EFTA00084765.pdf

EXHIBIT D EFTA00084765  1 Xj3g1gra SEALED 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 In re: Grand Jury Proceedings 4 Ex Parte Conference 5 x 6 New York, N.Y. March 26, 2019 7 4:04 p.m. 8 Before: 9 HON. COLLEEN McMAHON, 10 District Judge 11 12 APPEARANCES 13 GEOFFREY S. BERMAN United States Attorney for the 14 Southern District of New York BY: 15 Assistant United States Attorney 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000&53 EFTA00084766  2 Xj3q1gra SEALED 1 (In the robing room) 2 THE COURT: The following proceeding is being 3 conducted ex parte and under seal. 4 The problem is, it's not being conducted in a matter, 5 and that is one of my first questions to Mr. : Why 6 was this not filed on the Court's docket with a miscellaneous 7 number? We don't file things under U.S. Attorney numbers. 8 This should have been brought as a miscellaneous matter. 9 MR. : So, your Honor, it was originally 10 submitted with Judge Sweet -- 11 THE COURT: I understand what he did, but I will tell 12 you that in the opinion that will never issue, because Judge 13 Sweet died, but he had written, and now I'm stuck with this, 14 Judge Sweet questioned why you had not made this an "In re: The 15 Matter of Application of the Grand Jury" or something or other, 16 with a proper miscellaneous docket number. The fact that it 17 would have gone to Judge Sweet doesn't mean anything. I have 18 no way to docket USAO No. 2018R01618. That's your reference 19 number, not ours. 20 MR. : I understand, your Honor. I think we 21 had understood that the submission should be made to the court 22 that had entered the protective order and that -- 23 THE COURT: That's true, but that doesn't mean it 24 doesn't get a miscellaneous docket number. 25 The first thing that's going to happen, this is going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000S54 EFTA00084767  3 Xj3q1gra SEALED 1 to be re-legended and it's going to get a miscellaneous docket 2 number. 3 MR. : Understood, your Honor. I apologize 4 for that oversight. 5 THE COURT: It's okay. 6 All right. Now my second question, which is a 7 procedural question, the government here has moved for relief 8 on behalf of a third party to whom a grand jury subpoena has 9 issued, and that third party would like to be relieved of its 10 obligations under the protective order, and that third party is 11 a law firm full of brilliant lawyers that are fully capable of 12 making a motion bringing a proceeding to be relieved from the 13 provisions of the protective order. Why are you doing this for 14 them? 15 Why doesn't Boies Schiller make an application for 16 permission to be relieved from the protective order? Because 17 it thought it was going to violate some duty that it had to its 18 client in the underlying actions? Did they give you a reason 19 why they weren't willing to come to court and -- 20 MR. : No, your Honor. So I can't speak to 21 why Boies Schiller in particular didn't make their own 22 application. 23 THE COURT: Because I understand that you don't think 24 that Martindell is applicable here, but I do, and now I'm the 25 judge. I wish I weren't. You know that the Second Circuit has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000S55 EFTA00084768  4 Xj3q1gra SEALED 1 very clearly said that, and Judge Broderick said in Chemical 2 Bank the proper procedure is for somebody to make a motion to 3 be relieved from the terms of the protective order. And it 4 ain't you; it's somebody who's subject to the protective order. 5 6 MR. : I think a little bit of context may 7 help explain how the procedure developed, your Honor. 8 Originally we had submitted an All Writs Act 9 application to Judge Sweet, which we believe was appropriate 10 given the sort of catch-all function of that -- 11 THE COURT: Yes, I understand that, but it still has 12 to have a docket number in order to be a proceeding in this 13 court. 14 MR. : Totally understand, your Honor. But 15 just with respect to our supplemental submission, Judge Sweet 16 had reached out to us and asked us to submit an argument in 17 connection with our application, and so I think whether that 18 was sort of past experience or his preference, that is why we 19 proceeded -- 20 THE COURT: So here's why I'm being so persnickety. 21 Forgive me. Not only do I have to like come up to speed pretty 22 quickly, but you know -- I assume you know, but I certainly 23 know, and everybody who follows civil litigation knows -- that 24 Judge Sweet is about to get reversed in connection with this 25 protective order in the Second Circuit. I mean, I don't have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000S56 EFTA00084769  5 Xj3q1gra SEALED 1 that on any authority other than my reading of the tea leaves 2 after the extensive press reporting and the fact that the 3 Second Circuit has already issued an order giving the parties 4 until last week to say why the summary judgment papers and all 5 the supporting papers should not be unsealed by the Second 6 Circuit and indicating that there would be a further order with 7 respect to all the rest of the, I don't know, 150 or so sealed 8 documents in connection with the underlying litigation, but you 9 can hear it in the questioning, you can read it in the press 10 reports, you can intuit it from the order. I don't know if 11 you've seen the Second Circuit's order that issued last week, 12 but -- 13 MR. : I have, your Honor. 