EFTA00092302.pdf

Case 1:20-cr-00330-AJN Document 37 Filed 07/30/20 177uja-1-44 1M.

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT DOC 0.
SOUTHERN DISTRICT OF NEW YORK DATE FILED:7/30/2020



United States of America,

—v—
20-CR-330 (MN)
Ghislaine Maxwell,
MEMORANDUM
Defendant. OPINION & ORDER



ALISON J. NATHAN, District Judge:

Both parties have asked for the Court to enter a protective order. While they agree on

most of the language, two areas of dispute have emerged. First, Ms. Maxwell seeks language

allowing her to publicly reference alleged victims or witnesses who have spoken on the public

record to the media or in public fora, or in litigation relating to Ms. Maxwell or Jeffrey Epstein.

Second, Ms. Maxwell seeks language restricting potential Government witnesses and their

counsel from using discovery materials for any purpose other than preparing for the criminal trial

in this action. The Government has proposed contrary language on both of these issues. For the

following reasons, the Court adopts the Government's proposed protective order.

Under Federal Rule of Criminal Procedure 16(d)(1), "[alt any time the court may, for

good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief."

The good cause standard "requires courts to balance several interests, including whether

dissemination of the discovery materials inflicts hazard to others . . . whether the imposition of

the protective order would prejudice the defendant," and "the public's interest in the

information." United States v. Smith, 985 F. Supp. 2d 506, 522 (S.D.N.Y. 2013). The party

seeking to restrict disclosure bears the burden of showing good cause. Cf. Gambale v. Deutsche

Bank AG, 377 F.3d 133, 142 (2d Cir. 2004).

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First, the Court finds that the Government has met its burden of showing good cause with

regard to restricting the ability of Ms. Maxwell to publicly reference alleged victims and

witnesses other than those who have publicly identified themselves in this litigation. As a

general matter, it is undisputed that there is a strong and specific interest in protecting the

privacy of alleged victims and witnesses in this case that supports restricting the disclosure of

their identities. Dkt. No. 29 at 3 (acknowledging that as a baseline the protective order should

"prohibit[] Ms. Maxwell, defense counsel, and others on the defense team from disclosing or

disseminating the identity of any alleged victim or potential witness referenced in the discovery

materials"); see also United States v. Corley, No. 13-cr-48, 2016 U.S. Dist. LEXIS 194426, at

*11 (S.D.N.Y. Jan. 15, 2016). The Defense argues this interest is significantly diminished for

individuals who have spoken on the public record about Ms. Maxwell or Jeffrey Epstein, because

they have voluntarily chosen to identify themselves. But not all accusations or public statements

are equal. Deciding to participate in or contribute to a criminal investigation or prosecution is a

far different matter than simply making a public statement "relating to" Ms. Maxwell or Jeffrey

Epstein, particularly since such a statement might have occurred decades ago and have no

relevance to the charges in this case. These individuals still maintain a significant privacy

interest that must be safeguarded. The exception the Defense seeks is too broad and risks

undermining the protections of the privacy of witnesses and alleged victims that is required by

law. In contrast, the Government's proffered language would allow Ms. Maxwell to publicly

reference individuals who have spoken by name on the record in this case. It also allows the

Defense to "referenc[e] the identities of individuals they believe may be relevant ... to Potential

Defense Witnesses and their counsel during the course of the investigation and preparation of the

defense case at trial." Dkt. No. 33-1, 1 5. This proposal adequately balances the interests at



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stake. And as the Government's letter notes, see Dkt. No. 33 at 4, to the extent that the Defense

needs an exception to the protective order for a specific investigative purpose, they can make

applications to the Court on a case-by-case basis.

Second, restrictions on the ability of potential witnesses and their counsel to use

discovery materials for purposes other than preparing for trial in this case are unwarranted. The

request appears unprecedented despite the fact that there have been many high-profile criminal

matters that had related civil litigation. The Government labors under many restrictions

including Rule 6(e) of the Federal Rules of Criminal Procedure, the Privacy Act of 1974, and

other policies of the Department of Justice and the U.S. Attorney's Office for the Southern

District of New York, all of which the Court expects the Government to scrupulously follow.

Furthermore, the Government indicates that it will likely only provide potential witnesses with

materials that those witnesses already have in their possession. See Dkt. No. 33 at 6. And of

course, those witnesses who do testify at trial would be subject to examination on the record as to

what materials were provided or shown to them by the Government. Nothing in the Defense's

papers explains how its unprecedented proposed restriction is somehow necessary to ensure a

fair trial.

For the foregoing reasons, the Court adopts the Government's proposed protective order,

which will be entered on the docket.

This resolves Dkt. No. 29.

SO ORDERED.

Dated: July 30, 2020
New York, New York

ALISON J. NATHAN
United States District Judge


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