EFTA00095067

2019.21 The Government conducted multiple additional interviews of both victims, as well as other 
witnesses, and took additional investigative steps over the next several months before it was 
prepared to seek an indictment charging the defendant. Those two victims were critical to the 
investigation, as they helped form the basis of the charges in the Indictment, which the Government 
sought on June 29, 2020, less than a year after the victims came forward. That period of time—
and, in particular, less than one year between when key victims came forward and the Indictment 
was obtained—cannot possibly give rise to a colorable due process violation.11 See Cheung Kin 
Ping, 555 F.2d at 1072 (finding that "the government is not responsible for a period of delay during 
which an important witness is unavailable to it" and describing the delay as the period between the 
witness's cooperation and the date of indictment); United States v. Rubinson, 543 F.2d 951, 961 
(2d Cir. 1976) ("If there was any intentional delay in returning the instant indictment, it was due 
in significant measure to the refusal of critical witnesses until 1973 to reveal what they knew."). 
Cf. Lovasco, 431 U.S. at 796 ("Rather than deviating from elementary standards of fair play and 
decency, a prosecutor abides by them if he refuses to seek indictments until he is completely 
satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable 
doubt." (internal quotation marks and citations omitted)). 
21 While the Government is proffering these facts for purposes of this Motion, the underlying 
information, which is contained in the FBI 302 reports of interviews with the victims, will be 
produced to the defense as 3500 material in advance of trial. 
n In this respect, the Government notes that significant aspects of the defendant's argument rest 
on a faulty premise: i.e., that the Government could have indicted the defendant at any time 
between 1994 and 2020, but simply chose not to do so for tactical reasons. As noted above, two 
key witnesses who helped give rise to the instant charges did not agree to speak law enforcement 
until 2019, facts that significantly undercut the notion that the Government was intentionally 
sitting on a criminal case against the defendant for any meaningful period of time. Cf. Ex. 3 (OPR 
Report) at 81 ("Villafafta told OPR that, apart from the women named in the NPA, the investigation 
had not developed evidence of 'any other potential co-conspirators.'"); id. at 167 ("according to 
Villafafta, in 2007, they 'didn't have any specific evidence against her."'). 
55 
EFTA00095147

Moreover, even if the Court were to determine that a 26-year period of delay were 
applicable here, the defendant's motion should be dismissed because she failed to show that the 
Government acted improperly to obtain a tactical advantage. See, e.g., Pierre-Louis, 2018 WL 
4043140 (denying motion to dismiss for pre-indictment delay as to conduct charged in 2016 
involving sexual abuse of minors from 1998 to 2007 as defendant failed to satisfy both prongs of 
pit-indictment delay standard); United States v. Burke, No. 09 Cr. 135 (SO, 2011 WL 2609837, 
at *7 (E.D.N.Y. July 1, 2011) (denying motion to dismiss indictment based on thirty-year pre-
indictment delay because even if unavailability of alibi witnesses were prejudicial, defendant failed 
to show that government delayed for its own benefit); United States v. Carbonaro, No. 02 Cr. 743 
(RCC), 2004 WL 2222145 (S.D.N.Y. Sept. 30, 2004) (in a racketeering conspiracy case in which 
a 14-year-old murder was alleged as a predicate act, finding that, even assuming defendant had 
shown actual prejudice, defendant's motion to dismiss based on pre-indictment delay failed 
because defendant supplied no evidence that government's conduct was for an improper purpose). 
The defendant claims that the Government intentionally delayed the indictment in this case 
with a prescient view towards capitalizing on civil litigation. For instance, Maxwell asserts that it 
"has been advantageous to the government to have aggressive lawyers collecting information from 
Ms. Maxwell as part of civil discovery and disseminating that information to the public, as part of 
an ongoing campaign to vilify Ms. Maxwell." (Def. Mot. 7 at 16). She again cites the subpoena 
the Government issued to 
to obtain materials 
from the 
civil litigation. (Id.). Leaving aside the fact that, as set forth in Section IV, the 
Government obtained such materials through a judicially approved and entirely appropriate 
process, the inference that the defendant urges this Court to draw—that the Government delayed 
56 
EFTA00095148

