EFTA00095067

materials. Giuf•e v. Maxwell, No. 20-2413 (2d Cir.) (Dkt. No. 140-1 at 2). On October 19, 2020, 
the Second Circuit found that Judge Preska "correctly held that the deposition materials are judicial 
documents to which the presumption of public access attaches, and did not abuse its discretion in 
rejecting Maxwell's meritless arguments that her interests superseded the presumption of access." 
(Id. at 3). 
On October 22, 2020, Maxwell's April 2016 deposition was publicly filed. (See 15 Civ. 
7433 (LAP), Dkt. No. 1137-13). 
On January 27, 2021, a redacted version of Maxwell's July 2016 deposition was publicly 
filed. (See 15 Civ. 7433 (LAP), Dkt. No. 1201-14). On February 11, 2021, another version of the 
July 2016 deposition was publicly filed with fewer redactions. (See 15 Civ. 7433 (LAP), Dkt. No. 
1212-1). 
9. 
The New York Daily News Article 
On October 13, 2020, the New York Daily News published an article describing the 
February 29, 2016 meeting (the "Daily News Article" or the "Article") .36 The Article stated, 
among other things, that defense attorneys representing victims of Epstein and the defendant 
"urged" the USAO-SDNY to "open an investigation of the duo" during that meeting. Citing two 
anonymous sources, the Article described the defense attorneys' alleged efforts to "pique" the 
Government's interest "in a second meeting in the summer of 2016 after Maxwell allegedly 
committed perjury." According to two anonymous sources, "a second meeting occurred." 
However, the Article cites another anonymous source as "insist[ing] [a second meeting] never 
happened." 
36 See Stephen Rex Brown, Manhattan federal prosecutors declined to pursue Jeffrey Epstein and 
Ghislaine Maxwell case in 2016: sources, New York Daily News, Oct. 13, 2020, 
https://wwvv.nydailynews.corninew-yorlc/ny-jeffrey-epstein-maxwell-case-20201013-
jrnzhl7zdrzdgrbbs7yc6bfnszu-story.html. 
75 
EFTA00095167

B. 
The Defendant's Suppression Motion Should Be Denied 
Maxwell seeks suppression of the evidence the Government obtained via a judicially 
authorized subpoena to 
under Martindell, the Fourth Amendment, Fifth 
Amendment, the Due Process clause, and the Court's inherent authority. However, Maxwell's 
motion turns on erroneous facts, runs afoul of controlling law, and should be denied. 
1. 
Martindell Provides No Basis to Grant the Relief the Defendant Seeks 
Maxwell argues that the Government "circumvented" the Second Circuit's decision in 
Martindell and "violated Maxwell's rights," which requires suppression of the evidence the 
Government obtained from the subpoena. (Def. Mot. 11 at 11-12). Even assuming that to be 
true—which, of course, as detailed above and herein, it is not—critically, for present purposes, 
there is no basis in law to suppress evidence as a result of a Martindell violation, and Maxwell 
cites none in support of her claim. Setting that fatal flaw aside, however, her claim is wrong on 
both the facts and the law. The Government issued a valid grand jury subpoena for the materials, 
applied for judicial authorization to modify the protective order to permit compliance with the 
subpoena, and a district court judge, who evaluated the Government's application under 
Martindell, properly exercised her discretion in modifying the protective order. 
receiving that court order did the Government obtain any protected materials from 
Maxwell's motion should be denied. 
a. 
Applicable Law 
"[T]here is no question that a Rule 26(c) protective order is subject to modification," and 
a decision to modify such an order is "committed to the sound discretion of the trial court." In re 
"Agent Orange" Prod. Liab. Litig., 821 F.2d 139, 147 (2d Cir. 1987); see also Andover Data 
Servs., a Div. of Players Computer, Inc. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d 
Only after 
76 
EFTA00095168

