EFTA00102999

2. 
Discussion 
Even if the defendant could establish any actual prejudice—which she cannot—such 
prejudice would be "necessary but not sufficient" to establish a due process claim. Lovasco, 431 
U.S. at 790. The defendant's motion fails because she has not demonstrated the other necessary 
element to prevail: that the claimed delay by the Government was intentional and deliberate to 
gain a strategic advantage. Here, as in Lovasco, any pre-indictment delay was the result of the 
Government's continuing investigation of the case. The Lovasco Court held that the investigative 
delay did not deprive the defendant of his due process rights and noted that imposing a duty upon 
prosecutors to file charges as soon as probable cause exists "'would have a deleterious effect both 
upon the rights of the accused and upon the ability of society to protect itself!" Id. at 791 (quoting 
United States v. Ewell, 383 U.S. 116, 120 (1966)). 
The same is true in the present case. The defendant has not shown—and cannot show—
that the Government caused any pre-indictment delay in this case to gain a tactical advantage. The 
defendant argues that It]actical, reckless, and bad faith motives can reasonably be inferred from 
the way the government has ignored evidence, delayed any prosecution, enlisted partisan lawyers 
to do its bidding, circumvented established precedent to illegally obtain evidence, and 
misleadingly quoting banal testimony so that it could be labeled `perjury."' (Def. Mot. 7 at 15). 
But rhetoric aside, the defendant offers nothing beyond baseless speculation in support of her 
claims. 
The defendant claims a twenty-six-year delay on the part of the Government in bringing 
Counts One through Four and a four-year delay as to Counts Five and Six. (Def. Mot. 7 at 4). 
That is not so. The USAO-SDNY opened its investigation into Epstein and his co-conspirators in 
late November 2018. See Section IV, infra. Epstein was charged by indictment on July 2, 2019. 
Thereafter, the Government continued its investigation, which included interviewing two victims 
54 
EFTA00103079

(Minor Victim-1 and Minor Victim-3) for the first time. In particular, Minor Victim-1 first agreed 
to be interviewed in September 2019, and Minor Victim-3 first agreed to be interviewed in August 
2019.2' 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.' 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 
2' 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. 
22 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 (`nld 
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 (with respect to 
Maxwell, "according to 
n 2007, they `didn't have any specific evidence against her."). 
55 
EFTA00103080

satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable 
doubt." (internal quotation marks and citations omitted)). 
Moreover, even if the Court were to determine that a twenty-six-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 
pre-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 Boies Schiller & Flexner LLP ("Boles Schiller") 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 
56 
EFTA00103081

process, the inference that the defendant urges this Court to draw—that the Government delayed 
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 
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 
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 
23 In particular, 
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 
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 
v. Maxwell. 
57 
EFTA00103082

particular, this matter appears to be the only remaining active civil case in this District in which 
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 supposedly 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 or 
evidence 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 establish that the Government intentionally 
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 [], 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.1 (S.D.N.Y. Nov. 17, 2000) ("Neither the Supreme Court nor the Second Circuit . . . has 
adopted this alternative [recklessness] standard."). 
58 
EFTA00103083

manufactured any alleged delay to gain a tactical advantage over her. She has "offered no credible 
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.' 
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 Boies Schiller 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. Cotp., 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 Chief Judge McMahon 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 
'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 and discussed further in 
Section X, infra, the Government has complied with its Rule 16 obligations and will produce 
Giglio and Jencks Act materials well in advance of trial. 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 
EFTA00103084

motions, the suppression motions overlap in fact and argument, and accordingly, the Government 
responds to both motions in this section. 
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 Boies Schiller 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, and because the subpoena was entirely lawful. 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. 
60 
EFTA00103085

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 
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 what was in its files, 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-1 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? 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, M, 
represented by Boies Schiller, filed a civil defamation 
lawsuit against Maxwell in the Southern District of New York. (See 15 Civ. 7433 (LAP), Dkt. 
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 
EFTA00103086

No. 1). In short, 
alleged that Maxwell had defamed her when Maxwell stated that 
was not the victim of sex crimes perpetrated by Epstein and Maxwell. 
alleged that 
Maxwell had made those false statements for the "malicious purpose of further damaging a sexual 
abuse and sexual trafficking victim; to destroy 
reputation and credibility; to cause the 
world to disbelieve 
and to destroy 
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 
who had alleged that she is a victim of sex crimes perpetrated by Epstein and 
Maxwell.28 (Ex. 5 at I).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 
personal history and experience 
with Epstein. (See Ex. 5). The focus of the meeting was on Epstein, and AUSA-1 understood that 
the attorneys were advocating that the USAO-SDNY open an investigation into Epstein. (See Ex. 
27 On February 11, 2021, 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-1. 
Notes of that interview are attached as Exhibit 4. 
" Peter Skinner of Boies Schiller is not listed on the docket as an attorney representing 
" AUSA-1's notes from the February 29, 2016 meeting are attached as Exhibit 5. 
62 
EFTA00103087

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 
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-1 did not tell the attorneys whether or not an investigation would be opened, consistent 
with her standard practice. (Id. at 3). After the meeting, AUSA-1 received a limited number of 
emails from the attorneys (see Exs. 6 & 7).30 AUSA-1 did not participate in a second meeting with 
those attorneys and has never met David Boies. (See Ex. 4 at 4). 
AUSA-1 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). AUSA-
1 does recall thinking through the challenges of a potential perjury investigation, but she does not 
recall who specifically would have been he target of such an investigation. (Id.). AUSA-1 does 
not recall being asked if the USAO-SDNY would consider charging Maxwell with perjury. (Id.). 
Moreover, and critically 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-1's emails in an effort to determine 
whether any further contacts occurred. One email dated May 3, 2016 from Pottinger to AUSA-1 
appears to suggest that AUSA-1 spoke with Pottinger on or about May 2, 2016 by telephone (see 
" AUSA-1 left the USAO-SDNY in 2019. Since receiving the Defense Motions, 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 
EFTA00103088