seeking an indictment to gain a tactical advantage and did so through strategy in the pending civil 
litigation—is both unsupported by the record and illogical. 
The defendant makes much of the Government having moved to intervene and stay the 
proceedings in Doe v. Indyke, No. 20 Civ. 484 (JGK), while the Government has not moved to 
stay Giuf•e v. Maxwell. (Def. Mot. 7 at 16-19). She suggests that there is some "sharp contrast" 
between the Government's actions in the various civil matters, which "establish a strong inference 
that as long as the government stood to gain a tactical advantage by delaying the indictment . . ., it 
would not move to intervene." (Id. at 19). Setting the defendant's conspiracy theories aside, the 
civil matters were in completely different procedural postures, which implicate different concerns 
regarding a pending criminal case. The Giuffre v. Maxwell litigation was settled and complete 
well before the Government even opened its investigation in this case. By contrast, the Doe v. 
Indyke case was initiated after the Government opened its investigation and remained ongoing 
after the Indictment in this case was filed.23 The defendant quotes the Government's letter to Judge 
Freeman requesting permission to intervene and stay Doe v. Indyke (see id.), but omits the portion 
of that letter in which the Government explained that, as far as it was aware, Doe v. Indyke was 
the "lone case in this District that has not yet been either resolved or stayed at this point. . . In 
particular, this matter appears to be the only remaining active civil case in this District in which 
23 In particular, Giuffre v. Maxwell 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. 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 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 the defendant. 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. 
57 
EFTA00095149

claims against Ghislaine Maxwell have been asserted." (20 Civ. 484 (DCF) (JGK), Dkt. No. 80 
at 2). The defendant's baseless conjecture about the Government's nefarious reasons for delaying 
her prosecution are not sufficient to support a dismissal of the Indictment. The defendant ignores 
the fact that cases such as this one take time to investigate and indict. 
The defendant also suggests that the Government engaged in reckless disregard of 
circumstances that would likely impede her ability to mount an effective defense. (Def. Mot. 7 at 
5-6, 15). As an initial matter, this argument falls short of "a standard that requires a showing of 
intentionality." United States v. Wey, No. 15 Cr. 611 (AJN), 2017 WL 237651, at *13 n.8 
(S.D.N.Y. Jan. 18, 2017).24 
While this Court in Wey did not foreclose the possibility of 
recklessness sufficing under certain circumstances, much as in Wey, "the instant case does not 
require this Court to pass on the issue," id., because there is no evidence of recklessness in this 
case. To the contrary, as detailed above, the Government acted promptly in bringing criminal 
charges shortly after two key victims whose testimony helped give rise to those charges first agreed 
to speak with law enforcement. Baseless speculation aside, the defendant offers no argument as 
to how or why the Government acted recklessly here. 
In sum, not only does the defendant fail to demonstrate actual, non-speculative prejudice 
owing to pre-indictment delay, but she also fails to demonstrate that the Government intentionally 
manufactured any alleged delay to gain a tactical advantage over her. She has "offered no credible 
24 This Court has noted "some disagreement among the district courts in this Circuit as to whether 
reckless—as opposed to intentional—disregard of circumstances . . . may support a due process 
challenge based on pre-indictment delay," but concluded that "the pertinent decisions [J, on 
balance, more plainly comport with a standard that requires a showing of intentionality." Wey, 
2017 WL 237651, at *13 n.8 (citing Cornielle, 171 F.3d at 752 (defendant bears burden of showing 
that "delay was a course intentionally pursued by the government for an improper purpose") 
(emphasis added); see also United States v. Gonzalez, No. 00 Cr. 447, 2000 WL 1721171, at *1 & 
n.l (S.D.N.Y. Nov. 17, 2000) ("Neither the Supreme Court nor the Second Circuit ... has adopted 
this alternative [recklessness] standard.")). 
58 
EFTA00095150

evidence to suggest that the Government tarried in bringing charges against [her] solely to gain 
some prosecutorial advantage." Pierre-Louis, 2018 WL 4043140, at *5. As such, because the 
defendant cannot meet her "heavy burden" of showing both actual prejudice and unjustifiable 
Government conduct, her motion to dismiss the Indictment for pre-indictment delay should be 
denied.25
IV. 
The Court Should Deny the Defendant's Motions To Suppress 
The defendant moves to suppress evidence the Government obtained pursuant to a grand 
jury subpoena issued to 
and to dismiss Counts Five and Six under the Due Process 
Clause, the Fourth Amendment, the Fifth Amendment, and the Second Circuit's decision in 
Martindell v. Intl Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979). (Def. Mots. 3 & 11). In 
particular, the defendant contends that the Government violated the Second Circuit's decision in 
Martindell and misled 
in obtaining the modification of a protective order. 
She also contends the subpoena was overly broad and amounted to an unlawful search of materials 
in which she had a reasonable expectation of privacy, as well as an infringement of her privilege 
against self-incrimination. Although the defendant styles her request for relief as two separate 
motions, the suppression motions overlap in fact and argument, and accordingly, the Government 
responds to both motions in this section. 
25 The defendant asks the Court for leave to supplement her motion "after the government provides 
her with meaningful discovery" and notes that "after the disclosure of meaningful discovery, [she] 
may request that the Court defer ruling on this motion until after any trial if the indictment has not 
been dismissed on other grounds." (Def. Mot. 7 at 1). As noted above, the Government has 
complied with its Rule 16 obligations and will produce Giglio and Jencks Act materials well in 
advance of trial, consistent with whatever schedule the parties agree upon or this Court sets. The 
Court should reject the defendant's invitation to defer ruling on this motion. See, e.g., United 
States v. Muric, No. 10 Cr. 112 (LTS), 2010 WL 2891178, at *1 (S.D.N.Y. July 13, 2010) ("The 
motion to dismiss the Indictment as the result of pre-indictment delay is therefore denied, without 
prejudice to appropriately supported later motion practice."); United States v. Drago, No. 18 Cr. 
0394 (SJF) (AYS), 2019 WL 3072288, at *2 (E.D.N.Y. July 15, 2019) (denying motion to dismiss 
on the ground of pre-indictment delay without prejudice to renewal). 
59 
EFTA00095151

