EFTA00086658

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK 
x 
UNITED STATES OF AMERICA, 
v. 
GHISLAINE MAXWELL, 
Defendant. 
: 
20 Cr. 330 (MN) 
x 
MEMORANDUM OF GHISLAINE MAXWELL 
IN SUPPORT OF HER MOTION UNDER THE DUE PROCESS CLAUSE TO 
SUPPRESS ALL EVIDENCE OBTAINED FROM THE GOVERNMENT'S SUBPOENA 
TO BOIES SCHILLER AND TO DISMISS COUNTS FIVE AND SIX 
Jeffrey S. Pagliuca 
Laura A. Menninger 
HADDON, MORGAN & FOREMAN P.C. 
150 East 10th Avenue 
Denverile. 
Phone: 
Mark S. Cohen 
Christian R. Everdell 
COHEN & GRESSER LLP 
800 Third Avenue New 
York, NY 10022 
Phone: 
Bobbi C. Stemheim 
Law Offices of Bobbi C. Stemheim 
33 West 19th Street - 4th Floor 
New York NY 10011 
Phone: 
Attorneys for Ghislaine Maxwell 
EFTA00086658

TABLE OF CONTENTS 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES 
ii 
TABLE OF EXHIBITS 
iv 
INTRODUCTION AND SUMMARY OF THE ARGUMENT 
1 
FACTUAL BACKGROUND 
2 
A. 
The Protective Order 
Maxwell 
2 
B. 
Maxwell's April and July 2016 depositions 
4 
C. 
The Settlement And Boles Schiller's Refusal To Comply With The Protective Order 
6 
D. 
The Government's False Statements To Judge McMahon 
6 
E. 
Judge Netburn Separately Rejects An Identical Gambit By The Government 
 10 
ARGUMENT 
11 
A. 
Pursuant To Its Inherent Power, This Court Should Suppress The Evidence Obtained 
From Boies Schiller, And Dismiss Counts Five And Six, Which Are The Fruits Of That 
Evidence 
 11 
I. 
The role of protective orders in civil litigation 
 11 
2. 
The government circumvented the protective order 
 12 
3. 
The government violated due proces • 
 14 
4. 
This court possesses the inherent authority to order suppression 
 15 
B. 
At A Minimum, This Court Should Order A Hearing At Which Maxwell May Inquire 
Into The Circumstances Surrounding The Government's Misrepresentations To Judge 
McMahon 
 16 
CONCLUSION 
16 
Certificate of Service 
 18 
EFTA00086659

TABLE OF AUTHORITIES 
Cases 
Benkovitch v. Gorilla, Inc., No. 2:15-ev-7806 (WJM), 2017 WL 4005452 (D.N.J. Sept. 12, 2017) 
 
17 
Brown v. Maxwell, 929 F.3d 41 (2d Ck 2019) 
3, 6 
Chambers v. NASCO, Inc., 510 U.S. 32 (1991) 
 17 
Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994) 
passim 
Franks v. Delaware, 438 U.S. 154 (1978) 
18 
Giglio v. U.S., 405 U.S. 150 (1972) 
16 
Maxwell, 325 F. Supp. 3d 428 (S.D.N.Y. 2018) 
6 
Klein v. Weidner, Civ. No. 08-3798, 2017 WL 2834260 (E.D. Pa. June 30, 2017) 
 17 
Manhattan Review LLC v. Ytni, 16 Civ. 0102 (LAK) (JCF), 2017 WL 11455317 (S.D.N.Y. Sept. 