Cir. 1989) ("It is well-settled here and elsewhere, for instance, that a Rule 26(c) protective order 
may be overturned or modified based on a finding of improvidence, extraordinary circumstances 
or compelling need."). 
In Martindell, the Government informally—and without use of a grand jury subpoena—
sought access to discovery materials from a civil litigation that were subject to a protective order. 
594 F.2d 291, 294 (2d Cir. 1979). The Second Circuit found that the "deponents [had] testified in 
reliance upon [a] Rule 26(c) protective order, absent which they may have refused to testify." Id. 
at 296. In so ruling, the Second Circuit reasoned that the interest in the enforcement of Rule 26(c) 
protective orders—which included securing just and speedy determination of civil disputes—was 
sufficient to outweigh the Government's interest in obtaining information by means of an informal 
document request. Id. at 295-96. The Second Circuit held that "absent a showing of improvidence 
in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling 
need, .. . a witness should be entitled to rely upon the enforceability of a protective order against 
any third parties, including the Government." Id.; see also In re Grand Jury Subpoena Duces 
Tecum Dated Apr. 19, 1991, 945 F.2d 1221, 1224-25 (2d Cir. 1991) (The Martindell test [ ] does 
not transform a protective order into a grant of immunity because the test allows a protective order 
to be overcome by a showing of improvidence in the grant of the order, extraordinary 
circumstances or compelling need."); Palmieri v. State of N. Y., 779 F.2d 861, 862 (2d Cir. 1985) 
(holding that "absent an express finding by the district court of improvidence in the magistrate's 
initial grant of the protective orders or of extraordinary circumstances or compelling need by the 
State for the information protected thereunder, it was error for the district court to modify the 
magistrate's orders"). 
77 
EFTA00095169

At the same time, in Martindell, the court noted that "[t]he reliance of a private party upon 
protection of pre-existing documents from disclosure to the Government would normally be more 
difficult to justify than that of a witness who would, absent the protective order, have invoked his 
privilege and given no testimony at all." Id. at 297 n.8; see also United States v. Davis, 702 F.2d 
418, 422-23 (2d Cir. 1983) (finding Martindell inapplicable and affirming enforcement of a grand 
jury subpoena where "there [was] no indication that [a witness] agreed to testify only in reliance 
on [an] `understanding"' of confidentiality and where many records sought "existed prior to the 
advent of the litigation"). In subsequent cases, the Second Circuit has clarified that the Martindell 
presumption comes into play only when a party reasonably relies on a protective order in providing 
deposition testimony. See, e.g., Davis, 702 F.2d 418; SEC v. TheStreet.com, 273 F.3d 222, 230-
31 (2d Cir. 2001) (stating that "some protective orders may not merit a strong presumption against 
modification," as the nature of some orders "may not justify reliance by the parties"). 
In United States v. Davis, the Second Circuit explained that "[r]anged against these 
considerations [relating to the policy in favor of enforcing Rule 26(c) protective orders] are the 
reasons for permitting the grand jury broad subpoena power in a criminal investigation." 702 F.2d 
at 421. The Second Circuit noted the grand jury's "wide ranging authority to inquire into suspected 
violations of the criminal law; and to effectuate such investigations it may compel the production 
of documentary evidence or the testimony of witnesses, as it deems necessary." Id. at 421-22 
(citing United States v. Calandra, 414 U.S. 338, 343 (1974)). "Wide latitude in gathering evidence 
is vital to the grand jury's investigative function." Id. at 422; see Branzburg v. Hayes, 408 U.S. 
665, 688 (1972) ("Although the powers of the grand jury are not unlimited and are subject to the 
supervision of a judge, the longstanding principle that `the public . . . has a right to every man's 
78 
EFTA00095170