As set forth herein, the defendant's suppression motions challenging a judicially approved 
grand jury subpoena should be denied without a hearing for multiple reasons. As an initial matter, 
the defendant's claim that the Government "circumvented" Martindell fails because the 
Government issued a valid grand jury subpoena, sought judicial authorization to permit 
compliance with the subpoena, and obtained materials from 
that otherwise would 
have been covered by the relevant protective order only after receiving such authorization. In any 
event, even if the Government's motion did not satisfy Martindell, Martindell provides no basis 
to suppress evidence, and the defendant cites no authority in support of that request. Second, the 
defendant's claim that the subpoena was a warrantless search in violation of the Fourth 
Amendment fails because she has not established standing to challenge a judicially approved grand 
jury subpoena issued to a third party. Even if she had standing, her claim still fails because 
suppression would be improper under the good faith exception and the inevitable discovery 
doctrine. Third, the defendant's claim that the subpoena violated her Fifth Amendment rights fails 
because, among other things, such a violation requires coercion and state action. Fourth, the 
defendant's claim that the Government violated the Due Process Clause is meritless as the 
Government's conduct was not, by any reasonable definition, outrageous or conscience shocking. 
And finally, the defendant's request for a hearing should be denied because she has proffered no 
admissible evidence to support her accusations of Government misconduct; instead, she relies 
entirely on an anonymously sourced article that, as detailed herein, she cites to describe certain 
events that simply did not occur. 
Accordingly, the defendant's suppression motions should be denied. 
A. 
Factual Background 
The defendant's motion is, at its core, premised on a false factual narrative. The defendant 
alleges, based on a New York Daily News article, that Boies Schiller and the Government colluded 
60 
EFTA00095152

starting in at least early 2016 with the "precise[] design[]" of having the defendant "charged with 
perjury." (Def. Mot. 3 at 10). In particular, she claims that Boies Schiller met with the 
Government in February 2016, urged the Government to open an investigation of Epstein and 
Maxwell, told the Government 
and met with the Government again in the 
summer of 2016 to ask if it would consider charging the defendant with perjury after her two 
depositions. (Id. at 2, 8). 
That is not so. While a now former Assistant United States Attorney ("AUSA-1") met 
with a lawyer from Boies Schiller and two other attorneys about Epstein in February 2016, that 
meeting was not focused on the defendant, and AUSA- I did not participate in a second meeting 
with those attorneys. Moreover, that February 2016 meeting pre-dated the depositions that gave 
rise to the perjury counts in the Indictment, which itself was obtained more than four years 
thereafter.26 The Indictment was instead the product of an investigation that was not opened until 
late 2018 and that had nothing to do with a meeting that had taken place nearly three years earlier 
with an AUSA who played no part in the decision to open the 2018 investigation and similarly 
played no part in the 2018 investigation itself. 
1. 
The Civil Lawsuit against Maxwell 
In or about September 2015, Giuffre, represented by Boies Schiller, filed a civil defamation 
lawsuit against Maxwell in the Southern District of New York. (See 15 Civ. 7433 (LAP), Dkt. 
No. 1). In short, Giuffre alleged that Maxwell had defamed her when Maxwell stated that Giuffre 
was not the victim of sex crimes perpetrated by Epstein and Maxwell. Giuffre alleged that 
Maxwell had made those false statements for the "malicious purpose of further damaging a sexual 
26 While, as discussed herein, the Government has uncovered evidence of a phone call from one 
of the attorneys, Stan Pottinger, to AUSA-1 in early May 2016, AUSA-1 has no specific memory 
of that call, nor did AUSA-1 provide any notes or records of that call to the team working on the 
instant investigation. 
61 
EFTA00095153