21, 2017) 
17 
Martindeli v. Intl Tel. & Tel. Corp., 594 F.2d 291 (2d Cir. 1979) 
 12, 13 
S.E.C. v. TheStreet.Com, 273 F.3d 222 (2d Cir. 2001) 
12 
Stewart v. Hudson Hall LLC, 20 Civ. 885 (SLC), 2020 WL 7239676 (S.D.N.Y. Dec. 9, 2020) 12 
United States v. Avellino, 136 F.3d 249 (2d Cir. 1998) 
16 
United States v. Cortina, 630 F.3d 1207 (7th Cir. 1980) 
 16 
United States v. Lambus, 897 F.3d 368 (2d Cir. 2018) 
 16 
United States v. Paredes-Cordova, No. S I 03 CR. 987DAB, 2009 WL 1585776 (S.D.N.Y. June 
8, 2009) 
 18 
United States v. Rajaratnam, 719 F.3d 139 (2d Ck. 2013) 
 18 
United States v. Valentine, 820 F.2d 565 (2d Cir. 1987) 
 16 
Young v. United States, 481 U.S. 787 (1987) 
 16 
ii 
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Other Authorities 
Norman Mailer, "An Appeal to Lillian Hellman and Mary McCarthy," 5/11/80 New York Times 
 
2 
Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and 
Ghislaine Maxwell case in 2016, New York Daily News (Oct. 13, 2020) 
9 
Rules 
Fed. R. Civ. P. 1 
 12 
Constitutional Provisions 
U.S. CONST. amend. V 
 15 
iii 
EFTA00086661

TABLE OF EXHIBITS 
EXHIBIT A: Civil Protective Order 
EXHIBIT BMProtective Order Proposal 
EXHIBIT C: Sealed Affirmation and Application, USAO Ref. No. 2018R01618, 2/5/2019 
EXHIBIT D: Transcript, 3/26/2019 
EXHIBIT E: Transcript, 4/9/2019 
EXHIBIT F: Sealed Order (19 Misc. 149 (CM)), 4/9/2019 
EXHIBIT G: Sealed Memorandum Decision and Order Granting the Government's Application to 
Modify the Protective Order (19 Misc. 149 (CM)), 4/9/2019 
EXHIBIT H: Sealed Order (I 9-MC-00179 (SN)), 4/16/2019 
EXHIBIT I: Sealed Letter to Judge Netbum, 4/9/2019 
iv 
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Ghislaine Maxwell moves to suppress all evidence the government obtained from a grand 
jury subpoena it issued to Boies Schiller Flexner LLP and to dismiss Counts Five and Six, which 
are the fruits of that unlawful subpoena. 
INTRODUCTION AND SUMMARY OF THE ARGUMENT 
Counts Five and Six allege that Maxwell committed perjury during two civil depositions 
conducted by Boies Schiller in a defamation action it filed against Maxwell on behalf of one of 
the firm's clients.M. 
Maxwell, Case No. 15-cv-7433 (LAP) (S.D.N.Y). A Protective 
Order entered in that case prohibited the parties and their lawyers from sharing confidential 
discovery material (including the two Maxwell depositions) with anyone else, including with the 
government and law enforcement. Faced with that Protective Order, the government issued a 
grand jury subpoena for Boies Schiller's file and instituted an ex parte proceeding before Chief 
Judge McMahon to modify the Protective Order. By proceeding ex pane, the government 
ensured that no one before the court would be able to contest the accuracy of its representations 
in support of its application. 
The government then took full advantage. Judge McMahon, citing this Court's decision 
in Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994), asked the 
government, point blank, whether Southern District prosecutors had previously met with the 
Boies Schiller firm or otherwise "collu[dedr with that firm in arranging the discovery request. 
The government lawyer assured Judge McMahon that the prosecutors had no idea what was in 
Boies Schiller's file. Indeed, he insisted, there had been no contact whatsoever between Boies 
Schiller and United States Attorney's Office before the government commenced its investigation. 
Nor, said the prosecutor, did Boies Schiller have any role instigating the Maxwell inquiry. 
I 
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To paraphrase Mary McCarthy's philippic about Lillian Hellman, every word of the 
government's representation was untrue, "including 'and' and `the." The government knew 
what was in the Boies Schiller file; the law firm had provided that information well before the 
investigation began. The government did indeed have previous contact with the firm. And Boies 
Schiller was instrumental in fomenting the Maxwell prosecution. 
The record is surpassingly clear: But for the government's misrepresentation, witting or 
not, Judge McMahon never would have permitted the circumvention of the civil Protective 
Order, on which Maxwell relied in agreeing to sit for her depositions. This Court therefore has 
both the authority and the duty to suppress the fruits of that misrepresentation, including the 
deposition transcripts and the two perjury counts based on those transcripts. If the Court is 
disinclined to exercise that inherent authority on the present record, Maxwell should be granted a 
hearing to examine the circumstances that resulted in the government's misrepresentations to 
Judge McMahon. 