14 THE COURT: Okay. You can intuit that something kind 15 of unfavorable to Judge Sweet is happening, it's in the process 16 of happening, it seems to me it's about to be happening, in 17 connection with this protective order and its enforceability. 18 Doesn't seem that way to you, Mr. 19 MR. : Your Honor, I've read the same 20 articles and -- 21 THE COURT: I mean, really, Mr. 22 MR. : So I would say, your Honor, that I 23 would expect that any order to disclose materials that were 24 filed in connection with, for example, the summary judgment 25 papers, if in fact they are released or if in fact the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000S57 EFTA00084770  6 Xj3q1gra SEALED 1 protective order is overturned in some way, that those would be 2 redacted as to individuals' names, personally identifying 3 information 4 THE COURT: Probably. 5 MR. : -- which I would expect, your Honor. 6 I don't believe that any indication is that the underlying 7 discovery materials are likely to be unsealed, and I'm not sure 8 whether that's at issue, but in any event -- 9 THE COURT: I don't think it is. I think the only 10 thing that's at issue in the case that the Second Circuit has 11 heard is the publicly -- only here, not publicly -- filed 12 litigation documents, which is essentially a lawsuit, a libel 13 action that has been filed and litigated under seal. It was 14 settled by terms that would have expired because the protective 15 order doesn't extend until it goes on to a trial, but there 16 wasn't a trial. 17 And I'm struggling with this for two reasons. 18 First of all, it's like how much deference to give to 19 this protective order that was issued by some judge, not 20 myself, on the basis of I don't know what, except that from the 21 questions that the Second Circuit asked about the litigation 22 documents, it seemed like they were being critical of Judge 23 Sweet for not having a particularized inquiry into each 24 document that was sought to be filed in accordance with the 25 protective order as to why this contained confidential SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000858 EFTA00084771  7 Xj3q1gra SEALED 1 information and what was confidential about this, and just 2 reading the tea leaves, I'm thinking to myself, what am I 3 supposed to do with this protective order that looks like it 4 stands on precarious footing to begin with? Is this the 5 so-called improvidently granted protective order? How could I 6 know that? I'm trying to go back in the files to see what 7 Judge Sweet relied on in granting the protective order. I have 8 no idea if there was an opinion. I have no idea if there 9 was -- I mean, he recited the magic words at the beginning of 10 the protective order. But, you know, he was doing this for 11 five years, and he's dead, and I can't ask him. And his law 12 clerks weren't around when he did it, although they're trying 13 to help me find stuff in the files. So I'm just trying to 14 figure out if there's something that's going to happen in the 15 Second Circuit that would help you out here or that would 16 further your investigation in a way that would make it not 17 necessary to deal with it. 18 MR. : Your Honor, I'm very sympathetic to 19 that consideration. I think that even were the Second Circuit 20 to unseal the entirety of what I believe is at issue, which is, 21 as the Court noted, as the Court just noted 22 THE COURT: 150 litigation documents, and I don't 23 think the Second Circuit is going to take the time that would 24 be required to make the inquiry. I'm going to guess that, you 25 know, some poor schlub in the district court is going to have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SONY GM 00000859 EFTA00084772  Xj3q1gra SEALED 1 to do that. And I hope it's not me. But -- 2 MR. : And I believe it will apply to the 3 docketed filings in the case and not, for example, the 4 underlying discovery materials, deposition materials, 5 investigation materials. 6 THE COURT: Okay. 7 MR. : And so I think that, unfortunately, 8 for the circumstances, for perhaps all of us, that even were 9 the Second Circuit to grant sort of the most expansive 10 invalidation of the protective order or sort of release of 11 these materials, that our application would still be relevant 12 and pending and active. 