properly litigated before and adjudicated by the District Court in the criminal case." Doc. 37, p 17 (emphasis in original). That is not so. In the civil appeal, Ms. Maxwell is not asking this Court to rule on the propriety of the government's conduct in circumventing Martindell and obtaining her depositions in a secret ex parte proceeding without providing Ms. Maxwell notice and an opportunity to be heard. Rather, Ms. Maxwell's argument in the civil appeal is that, unless this Court reverses Judge Preska's order unsealing the deposition material, Ms. Maxwell may never be able to challenge before Judge Nathan the government's conduct in obtaining her depositions. As Ms. Maxwell said in her opening brief in the appeal of Judge Preska's unsealing order: 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 18 DOJ-OGR-00019422 --- PAGE BREAK --- preserve the status quo and protect Ms. Maxwell's right to litigate Martindell and the Fifth Amendment in the criminal proceeding. Giuffre v. Maxwell, No. 20-2413, ECF Dkt. 69, p 33. Only by mischaracterizing Ms. Maxwell's argument can the government contend that she "seeks to have this Court reach the merits of her arguments on [the Martindell] issue in the context of the civil appeal, and before they have been properly litigated before and adjudicated by the District Court in the criminal case." See Doc. 37, p 17. Ms. Maxwell's point is that, unless the unsealing order is reversed, Ms. Maxwell likely won't be able to "properly litigate" the Martindell issue at all. Nor is this appeal the proper forum for deciding whether the government improperly circumvented Martindell. All Ms. Maxwell seeks here is an order allowing her to share with Judge Preska information that is essential to her decision to unseal the deposition material and to rule on a motion to stay, information Judge Preska did not know at the time and information the government insists should be kept from her. And that issue - whether it is proper for one Article III judge, at the request of the government, to keep secret from a co-equal judge information relevant and material to the second judge's role in deciding a matter before her - is properly reviewed on an interlocutory basis because it is "an important issue completely separate from the merits of the action." Will, 546 U.S. at 349. 19 DOJ-OGR-00019423 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page25 of 58 Assuming Ms. Maxwell cannot appeal Judge Nathan's order under the collateral order doctrine, this Court should exercise mandamus jurisdiction and issue a writ of mandamus directing the district court to modify the protective order as requested by Ms. Maxwell. E.g., Wilk v. Am. Med. Ass'n, 635 F.2d 1295, 1298 (7th Cir. 1980) (declining to decide whether the collateral order applied and instead issuing a writ of mandamus to vacate a district court decision declining to modify protective order), superseded by rule on other grounds as recognized in Bond v. Utreras, 585 F.3d 1061, 1068 n.4 (7th Cir. 2009); see Pappas, 94 F.3d at 798 (recognizing that protective orders in criminal cases "[i]n rare instances . . . might raise issues available for review via a petition for writ of mandamus"). A writ of mandamus issued under the All Writs Act "confine[s] the court against which mandamus is sought to a lawful exercise of its prescribed jurisdiction." In re City of N.Y., 607 F.3d 923, 932 (2d Cir. 2010) (internal quotations omitted). A writ is properly issued when "exceptional circumstances amount[] to a . . . clear abuse of discretion." Id. (internal quotations omitted). Three conditions must exist for this Court to issue a writ of mandamus: (1) the petitioner must demonstrate the right to issuance of the writ is clear and indisputable; (2) she must have no other adequate means to attain the relief desired; and (3) the issuing court must be satisfied the writ is appropriate. In re 20 DOJ-OGR-00019424 --- PAGE BREAK --- Roman Catholic Diocese of Albany, N.Y., 745 F.3d 30, 35 (2d Cir. 2014). All three conditions exist here. First, as elaborated below, Judge Nathan clearly abused her discretion in declining to modify the protective order. Second, Ms. Maxwell has no other adequate means to attain the relief necessary because her request for Judge Preska to reevaluate her unsealing order with the benefit of knowing what everyone else knows [REDACTED] [REDACTED] will become moot once the deposition material is unsealed (as this Court already recognized by staying the unsealing order pending appeal). Finally, it is appropriate for this Court to issue a writ of mandamus because, as explained in Ms. Maxwell's motion to consolidate, the judges in the Southern District of New York have reached inconsistent decisions to prejudice of Ms. Maxwell. And while there is no dispute Ms. Maxwell has the right to appeal Judge Preska's order, [REDACTED] [REDACTED] [REDACTED] And now the government is