FACTUAL BACKGROUND 
A. The Protective Order in 
v. Maxwell 
Counts Five and Six of the superseding indictment allege that Maxwell committed 
perjury during two civil depositions taken in 
v. Maxwell, a civil defamation case Virginia 
=filed 
in 2015. 
claimed that Maxwell defamed her when Maxwell's attorney-hired 
press agent denied as "untrue" and "obvious 
numerous allegations, over the span 
of four years, that Maxwell had participated in a scheme to cause 
to be "sexually abused 
and trafficked" by Jeffrey Epstein. 
' See Norman Mailer, "An Appeal to Lillian Hellman and Mary McCarthy," 5111/80 New York 
Times. 
2 
EFTA00086664

a public figure required to prove actual malice, had an uphill battle—even she 
was constrained to acknowledge that many of her public statements were false. Using a time-
honored if unfortunate litigation tactic, her lawyers at Boies Schiller therefore sought to turn the 
lawsuit into a proxy prosecution of Epstein. Not surprisingly, discovery in the case was bitter, 
hard-fought, and wide-ranging. It spanned more than a year and included large document 
productions, many responses to interrogatories, and thirty-some depositions, including 
depositions of 
and Maxwell as well as several third parties. See Brown v. Maxwell, 929 
F.3d 41, 46, 51 (2d Cir. 2019) (explaining that discovery was "hard-fought" and "extensive" and 
noting that the court file, which includes only some of the documents created during discovery, 
totals in the "thousands of pages"). 
sought and obtained a wide variety of private and confidential information about 
Maxwell and others, including information about financial and sexual matters. Brown, 929 F.3d 
at 48 n.22. Given the intimate and highly confidential nature of the discovery exchanged between 
the parties, the district court entered a stipulated Protective Order. See Ex. A. The Protective 
Order included a mechanism for one party to challenge another party's confidentiality 
designation (such a challenge never occurred) and provided that it did not apply to any 
information or material disclosed at trial. (Because the case settled before trial, that sole 
exception to the Protective Order was never triggered.) 
Notably, Boies Schiller sought to add a "law enforcement" exception to the Protective 
Order, doubtless because the firm was eager to enlist the government in its campaign against 
Maxwell. In particular, Boies Schiller proposed to include a provision stating that 
"CONFIDENTIAL information shall not be disclosed or used for any purpose except the 
preparation and trial of this case and any related matter, including but not limited to, 
investigations by law enforcement." Ex. B 1(a)(4) (emphasis supplied). Maxwell flatly rejected 
3 
EFTA00086665

this proposal, and it was never included in the Protective Order. Ex. A.2 To the contrary, the 
order strictly limited the parties' disposition of Confidential Material, including at the conclusion 
of the case. In particular, paragraph 12 of the order provided that: 
[a]t the conclusion of this case, unless other arrangements are agreed upon, each 
document and all copies thereof which have been designated as CONFIDENTIAL 
shall be returned to the party that designated it CONFIDENTIAL, or the parties 
may elect to destroy CONFIDENTIAL documents. Where the parties agree to 
destroy CONFIDENTIAL documents, the destroying party shall provide all parties 
with an affidavit confirming destruction. 
Ex. Al 12. 
B. Maxwell's April and July 2016 depositions 
Relying on the confidentiality protections of the Protective Order, Maxwell declined to 
invoke her privilege against compulsory self-incrimination and agreed to testify at her April 
2016 deposition. In that deposition, 
attorneys asked Maxwell whether "Jeffrey Epstein 
[had] a scheme to recruit underage girls for sexual massages? If you know." Maxwell replied, "I 
don't know what you're talking about." And when asked to "[I]ist all the people under the age of 
18 that you interacted with at any of Jeffrey's properties," Maxwell responded, "I'm not aware of 
anybody that I interacted with, other than obviously I 
who was 17 at this point." Count 
Five of the superseding indictment alleges those two answers were false. 