13 THE COURT: Would still be relevant and pending and 14 active. Okay. 15 And you can't explain to me why Boies Schiller didn't 16 make a motion. Because there's no question in my mind that 17 were this to be disclosed to the parties -- and I appreciate 18 that we're not going to do that, but were this to be disclosed 19 to the parties, Maxwell would protest, and the first thing that 20 Maxwell would do would be to say the government lacks standing, 21 it's not a party of the protective order, the issue can be 22 litigated, if Boies Schiller chooses to make a motion to seek 23 to be relieved from the protective order, or to quash the 24 subpoena or to do something, but the government has no 25 standing. it hasn't moved to intervene in the civil action. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000860 EFTA00084773  9 Xj3g1gra SEALED 1 It hasn't done any of those things. So under Martindell, the 2 government lacks standing, because remember, in Martindell, the 3 government only had standing because all the parties were 4 familiar with the government's application. It wasn't a 5 secret. I don't know why it wasn't a secret, but it wasn't a 6 secret. And nobody objected. And so they said, ah, okay, 7 objection to standing waived. 8 So, you know, once again, Judge Sweet, I can tell you, 9 was somewhat troubled by the procedural posture of the case 10 even though, as I understand it, he was perhaps partly to blame 11 for the procedural posture of the case, but it's not like Boies 12 Schiller came in here and asked for relief from the protective 13 order. And I am curious about why Boies Schiller didn't do 14 that. 15 MR. : Your Honor, what I can tell you about 16 that is we, the government, thought that we were in a position 17 to make the application via the All Writs Act submission that 18 we originally made, that that would be an appropriate vehicle 19 for the relief that we, as the government, were seeking in 20 connection with the protective order. So I'm not sure -- 21 THE COURT: You're seeking to have a third party, to 22 have Boies Schiller, who were counsel for the plaintiffs in the 23 Maxwell action, be relieved from the protective order, but if 24 there's anybody on this planet who is capable of asking, 25 "Please relieve us from the strictures of this protective SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000B61 EFTA00084774  10 Xj3g1gra SEALED 1 order," it is David Boies and his partners. I mean, really. 2 MR. : I'm sure you're right, your Honor, 3 and -- 4 THE COURT: They don't need the government's 5 protection. 6 MR. : Not that I don't begrudge the dozens 7 of hours that I have spent on it in lieu of Boies Schiller, but 8 I think -- and with apologies of perhaps being persnickety 9 myself, but the relief that we are seeking is not precisely to 10 allow Boies Schiller to do something but rather for the 11 modification of the protective order that would then allow 12 that, but we did think that we were able to make the 13 application via the All Writs Act, and I think it was our 14 general understanding from Judge Sweet's response asking us for 15 support for our submission, rather than, for example, denying 16 it based on lack of standing at the outset or simply asking us 17 to have Boies Schiller make the application. I don't know 18 what, if any, difference there would be in terms of the legal 19 analysis from Boies Schiller, but I can say that I think the 20 current posture does allow the government to explain why the 21 investigation is extraordinary in the sense of how other 22 decisions and courts have described it and where we, the 23 government, are better able to explain -- 24 THE COURT: But what do you mean by what you just 25 said? I mean, you have an investigation into an allegation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000862 EFTA00084775  11 Xj3q1gra SEALED 1 human trafficking. I have no idea if you're up against a 2 statute of limitations so that I could take the time that 3 really is needed to kind of grapple with the procedural issues, 4 because you haven't told me that you're up against a statute of 5 limitations. 6 MR. : I can tell your Honor -- I'm sorry. 7 I didn't mean to interrupt. But I can tell you that, as most 8 of our investigations do, this is moving sort of as fast as 9 possible. This was a significant application that we 10 thoroughly considered before making and made originally nearly 11 two months ago, so we are hopeful to get an answer soon. 12 Nevertheless, let me say that -- 13 THE COURT: Unfortunately, but for the dead judge 14 opinion and the Supreme Court last month, you would have gotten 15 an answer, but -- 16 MR. : That said, I would not describe this 17 as an emergency application. There's not a particular day by 18 which we are requesting a response. We had hoped to hear back 19 from Judge Sweet -- 20 THE COURT: Before. 21 MR. : Before. Yes, your Honor. 22 THE COURT: Would that that had happened. 23 MR. : And if I may, just very briefly. I 24 think with respect to the postural question, particularly 25 regarding Boies Schiller, Boies Schiller simply isn't in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000863 EFTA00084776  12 Xj3q1gra SEALED 1 position to be able to describe the investigation in the way 2 that we have in our submission. 