Document 82

Case 20-3061, Document 82, 10/02/2020, 2944267, Page1 of 37 20-3061 To Be Argued By: LARA POMERANTZ United States Court of Appeals FOR THE SECOND CIRCUIT Docket No. 20-3061 UNITED STATES OF AMERICA, Appellee, —v.— GHISLAINE MAXWELL, also known as Sealed Defendant 1, Defendant-Appellant. On Appeal from the United States District Court for the Southern District of New York BRIEF FOR THE UNITED STATES OF AMERICA Audrey Strauss, Acting United States Attorney for the Southern District of New York, Attorney for the United States of America. Lara Pomerantz, Maurene Comey, Alison Moe, Karl Metzner, One St. Andrew's Plaza New York, New York 10007 (212) 637-2200 Assistant United States Attorneys, Of Counsel. DOJ-OGR-00019608 --- PAGE BREAK --- Case 21-58, Document 82, 04/27/2021, 3087472, Page1 of 1 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a Stated Term Of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27th day of April, two thousand twenty-one. Before: Raymond J. Lohier, Jr., Circuit Judge. United States of America, Appellee, ORDER Docket Nos. 21-58(L), 21-770(CON) v. Ghislaine Maxwell, AKA Sealed Defendant 1, Defendant - Appellant. Christian R. Everdell moves to be relieved as counsel for Appellant Ghislaine Maxwell in light of Appellant retaining new appellate counsel. IT IS HEREBY ORDERED that the motion is GRANTED. For the Court: Catherine O'Hagan Wolfe, Clerk of Court Catherine O'Hagan Wolfe DOJ-OGR-00020321 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 82 Filed 11/09/20 Page 2 of 4 Page 2 search of 62 of the electronic devices seized from Epstein. After the issuance of that new warrant, the Government requested that the FBI re-produce the data from all 62 devices because the FBI's prior production had only included a subset of the seized data and had not identified which file came from which seized device. On or about August 3, 2020, the FBI finished providing the Government all of the documents from the seized devices, this time organized by device. Because this production included data that the filter team had not previously reviewed, the Government's filter team conducted a full privilege review on this entire set of data. On October 7, 2020, the filter team completed its privilege review of that data and released to the case team the non-privileged documents for responsiveness review. The Government completed its responsiveness review on October 21, 2020, having identified approximately 1.2 million documents as responsive to the either the original or the expanded warrant. That same night, the Government requested that its outside vendor image, bates stamp, and download all of the responsive documents for production to the defense. Although the Government believed at the time that it had left its outside vendor, which the Government has repeatedly informed of the November 9, 2020 discovery deadline in this case, sufficient time to complete the process of stamping and downloading these materials for production, unfortunately, despite the vendor's best efforts, it does not appear the vendor will be able to complete that process by November 9. In particular, on November 4, 2020, the vendor informed the Government that although it has finished imaging the responsive documents, it does not expect to finish bates stamping the responsive documents and loading them onto an external hard drive until November 19, 2020. The vendor will then send that drive to the Government. Once the Government receives the drive, it will need a short amount of time to spot check the production and confirm it can be sent to the defense. Given these estimates from the vendor, it will not be technologically possible to produce these responsive documents by the November 9, 2020 deadline. Accordingly, on November 4, 2020, the Government contracted defense counsel to confer regarding an extension of the discovery deadline solely for this production. After conferring, the parties have been unable to reach agreement on an extension. This morning, the defense indicated that they would consent to an extension of the deadline for this production to November 23, 2020 on four conditions. First, the defense asked that the motion deadlines in this case be extended by three weeks. The Government agrees with that proposal and accordingly requests that defense motions be due on January 11, 2021, Government responses be due on February 12, 2021, and defense replies be due on February 19, 2021. Second, the defense asked that the Government provide a laptop for the defendant to use to review her discovery inside the Metropolitan Detention Center ("MDC") by November 23, 2020. The Government has already purchased a laptop for such a purpose, and the MDC has agreed to allow the defendant use that laptop for discovery review once the Government's IT department has disabled all wireless and communications capabilities on the laptop. Accordingly, the Government agrees to meet this condition. Third, the defense asked that the Government provide it with the names of the three Minor Victims listed in the Indictment by November 23, 2020, and fourth, the defense asked that the Government provide the defense with all Jencks Act material by November 23, 2020. The Government cannot agree to the final two conditions set out by the defense, which have no connection to the two-week delay in completion of discovery and no basis in law. The DOJ-OGR-00001829 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page2 of 37 TABLE OF CONTENTS PAGE Preliminary Statement ............................................ 1 Statement of Facts ............................................... 2 A. The Indictment ................................................ 2 B. The Protective Order ............................................ 3 C. The District Court Litigation .................................... 4 D. Judge Nathan's Order ............................................ 7 E. Maxwell's Appeal of the Order .................................... 7 ARGUMENT: Point I—This Court Lacks Jurisdiction To Hear This Appeal ............... 8 A. Applicable Law ................................................ 8 B. Discussion .................................................... 12 Point II—The District Court Did Not Abuse Its Discretion in Denying Maxwell's Motion to Modify the Protective Order ................ 21 A. Applicable Law ................................................ 21 B. Discussion .................................................... 23 CONCLUSION ........................................................ 