evidence,' except for those persons protected by a constitutional, common-law, or statutory 
privilege is particularly applicable to grand jury proceedings." (internal citations omitted)). 
b. 
Discussion 
The Government did not, in any way, attempt to circumvent Martindell. Rather, the 
Government presented Martindell squarely to the relevant courts, first arguing that its test was not 
applicable, and then, in the alternative, that the requested relief should be granted even if the courts 
applied the Martindell standard. 
"circ 
--- 
it cited 11 times in its argument to both relevant courts. (See (Exs. 8 
Instead, the Government issued a subpoena to Boies 
in connection with its 
investigation, and made an application to two judges to modify Rule 26(c) protective orders that 
precluded full compliance with those subpoenas. While 
not employ thackg 
test foal/feral Weir' 
ginndell in the altemalEMENty, both Challudge firTihron and rt ige 
that Martindell applied allialliEleappan 
under that framewial 
As chAllige McMahon found, even under the Martindell approach, testimony provided 
pursuant to a protective order can be divulged to a grand jury if the government establishes "some 
extraordinary circumstance or compelling need." Martindell, 594 F.3d at 296. 
[hat 
t l 
"Got
,[ 1 Sive 
publ
hat 
in a 
a grad i jury 
esti 
37 See, e.g., Lit'! Equity Invs., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ. 2745 (JGK) 
(RLE), 2010 WL 779314, at *8 (S.D.N.Y. Mar. 2, 2010) (finding that the parties' reliance on a 
civil protective order "was not unreasonable given the nature of the litigation," but "not so 
overwhelming as to warrant the indefinite application of Martindell's strong presumption against 
modification because the order's broad scope and express language, and the minimal level of court 
inquiry outweigh the Parties' reliance."). 
79 
EFTA00095171

crime. (Def. Mot. 3, Ex. G at 22-23). The Court also noted that because the investigation was not 
publicly known, "the ordinary exercise of grand jury power [i.e., to subpoena witnesses to testify 
and to produce documents] . . . would implicate and invite the very risk of disclosure—and the 
possibility of alerting potential criminal targets that they are under investigation, causing them to 
destroy evidence, flee from prosecution, or othenvise seriously jeopardize the Investigation—that 
caused the Government to proceed via subpallko Boies Schiller] and its related Applicatiogij 
(Id. at 23-24). The Court further noted that devemmenes interest is bolstered" a-
was made by a grand jury that had issued a alliena for the production of documents as parl'of 
an ongoing ation5). 
In support of her argument, the defendant cites Palmieri 
where the Second Circuit, applying Martindell, reversed the district court's decision granting the 
state Attorney General's motion to intervene to modify sealing orders. (Def. Mot. 11 at 14). 
Maxwell's reliance on Palmieri is of no avail. There, the Second Circuit held that the district court 
erred by not expressly finding that the state had shown improvidence, extraordinary circumstances, 
or compelling need before modifying the sealing orders in a civil case. Palmieri, 779 F.2d at 862, 
866. 
made this 
the Go 
ents for ea
circflneed 
as eve" 
under the Martindell standard. (Del,Mot. 
3, Ex. H athaavilge 
Netbum was "exactly right" in her analysis of sk i
aces 
the fact that Glib/Judge McMaliggia 
That two neutral judicial officers were presented with the facts, analyzed 
the law, and reached varying conclusions based on different findings shows that there are 
guardrails in place to ensure compliance with Martindell. In other words, the Government in no 
80 
EFTA00095172