3 THE COURT: Well, that's clear. That's clear. I 4 mean, were I Boies Schiller, I would have -- never mind. We 5 won't say what I would have done. 6 So I'm looking at the protective order itself, and of 7 course not having been privy to any of the materials in the 8 case -- and they're all under seal, so, I mean, I can dissolve 9 the seal and get them, but there are 150 documents there that 10 are under seal for filings, there are multiple documents that 11 are under seal. 12 MR. : Not to mention all the underlying 13 materials, of course. 14 THE COURT: Not to mention all the underlying 15 materials. 16 So you argue there isn't any truly confidential 17 material in this, this isn't a trade secrets case, and 18 obviously it's not a trade secrets case. It's a libel case. 19 It would seem that the most scurrilous of accusations would 20 have already floated across the face of the complaint. But 21 since Maxwell can't object, how can I know that all this is 22 about is information that would be, you know, embarrassing? 23 MR. : I would point the Court in the first 24 instance to the definition of "confidential materials" in the 25 protective order itself, which describes "confidential SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000864 EFTA00084777  13 Xj3q1gra SEALED 1 materials" as "information that is confidential and implicates 2 common law and statutory privacy interests of plaintiff 3 " 4 THE COURT: I have absolutely no idea what that means, 5 and you don't either, and none of us does. 6 MR. : I don't, your Honor, but I think we 7 argued in our submission that it, at least on its face, does 8 not implicate the type of materials that are confidential 9 business materials, trade secrets -- 10 THE COURT: Ordinarily the subject of -- 11 MR. : -- ordinarily the subject of the 12 considerations developed in some of the cases that we cited. 13 THE COURT: Okay. 14 MR. : And I should also say that in 15 responding to the subpoena, Boies Schiller has the ability to 16 say that they will not produce certain materials because they 17 are privileged, because they believe that there is some larger 18 overarching confidentiality issue, at which point we would be 19 in a different posture. I am not aware that they have 20 identified any materials as confidential that they would 21 withhold, but I do note that we would not ask for and would not 22 expect to receive privileged materials. 23 THE COURT: Okay. Did you provide Judge Sweet with a 24 proposed order? 25 MR. : We did, yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SONY_GM_00000865 EFTA00084778  14 Xj3q1gra SEALED 1 THE COURT: Could I see what you provided Judge Sweet. 2 MR. : Yes, of course. 3 And your Honor, just for the record, I'm handing over 4 what was our initial sealed affirmation and application to the 5 Court for an order under the All Writs Act, and that includes 6 an affirmation and application that I signed with an exhibit 7 attached of the original protective order, followed by which is 8 a proposed order for entry by Judge Sweet, which we of course 9 would be happy to submit to the Court in Word form or in 10 revised form, subject to the Court's views. 11 THE COURT: Right. I just wanted to see if it had a 12 certain provision. 13 MR. : If there is a provision that the 14 Court thinks would address some of these issues, we would of 15 course be happy to hear it. 16 THE COURT: Of course I'm not Judge Sweet, so I don't 17 know exactly what was going on in his head. 18 I assume it would be the government's position that 19 reliance on the nondisclosure of confidential materials to law 20 enforcement in connection with a grand jury subpoena that has 21 been duly authorized would be unreasonable. It wouldn't be 22 reasonable reliance to assume that the protective order could 23 never be modified to allow -- I mean, the parties to this 24 negotiated the protective order, and the protective order does 25 not contain the provision that is in every protective order I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000866 EFTA00084779  15 Xj3q1gra SEALED 1 sign, which is, you can disclose it without the permission of 2 the Court if, you know, law enforcement puts a gun to your head 3 and says produce it. That's not in here. 4 MR. : That's right, your Honor. 5 THE COURT: I don't know. It's my understanding that 6 it may have been negotiated out. 7 MR. : It may have been. I will only say 8 that I believe that I'm on less firm ground than in the 9 cases that we discussed specifically, but I believe that the 10 converse would be void for public policy; in other words, you 11 would not be able to put in -- 12 THE COURT: That was my question. 13 MR. : -- you may not disclose this to law 14 enforcement even given a duly authorized grand jury subpoena. 15 THE COURT: Thank you for saying the words "void for 16 public policy," because I was going there. I take it it would 17 be the government's position that because it would be void as 18 against public policy to absolutely prohibit the disclosure of 19 information to law enforcement, that if a party were to say, 20 "But I relied on this, that it would not be disclosed to law 21 enforcement," that that would not, in your view, be reasonable 22 reliance. 