30 DOJ-OGR-00019609 --- PAGE BREAK --- Case 1:20-cr-00330-AJN Document 82 Filed 11/09/20 Page 3 of 4 Page 3 first two conditions are reasonably related to the delayed production. The three-week extension of the defense's deadline to file motions will ensure the defense has adequate time to review discovery before finalizing its motions and is therefore rationally related to the two-week delay in this production. Similarly, the requested laptop will expedite and streamline the defendant's review of discovery by avoiding technological delays on the MDC computer system that may otherwise slow the defendant's discovery review. By contrast, a two-week delay in the completion of discovery, caused by technical constraints on the part of an outside vendor, has no bearing on the defense's entitlement to a witness list or witness statements. This Court has already ruled that such a request is premature when the "parties have not yet engaged in discussions regarding an appropriate schedule for pretrial disclosures, including witness lists and § 3500 material." (Dkt. 49 at 1). The Court accordingly ordered that the parties "meet and confer on an appropriate schedule" "[f]ollowing the close of discovery." (Id. at 2). Consistent with that order, the Government is prepared to engage in good faith discussions with the defense about an appropriate schedule for disclosure of Jencks Act and Giglio material. The standard practice in this District is to produce such material shortly in advance of trial, a practice that has been widely held to be sufficient to satisfy the requirement that Giglio be produced "in sufficient time that the defendant will have a reasonable opportunity to act upon the information efficaciously." United States v. Rodriguez, 496 F.3d 221, 226 (2d Cir. 2007). Immediate disclosure of such material is not warranted simply because the defendant prefers it. See, e.g., United States v. Wey, 15 Cr. 611 (AJN), 2017 WL 237651, at *23 (S.D.N.Y. Jan. 18, 2017) (denying defendant's motion for immediate disclosure of Giglio material as defendant "fails to articulate any persuasive reason why immediate disclosure is required in this case, and the Court otherwise sees no basis to deviate so substantially from the typical practice"); United States v. Thompson, 13 Cr. 378 (AJN), 2013 WL 6246489, at *9 (S.D.N.Y. Dec. 3, 2013) (denying request for early production of Jencks Act material); United States v. Davis, No. 06 Cr. 911 (LBS), 2009 WL 637164, at *14 (S.D.N.Y. March 11, 2009) ("The Second Circuit has held that a request for immediate or early disclosure [of Giglio material] has no basis in the law."). Because the Government's two-week delay in completing discovery does not entitle the defense to such materials more than seven months in advance of trial, the Government respectfully requests that the Court extend the deadline for this production to November 23, 2020 solely on the first two conditions set out by the defense. Other than these responsive documents from Epstein's electronic devices, the Government expects to complete its production of Rule 16 discovery to the defense by the November 9, 2020 deadline. In that vein, the Government is currently preparing its sixth discovery production to the defense, which will include, among other things, thousands of images and videos from Epstein's electronic devices identified as responsive to the expanded warrant, portions of iPads and an iPhone seized from Epstein identified as responsive to the expanded warrant, the four emails quoted in the Government's application for an expanded warrant, and documents from the FBI's Florida files. The Government expects to make that sixth production to the defense on November 9, 2020. Moreover, while the Government appreciates that the volume of materials it proposes to produce after the deadline is large, the Government has no reason to believe these materials will be central to any motion the defendant may seek to make. In particular, as noted above, all of DOJ-OGR-00001830 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page3 of 37 ii TABLE OF AUTHORITIES PAGE Cases: Abney v. United States, 431 U.S. 651 (1977)........................ 10 Brown v. Maxwell, 929 F.3d 41 (2d Cir. 2019) .................... 14 Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367 (2004)........................ 20 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)........................ 9 Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)........................ 9 Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981)........................ 11 Flanagan v. United States, 465 U.S. 259 (1984)........................ 9, 17 Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Republic, 582 F.3d 393 (2d Cir. 2009) .................... 26 H.L. Hayden Co. of N.Y. v. Siemens Medical Sys., Inc., 797 F.2d 85 (2d Cir. 1986) .................... 12 Helstoski v. Meanor, 442 U.S. 500 (1979)........................ 10 DOJ-OGR-00019610 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 29442677, Page4 of 37 iii PAGE In re City of N.Y., 607 F.3d 923 (2d Cir. 2010) ................ 20, 21 In re S.E.C. ex rel. Glotzer, 374 F.3d 184 (2d Cir. 2004) .................... 20 In re Teligent, Inc., 640 F.3d 53 (2d Cir. 2011) ..................... 22 Kensington Int'l Ltd. v. Republic of Congo, 461 F.3d 238 (2d Cir. 2006) ................... 11 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) ................... 14 Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989)........................ 10, 13 Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739 (2d Cir. 1987) ................... 13 Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009).................... 10, 11, 16, 18 Pichler v. UNITE, 585 F.3d 741 (3d Cir. 2009) ................... 13 S.E.C. v. The Street.com, 273 F.3d 222 (2d Cir. 2001) ................... 22 Sell v. United States, 539 U.S. 166 (2003)............................ 10 Stack v. Boyle, 342 U.S. 1 (1951)............................... 10 United States v. Aliotta, 199 F.3d 78 (2d Cir. 1999) ...................... 9 DOJ-OGR-00019611 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page6 of 37 v PAGE United States v. Nelson, 277 F.3d 164 (2d Cir. 2002) . . . . . . . . . . . . . 16 United States v. Pappas, 94 F.3d 795 (2d Cir. 1996) . . . . . . . . . . . . passim United States v. Punn, 737 F.3d 1 (2d Cir. 2013) . . . . . . . . . . . . . 10, 11 United States v. Robinson, 473 F.3d 487 (2d Cir. 2007) . . . . . . . . . . . . . 10 United States v. Sabhnani, 599 F.3d 215 (2d Cir. 2010) . . . . . . . . . . . . . 15 United States v. Wecht, 484 F.3d 194 (3rd Cir. 2007) . . . . . . . . . . . . . 23 Van Cauwenberghe v. Biard, 486 U.S. 517 (1988). . . . . . . . . . . . . . . 8, 9, 12, 16 Statutes, Rules & Other Authorities: 28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . 8, 16 28 U.S.C. § 1292(a)(1) . . . . . . . . . . . . . . . . . 16, 19 Fed. R. Crim. P. 16(d). . . . . . . . . . . . . . . . . . 22 DOJ-OGR-00019613 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page7 of 37 United States Court of Appeals FOR THE SECOND CIRCUIT Docket No. 20-3061 UNITED STATES OF AMERICA, Appellee, —v.— GHISLAINE MAXWELL, also known as Sealed Defendant 1, Defendant-Appellant. BRIEF FOR THE UNITED STATES OF AMERICA Preliminary Statement Ghislaine Maxwell appeals from an order entered on September 2, 2020, in the United States District Court for the Southern District of New York, by the Honorable Alison J. Nathan, United States District Judge, denying her motion to modify a protective order entered by Judge Nathan. Superseding Indictment S1 20 Cr. 330 (AJN) (the “Indictment”) was filed on July 8, 2020 charging Maxwell well in six counts. The Indictment alleges that between in or about 1994 and in or about 1997, Maxwell assisted, facilitated, and contributed to Jeffrey Epstein’s sexual exploitation and abuse of multiple minor DOJ-OGR-00019614 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page8 of 37 2 girls by, among other things, helping Epstein to recruit, groom, and ultimately abuse minor victims. The Indictment further alleges that in or about 2016, Maxwell attempted to cover up her crimes by lying under oath about her role in Epstein's scheme. On July 30, 2020, upon the Government's application, Judge Nathan entered a protective order governing the parties' disclosure of information produced to Maxwell by the Government in discovery in the criminal case (the "Protective Order"). The Protective Order, among other things, prohibits the use of criminal discovery materials in civil litigation. Three weeks later, Maxwell moved to modify the Protective