abuse and sexual trafficking victim; to destroy Giuffre's reputation and credibility; to cause the 
world to disbelieve Giuffre; and to destroy Giuffre's efforts to use her experience to help others 
suffering as sex trafficking victims." (Id. at 8). 
2. 
February 2016 Meeting 
Attorney Peter Skinner of Boies Schiller contacted AUSA-1, who was at that time the 
Human Trafficking and Project Safe Childhood Coordinator of the USAO-SDNY, to request an 
opportunity for him and other attorneys to meet with AUSA-1 to present on a potential case. (See 
Ex. 4 at 1).27 AUSA-1 agreed to the meeting, and on or about February 29, 2016, AUSA-1 met 
with three attorneys—Peter Skinner of Boies Schiller, Brad Edwards, and Stan Pottinger—
regarding Jeffrey Epstein. (See Ex. 4 at 1). Edwards and Pottinger were also attorneys for Virginia 
Roberts Giuffre, who had alleged that she is a victim of sex crimes perpetrated by Epstein and 
Maxwell.28 (Ex. 5 at 1).29
At the meeting, Edwards provided AUSA-1 with details about, among other things, the 
USAO-SDFL's prior investigation of Epstein, as well as Giuffre's personal history and experience 
with Epstein. (Ex. 5). The focus of the meeting was on Epstein and AUSA- I understood that the 
attorneys were advocating that the USAO-SDNY open an investigation into Epstein. (See Ex. 4 
at 1, 4). During the meeting, the attorneys referenced multiple individuals who worked for and/or 
helped Epstein, including Maxwell, but the attorneys primarily focused their presentation on 
Epstein. (See id. at 1-2, 4). The attorneys did not present particular criminal statutes that might 
27 On February 11, 2021, and to help gather facts relevant to the reporting contained in the New 
York Daily News article, the USAO-SDNY and the FBI conducted a telephonic interview of 
AUSA- I . Notes of that interview are attached as Exhibit 4. 
28 Peter Skinner of Boies Schiller is not listed on the docket as an attorney representing Giuffre. 
" AUSA-1's notes from the February 29, 2016 meeting are attached as Exhibit 5. 
62 
EFTA00095154

be pursued by the USAO-SDNY or make suggestions about investigative steps, nor did they 
suggest the use of civil lawsuits as a means to conduct a criminal investigation. (Id. at 2-3). 
AUSA- I did not tell the attorneys whether or not an investigation would be opened, consistent 
with her standard practice. (Id. at 3). After the meeting, she received a limited number of emails 
from the attorneys (see Exs. 6 & 7).3° AUSA- I did not participate in a second meeting with those 
attorneys and has never met David Boies. (See Ex. 4 at 4). 
AUSA- I recalls being aware of depositions as a general matter, but she does not recall 
having knowledge of who had been deposed or the substance of the depositions. (Id. at 5). She 
does recall thinking through the challenges of a potential perjury investigation. (Id.). AUSA- I 
does not recall being asked if the USAO-SDNY would consider charging Maxwell with perjury. 
(Id.). Moreover, and critically, however, for present purposes, the meeting described above pre-
dated the depositions which give rise to the perjury counts in the instant Indictment, making it all 
but impossible that the attorneys suggested, during that February 2016 meeting, that Maxwell had 
committed perjury in depositions that, as detailed below, had yet to occur. 
The Government has also conducted a review of AUSA- I 's emails in an effort to determine 
whether any further contacts occurred. One email dated May 3, 2016 from Pottinger to AUSA- I 
appears to suggest that AUSA- I spoke with Pottinger on or about May 2, 2016 by telephone (see 
Ex. 7), but AUSA-1 does not recall the details of that conversation (see Ex. 4 at 4), nor is the 
Government aware of any notes or other records documenting the substance of the call. The 
Government has not identified any records that suggest AUSA-1 ever communicated via email 
3° AUSA- I left the USAO-SDNY in 2019. Since receiving the defense Motion, the Government 
has searched AUSA-1's archived emails for any email communications with attorneys from Boies 
Schiller or the other attorneys who participated in the February 2016 meeting. The Government 
is producing all identified emails to defense counsel today. 
63 
EFTA00095155