Min
Following the deposition 
oved to compel Maxwell to answer additional 
intimate and personal questions that she had previously declined to answer. In support of the 
motion, Boies Schiller assured the district court that "[s]uch questions are entirely appropriate in 
the discovery phase of this case, particularly where any answers will be maintained as 
confidential under the Protective Order in this case." 
'This proposal was rejected because of justifiable concerns about the misuse and abuse of this 
information by plaintiff and her lawyers including the selection and misleading leaking of confidential 
material to the media, other false claimants, and the government. 
4 
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The district court granted the motion. In requiring Maxwell to answer highly intrusive 
questions "relating to [her] own sexual activity" and "her knowledge of the sexual activity of 
others," the court held that Maxwell's "privacy concerns are alleviated by the protective order in 
this case." 
Secure in the belief that the Protective Order would be honored, Maxwell appeared at a 
second deposition, in July 2016. and answered hundreds of pages worth of questions about her 
"own sexual activity" and "her knowledge of the sexual activities of others." From the very first 
question, Maxwell discussed the intimate details of her sexual activity with Epstein, with other 
adult men, with other adult women, the use of sex toys, participation in "threesomes," and a full 
gamut of other sordid sexual topics. She was asked where she had sex, when she had sex, with 
whom she had sex, what types of sexual predilections Epstein had, whether others watched her 
having sex, whether she watched other people having sex, and whether she slept with clothes on. 
She was asked whether Epstein had sex with any number of women, and the names of women he 
might have had sex with. Maxwell was also grilled extensively about massages: when, where, 
what she was wearing, who gave them. 
Count Six of the superseding indictment alleges that Maxwell provided false testimony 
when she testified during her July 2016 deposition that: (1) she could not recall whether sex toys 
or devices were used in sexual activities at Epstein's Palm Beach house; (2) she did not know 
whether Epstein possessed sex toys or devices used in sexual activities; (3) she wasn't aware that 
Epstein was having sexual activities with anyone other than herself when she was with him; and 
(4) she never gave anyone, including Accuser-23, a massage. 
The indictment refers to the accusers as Minor Victim-1, Minor Victim-2, and Minor Victim-3. 
We will refer to them as Accuser-1, Accuser-2, and Accuser-3. 
5 
EFTA00086667

C. The Settlement And Boies Schiller's Refusal To Comply With The 
Protective Order 
In 2017, the parties settled the defamation claim, and the case was dismissed.
Maxwell, 325 F. Supp. 3d 428, 436 (S.D.N.Y. 2018), vacated and remanded sub nom. Brown, 
929 F.3d 41. As the district court found, "a significant, if not determinative, factor" in reaching a 
settlement was its confidentiality. Id. at 446. 
After the case was settled and concluded, Maxwell repeatedly invoked Paragraph 12 of 
the Protective Order and demanded that 
either return or destroy all confidential 
information, including her deposition transcripts. Boies Schiller refused. Instead, and 
unbeknownst to Maxwell, Boies Schiller produced some 90,000 pages of discovery material to 
the government, including both of Maxwell's deposition transcripts. 
D. The Government's False Statements To Judge McMahon 
Only in August 2020, after she was indicted in this case, did Maxwell finally learn that 
the government had obtained the Boies Schiller file by grand jury subpoena. Maxwell also 
learned that, to overcome the strictures of the Protective Order, the government had instituted an 
ex parte proceeding before Judge McMahon, Case No. 19-Misc.-149 (CM) (S.D.N.Y). Ex. C. 
Needless to say, neither Maxwell nor her attorneys were given the opportunity to oppose that 
application or to contest the government's representations in support of the application. This was 
all in direct violation of Paragraph 14 of the Protective Order, which provides that the order may 
be modified by the court only "for good cause shown following notice to all parties and an 
opportunity to be heard." Ex.  Al 14 (emphasis added). 