Order to allow Maxwell to use confidential criminal discovery materials, which were produced to Maxwell by the Government, in filings Maxwell intended to submit in separate civil litigation. Judge Nathan denied Maxwell's motion on September 2, 2020, holding, among other things, that Maxwell had failed to establish good cause to modify the Protective Order and failed to coherently explain how the criminal discovery materials related to any argument Maxwell intended to make in the civil litigation. Maxwell filed a notice of appeal on September 4, 2020. Statement of Facts A. The Indictment On June 29, 2020, Indictment 20 Cr. 330 (AJN) was filed under seal in the Southern District of New York, --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 29442677, Page9 of 37 3 charging Maxwell in six counts. (A. 4).1 On July 2, 2020, Maxwell was arrested and the original indictment was unsealed. (A. 4). On July 8, 2020, Superseding Indictment S1 20 Cr. 330 (AJN) was filed in the Southern District of New York. (A. 6). Count One of the Indictment charges Maxwell with conspiracy to entice minors to travel to engage in illegal sex acts, in violation of 18 U.S.C. § 371. Count Two 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 charges Maxwell with conspiracy to transport minors to participate in illegal sex acts, in violation of 18 U.S.C. § 371. Count Four 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. The matter remains pending in the pretrial phase before Judge Nathan. Maxwell’s pretrial motions are due on December 21, 2020, and trial has been scheduled to commence on July 12, 2021. B. The Protective Order On July 30, 2020, upon the Government’s application, Judge Nathan entered the Protective Order governing the parties’ disclosure of information produced 1 “2d Cir. Dkt.” refers to an entry in this Court’s docket for this case; “Br.” refers to Maxwell’s brief on appeal; and “A.” refers to the appendix filed with Maxwell’s brief. Unless otherwise noted, all case quotations omit citations, internal quotations, and previous alterations. DOJ-OGR-00019616 --- PAGE BREAK --- 4 in discovery in the criminal case. (A. 75-86). The Protective Order expressly provides that any and all discovery material produced to Maxwell by the Government, regardless of designation, "[s]hall be used by the Defendant or her Defense Counsel solely for purposes of the defense of this criminal action, and not for any civil proceeding or any purpose other than the defense of this action." (Protective Order ¶¶ 1(a), 10(a), 14(a)). The Protective Order further provides that any discovery material produced to Maxwell by the Government that is marked "confidential" may not be filed publicly or excerpted within any public filing. (Protective Order ¶ 15). Maxwell's criminal defense counsel consented to the foregoing provisions of the Protective Order. (See A. 40, 44-55). C. The District Court Litigation Despite having agreed to the prohibition on using the discovery materials in civil cases, on August 17, 2020, Maxwell asked Judge Nathan to modify the Protective Order to allow her to do exactly that. (A. 124-31). In particular, Maxwell's motion sought authorization to use materials relating to applications the Government previously made in 2019 seeking the modification of certain protective orders in other judicial proceedings. On August 21, 2020, the Government filed an opposition to Maxwell's motion to modify the Protective Order. (A. 90-94). In its opposition, the Government explained the factual background regarding the confidential criminal discovery materials at issue. In par- --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page11 of 37 5 ticular, the Government explained that those discovery materials related to the Government's requests to modify certain protective orders in civil cases to permit compliance with grand jury subpoenas (the "Subpoenas"). (A. 91). Those Subpoenas were issued to a certain recipient (the "Recipient") in connection with a grand jury investigation into Jeffrey Epstein and his possible co-conspirators. (A. 91). To maintain the integrity of the grand jury investigation and in accordance with both Federal Rule of Criminal Procedure 6(e) and its standard practice, the Government did not notify Maxwell or her counsel of the Subpoenas. (A. 91). In response to receiving the Subpoenas, the Recipient advised the Government that it believed that certain existing protective orders precluded full compliance. (A. 91). Accordingly, in or about February 2019, the Government applied ex parte and under seal to each relevant court to request modification of the respective protective orders to permit compliance with the Subpoenas. (A. 91). In or about April 2019, one court ("Court-1") granted the Government's application, and permitted the Government to share Court-1's order—and only that order, which itself prohibited further dissemination—to the Recipient.2 (A. 91). Subse- 2 The Government notes that this entire litigation took place months before Judge Preska was assigned to handle Giuffre v. Maxwell on July 9, 2019. DOJ-OGR-00019618 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page12 of 37 6 quently, the second court ("Court-2") denied the Government's application.3 (A. 91). Because the relevant grand jury investigation remains ongoing, both Court-1 and Court-2 have ordered that the filings regarding the Subpoenas remain under seal, except that both have expressly permitted the Government to produce those filings to Maxwell as part of its discovery obligations in this criminal case. (A. 91). After providing that factual background, the Government argued that Maxwell's motion should be denied for failing to show good cause to modify the Protective Order for several reasons. First, Maxwell had consented to the portions of the Protective Order that prohibit use of criminal discovery materials produced by the Government in any civil litigation. (A. 91-92). Second, Maxwell had cited no authority to support the argument that a criminal defendant should be permitted to use criminal discovery in civil cases. (A. 93). Third, Maxwell utterly failed to explain how the criminal discovery materials at issue supported any legal argument she wished to make in civil litigation. (A. 94). The Government also noted that to the extent Maxwell sought to challenge the process by which the Government sought compliance with the Subpoenas and obtained certain materials that it intended to use in prosecuting its criminal case, she would have a full 3 The Government notes that Court-1 granted the Government's application first, and then the Government provided a copy of Court-1's decision to Court-2. Court-2 then denied the Government's application. (A. 207-37). DOJ-OGR-00019619 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page13 of 37 7 opportunity to do so in her pretrial motions in the criminal case before Judge Nathan. (A. 93-94). D. Judge Nathan's Order On September 2, 2020, Judge Nathan issued the Order denying Maxwell's motion. (A. 99-103). In that Order, Judge Nathan noted that despite "fourteen-single spaced pages of heated rhetoric," Maxwell had offered "no more than vague, speculative, and conclusory assertions" regarding why the criminal discovery materials were necessary to fair adjudication of her civil cases. (A. 101). Judge Nathan concluded that absent any "coherent explanation" of how the criminal discovery materials related to any argument Maxwell intended to make in civil litigation, Maxwell had "plainly" failed to establish good cause to modify the Protective Order. (A. 101). Further, Judge