trying to prevent Ms. Maxwell from [REDACTED] 21 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page27 of 58 appealing Judge Nathan's order. A writ of mandamus is appropriate because only this Court can guarantee that all the judges below are on the same page. Issue Presented Whether Judge Nathan erred in refusing to modify the protective order for the limited purpose of allowing Ms. Maxwell to share with Judge Preska, under seal, Summary of the Argument This Court has jurisdiction under the collateral order doctrine. Judge Nathan's order (1) completely resolved whether the criminal protective order should be modified, (2) that question is an important issue completely separate from the merits of the action, and (3) it is effectively unreviewable on appeal from a final judgment. Alternatively, mandamus review is appropriate to resolve the conflicting decisions below. On the merits, this Court should permit modification of the criminal order so Ms. Maxwell can share with Judge Preska, under seal, just how the government came to possess her deposition transcripts, At this point, Judge Preska is the only relevant participant who doesn't know this information. If Judge Preska's order unsealing the deposition transcript goes into effect without Judge Preska being offered an 22 DOJ-OGR-00019426 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page28 of 58 opportunity to reevaluate her decision in light of this information, Ms. Maxwell may never be able to challenge in the criminal case the government's violation of her rights under Martinell. Likewise, if Judge Preska is asked to rule on a motion to stay the unsealing until the conclusion of the criminal case without knowledge that the sealed materials , Ms. Maxwell will never be able to challenge that decision. A modification of the protective order will not prejudice the government, which has not articulated a persuasive reason why Judge Preska should remain in the dark. Argument I. Judge Nathan erred in refusing to modify the protective order for the limited purpose of allowing Ms. Maxwell to share with Judge Preska, under seal, material information . This appeal is one part of an extraordinary series of events in which six sets of judicial officers are trying to resolve related—sometimes inextricably interrelated—legal questions involving one common party: Ghislaine Maxwell. Those six sets of judicial officers are four district judges and two panels of this Court (the panel presiding over Giuffre v. Maxwell and the panel presiding over this interlocutory appeal). Yet because of Ms. Maxwell's legal opponents' tactical choices, no one set 23 DOJ-OGR-00019427 --- PAGE BREAK --- of judicial officers has before it the full picture of the facts relevant to the controversies it is trying to resolve. Meanwhile, a forty-year-old decision from this Court squarely holds that the government seeking access to court-protected documents in a civil case to which it is not a party must follow certain procedures to request those documents, yet the government here declined to follow those procedures. Adding to the extraordinary, Ms. Maxwell is the only person with interests in all six of the judicial proceedings and with at least some knowledge of all of them. --- PAGE BREAK --- She is trying to ensure that each of the judicial officers in the active cases has the information from the related cases relevant to his or her decisions. Despite her efforts, she has been stymied by seal orders and by the protective order in the criminal case. Ms. Maxwell is in a Catch-22 situation. Judge Preska is presiding over the unsealing of materials subject to the civil protective order. She does not Judge Nathan's protective order, which prohibits her from sharing that information with Judge Preska. Ms. Maxwell asked Judge Preska to stay the unseal proceedings so that Ms. Maxwell could secure permission to share criminal-protective-order confidential information, but Judge Preska said there was no factual basis to grant a stay. Ms. Maxwell asked Judge Nathan for permission to share information under seal with Judge Preska, a co-equal Article III judge, but Judge Nathan denied the request. Meanwhile, in this Court, the Giuffre v. Maxwell panel lacks the same information Judge Preska did not have when she issued the unseal order that is the subject of the appeal, and the United States v. Maxwell panel lacks the context of the --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page31 of 58 Giuffre v. Maxwell unseal proceedings, into which Ms. Maxwell seeks to introduce criminal protective order-sealed information relevant to Judge Preska's unseal decisions. This situation is fundamentally unfair to Ms. Maxwell. There is no reason all judicial officers presiding over any case implicating Ms. Maxwell's interests should not have access, whether under seal, in camera, or otherwise, to all relevant information, and there