with Pottinger, Edwards, Skinner, or any other attorney at Boies Schiller regarding this matter after 
May 3, 2016. 
The USAO-SDNY did not open an investigation into Epstein or Maxwell in 2016. (Id. at 
4). 
3. 
The April and July 2016 Depositions of Maxwell 
On March 2, 2016, Maxwell moved for an entry of a protective order for materials 
produced in discovery and submitted a proposed order for the consideration of the Honorable 
Robert W. Sweet, the United States District Judge who was then overseeing the Giu&•e v. Maxwell 
civil litigation. (See 15 Civ. 7433 (LAP), Dkt. Nos. 38 & 39-1). On or about March 4, 2016, Boies 
Schiller represented that Giuffre did not oppose the entry of a protective order, but opposed the 
form proposed by Maxwell out of concern that it was overly broad and could lead to over-
designation of material as confidential. (See 15 Civ. 7433 (LAP), Dkt. No. 40 at 2). Boies Schiller 
submitted a redline of Maxwell's proposed protective order, deleting some provisions and adding 
language that confidential material could be disclosed to law enforcement. (Def. Mot. 3, Ex. B).31
On March 18, 2016, Judge Sweet entered a protective order governing the discovery and 
dissemination of confidential information after the parties agreed to the form of the order originally 
proposed by Maxwell. (See 15 Civ. 7433 (LAP), Dkt. No. 62; see also Def. Mot. 3, Ex. G at 2-3). 
The protective order, among other things, restricted the parties from disclosing discovery materials 
marked confidential to third parties, absent express permission from the Court. 
In connection with the defamation suit, Maxwell was deposed by Boies Schiller, counsel 
for Giuffre, on April 22, 2016 and July 22, 2016. 
31 As of March 7, 2016, Maxwell had only produced two emails in response to Giuffre's discovery 
requests. (See 15 Civ. 7433 (LAP), Dkt. No. 43 at 1-2). 
64 
EFTA00095156

On or about May 24, 2017, the parties entered into a settlement agreement and voluntarily 
dismissed the civil action. (See 15 Civ. 7433 (LAP), Dkt. No. 916). Boies Schiller has continued 
to represent Giuffre in post-settlement litigation. Giuffre v. Maxwell, No. 18-2868 (2d Cir.); 
Giuffre v. Maxwell, No. 20-2413 (2d Cir.). 
4. 
The USAO-SDNY Commences the Instant Investigation in 2018 
On or about November 29, 2018, the USAO-SDNY initiated its investigation into Epstein 
and possible co-conspirators, and formally opened the investigation on or about November 30, 
2018. The investigation was prompted by a series of articles published by the Miami Herald earlier 
that same week relating to Epstein, his conduct, and the circumstances of his prior conviction. See 
Julie K. Brown, Even from Jail, Sex Abuser Manipulated The System. His Victims Were Kept in 
The Dark, Miami Herald, Nov. 28, 2018.32 AUSA-1 was not involved in the decision to open the 
investigation or the investigation itself. (See Ex. 4 at 6). Indeed, AUSA-1 stopped serving as the 
Office's Human Trafficking and Project Safe Childhood Coordinator as of April 2017. 
In or about late November or early December 2018, shortly after opening the investigation, 
the prosecutors involved in the investigation learned of the prior February 2016 meeting and 
requested copies of AUSA-1's notes and records from that meeting. On or about December 6, 
2018, AUSA-1 provided the prosecutors with her notes from the February 2016 meeting (which 
are attached as Exhibit 5) and documents the attorneys provided.33
32 Indeed, on July 8, 2019, at the press conference following the arrest of Epstein, Geoffrey S. 
Berman, then United States Attorney for the Southern District of New York, stated that while he 
was not "going to go into any aspects of how our investigation originated[,] I will say that we were 
assisted from some excellent investigative journalism." 
33 The Government has reviewed the file that AUSA-1 provided to the prosecution team on or 
about December 6, 2018 and understands, based on a review of that file, that at the February 2016 
meeting, AUSA-1 received copies of Epstein's black book, flight records, and Palm Beach Police 
Department reports. Although AUSA-1 does not now recall the attorneys providing her with any 
65 
EFTA00095157

5. 
The USAO-SDNY's Subpoenas and Ex Pane Applications for 
Materials 
SOW- after opening t 
mment identified 
possible victims and their counsel trroiigh 
ich ina 
Boies 
Schiller. (Def. Mem. 3, Ex. E at 2-3). 
SDNY first cont 
oies Schiller about its 
investigation on or about December 18, 2018. Shortly thereafter, in oar 
December or January 
2018, the Go'
 indicated to Boies Schiller that it intended to make document requests. 
Boies Sailleralk,adxissedke Government that a protective orderyttould,pallsome of the 
In or about February 2019, approximately two months after the USAO-SDNY opened its 
investigation (and almost three years after the February 29, 2016 meeting described above), the 
USAO-SDNY issued two criminal grand jury subpoenas to Dies Schiller. One of .ri 
requested non 
oc 
g to GiuffiR v. Maxwell, la_ 
p433 (Ra 
!vnalble  saraaigpagialn 
Because 
of the ongoing and covert nature of the grand jury investigation, and consistent with its standard 
practice under such circumstances, the Government did not notify the defendant or her counsel 
that it had issued the subpoenas. 
documents at the meeting (Ex. 4 at 2), an email she sent to the prosecution team on December 6, 
2018 refers to these documents as materials that the attorneys provided at the meeting. 
Moreover, the Government notes that as of March 7, 2016, one week after AUSA-1's 
February 29, 2016 meeting with the attorneys when she received these documents, Maxwell had 
only produced two emails in response to Giuffre's discovery requests. (See 15 Civ. 7433 (LAP), 
Dkt. No. 43 at 1-2). None of the documents provided to AUSA-1 during the February 2016 
meeting was an email. Accordingly, the Government has no reason to believe that Giuffre's 
counsel provided AUSA-1 with any discovery materials from the Giuffre v. Maxwell civil case. 
AUSA-1 also does not believe she ever received any such discovery materials. (Ex. 4 at 6). 
66 
EFTA00095158