In its ex parte application, the prosecutors professed that they had sought out Boies 
Schiller's file only because "publicly available information regarding the [Giuffre v. Maxwell] 
6 
EFTA00086668

Litigation, including the complaint and other docketed filings ... appear[ed] to make reference 
to certain subjects relating to the Investigation." That "publicly available information," the 
government claimed, indicated that the Boies Schiller file might "contain information relevant to 
the ongoing Investigation" of Jeffrey Epstein. Ex. C, 14. Nowhere did the government 
acknowledge that Boies Schiller had in fact approached the prosecutors multiple times well 
before the grand jury subpoena issued. 
In March 2019, in the first appearance before Judge McMahon, the Government 
continued this refrain, professing ignorance about what was in Boies Schiller's file or who was 
deposed in the case. The prosecutor defended the subpoena's breadth—which sought all "copies 
of discovery and related materials" irMv. 
Marvell—on the ground that the government 
simply had too little knowledge of what was in the law firm's files to craft a more narrowly 
tailored subpoena: 
Here, we are essentially unable to significantly narrow the request for information 
in part for exactly the reasons that you describe. We have either little or no 
additional information than the Court does in terms of what materials there are, who 
was deposed, and that is in marked contrast to some of the other cases. 
Ex. D, p 17. For all the government knew, according to the Assistant U.S. Attorney, what he was 
seeking was "page after page of people taking the Fifth." Ex. D, p 19. 
The government appeared a second time before Judge McMahon in April 2019. Ex. E. 
Judge McMahon held that conference for one reason: to learn "about contacts between the 
United States Attorney's Office and the Boies Schiller law firm prior to the issuance of the 
subpoena." Ex. E, p 2. The Assistant U.S. Attorney told Judge McMahon that the government's 
investigation began on either November 30 or December 3, 2018, omitting mention of any 
contacts between Boies Schiller and the government prior to that time: 
In the initial days and weeks of the investigation, we endeavored to identify 
information about the subject of the investigation, including, among other things, 
7 
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possible victims who we should speak to. In the process of doing so, we identified 
certain counsel that were identified as representing victims or witnesses either in 
public filings or in media reports. Boies Schiller was among those plaintiff 
attorneys. So following the opening of the investigation, we were in touch with 
Boies Schiller, among other plaintiff and witness counsel, in connection with their 
representation of witnesses or victims. 
With 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 so asked them, as is our standard practice, told them, I should say, 
that we expected to make document requests. They 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. 
Ex. E, 99 pp 2-3. 
Those representations were false. At the time the government claims it began the 
investigation (late November or early December 2018), its knowledge of the civil case was not 
based exclusively on public filings. It knew that Boies Schiller possessed relevant information 
because the firm had come to the government asking it to open an investigation. In particular, on 
February 29, 2016, AUSA 
met with attorneys from Boies Schiller, who "urged 
to open an investigation of Epstein and Maxwell!' Then, after Maxwell's two 
depositions, David Boies himself apparently approached the government in the summer of 2016, 
asking "if the Southern District would consider charging Maxwell with perjury." Brown, supra 
n.2. Said Mr. Boies: 
"We were saying to anyone who would listen: We've got clients who were abused. 
Some of them were underage. We have the evidence. There's a whole record that's 
been developed. We can establish beyond any reasonable doubt there was a massive 
sex trafficking ring going on." 
Id. 
Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and 
Ghislaine Maxwell case in 2016, New York Daily News (Oct. 13, 2020), 
https://www.nydailynews.cominew-yorlc/ny-jeffrey-epstein-maxwell-case-20201013-
jinz117zdrzdgrbbs7yc6bfnszu-stoty.htnal. 
8 
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At that time, however, the government did not act. Boles "was particularly frustrated by 
the failure to pursue a perjury charge [against Maxwell]," reported one person, who recalled him 
saying, "We have her dead to rights."5 Id. All of this contradicts The government's 
representations to Judge McMahon, who specifically asked if the government had any contact 
with Boies Schiller before it issued the subpoena. 
Reassured by the government that no contact had occurred, Judge McMahon modified 
the Protective Order so that Boles Schiller could comply with the subpoena. Ex. F. Judge 
McMahon found that Maxwell could not have reasonably relied on the Protective Order as 
prohibiting Boies Schiller from cooperating with the government. In making this finding, Judge 
McMahon relied on the Assistant U.S. Attorney's misrepresentations, and she distinguished the 
government's subpoena to Boies Schiller from the subpoena at issue in Chemical Bank. Said 
Judge McMahon: 
[T]he onl thing 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.
not faced with that situation. 