way circumvented Martindell; rather, the Government sought court approval to enforce a subpoena 
and then followed the directives it received.38
Most critically, however, even if the Government's motion did not satisfy Martindell, 
Maxwell offers no legal authority for the proposition that suppression is the proper remedy.39
Indeed, none of the Second Circuit cases applying Martindell contemplate suppression as a 
remedy. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d at 
1224 (remanding for findings "on whether the protective order was improvidently granted or 
whether the government had made a showing of exceptional circumstances or a compelling need"); 
Palmieri, 779 F.2d at 862 (reversing district court's modification of protective orders where district 
court did not make an "express finding" of improvidence, extraordinary circumstances, or 
compelling need and "remand[ing] for further proceedings consistent with this opinion"). 
2. 
Maxwell's Fourth Amendment Claim Fails 
38 Maxwell asks this Court to review and reverse =rage 
McMahon's exercise of her 
discretion in modifying the protective order, because she disagrees with Chief Judge McMahon's 
analysis of the Martindell factors. 
ugh Chief Judge McMahon's order modifying the civil 
e civil docket, that order, along with the Governmeffla 
application  and related materials, were produced  to the defense on or about August 12, 2020. As 
a result, Maxwell could have sought review of 
order in the Second 
Circuit. See Fed. R. App. P. 4(a)(6). Maxwell asks this Court to second-guess a coequal district 
court's decision to modify a protective order. Putting aside the question of whether this Court 
even has the authority to do so, it should in any event decline Maxwell's invitation to act as a 
reviewing court to 
WfJudge  McMahoni decision, which was made in her "sound discretion." 
In re "Agent Orange" Prod. Liab. Litig., 821 F.2d at 147. 
38 To the extent that Maxwell seeks suppression of documents created prior to the entry of the 
protective order (or created after its entry but not subject to its protections), that aspect of her 
motion should be denied. A significant amount of the materials provided in response to the 
subpoena included such pre-existing documents not created in reliance on a protective order, which 
do not trigger the Martindell presumption in the Second Circuit, see 77zeStreet.com, 273 F.3d at 
234-235; Davis, 702 F.2d at 422. Maxwell's arguments also do not extend to VINEWMPIIME 
individuate, 
who were not party to the protective order. 
81 
EFTA00095173

Maxwell's Fourth Amendment motion is premised on a wholly unsupported expansion of 
the law. Because Maxwell lacked a privacy interest in the files of 
she cannot make out a Fourth Amendment violation. 
Moreover, even if Maxwell had standing to assert this claim, it would nonetheless fail because the 
Government relied in good faith on a judicial order permitting compliance with its subpoena. 
a. Maxwell Has Not Established Standing 
i. 
Applicable Law 
The Fourth Amendment protects the "right of the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend IV. 
"The basic purpose of this Amendment ... is to safeguard the privacy and security of individuals 
against arbitrary invasions by governmental officials." Carpenter v. United States, 138 S. Ct. 
2206, 2213 (internal quotation marks and citation omitted). "It has been clear for a generation that 
`Fourth Amendment rights are personal rights ... [that] may not be vicariously asserted."' United 
States v. Haqq, 278 F.3d 44, 47 (2d Cir. 2002) (quoting Rakas v. Illinois, 439 U.S. 128, 133-34 
(1978)). Accordingly, a defendant's Fourth Amendment rights "are violated only when the 
challenged conduct invaded his legitimate expectation of privacy rather than that of a third party." 
United States v. Payner, 447 U.S. 727, 731 (1980) (emphasis in original); see also United States 
v. Viliegas, 899 F.2d 1324, 1333 (2d Cir. 1990). Ultimately, the Fourth Amendment inquiry is 
"whether [a] defendant has established a legitimate expectation of privacy in the area searched." 
United States v. Chuang, 897 F.2d 646, 649 (2d Cir. 1990) (citations omitted). This threshold 
question involves two separate inquiries: (1) whether a defendant has demonstrated a subjective 
expectation of privacy in the places and items that were searched; and (2) whether that expectation 
was one that society accepts as reasonable. Id. It is axiomatic that "[t]he proponent of a motion 
82 
EFTA00095174