In response to receiving the subpoenas, Doles So
 began producing materials not 
covered by the protective orders in the relevant civil cases. 
Accordingly, the Government applied ex parte and under seal to each relevant court (MI=Il 
and Magistrate Judge Sarah Na 
respectively) to request that each court modify the respective 
protective orders to permit compliance with the subpoenas. (Def. Mot. 3, Ex. C). 
Following a request by e
r for bri 
initial 
al7oplication, see Def. Mot. 3, Ex. D at lailEx. G at 6, th 
pane and 
sealed letters in support of its applications to each court on, 
9). The Government wrote, "Where, as here, a grandleand_the 
recipient of the subpoena is not contesting compliance—but rath 
ply 
with the subpoena—a court should grant such permission throw nfiffliffie 
of an 
applicable protective order, absent countervailing interests not pran 
this castehe 
Government submitted that the court was "best guided" by Chaal
ialirs. 
Co., 154 F.R.D. 91, 93 (S.D.N.Y. 1994), in which the court rejected an aalEMIISr a!
civil litigation to be held in contempt 
with a grand jury r 
Lproducing
materials in violation of a protective anast
because the court would have granted such authodarine 
cOgriTso 
stated that such formal judicial approval could IingiMgrallille if sufficient reason was 
proani, 
In its letters, the amment noted that its "S
 knowledge of the subject 
34 Significantly, and as detailed herein, 
did not produce to the Government any 
materials subject to the protective orders until, as further described below, it received an order 
granting it the ability to do so in one of the civil cases. 
67 
EFTA00095159

matter of discovery materials is relatively limited, due to the confidential nature" of the litigation. 
(Id. at 2 n.1). The Government also submitted that the court need not employ the Martindell 
balancing test to evaluate the Government's ability to obtain access to materials covered by a 
protective order because (1) the Martindell balancing test generally relates to "instances where the 
Government sought protected information without [ ] grand jury process" and (2) "any 
presumption against modification of a protective order is unreasonable where, as here, the 
protective order is on its face temporary or limited." (Id. at 3-4). 
6. Proceedings before 
a. 
Chief Judge McMahon 
March 26, 2019 Hearing 
Judge Sweet passed away in March of 2019 before ruling on the Government's application. 
After Judge Sweet's death, but before the civil case was reassigned to a new judge, Chief Judge 
McMahon took up the Government's application. Chief Judge McMahon subsequently inquired 
about the Government's application in two transcribed er pane and sealed hearings. (Def. Mot. 
3, Exs. D & E). At the first hearing, on March 26, 2019, Chief Judge McMahon inquired as to 
why Boies Schiller did not make an application for permission to be relieved from the protective 
order, to which the Government replied that it could not "speak to why Boies Schiller in particular 
didn't make their own application." (Def. Mot. 3, Ex. D at 3). The Government further noted that 
Boies Schiller "simply isn't in a position to be able to describe the investigation in the way that 
we have in our submission." (Id. at 11-12). Chief Judge McMahon noted that she believed that 
Martindell was applicable. (Id. at 3). She stated that were the Government's application disclosed 
to the parties, "Maxwell would protest" and argue that the Government lacked standing as it was 
not a party to the protective order. (Id. at 8). In response to questions from Chief Judge McMahon, 
the Government explained that the protective order, on its face, did not implicate the types of 
OS 
EFTA00095160