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 
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. (M. at 
4). 
3. 
The April and July 2016 Depositions of Maxwell 
On March 2, 2016, Maxwell moved for 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 
v. Maxwell civil 
litigation. (See 15 Civ. 7433 (LAP), Dkt. Nos. 38 & 39-1). On or about March 4, 2016, Boies 
Schiller represented that 
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). 
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). 
64 
EFTA00103089

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 
on April 22, 2016 and July 22, 2016. 
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 
in post-settlement litigation. 
v. Maxwell, No. 18-2868 (2d Cir.); 
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 by completing the requisite 
paperwork to open an 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).3' AUSA-1 was not involved in the decision to open the investigation or 
in 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. 
Shortly after initiating 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 
3' 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." 
65 
EFTA00103090

from that meeting. On or about December 6, 2018, AUSA- I provided the prosecutors with her 
notes from the February 2016 meeting (which are attached as Exhibit 5) and documents the 
attorneys provided.32
5. 
The USAO-SDNY's Subpoenas and Ex Pane Applications for 
Materials 
Shortly after opening the investigation in late November 2018, the Government identified 
possible victims and their counsel through public filings or media reports, which included Boies 
Schiller. (Def. Mem. 3, Ex. E at 2-3). The USAO-SDNY first contacted Boies Schiller about its 
investigation on or about December 18, 2018. Shortly thereafter, in or about December or January 
2018, the Government indicated to Boies Schiller that it intended to make document requests. 
Boies Schiller generally advised the Government that a protective order would govern some of the 
materials. (Id. at 3). 
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 Boies Schiller. One of the subpoenas 
requested non-privileged documents relating to 
v. Maxwell, 15 Civ. 7433 (RWS); the other 
32 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 
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. 
The Government notes that as of March 7, 2016, one week after AUSA-1's February 29, 
2016 meeting with the atto
en she received these documents, Maxwell had only produced 
two emails in response to n 
discovery requests. (See 15 Civ. 7433 (LAP), Dkt. No. 43 at 
1-2). None of the documents apparently provided to AUSA- I during the Febru 
2016 meeting 
was an email. Accordingly, the Government has no reason to believe that 
counsel 
provided AUSA-1 with any discovery materials from the 
v. Maxwell civil case. AUSA- I 
also does not believe she ever received any such discovery materials. (Ex. 4 at 6). 
66 
EFTA00103091

requested the same relating to Jane Doe 43 v. Epstein, et al., 17 Civ. 0616 (JGK) (SN). 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. 
In response to receiving the subpoenas, Boies Schiller began producing materials not 
covered by the protective orders in the relevant civil cases. However, Boies Schiller also had 
advised the Government that although it would not otherwise contest compliance with the 
subpoenas, it believed that the protective orders precluded full compliance.33 (Exs. 8 & 9). 
Accordingly, the Government applied ex parte and under seal to each relevant court (Judge Sweet 
and Magistrate Judge Sarah Netbum, 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 Judge Sweet for briefing supporting the Government's initial 
application, see Def. Mot. 3, Ex. D at 4, 20; Ex. G at 6, the Government submitted ex parte and 
sealed letters in support of its applications to each court on or about February 28, 2019. (Exs. 8 & 
9). The Government wrote, "Where, as here, a grand jury subpoena has validly issued, and the 
recipient of the subpoena is not contesting compliance—but rather seeking authorization to comply 
with the subpoena—a court should grant such permission through limited modification of an 
applicable protective order, absent countervailing interests not present in this case." (Id. at 2). The 
Government submitted that the court was "best guided" by Chemical Bank v. Affiliated FM Ins. 
Co., 154 F.R.D. 91, 93 (S.D.N.Y. 1994), in which the court rejected an application for a party in 
civil litigation to be held in contempt for complying with a grand jury subpoena by producing 
' 3 Significantly, and as detailed herein, Boies Schiller 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 
EFTA00103092

materials in violation of a protective order, without first obtaining authorization from the court, 
because the court would have granted such authorization had it been sought. (Id.). The court also 
stated that such formal judicial approval could be obtained ex pane if sufficient reason was 
provided. (Id.). In its letters, the Government noted that its "specific knowledge of the subject 
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 Matthaei! 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 Chief Judge McMahon 
a. 
March 26, 2019 Hearing 
Judge Sweet passed away in March 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 ex 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 
68 
EFTA00103093

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 
confidential business information or trade secrets ordinarily considered by courts in conducting 
the Menhaden 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." (hi. 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 
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of the materials in light of the "extraordinary protections" of Federal Rule of Criminal Procedue 
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 
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)).34 In Chemical 
Tellingly, Maxwell omits the italicized portion of this question from her motion, thereby 
stripping important context from the nature of Chief Judge McMahon's question which, as asked, 
was focused on "your investigation." (See Def. Mot. 3 at 7). 
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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. Moreover, in that case, the 
District Attorney seemingly opened its investigation and issued the subpoena in direct response to 
information provided by the subpoena recipient who was then a party to civil litigation. Id. 
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 McMahon's Memorandum and Order 
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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 "[i]rregular," 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 
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 a 
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 
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on which Maxwell or anyone else might reasonably have relied is that 
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 
or Boies Schiller had anything to do with the Government's decision to convene 
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 it 
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 reliance 
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 other 
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 
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