Nothing in this record suggests to me that 
or Boies Schiller had anything to 
do with the Government's dila 
convene a grand jury to look into the matters 
that were the subject of the 
ction. On the contrary—the Government has 
advised the Court that it 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. There is no evidence of 
"collusion," to invoke a term of the moment, and it is quite clear that Boles Schiller 
did not foment the Government's investigation. Moreover, the Assistant United 
States Attorney has represented to this Court that he has no idea what is in Boies 
Schiller's files, and that for all he knows every witness who was deposed stood on 
his/her Fifth Amendment rights and refused to answer questions. 
Ex. G, p 21. 
5 Ms. Maxwell strenuously disagrees with Mr. Boles' comments. We reference them here only to 
show their connection to the perjury counts that the government subsequently charged. 
9 
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Contrary to the government's misrepresentations, Boies Schiller did foment the 
investigation (or at least it tried to). And the evidence of "collusion" between the government 
and Boies Schiller was ample, tracing to at least early 2016 and precisely designed to have 
Maxwell charged with perjury.° Had Judge McMahon known the truth, she likely would have 
denied the government's application to modify the= 
v. Maxwell Protective Order, and the 
government would have been unable to secure a copy of Boies Schiller's ninety-thousand-page 
file, including Maxwell's two deposition transcripts. 
E. Judge Netburn Separately Rejects An Identical Gambit By The 
Government 
Around the same time that Judge McMahon granted the government's ex parte request, 
Magistrate Judge Netburn rejected an identical request from the government in a different civil 
case, Jane Doe 43 v. Epstein, Case No. 17-cv-616 (JGK) (SN). Judge Netbum recognized the 
government's conduct for what it was: an attempt to deprive Maxwell of notice and an 
opportunity to be heard. Ex. H. Indeed, Judge Netbum rebuffed the government even after it 
alerted her to Judge McMahon's order. Ex. I. As Judge Netbum found, the government's 
"abstract concern" about the "secrecy" of its investigation—a concern that exists with any 
investigation and is hardly unique to this case—could not overcome the parties' reasonable 
reliance on the Protective Order or justify the government's secret, ex parte application. Ex. H, p 
6. Judge Netburn also implicitly recognized what Judge McMahon never knew—that Boies 
Schiller was all too eager for the government to investigate and prosecute Maxwell: 
6 Maxwell has not yet been provided discovery of whether Boies Schiller shared actual sealed 
materials or the contents of sealed materials during its meetings with the United States Attorney's Office 
in 2016. As noted below, the bare minimum that is required here is an evidentiary hearing to probe the 
extent to which Boies Schiller "colluded," in a Chemical Bank sense, with the prosecutor's office. 
10 
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[T]he extraordinary posture of the case requires the Court to police carefully 
government intrusions into areas of protections agreed to by civil litigants and so-
ordered by the Court. The Government is attempting to side-step these protections 
by serving a subpoena only upon a party who is willing (and perhaps eager) to 
comply with the Government's investigation. 
Ex. H, p 6. 
ARGUMENT 
A. Pursuant To Its Inherent Power, This Court Should Suppress The 
Evidence Obtained From Boies Schiller, And Dismiss Counts Five And 
Six, Which Are The Fruits Of That Evidence 
1. The role of protective orders in civil litigation. 
Protective orders serve a "vital function" in civil litigation. Martindell v. Int'l Tel. & Tel. 
Corp., 594 F.2d 291, 295 (2d Cir. 1979). They promote "the `secure the just, speedy, and 
inexpensive determination' of civil disputes, by encouraging full disclosure of all evidence." Id. 
(quoting Fed. R. Civ. P. 1). "If protective orders were easily modified . . . parties would be less 
forthcoming in giving testimony and less willing to settle their disputes." S.E.C. v. 