Nathan noted that the basic facts Maxwell sought to introduce in civil litigation were already made public through the Government's letter in opposition to her motion. (A. 101-02). Accordingly, even though Judge Nathan "remained" in the dark as to why this information will be relevant" to the courts adjudicating the civil cases, Judge Nathan expressly permitted Maxwell to inform the tribunals overseeing her civil cases, under seal, of the basic factual background regarding the confidential criminal discovery materials at issue. (A. 101-02). E. Maxwell's Appeal of the Order On September 4, 2020, Maxwell filed a notice of appeal from the Order. (A. 121-23). On September 10, 2020, Maxwell filed a motion to consolidate this appeal DOJ-OGR-00019620 --- PAGE BREAK --- with the appeal currently pending in Giuffre v. Maxwell, No. 20-2413. (2d Cir. Dkt. 17). The Government is not a party to the appeal in Giuffre v. Maxwell, which concerns an order issued in a civil case unsealing materials that were previously filed under seal. On September 16, 2020, the Government filed a motion to dismiss Maxwell's appeal for lack of jurisdiction and requested that this Court deny Maxwell's motion for consolidation (the "Motion to Dismiss"). (2d Cir. Dkt. 37). ARGUMENT POINT I This Court Lacks Jurisdiction To Hear This Appeal As explained in the Government's Motion to Dismiss, the final judgment rule precludes jurisdiction over Maxwell's appeal of the Order. See 28 U.S.C. § 1291. Maxwell fails to explain how the Order falls within the "small class" of decisions that constitute immediately appealable collateral orders. See Van Cauwenberghe v. Biard, 486 U.S. 517, 522 (1988). Accordingly, this Court should dismiss Maxwell's appeal for lack of appellate jurisdiction. A. Applicable Law Title 28, United States Code, Section 1291 expressly limits the jurisdiction of Courts of Appeals to "final decisions of the district courts." 28 U.S.C. § 1291. "This final judgment rule requires that a party must ordinarily raise all claims of error in a single appeal --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page15 of 37 9 following final judgment on the merits. In a criminal case[,] the rule prohibits appellate review until conviction and imposition of sentence." Flanagan v. United States, 465 U.S. 259, 263 (1984); accord United States v. Aliotta, 199 F.3d 78, 81 (2d Cir. 1999). As the Supreme Court has "long held," the "policy of Congress embodied in this statute is inimical to piecemeal appellate review of trial court decisions which do not terminate the litigation, and ... this policy is at its strongest in the field of criminal law." United States v. Hollywood Motor Car Co., 458 U.S. 263, 265 (1982); see also Flanagan, 465 U.S. at 270 (noting "overriding policies against interlocutory review in criminal cases" and that "exceptions to the final judgment rule in criminal cases are rare"); United States v. Culbertson, 598 F.3d 40, 46 (2d Cir. 2010) (recognizing that "undue litigiousness and leaden-footed administration of justice, the common consequences of piecemeal appellate review, are particularly damaging to the conduct of criminal cases"). There is a limited exception to this rule that permits immediate appeal from certain collateral orders. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 467-68 (1978) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). To fall within the "small class" of decisions that constitute immediately appealable collateral orders, the decision must "(1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment." Van Cauwenberghe, 486 U.S. at 522. DOJ-OGR-00019622 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page16 of 37 10 The Supreme Court has made clear that the collateral order exception should be “interpreted . . . with the utmost strictness in criminal cases.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989); accord United States v. Robinson, 473 F.3d 487, 490 (2d Cir. 2007). In over 70 years since Cohen was decided, despite “numerous opportunities” to expand the doctrine, Midland Asphalt, 489 U.S. at 799, the Supreme Court has identified only four types of pretrial orders in criminal cases as satisfying the collateral-order doctrine: an order denying a bond, see Stack v. Boyle, 342 U.S. 1 (1951); an order denying a motion to dismiss on Double Jeopardy grounds, see Abney v. United States, 431 U.S. 651 (1977); an order denying a motion to dismiss under the Speech or Debate Clause, see Helstoski v. Meanor, 442 U.S. 500 (1979); and an order permitting the forced administration of antipsychotic drugs to render a defendant competent for trial, see Sell v. United States, 539 U.S. 166 (2003). In contrast, the circumstances in which the Supreme Court has “refused to permit interlocutory appeals” in criminal cases have been “far more numerous.” Midland Asphalt, 489 U.S. at 799. As to the third Van Cauwenberghe criterion, “[a]n order is effectively unreviewable where the order at issue involves an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. Punn, 737 F.3d 1, 5 (2d Cir. 2013). “The justification for immediate appeal must . . . be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009). A ruling that is burdensome to a party DOJ-OGR-00019623 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page17 of 37 11 "in ways that are only imperfectly reparable by appel-late reversal of a final district court judgment is not sufficient." Punn, 737 F.3d at 5. "Instead, the decisive consideration is whether delaying review until the en-try of final judgment would imperil a substantial pub-lic interest or some particular value of a high order." Mohawk Indus., 558 U.S. at 107; see also Kensington Int'l Ltd. v. Republic of Congo, 461 F.3d 238, 241 (2d Cir. 2006). In a criminal case, the availability of post-judgment relief through reversal or vacatur of convic-tion, if warranted, will generally be sufficient to pro-tect whatever right a defendant claims was abridged by the district court's pretrial decision. See, e.g., Punn, 737 F.3d at 14 ("Punn's claim can be adequately vindi-cated upon appeal from a final judgment.... [I]f Punn's arguments continue to fail before the district court, purportedly ill-gotten evidence or its fruits are admitted at his trial, and conviction results, appellate review will be available at that point[,] ... [and the Court] may order a new trial without the use of the ill-gotten evidence, or whatever additional remedies are necessary to ensure that Punn's legitimate interests are fully preserved."); United States v. Hitchcock, 992 F.2d 236, 239 (9th Cir. 1993) (district court's refusal to seal documents not immediately appealable because "[r]eversal after trial, if it is warranted, will ade-quately protect ... interest[s]" asserted by defend-ants). When applying the collateral order doctrine, the Supreme Court has "generally denied review of pre-trial discovery orders." Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 377 (1981). This Court likewise DOJ-OGR-00019624 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page18 of 37 12 has consistently ruled that protective orders regulating the use of documents exchanged by the parties during a criminal case are not subject to interlocutory appeal. See, e.g., United States v. Caparros, 800 F.2d 23, 24 (2d Cir. 1986) ("We hold that this collateral protective order is not appealable under 28 U.S.C. § 1291 ...."); United States v. Pappas, 94 F.3d 795, 798 (2d Cir. 1996) ("To the extent that the [protective] order imposed restrictions on the parties' disclosure of materials exchanged in the course of pending litigation, it is not subject to appeal."); see also H.L. Hayden Co. of N.Y. v. Siemens Medical Sys., Inc., 797 F.2d 85, 90 (2d Cir. 1986) ("The district court's denial of modification [of a protective order] does not fall within the 'collateral order' doctrine of Cohen.") Because "a litigant does not have an unrestrained right to disseminate information that has been obtained through pretrial discovery," such protective orders do not amount to an impermissible prior restraint under the First Amendment. Caparros, 800 F.2d at 25. Even where a litigant raises a colorable argument that a protective order violates a litigant's right to release documents outside of criminal litigation, "adjudication of any such right can await final judgment on the underlying charges" because the "purported right at issue is not related to any right not to stand trial." Id. at 26. B. Discussion Maxwell's jurisdictional arguments run afoul of this Circuit's precedent and offer no justification for including the Order in the "small class" of decisions that constitute immediately appealable collateral orders. See Van Cauwenberghe, 486 U.S. at 522. In her DOJ-OGR-00019625 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page19 of 37 13 opening brief, Maxwell concedes that her appeal of the Order does not concern one of the four types of pretrial orders that the Supreme Court has identified as satisfying the collateral order doctrine in criminal cases, but she fails to offer a basis for expanding those categories to embrace her claim here. (Br. 12.) The rights implicated by the Order—namely, the use of pretrial discovery materials—do not justify expanding the limited collateral order exception, which is “interpreted with the utmost strictness.” Midland Asphalt, 489 U.S. at 799. Maxwell relies principally on three cases in seeking to overcome decades of Supreme Court precedent narrowly construing the exception to the requirement that appeals in criminal cases be from the final judgment of conviction. As discussed in the Government's Motion to Dismiss, the cases Maxwell cites do not support the existence of an exception here. All three cases involved appeals by intervenors—not parties—seeking to modify protective orders in civil cases. Pichler v. UNITE, 585 F.3d 741, 745-746 (3d Cir. 2009) (third party intervenor foundation appealing order denying motion to modify protective order in civil litigation to allow third party access to discovery materials); Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 741 (2d Cir. 1987) (Commodity Futures Trading Commission (“CFTC”) acting as third party intervenor appealing order denying motion to modify protective order in civil litigation to allow CFTC to obtain discovery exchanged by parties to civil case permissible because “[t]he entire controversy between the CFTC and the defendants in this case was disposed of by the district court's denial of the government's motion to modify the DOJ-OGR-00019626 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page20 of 37 14 protective order"); Brown v. Maxwell, 929 F.3d 41, 46 (2d Cir. 2019) (third party intervenors, including members of the press, appealing order denying motion to modify protective order in civil litigation to allow third parties access to sealed filings, after parties to the litigation settled). Thus, appellate jurisdiction in those cases was founded on the principle that when intervenors seek access to sealed records, "orders denying access are final as to the intervenors." Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 117 (2d Cir. 2006) (emphasis added). Once the courts in those cases denied the intervenors' motions to modify protective orders, there was nothing left for those intervenors to litigate. Here, by contrast, Judge Nathan's Order did not end the entire litigation as to Maxwell. To the contrary, Maxwell is scheduled to file pretrial motions in December 2020 and to proceed to trial in July 2021. When considering interlocutory appeals from rulings on protective orders governing a criminal defendant's use of discovery materials, by contrast, this Court has concluded it lacks jurisdiction. See Caparros, 800 F.2d at 24; Pappas, 94 F.3d at 798. Maxwell cites no case in which this Court has found jurisdiction over an interlocutory appeal of an order regulating the use of materials a criminal defendant received during litigation, and her efforts to distinguish Pappas and Caparros fall short. Pappas concluded that where a protective order "prohibits . . . disclosure of information [a defendant] 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." Pappas, 94 F.3d at 798 (emphasis added). But that is not the DOJ-OGR-00019627 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page21 of 37 15 type of protective order at issue here. To the contrary, the Protective Order in this case expressly provides that its provisions “shall not be construed as preventing disclosure of any information, with the exception of victim or witness identifying information, that is publicly available or obtained by the Defendant or her Defense Counsel form a source other than the Government.” (A. 84-85). Instead, the Protective Order “imposed restrictions on the parties’ disclosure of materials exchanged in the course of pending litigation” and, like the similar provision in the Pappas protective order, is therefore “not subject to appeal” prior to entry of final judgment. Pappas, 94 F.3d at 798. Caparros is similarly analogous. That case declined to find jurisdiction over a similar order for several reasons, including because “[t]he purported right at issue is not related to any right to stand trial.” Caparros, 800 F.2d at 26. The Court also concluded that the protective order in that case would be reviewable on appeal after final judgment and emphasized that the defendant would not suffer any “grave harm . . . if the order is not immediately reviewed.” Id. So too here. Maxwell has not articulated any serious injury she will suffer if this Court dismisses her appeal. The only theoretical harm might be prejudicial pretrial publicity arising from the unsealing of filings in a civil case. Should any prejudicial publicity arise, though, Maxwell will be fully able to raise that issue on appeal after the entry of final judgment in her criminal case. See, e.g., United States v. Sabhnani, 599 F.3d 215, 232-34 (2d Cir. 2010) (evaluating on post-judgment appeal whether publicity biased the venire); United States v. Elfgeeh, 515 F.3d 100, 128-31 (2d Cir. 2008) (evaluating on post- DOJ-OGR-00019628 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page22 of 37 16 judgment appeal whether publicity biased trial jurors); United States v. Nelson, 277 F.3d 164, 201-04, 213 (2d Cir. 2002) (vacating conviction where district court improperly refused to excuse potential juror who admitted bias based upon knowledge of defendant's previous acquittal). Accordingly, like the protective order in Caparros, the Order here will still be reviewable on appeal after entry of final judgment. In evaluating Maxwell's appeal, the Court should "not engage in an individualized jurisdictional inquiry," but instead focus "on the entire category to which a claim belongs." Mohawk, 558 U.S. at 107. The Order declining to modify the Protective Order is not subject to interlocutory appeal as "[p]rotective orders that only regulate materials exchanged between the parties incident to litigation, like most discovery orders, are neither final orders, appealable under 28 U.S.C. § 1291, nor injunctions, appealable under 28 U.S.C. § 1292(a)(1)." Pappas, 94 F.3d at 