23 MR. : Yes, your Honor, I think that's 24 correct, and I think that that is borne out by the opinion in 25 Chemical Bank, which essentially says: You should have asked, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000867 EFTA00084780  16 Xj3q1gra SEALED 1 but of course this is fine for you to disclose this information 2 to the government based on the validly issued grand jury 3 subpoena, I think for the same type of reasons that the Court 4 is describing. 5 THE COURT: Okay. So let me see what other million 6 questions that I have. 7 It's a general subpoena. Did you take them for all 8 discovery materials? I mean, everything that's in Boies 9 Schiller's files, other than privileged documents, which of 10 course you don't exclude from your subpoena but presumably they 11 will exclude from their production. But it's literally 12 everything. So remember, I know very little about the Maxwell 13 case, both because it wasn't my case and, to the shock of 14 nearly everyone that I talk to, we're all too busy to worry 15 about some litigation that's being handled by somebody else; 16 and second, it seems to have been litigated entirely under seal 17 so how could I have found out anything about it. Everything I 18 know about this case I learned from reading about the Second 19 Circuit argument. Literally, everything. 20 So what assurance do I have that so broad a grand jury 21 subpoena -- given that I have these competing interests between 22 the terms of the protective order and the government's interest 23 in conducting an investigation, what assurance do I have that 24 you need all that stuff, that that's all somehow going to be 25 relevant to your investigation? That is a concern from me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000868 EFTA00084781  17 xj3q1gra SEALED 1 because I don't know anything about the case. 2 MR. : Okay, your Honor, and I think the 3 answer to that is in a couple parts. The first is, I would 4 point the Court towards some of the opinions that have talked 5 about the government's investigative ability and authority 6 being broad, and it is the case that sometimes we issue grand 7 jury subpoenas -- 8 THE COURT: But that was true in Martindell too. 9 MR. : Yes, of course, your Honor, but I 10 just need to say that it is entirely possible that, in any 11 grand jury subpoena, that materials will come back that are not 12 helpful to our investigation, are not relevant, for whatever 13 reason, that it was, however unintentionally, overbroad or 14 included unnecessary aspects. Here, we are essentially unable 15 to significantly narrow the request for information in part for 16 exactly the reasons that you describe. We have either little 17 or no additional information than the Court does in terms of 18 what materials there are, who was deposed, and that is in 19 marked contrast to some of the other cases. 20 THE COURT: Every other case in the whole world. 21 MR. : Of course, your Honor. Exactly. For 22 exactly the reasons we described. 23 So what I can say in terms of assurance is, we are not 24 sort of an ordinary third-party intervenor. All of these 25 materials will be subject to the extraordinary protections of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000869 EFTA00084782  18 Xj3q1gra SEALED 1 Rule 60. We will be extremely restricted in our use of them. 2 To the extent that we receive materials that otherwise wouldn't 3 have been narrowly connected with our investigation, they will 4 not go anywhere that they shouldn't; they will not be treated 5 in any way they should not be. 6 THE COURT: Let me ask a question that you may not 7 wish to answer, and I'll appreciate it if you don't. 8 I know who the target of your investigation is, at 9 least the one that you've identified. Is there any expectation 10 that these materials would be used to commence criminal 11 proceedings against either of the parties to the libel case? 12 MR. : I can say that just as a general 13 matter, that any materials that we gather in any part of any 14 investigation that appear to give rise to criminal liability 15 for individuals implicated in those materials could cause us to 16 proceed with an investigation of any such individual. That's a 17 little broad, your Honor, obviously, but -- 18 THE COURT: Oh, no. I understand what you're saying. 19 And I think Judge Sweet had some concerns about that. 20 MR. : But I don't think that there's any 21 additional protection for the parties of the lawsuit as opposed 22 to nonparties' information. 