TheStreet.Com, 273 F.3d 222, 230 (2d Cir. 2001). In particular, as here, "witnesses might be 
expected frequently to refuse to testify pursuant to protective orders if their testimony were to be 
made available to the Government for criminal investigatory purposes in disregard of those 
orders." Martindell, 594 F.2d at 295-96. Parties thus rely on protective orders, and courts strictly 
enforce them. See, e.g., Stewart v. Hudson Hall LLC, 20 Civ. 885 (SLC), 2020 WL 7239676, at 
*2 (S.D.N.Y. Dec. 9, 2020) ("In the Second Circuit, there is a strict standard for modification of 
a protective order entered by a district court." (citation and quotation marks omitted)). 
This case illustrates just how crucial a protective order is. The Maxwell depositions 
sought highly intrusive evidence of the most personal aspects of Maxwell's life. Her sexual 
practices. Her sexual preferences. Her sexual partners. In urging the district court to permit these 
extraordinary intrusions—in what should have been a simple defamation case-Boies Schiller 
II 
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expressly invoked the assurances of the Protective Order. So did the district court in permitting 
these intrusions and ordering Maxwell to sit for a second deposition. Maxwell likewise relied on 
the Protective Order in choosing to render such intimate details, rather than assert her Fifth 
Amendment privilege as she had every right to do. 
And why shouldn't Maxwell have relied on the Protective Order? The central protection 
in the Order was that none of Maxwell's answers could be disclosed to the government. Boies 
Schiller had expressly sought a law enforcement exception but was rebuffed. Instead, the law 
firm was required either to return the confidential material or, at Maxwell's option, to destroy it. 
Maxwell had every reason to take that assurance seriously, even if Boies Schiller did not. 
2. The government circumvented the protective order. 
Faced with a duly entered Protective Order—which quite deliberately omitted any "law 
enforcement" exception—the government had lawful options to pursue the confidential= 
discovery. It could have moved to intervene in the civil case and to amend the Protective Order. 
It could have issued a subpoena for the materials and given Maxwell an opportunity to respond. 
Martindell, 594 F.2d at 294. It could even have applied for a search warrant, assuming 
(counterfactually) that it could show probable cause in support of such a warrant. 
The government did none of those things. Instead, it initiated an ex parte proceeding and 
secured a secret modification of the Protective Order based on material misrepresentations to the 
presiding judge. This was not among the lawful options available to the government. 
It cannot fairly be disputed that Judge McMahon's ruling to amend the Protective Order 
was based on the government's misrepresentations. Immediately before issuing her decision, 
Judge McMahon held a hearing with the sole purpose of asking the prosecutor, point blank, 
about the government's contacts with Boies Schiller. Judge McMahon's stated reason for so 
inquiring was to ensure that the government and Boies Schiller had not coordinated as the parties 
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had in the Chemical Bank case. In no uncertain terms, Judge McMahon explained why she had 
haled the prosecutor back into court: 
I'll be very up-front with you. I want to make sure I'm not in a Chemical Bank kind 
of situation, so I would like to know about contacts between the United States 
Attorney's Office and the Boies Schiller firm prior to the issuance of the subpoena 
on the subject of your investigation. 
Ex. E, p 2. 
In Chemical Bank, a protective order precluded parties to a civil case from disclosing 
confidential documents to others. 154 F.R.D. at 92-93. Despite this prohibition, counsel for the 
defendant approached the Manhattan District Attorney's Office and suggested that it had 
evidence of criminal violations relating to the case. Id. at 93. A grand jury issued a subpoena, 
and the defendant produced to the government various confidential documents without 
complying with any of the specific procedures or exceptions provided in the protective order. Id. 
Once this collusion came to light, the district court reprimanded the defendant for its "disregard 
of the [protective] order[]" and admonished its behavior as "contrary to the traditions of the Bar 
which dictate that court orders be respected." Id. 
In addressing the government's application here, Judge McMahon specifically asked 
whether Boies Schiller had acted as the defendant did in Chemical Bank. The prosecutor omitted 
any mention of his office's previous meetings with the firm, and falsely led the court to believe 
that Boies Schiller had not encouraged its investigation. Reassured by the misrepresentations, 
Judge McMahon commented: 
Nothing in this record suggests to me that for 
Boies Schiller had anything to 
ii
do with the Government's d 
• • 
to convene a grand jury to look into the matters 
that were the subject of the 
Action. On the contrary—the Government has 
advised the Court that it contacte 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. There is no evidence of 
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EFTA00086675

"collusion," to invoke a term of the moment, and it is quite clear that Boies Schiller 
did not foment the Government's investigation. 