confidential business information or trade secrets ordinarily considered by courts in conducting 
the Martindell balancing test. (Id. at 13). 
Chief Judge McMahon stated that the protective order did not contain a provision allowing 
a party to the order to disclose materials requested by law enforcement without permission of the 
court, noting her understanding that "it may have been negotiated out." (Id. at 14-15). The court 
inquired whether the Government's position was that "reliance on the nondisclosure of 
confidential materials to law enforcement in connection with a grand jury subpoena that has been 
duly authorized would be unreasonable." (Id. at 14). The Government responded in the 
affirmative, stating that the Government believed a provision precluding compliance with a law 
enforcement request would be void for public policy. (Id. at 15). The Government further cited 
Chemical Bank in support of the proposition that it would be unreasonable to rely on a protective 
order provision that barred the disclosure of information to law enforcement. (Id. at 15-16). 
In response to questions about the breadth of the subpoena, the Government explained that 
it was "essentially unable to significantly narrow the request for information . . . . We have either 
little or no additional information than the Court does in terms of what materials there are [and] 
who was deposed." (Id. at 17). In response to Chief Judge McMahon's question about the privacy 
interests implicated by the protective order, id. at 16-17, the Government also noted that it was 
dissimilar to an ordinary third-party intervenor in that it would be "extremely restricted" in its use 
of the materials in light of the "extraordinary protections" of Fed. R. Crim. P. 6(e). (Id. at 17-18). 
Finally, Chief Judge McMahon also inquired whether the materials sought by the 
Government might be used to commence criminal proceedings against either of the parties to the 
libel case, i.e., including Maxwell. (Id. at 18). The Government acknowledged that possibility as 
a general matter. (Id.). Chief Judge McMahon noted that the parties to the protective order relied 
69 
EFTA00095161