23 THE COURT: They're the ones who relied on the 24 protective order. Of course you say it's not reasonable to 25 rely, but they're the ones who relied on the protective order SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000870 EFTA00084783  19 Xj3q1gra SEALED 1 in order to give whatever in discovery they gave, whether it 2 was deposition testimony they gave or -- then again, I can't 3 fathom why anybody who has any criminal exposure would not have 4 taken the Fifth Amendment in response to questions in a civil 5 deposition, but I don't know. 6 MR. : So just taking that very briefly in 7 order, your Honor, I do not know, but I think it is entirely 8 possible that what we are seeking is page after page of people 9 taking the Fifth. That is entirely possible. But to the 10 extent that it is not or there are other materials -- and this 11 may be bad for our argument, but in all transparency and 12 candor, I think there may be other individuals who also relied 13 on the protective order. In other words, anyone other than the 14 parties who were deposed may have, in theory, and perhaps 15 unreasonably, relied on it. 16 THE COURT: For example, the target of your 17 investigation. 18 MR. : For example, the target of our 19 investigation. But I don't think that the parties would be 20 differently situated in terms of their rights, and there are 21 certainly many cases that talk about how the government has the 22 ability to grant immunity in a criminal investigation, but not, 23 of course, through restricting materials -- 24 THE COURT: But that's the whole point of the 25 government needing to follow the procedure, the proper SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000871 EFTA00084784  20 Xj3q1gra SEALED 1 procedure of either having the target of the subpoena make a 2 motion to quash or a motion for relief or the government moving 3 for relief to intervene, instead of engaging in self-help. 4 There isn't an application like this in any case except the 5 Chemical Bank case, and in the Chemical Bank case, it all was 6 ex post facto and it all happened. 7 MR. : Right. And I'll just note, without 8 wanting to be defensive at all about the posture -- I 9 understand the Court's questions about that -- I cannot recall 10 whether it was Martindell or one of the other cases, but one of 11 the original cases in this line, one of the issues was that the 12 court had gotten on the phone with the judge and requested it, 13 you know, sort of informally, right? 14 THE COURT: Yes. 15 MR. : Despite our errors in the precise 16 procedure, we did want to have a formal application with 17 reasons and then subsequently, at the request of Judge Sweet, 18 supporting law. And so I do apologize for the precise posture. 19 We took the approach that we did in the hopes that we could 20 avoid the types of problems that had been engendered by other 21 types of applications which I think were made by the government 22 in other cases, and so that's what we did here as well. 23 THE COURT: Okay. All right. Well, I'll tell you one 24 thing that I am going to do. I am going to ask the clerk of 25 the court to assign a miscellaneous number to this case and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000872 EFTA00084785  21 Xj3g1gra SEALED 1 everything will be filed under seal, and it will be "In Re 2 Grand Jury," you know, the usual, and it will have the 3 treatment that "In Re Grand Jury" materials get, and everything 4 will be filed under seal. But that way I at least have a place 5 to put this, okay? 6 MR. : I appreciate that, your Honor. I 7 think we had expected that had the order been either granted or 8 denied, that consistent with our usual All Writs application, 9 that it would have then been identified with a number, but 10 frankly, I'm not in the clerk's office, so -- 11 THE COURT: Okay. But it has to have one, and I'm 12 particularly acutely desirous of making sure that this is filed 13 under a docket number with this court because I am concerned 14 about the way everything has happened to date, given the Second 15 Circuit's kind of, it seems to me, obvious displeasure with the 16 fact that this whole thing has been litigated under seal. So 17 grand jury material, absolutely. But let's be sure that there 18 is a docket, you know, that we don't have something that's off 19 the radar screen. 20 MR. : Totally understood, your Honor, and I 21 appreciate that, and we're grateful to the Court for that. 22 THE COURT: Great. Okay. And you'll get your answer 23 by early next week. I have to go to the annual meeting of the 24 chief district judges. 25 MR. : I don't envy the Court that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SDNY_GM_00000873 EFTA00084786  22 Xj3g1gra SEALED 1 THE COURT: It would be fine, but my biggest problem, 2 frankly, is I don't know when Judge Sweet's funeral is and I'm 3 trying to figure out when I need to be here for Judge Sweet's 4 funeral. 5 MR. : We're very grateful -- 6 THE COURT: This goes to the top of the pile. I 7 appreciate that this should have been dealt with sooner, and 8 I'm sorry that it wasn't dealt with a week sooner or you would 9 have had an answer. 10 MR. : We're grateful for the Court's 11 attention and certainly appreciate the opportunity to explain 12 how we ended up here. 13 THE COURT: Okay. Thank you. 14 MR. : Thank you, your Honor. 15 THE COURT: I appreciate it, Mr. 16 o0o 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 SONY_GM_00000874 EFTA00084787