Had Judge McMahon known the truth, she likely would not have granted the government's 
application to modify the Protective Order to allow Boies Schiller to comply with the subpoena. 
3. The government violated due process. 
The government's conduct cannot be squared with elemental due process. U.S. CONST. 
amend. V. Pursuant to this guarantee, "[t]he responsibility of a public prosecutor differs from 
that of the usual advocate; his duty is to seek justice, not merely to convict." Young v. United 
States, 481 U.S. 787, 803 (1987). The government engages in misconduct and violates due 
process when it materially misrepresents facts before a court. See United States v. Valentine, 820 
F.2d 565, 570 (2d Cir. 1987) (holding that the government violated due process and reversing 
conviction when the government mischaracterized the substance of grand jury testimony). 
The prosecutor may well have known that his representations to Judge McMahon were 
false (or at best misleading). But the Assistant U.S. Attorney's personal knowledge doesn't 
matter. "An individual prosecutor is presumed ... to have knowledge of all information gathered 
in connection with his office's investigation of the case." United States v. Avellino, 136 F.3d 249, 
255 (2d Cir. 1998); see also Giglio v. U.S., 405 U.S. 150, 154 (1972) ("The prosecutor's office is 
an entity and as such it is the spokesman for the Government. A promise made by one attorney 
must be attributed, for these purposes, to the Government."). At the barest minimum, a federal 
prosecutor has a duty to check the entire file to ensure that his representations to a federal judge, 
submitted on behalf of the office he serves and under oath, are true and complete. The Assistant 
U.S. Attorney did not discharge that basic function. 
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4. This court possesses the inherent authority to order suppression. 
Incident to its inherent power to superintend proceedings, this Court has the authority to 
suppress the fruits of the government's misrepresentation. See, e.g., United States v. Cortina, 630 
F.3d 1207, 1214 (7th Cir. 1980) ("The court has inherent authority to regulate the administration 
of criminal justice among the parties before the bar .... [by] exclud[ing] evidence taken from 
the defendant by willful disobedience of law." (citation omitted)); United States v. Lambus, 897 
F.3d 368, 386 (2d Cir. 2018) ("It is within the court's inherent authority to suppress evidence 
gathered unlawfully in order to maintain the integrity of its own proceedings . . . ."); Benkovitch 
v. Gorilla, Inc., No. 2:15-cv-7806 (WJM), 2017 WL 4005452, at *2 (D.N.J. Sept. 12, 2017) 
("District courts have `inherent authority' to impose a variety of sanctions, including . . . 
suppression of evidence . . . ."). 
It does not matter that the government made its misrepresentations to Judge MelvIttlion 
and not directly to this Court. "As long as a party receives an appropriate hearing, . . . the party 
may be sanctioned for abuses of process occurring beyond the courtroom . . ." Chambers v. 
NASCO, Inc., 510 U.S. 32, 57 (1991). "Courts have held that inherent authority sanctions may be 
imposed for misconduct in another court where the misconduct is . . . in some way related to the 
case before the sanctioning court." Klein v. Weidner, Civ. No. 08-3798, 2017 WL 2834260, at *6 
(E.D. Pa. June 30, 2017) (citation and alteration omitted); Manhattan Review LLC v. Yen, 16 
Civ. 0102 (LAK) (JCF), 2017 WL 11455317, *7 n.3 (S.D.N.Y. Sept. 21, 2017) ("The inherent 
power ... can punish conduct before a different court if it is intimately related to the relevant 
case." (citing Klein, 2017 WL 2834260, at *4)). Here, the government's misrepresentation to 
Judge McMahon was not simply "related" to Counts Five and Six; only by the government's 
deception was it able to obtain the factual predicate for those counts. Accordingly, the Court may 
exercise its inherent authority to suppress that evidence. And it should. 
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