on that order "in order to give whatever in discovery they gave, whether it was deposition 
testimony they gave or — then again, I can't fathom why anybody who has any criminal exposure 
would not have taken the Fifth Amendment in response to questions in a civil deposition, but I 
don't know." (Id. at 18-19). The Government stated, "I do not know, but I think it is entirely 
possible that what we are seeking is page after page of people taking the Fifth. That is entirely 
possible. But to the extent that it is not or there are other materials -- and this may be bad for our 
argument, but in all transparency and candor, I think there may be other individuals who also relied 
on the protective order." (Id.). The Government further explained that it "want[ed] to have a 
formal application" for the relevant materials and took that approach to "avoid the types of 
problems" created by other less formal government requests in other cited cases. (Id. at 20). 
b. 
April 9, 2019 Hearing 
Chief Judge McMahon held another conference on April 9, 2019. She stated that she 
wanted "to make sure I'm not in a Chemical Bank kind of situation, so I would like to know about 
contacts between [the USAO-SDNY and Boies Schiller] prior to the issuance of the subpoena on 
the subject of your investigation." (Def. Mot. 3, Ex. E at 2 (emphasis added)).35 In Chemical 
Bank, of course, as noted above, the subpoena recipient produced materials to a prosecutor in 
direct violation of the relevant protective order, without seeking a modification of the protective 
order and without any court authorization to do so. 154 F.R.D. at 93. Mongargb
ithe 
District Attorney seemingly opened its investigation and issued the summa inl 
information provided by the subpoeilktecipient who was then a party
35 Tellingly, Maxwell omits the italicized portion of this question from her motion, thereby 
stripping important context from the  nature of, 
was focused on "your 
(See Del Mot. 3 at 7). 
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The Government responded to Chief Judge McMahon by explaining its contacts with Boies 
Schiller in connection with the instant (and only) investigation it had opened on Epstein, that is, 
the investigation prompted by, and opened following, public reporting on Epstein in November 
2018. In particular, the Government explained that the USAO-SDNY opened an investigation 
first, on either November 30, 2018 or December 3, 2018, and then made contact with Boies Schiller 
shortly thereafter. (Def. Mot. 3, Ex. E at 2-3). In this respect, the Government further explained 
that the USAO-SDNY, after opening the investigation, had endeavored to identify counsel who 
represented victims or witnesses in public filings or media reports, which included Boies Schiller, 
noting that "[w]ith respect to Boies Schiller in particular, we quickly came to learn during the 
investigation that they had at the time either active or recently completed civil litigation" and 
indicated that the USAO-SDNY intended to make document requests. (Id.). The Government 
also noted that, unlike in Chemical Bank, here Boies Schiller had informed the Government that it 
would be unable to comply with the subpoena in light of the protective order. (Id.) (noting that 
Boies Schiller "generally advised us that they believed there was a protective order that would 
govern at least some of the materials, and that is why we ultimately made the application to the 
Court."). 
c. 
Chief Judge NIcMahon's Memorandum and Order 
On or about April 9, 2019, Chief Judge McMahon granted the Government's application 
and issued a memorandum and order. (Def. Mot. 3, Exs. F & G). The Court noted that while the 
Government's application was procedurally 10r-regular," there was precedent for granting the 
Government's request and, therefore, the Court would consider the application. (Def. Mot. 3, Ex. 
G at 6, 8-9). The Court found that, contrary to the Government's arguments, it was appropriate 
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for the Court to analyze the Government's application in light of the Martindell factors. (Id. at 9-
12). 
In so doing, Chief Judge McMahon considered, among other things, "the degree to which 
. . the party who could be expected to oppose unsealing[] reasonably relied on the protective 
order." (Id. at 16). She concluded that such reliance was unreasonable. (Id. at 22). She evaluated 
the factors under Second Circuit case law that are relevant to assessing whether a party's reliance 
on the protective order was reasonable, namely the scope of the protective order, the language of 
the order itself, the court's level of inquiry before granting the order, and the nature of reliance on 
the order. (Id. at 17). She concluded that first three factors favored granting the Government's 
application for modification. (Id. at 17-20). Chief Judge McMahon noted that, as the order 
"plainly gives the court the power to enter an order compelling disclosure to anyone—law 
enforcement included—Maxwell could not reasonably have relied on the absence of automatic 
permission for such disclosure to shield anything she said or produced from a grand jury's 
scrutiny." (Id. at 18-19). 
As to the last factor, Chief Judge McMahon found that "the nature of the parties' reliance 
on the order does seem to weigh against modification." (Id. at 20). She noted that the record 
indicated that "Giuffre likely could not have secured Maxwell's deposition—at least in the absence 
of substantial court involvement—without" the protective order. (Id.). "However, the only thing 
on which Maxwell or anyone else might reasonably have relied is that Giuffre or her lawyers would 
not do what the defendant in Chemical Bank did—that is, forward discovery materials in their 
possession to prosecutors for the purpose of fomenting an investigation. But I am not faced with 
that situation." (Id. at 21). Chief Judge McMahon further stated, "Nothing in this record suggests 
to me that Giuffre or Boies Schiller had anything to do with the Government's decision to convene 
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a grand jury to look into the matters that were the subject of the [civil lawsuit]." (Id.). Instead, 
she explained that the Government informed the Court that it had "contacted Boies Schiller as part 
of its search for parties who might have been victims in its investigation; and that Boies Schiller 
told the Government that it could not consensually produce at least some documents in its files 
because of the existence of the Protective Order." (Id.). Chief Judge McMahon concluded that 
was "quite clear that Boies Schiller did not foment the Government's investigation." (Id.). 
Among other conclusions, Chief Judge McMahon found that because Maxwell's relianTI 
on the protective order in that case as a "shield [. . .] from the court-ordered disclosure of 
Confidential Materials pursuant to a grand jury subpoena was unreasonable, the Court may 
exercise its discretion to grant the Government's application." (Id. at 22). The Court further 
concluded that "[t]he Government has persuasively demonstrated extraordinary circumstances, 
which would entitle it to modification in any event." (Id.). She also noted that "while in othij 
circumstances the breadth of the subpoena might be troubling, here the Government is in no 
position to narrow its request, because [the civil case] was litigated almost entirely under seal." 
(Id. at 25). 
Chief Judge McMahon permitted that the Government share the order—and only that 
order, which itself prohibited further dissemination, and not including any other materials 
associated with the Government's application—with Boies Schiller. The relevant order was 
provided to Boies Schiller shortly after it was issued. The materials provided by Boies Schiller 
included, in addition to deposition transcripts of Maxwell and other individuals, materials 
produced by Giuffre, Maxwell, and non-parties, and court-related pleadings in the civil case. 
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7. 
Magistrate Judge Netburn's Order 
On or about April 9, 2019, the Government advised Judge Netburn, who had not yet ruled 
on the Government's other application in Jane Doe 43 v. Epstein, et al., 17 Civ. 0616 (JGK) (SN), 
of Chief Judge McMahon's decision via a pane and sealed letter. (Def. Mot. 3, Ex. 1). 
Subsequently, on April 16, 2019, Judge Netburn denied the Government's application. (Def. Mot. 
3, Ex. H). Judge Netburn found that she was authorized under the All Writs Act to modify the 
protective order, but declined to do so as the Government had not established exceptional 
circumstances or a compelling need. (Id. at 3). She concluded that on the record before her, the 
parties' reliance on the protective order was reasonable and the presumption of confidentiality 
should apply. (Id. at 5-6). The court rejected the Government's arguments for exceptional 
circumstances and compelling need as relying on "the general desire for secrecy" and 
"unpersuasive" under the Martindell standard. (Id. at 6). Judge Netbum concluded that "the 
Government must demonstrate not that this investigation is an extraordinary circumstance, but that 
the reason for• seeking the documents is so extraordinary or compelling that there is a need to 
modify the Protective OaliThe Government has not met that standard." (Id. at 7) (emphasis in 
original). 
8. 
Unsealing of Maxwell's Depositions 
Giuffre v. Maxwell was 
reassigned to the Honorable Loretta A. Preska on July 9, 2019. On or about July 23, 2020, Judge 
Preska ordered unsealed certain litigation materials, including, and related to, Maxwell's April 
2016 deposition transcript. (See 15 Civ. 7433 (LAP), Dkt. No. 1077). Maxwell appealed Judge 
Preska's order, arguing that the court abused its discretion in ordering the unsealing of the 
deposition materials and that Maxwell's interests outweighed the public's interests in access to the 
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