798. Maxwell nevertheless asks this Court to engage in an individualized jurisdictional inquiry to justify her immediate appeal. Contrary to Maxwell's claims, the Order does not meet the third criterion of the standard for identifying immediately appealable collateral orders, which requires that the order being appealed from be "effectively unreviewable on appeal from a final judgment." Van Cauwenberghe, 486 U.S. at 522. She likens her claim here to an appeal of an order denying a motion to reduce bail, arguing that her appeal "will become moot if review awaits conviction and sentence." (Br. 13 (quotation omitted)). But that is not so. In an order denying a motion to reduce bail, the DOJ-OGR-00019629 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page23 of 37 17 "issue is finally resolved and is independent of the issues to be tried, and the order becomes moot if review awaits conviction and sentence." Flanagan, 465 U.S. at 266. Unlike a request for bail reduction, however, an order denying modification of a protective order does not become moot upon conviction and sentence. "The standard for review set forth in Flanagan is not easily met," and Maxwell has not done so here. Ca-parros, 800 F.2d at 25. To the extent Maxwell still wishes to use materials she obtained through criminal discovery for other purposes after entry of final judgment in the criminal case, she can seek authorization from this Court to do so then. If Maxwell complains that her inability to use criminal discovery materials in civil matters may result in premature unsealing or prejudicial pretrial publicity, she can likewise raise those claims before this Court on appeal after entry of final judgment in her criminal case. See, e.g., United States v. Martoma, No. 13-4807, 2014 WL 68119, at *1 (2d Cir. Jan. 8, 2014) (concluding that even though the defendant's "personal interest in the privacy of embarrassing information is an interest that, as a practical matter, cannot be vindicated after disclosure," that interest is insufficient to merit interlocutory appeal); United States v. Guerrero, 693 F.3d 990, 998 (9th Cir. 2012) (finding no jurisdiction over defendant's interlocutory appeal from unsealing of competency evaluation because "any alleged incursions on criminal defendants' rights to privacy and a fair trial do not render the unsealing order effectively unreviewable on appeal"); Hitchcock, 992 F.2d at 238-39 (district court's refusal to seal documents not immediately appealable because "[r]eversal after trial, if it is warranted, will DOJ-OGR-00019630 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page24 of 37 18 adequately protect . . . interest[s]" asserted by defendant); cf. Mohawk Indus., 558 U.S. at 109 (holding that orders to disclose privileged information are not immediately appealable even though they "intrude[] on the confidentiality of attorney-client communications"). If Maxwell is concerned that unsealing will open up an inevitable discovery argument for the Government, she can explain to Judge Nathan when making a suppression motion how an unsealing decision would have been altered by revelation of criminal discovery materials to the unsealing court.4 If Maxwell is dissatisfied with the result of that suppression motion, she can raise the issue on appeal following final judgement. In short, because Judge Nathan's Order is not effectively unreviewable on appeal after final judgment, Maxwell cannot satisfy the third prong of the collateral order doctrine.5 4 Notably, though, Maxwell has not explained how her desire to prevent the Government from making an inevitable discovery argument has any bearing on Judge Preska's analysis of whether the First Amendment requires unsealing of judicial documents in a civil case. She offers no case law to support such an argument and does not articulate how her desire to prevent the Government from making an inevitable discovery argument impacts the unsealing analysis in a civil case. 5 In support of her argument in favor of expanding the collateral order doctrine to embrace her interlocutory appeal here, Maxwell suggests that this appeal has not and will not delay the criminal case. DOJ-OGR-00019631 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page25 of 37 19 Maxwell nevertheless argues that reversal of the Order is necessary to prevent documents in a civil case from being unsealed. As further described below, Maxwell fails to explain how the way the Government obtained the confidential criminal discovery materials at issue has any bearing on or in any way affects First Amendment principles governing unsealing decisions in a civil case. Second, and as further described below, Maxwell is already able to share the essential facts she wishes to convey under Judge Nathan's Order. As such, she has not shown how the Order damages her in any way. See Caparros, 800 F.2d at 26 (without a showing of serious harm, "review cannot be granted under section 1292(a)(1)").6 (Br. 14). That remains to be seen. In the meantime, the litigation of this appeal undoubtedly consumes the resources of the parties, who must now litigate an issue twice in the middle of a pending criminal case—once before the District Court and a second time before this Court. It would be a much more efficient use of resources for the parties to focus on completing the criminal discovery process, preparing pretrial motions, and trial, after which any appeal consolidating all claimed errors could be taken. 6 As noted in the Government's Motion to Dismiss, 28 U.S.C. § 1292(a)(1) provides that Courts of Appeals shall have jurisdiction over "[i]nterlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dis- DOJ-OGR-00019632 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page31 of 37 25 certain discovery materials would impact the unsealing analysis under First Amendment principles in a civil matter. Even if Maxwell were correct that the way in which the Government obtained the materials was improper—and she is not—that fact would have no bearing on the analysis of whether materials in certain civil cases should be unsealed. Maxwell cites not a single case to support the conclusion that her desire to prevent the Government from raising an inevitable discovery argument in suppression litigation should impact the unsealing analysis in a civil case. She offers no coherent argument for how the criminal discovery materials would impact any decision in a civil case. At bottom, it remains unclear what legal argument Maxwell wishes to make in her civil cases based on the criminal discovery materials she has identified or what relevance those materials have to the litigation of those civil matters. Accordingly, Judge Nathan did not abuse her discretion when concluding that Maxwell “furnishe[d] no substantive explanation regarding the relevance of the Documents to decisions to be made in those matters, let alone any explanation of why modifying the protective order in order to allow such disclosure is necessary to ensure the fair adjudication of those matters.” (A. 101). In pressing for a different result here, Maxwell argues that “if the deposition material is unsealed, it may foreclose” any of her arguments to Judge Nathan about the perjury counts or other remedies available to Maxwell based on the Government’s alleged circumvention of Second Circuit law. (Br. 27). Maxwell claims that “all [she] seeks in this appeal is the ability to --- PAGE BREAK --- 20 In an attempt to sidestep the jurisdictional issue, Maxwell suggests that this Court should exercise mandamus jurisdiction and issue the extraordinary relief of a writ of mandamus directing the District Court to modify the Protective Order if Maxwell "cannot appeal" the Order under the collateral order doctrine. (Br. 20). The Supreme Court has described this as "a drastic and extraordinary remedy reserved for really extraordinary causes." Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380 (2004). This Court has made clear that it "issue[s] a writ of mandamus only in exceptional circumstances amounting to a judicial usurpation of power or a clear abuse of discretion." In re City of N.Y., 607 F.3d 923, 932 (2d Cir. 2010). "Pretrial discovery orders . . . generally are not reviewable on direct appeal, and we have expressed reluctance to circumvent this salutary rule by use of mandamus." In re S.E.C. ex rel. Glotzer, 374 F.3d 184, 187 (2d Cir. 2004). "Nevertheless, mandamus may be available where a discovery question is of extraordinary significance or there is extreme need for reversal of the district court's mandate before the case goes to judgment." Id. "To determine whether mandamus is appropriate in the context of a discovery ruling, we solve or modify injunctions, except where a direct review may be had in the Supreme Court." Orders regulating discovery in a criminal case, even if couching "words of restraint," are not injunctions and are therefore not appealable under § 1292(a)(1). See Pap-pas, 94 F.3d at 798; Caparros, 800 F.2d at 26. DOJ-OGR-00019633 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page27 of 37 21 look primarily for the presence of a novel and significant question of law . . . and . . . the presence of a legal issue whose resolution will aid in the administration of justice." In re City of N.Y., 607 F.3d at 939. As described below, the District Court did not abuse its discretion in issuing the Order. This Court should not issue a writ of mandamus and should instead follow its "normal practice . . . to decline to treat improvident appeals as mandamus petitions." Caparos, 800 F.2d at 26. This case does not raise the rare and exceptional circumstance in which the Court should depart from its practice. POINT II The District Court Did Not Abuse Its Discretion in Denying Maxwell's Motion to Modify the Protective Order Even if this Court had jurisdiction to hear Maxwell's appeal, the Order should be summarily affirmed because the District Court did not abuse its discretion. The Order—which was issued after receiving briefing from the parties—carefully evaluated Maxwell's request and reached a conclusion indisputably within the bounds of permissible discretion. A. Applicable Law This Court reviews a district court's decision denying modification of a protective order for abuse of discretion. See, e.g., United States v. Longueil, 567 F. App'x 13, 16 (2d Cir. 2014) (finding that the district court did not abuse its discretion in denying a motion DOJ-OGR-00019634 --- PAGE BREAK --- 22 to vacate a protective order); S.E.C. v. The Street.com, 273 F.3d 222, 228-29 (2d Cir. 2001) (reviewing the district court's order lifting its protective order covering deposition testimony for abuse of discretion). "A district court abuses or exceeds the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—though not necessarily the product of a legal error or a clearly erroneous factual finding—cannot be located within the range of permissible decisions." Id. Under the Federal Rules of Criminal Procedure, the District Court is vested with broad discretion to oversee the criminal discovery process, including entering protective orders "for good cause [that] deny, restrict, or defer discovery or inspection, or grant other appropriate relief." Fed. R. Crim. P. 16(d). Courts overseeing criminal cases in this Circuit have borrowed from the standard governing modification of protective orders in civil cases, in which there is a "strong presumption against the modification of a protective order." In re Teligent, Inc., 640 F.3d 53, 59 (2d Cir. 2011). See, e.g., United States v. Kerik, No. 07 Cr. 1027 (LAP), 2014 WL 12710346, at *1 (S.D.N.Y. July 23, 2014) (applying civil standard for modification of protective order in criminal case and holding that modification of Rule 16 protective order is "presumptively unfair" where a party reasonably relied upon the order); see also United States v. Calderon, No. 15 Cr. 25 (JCH), 2017 WL 6453344, at *2 (D. Conn. Dec. 1, 2017); United States v. Morales, 807 F.3d 717, 723 (5th Cir. 2015) (borrowing from the standard for "good cause" under Fed. R. Civ. P 26(c) when evaluating whether to --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page29 of 37 23 modify a protective order entered in a criminal case); United States v. Wecht, 484 F.3d 194, 211 (3rd Cir. 2007) (same). B. Discussion Judge Nathan did not abuse her discretion when entering the challenged Order. In reaching her decision, Judge Nathan applied the correct legal standard, evaluated Maxwell's argument that she needed to disclose certain criminal discovery materials to the relevant judicial officers to "ensure the fair adjudication of issues being litigated in those civil matter," found that Maxwell's proffered reasons for the request were "vague, speculative, and conclusory," and concluded that Maxwell's arguments "plainly fail to establish good cause." (A. 101). At no point did Judge Nathan fail to apply established law, and it cannot be said that her careful review of the parties' arguments was not within the bounds of permissible discretion. First, Maxwell still fails to articulate any legal basis for the use of discovery material received from the Government in a criminal case to litigate a separate civil case. Maxwell expressly consented to the entry of a Protective Order prohibiting her from using criminal discovery materials in civil litigation.7 In her motion to modify that Protective Order, Maxwell cited no legal authority for the use of criminal discovery in civil litigation. Her appeal points to no such authority, and she 7 Maxwell did so knowing that the Government had charged her with perjury in connection with civil cases. --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page30 of 37 24 does not suggest that Judge Nathan committed legal error when issuing the Order denying her motion. Second, Judge Nathan did not abuse her discretion when determining that Maxwell had offered no basis for determining that good cause justified a modification of the Protective Order. In her briefing before the District Court, Maxwell offered no coherent explanation of how the criminal discovery materials could have any conceivable impact on the issues pending in civil litigation. She cited no case law suggesting that, for example, the possibility of an inevitable discovery argument by the Government should foreclose unsealing in a civil case, or that unsealing analysis should be affected by a concern about pretrial publicity in a separate criminal case. In the absence of any such explanation, Judge Nathan's Order declining to modify the Protective Order did not amount to an abuse of her broad discretion when overseeing an ongoing criminal case. Even on this appeal, Maxwell still fails to explain why she needs to use materials relating to the Government's applications seeking the modification of certain protective orders in other judicial proceedings. As far as the Government is aware, the only issue pending in the civil litigation in which Maxwell seeks to use those criminal discovery materials involves whether the First Amendment requires that certain filings in those cases be made available on the public docket. Maxwell cannot explain why certain