is no reason Ms. Maxwell should be barred from providing such relevant information to them. A. Preservation and standard of review. Ms. Maxwell preserved this issue for appeal. App. 124-31, 293-98. This Court reviews for an abuse of discretion an order denying a motion to modify a protective order. Martindell, 594 F.2d at 295. A district court by definition abuses its discretion when it makes an error of law. Koon v. United States, 518 U.S. 81, 100 (1996). B. The district court erred in declining to modify the protective order. Federal Rule of Criminal Procedure 16(d)(1) authorizes district courts to enter or modify protective orders for good cause. Fed. R. Crim. P. 16(d)(1). In this case, several reasons exist for the narrow modification of the criminal protective order Ms. Maxwell proposes. 26 DOJ-OGR-00019430 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page32 of 58 First, Judge Preska might well reconsider her decision to unseal the deposition material if she knew how the government obtained the material despite the civil protective order.5 In particular, keeping the deposition material sealed preserves Ms. Maxwell's ability to litigate before Judge Nathan in the criminal case the propriety of the government's circumvention of this Court's decision in Martindell, which expressly contemplates an affected party's right to move to quash a grand jury subpoena seeking access to information shielded by a valid protective order. Martindell, 524 F.2d at 294. If the deposition material is unsealed, Judge Preska will never have the opportunity to reconsider her decision armed with the knowledge And if the deposition material is unsealed, it may foreclose any argument from Ms. Maxwell to Judge Nathan that the perjury counts should be dismissed or other remedies imposed based on the government's circumvention of Martindell. All Ms. 5 It's irrelevant that Ms. Maxwell originally consented to the provision of the criminal protective order that presently prevents her from sharing with Judge Preska App. 91-92. At the time Ms. Maxwell consented to that provision Ms. Maxwell's earlier consent to this provision in the protective order does not bear on whether good cause exist for its modification. 27 DOJ-OGR-00019431 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page33 of 58 Maxwell seeks in this appeal is the ability to make these arguments to Judge Preska and Judge Nathan before it's too late. Second, to preserve her fundamental constitutional right to a fair trial by an impartial jury, Ms. Maxwell intends to move to stay the unsealing process before Judge Preska. Ample authority supports staying a civil case pending resolution of a related criminal matter. E.g., Louis Vuitton Malletier S.A. v. LY USA, Inc., 676 F.3d 83, 98 (2d Cir. 2012). But Ms. Maxwell cannot fairly make her case before Judge Preska for a stay unless Judge Preska knows all the relevant facts. In particular, a central consideration in deciding whether to stay a civil case pending resolution of a criminal case is “the extent to which the issues in the criminal case overlap with those presented in the civil case.” Id. (quoting Trs. of Plumbers & Pipefitters Nat'l Pension Fund v. Transworld Mech., Inc., 886 F. Supp. 1134, 1139 (S.D.N.Y.1995)). Here, there is no question the two cases overlap, . The criminal protective order, therefore, 28 DOJ-OGR-00019432 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page34 of 58 compromises Ms. Maxwell's ability to seek a stay of the unsealing process and thereby safeguard her right to a fair trial in the criminal case. The government can hardly dispute the merit of Ms. Maxwell's argument for a stay. After all, the government itself moved to intervene and to stay all proceedings in Doe v. Indyke, a civil case in which Jane Doe alleges that Epstein and Ms. Maxwell abused and exploited her as a minor. ATTACHMENT B, p 4 (Doe v. Indyke et al., No. 20-cv-00484, ECF Dkt. 81, 9/14/2020 Order Granting Motion to Stay).6 According to the government, a stay of that case was necessary to "preserv[e] the integrity of the criminal prosecution against [Ms.] Maxwell." Id. The court there agreed, and it granted Ms. Maxwell's motion to stay. Id. at 12.7 In contrast to Doe v. Indyke, the government has not moved to intervene in Giuffre v. Maxwell, to stay the unsealing process, or to keep the deposition material and Ms. Maxwell's depositions under seal. This makes no principled sense if the government's opposition to modifying the criminal protective order is to be 6 This Court can take judicial notice of this order. See Fed. R. Evid. 201(c)(2). 7 If a stay in Doe v. Indyke preserves the integrity of the criminal prosecution against Ms. Maxwell, Judge Nathan should have modified the criminal protective order so Judge Preska could have evaluated whether keeping the deposition material under seal would similarly "preserve the integrity of the criminal prosecution against Ms. Maxwell." 