criminal discovery materials are relevant to the issues pending in those cases or how the manner in which the Government obtained DOJ-OGR-00019637 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page32 of 37 26 make these arguments to Judge Preska and Judge Nathan before it's too late." (Br. 27-28). To the extent Maxwell seeks to challenge the manner in which the Government obtained the materials at issue—a challenge that itself would not justify the relief presently requested—Maxwell can make such arguments before Judge Nathan, and the Government can and will vigorously oppose them, at the appropriate stage in the case. If anything, this appeal appears to be a thinly veiled attempt to have this Court weigh in on the Government's investigative methods. Her briefing is filled with accusations of impropriety on the part of the Government but with virtually no explanation of how that supposed impropriety relates to any civil case. It appears that Maxwell would like this Court to agree that the Government illegally obtained evidence before the issue has even been briefed before Judge Nathan. This Court's precedents do not countenance such efforts to bypass district courts. See, e.g., Frontera Res. Azer. Corp. v. State Oil Co. of the Azer. Republic, 582 F.3d 393, 401 (2d Cir. 2009) (because issue "ha[d] not been decided" by district court, "it would be premature for us to address this question without hearing first from the court below"). Maxwell presents no sound reason to deviate from precedent here, nor is one readily apparent. Maxwell is fully capable of litigating any suppression motions in the District Court, and will have an opportunity to do so. Maxwell suggests that the "very point of this appeal" is to share information with Judge Preska under seal. (Br. 11). She asks that this Court permit her to seal. (Br. 11). DOJ-OGR-00019639 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page33 of 37 27 "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." (Br. 31). To the extent Maxwell seeks to inform Judge Preska—or any other judicial officer—of the basic facts surrounding the criminal prosecution and the criminal discovery materials at issue, the District Court has already granted Maxwell the supposed relief she seeks from this Court. Although the District Court did not modify the Protective Order, Judge Nathan authorized Maxwell to convey, under seal, to the appropriate judicial officer the fact that the Government obtained an order from Court-1 permitting the Recipient to comply with a subpoena for materials covered by a protective order, that Court-2 subsequently denied similar relief in another case, and that Maxwell "learned of this information (sealed by other courts) as a result of Rule 16 discovery in this criminal matter." (A. 101-02). If the "very point" of Maxwell's request to seek a modification of the Protective Order was to share information and not to challenge the legality of the Government's investigative techniques, then her appeal is moot because Judge Nathan has already granted her permission to do so. Maxwell does not explain why those facts are not enough. Despite those available avenues, Maxwell still argues that she cannot move to stay the unsealing process before Judge Preska and "thereby safeguard her right to a fair trial in the criminal case." (Br. 29). As already noted, though, it is a matter of public record that the charges against Maxwell include allegations of perjury in civil cases. (A. 27-29). Without relying on any materials she received through criminal discovery, --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page34 of 37 28 Maxwell can argue on the public record that unsealing the materials would have a prejudicial effect on her right to a fair trial. To the extent Maxwell complains that unsealing filings in a civil case may result in unfair pretrial publicity in her criminal case, she will have the opportunity to request that the District Court establish practices to help ensure she gets a fair and impartial jury.8 If she is displeased with those efforts, 8 Maxwell makes much of the Government having moved to intervene and stay the proceedings in Doe v. Indyke, noting that the Government has not moved to intervene in Giuffre v. Maxwell, to stay the unsealing process. (Br. 29). Maxwell suggests that the Government's decision to not do so is motivated by "unprincipled" reasons. (Br. 29-30). Setting Maxwell's conspiracy theories aside, Doe v. Indyke and Giuffre v. Maxwell are in completely different procedural postures, which implicate different concerns regarding a pending criminal case. The latter was resolved in 2017 and the determination of what material should remain sealed remains the only open issue. Accordingly, there is no more discovery to be conducted in the Giuffre case and no possible concern to the Government that, for example, its trial witnesses in the criminal case might be deposed in that civil case. Additionally, the fact that a document may be unsealed through an independent process before Judge Preska would not reveal the Government's investigative focus or techniques. In Doe v. Indyke, on the other hand, discovery was just beginning, and if discovery were to have proceeded, multiple witnesses or potential witnesses at DOJ-OGR-00019641 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page35 of 37 29 she can appeal to this Court following the entry of final judgment in the criminal case. Maxwell presented Judge Nathan with no coherent reason—not to mention good cause—to modify the duly entered Protective Order in this criminal case. In the absence of any explanation of Maxwell's need to use criminal discovery materials to litigate a civil case, Judge Nathan was well within her discretion when determining that Maxwell's arguments “plainly fail to establish good cause.” (A. 101). Judge Nathan's Order falls comfortably within the range of permissible decisions on a motion to modify a protective order, and so she did not abuse her discretion in so ruling. the criminal trial would likely have been subject to deposition. That concern, among others, raised a significant risk that proceeding with the civil matter would adversely affect the ongoing criminal prosecution against Maxwell. Moreover, the interests of judicial economy and the public interest in enforcement of the criminal law were served by a stay in the Doe case because the outcome of the criminal case could resolve disputed issues in the Doe case. Such concerns are not present in Giuffre v. Maxwell. DOJ-OGR-00019642 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page36 of 37 30 CONCLUSION The District Court's order denying Maxwell's motion to modify the Protective Order should be affirmed. Dated: New York, New York October 2, 2020 Respectfully submitted, Audrey Strauss, Acting United States Attorney for the Southern District of New York, Attorney for the United States of America. Lara Pomerantz, Maurene Comey, Alison Moe, Karl Metzner, Assistant United States Attorneys, Of Counsel. DOJ-OGR-00019643 --- PAGE BREAK --- Case 20-3061, Document 82, 10/02/2020, 2944267, Page37 of 37 CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(g), the undersigned counsel hereby certifies that this brief complies with the type-volume limitation of the Federal Rules of Appellate Procedure and this Court's Local Rules. As measured by the word processing system used to prepare this brief, there are 7,287 words in this brief. AUDREY STRAUSS, Acting United States Attorney for the Southern District of New York By: KARL METZNER, Assistant United States Attorney DOJ-OGR-00019644