29 DOJ-OGR-00019433 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page35 of 58 believed. According to the government, [REDACTED] [REDACTED] [REDACTED] But if that's true, then the government should have moved to intervene before Judge Preska to oppose the unsealing of the deposition material, since, in the government's view, that material is confidential. The (unprincipled) reason for the government's decision not to intervene is obvious: If Ms. Maxwell's depositions are released to the public, the government will argue to Judge Nathan that any violation of Martindell was harmless. It's immaterial that the court stayed Doe v. Indyke during discovery while discovery in Giuffre v. Maxwell finished in 2017. As this Court recognized in Louis Vuitton, "if civil defendants do not elect to assert their Fifth Amendment privilege, and instead fully cooperate with discovery, their 'testimony . . . in their defense in the civil action is likely to constitute admissions of criminal conduct in their criminal prosecution.'" 676 F.3d at 98 (quoting SEC v. Boock, No. 09 Civ. 8261(DLC), 2010 WL 2398918, at *2, 2010 U.S. Dist. LEXIS 59498, at *5 (S.D.N.Y. June 15, 2010) (alteration in original)). 30 DOJ-OGR-00019434 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page36 of 58 In Giuffre v. Maxwell, Ms. Maxwell elected not to invoke her Fifth Amendment privilege against self-incrimination in reliance on the civil protective order and this Court's decision in Martindell, which guarantees, at the very least, notice and an opportunity to be heard on a government motion to modify a civil protective order to obtain a deposition transcript. Martindell, 594 F.2d at 294; App. 368-69. This Court should permit Ms. Maxwell to tell Judge Preska what happened and let Judge Preska decide whether the information weighs against unsealing the deposition material or in favor of a stay. The government insists otherwise, arguing that modification of the criminal protective order would comprise the secrecy of its ongoing grand jury investigation. App. 92. This contention is implausible on its face because Ms. Maxwell's proposed modification of the criminal protective order doesn't threaten to compromise the secrecy of anything. All Ms. Maxwell seeks is permission to share information with Judge Preska under seal. 31 DOJ-OGR-00019435 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page37 of 58 Finally, And it shows that Judge Preska erred failing even to acknowledge or address Ms. Maxwell's reliance argument. Giuffre v. Maxwell, Case No. 20-2413, OB, p 24. Ms. Maxwell declined to invoke her Fifth Amendment privilege against self-incrimination during her two depositions. She made that decision relying on the civil protective order and this Court's decision in Martindell, which holds that absent a showing of improvidencne in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need, none of which appear here, a witness should be entitled to rely upon the enforceability of a protective order against any third parties, including the Government, and that such an order should not be vacated or modified merely to accommodate the Government's desire to inspect protected testimony for possible use in a criminal investigation, either as evidence or as the subject of a possible perjury charge. 32 DOJ-OGR-00019436 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page38 of 58 Martindell, 594 F.2d at 296. But unless Judge Nathan's order is reversed in the criminal case, Ms. Maxwell cannot share this information with Judge Preska in the civil case.8 Conclusion In the end, the government's argument amounts to little more than this: Judge Preska should remain in the dark. But there's no principled justification for that position, and this Court should reject it. This Court should reverse the district court's order denying Ms. Maxwell's motion to modify the protective order. September 24, 2020. 8 Nor, unless the cases are consolidated, will the panel of this Court considering the civil appeal know [REDACTED] 33 DOJ-OGR-00019437 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page39 of 58 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 34 DOJ-OGR-00019438 --- PAGE BREAK --- Case 20-3061, Document 60, 09/24/2020, 2938278, Page40 of 58 Certificate of Compliance with Rule 32(A) This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B). It contains 7,343 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(III). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the typestyle requirements of Fed. R. App. P. 32(a)(6). It has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14 pt. Equity. s/ Adam Mueller Certificate of Service I certify that on September 24, 2020, I filed Ms. Maxwell's Opening Brief with the Court via CM/ECF, which will send notification of the filing to all counsel of record. s/ Nicole Simmons 35 DOJ-OGR-00019439