to suppress has the burden of establishing that his own Fourth Amendment rights were violated by 
the challenged search or seizure." Rakas, 439 U.S. at 130, n.1; see also Rawlings v. Kentucky, 448 
U.S. 98, 104 (1980). 
Under the third party doctrine, the Fourth Amendment "does not prohibit the obtaining of 
information revealed to a third party and conveyed by [the third party] to Government authorities." 
United States v. Miller, 425 U.S. 435, 443 (1976). The Supreme Court has long held that "a person 
has no legitimate expectation of privacy in information he voluntarily turns over to third parties," 
Smith v. Maryland, 442 U.S. 735, 743-44 (1979), "even if the information is revealed on the 
assumption that it will be used only for a limited purpose," Miller, 425 U.S. 435, at 443. 
Exceptions to the applicability of the third party doctrine are narrow. For example, in Carpenter 
v. United States, 138 S. Ct. 2206, 2220 (2018), the Supreme Court declined to extend the third 
party doctrine to cell site location information, holding that "a warrant is required in the rare case 
where the suspect has a legitimate privacy interest in records held by a third party." 138 S. Ct. at 
2222. However, the Court stressed that its holding was "a narrow one," with specific consideration 
given to "the unique nature of cell phone location information," id. at 2220, which "provides an 
intimate window into a person's life," id. at 2217. 
"The law is clear that the burden on the defendant to establish [Fourth Amendment] 
standing is met only by sworn evidence, in the form of affidavit or testimony, from the defendant 
or someone with personal knowledge." United States v. Montoya-Esthevarria, 892 F. Supp. 104, 
106 (S.D.N.Y. 1995) (citations omitted); see also United States v. Ulbricht, No. 14 Cr. 68 (KBF), 
2014 WL 5090039, at *6 (S.D.N.Y. Oct. 10, 2014); Rakas, 439 U.S. at 130 n. 1. 
83 
EFTA00095175

ii. 
Discussion 
Maxwell cannot assert a Fourth Amendment claim because she had no legitimate 
expectation of privacy in the 
on transcripi or other materials she designated as confidential 
under the protective order. The materials were held by a 
See Smith, 442 U.S. at 743-44 ("a person has no legitimate expectation 
of privacy in information he voluntarily turns over to third parties"); Miller, 425 U.S. at 443 (no 
legitimate expectation of privacy in materials held by a third party "even if the information is 
revealed on the assumption that it will be used only for a limited purpose"); Carpenter, 138 S. Ct. 
at 2220 ("We do not disturb the application of Smith and Miller . ."). Maxwell cites no authority 
for the proposition that she has standing to challenge a judicially approved grand jury subpoena 
directed at' 
because there is none. 
Maxwell points to the fact that the materials were designated as confidential under the 
protective order, but that reliance is misplaced. (Def. Mot. 11 at 6-8). Martindell by its own terms 
contemplates the modification of a protective order in a civil action. See, e.g., Andover Data 
Servs., 876 F.2d at 1083 ("It is well-settled here and elsewhere . . . that a Rule 26(c) protective 
order may be overturned or modified based on a finding of improvidence, extraordinary 
circumstances or compelling need."). And with respect to the specific protective order at issue, 
ad 
that (IIMINE (mainly 
gives the couiPlaower to enter an 
to anyone—law enforcement inclu4S—MaaS could nil 
reason
 abide, of automatic permission 
dire 
to shill 
anything sl—TZITand 
jury's scrutiny." (Def. Mot. 3, Ex. Gat 18-19); see 
also Def. Mot. 3, Ex. A at ¶ 5 ("CONFIDENTIAL INFORMATION[] shall not, without the 
consent of the party producing it or fitrther Order of the Court, be disclosed[.]") (internal quotation 
84 
EFTA00095176

marks omitted) (emphasis added); In re "Agent Orange" Prod. Liab. Litig., 821 F.2d at 145 ("It 
is undisputed that a district court retains the power to modify or lift protective orders that it has 
entered."). It also bears noting that Martindell and its progeny do not discuss law enforcement 
applications in Fourth Amendment terms. 
In an effort to avoid the application of the third party doctrine, Maxwell contends that she 
did not in fact voluntarily share anything 
and that "every other circumstance" 
supported her misguided "expectation that her 
would be private." (De£ Mot. 
11 at 9). Neither argument withstands scrutiny. As an initial matter, the facts of this case are far 
removed from the "narrow" circumstances in which the Supreme Court has found an exception to 
the third party doctrine. For example, the Carpenter court, while stressing that its holding was a 
"narrow one," 138 S. Ct. at 2220, held that "[g]iven the unique nature of cell phone location 
records," which provide a "intimate window into a person's life," that "the fact that the information 
is held by a third party does not by itself overcome the user's claim to Fourth Amendment 
protection." Id. at 2217; see also Zietzke v. United States, 426 F. Supp. 3d 758, 768 (W.D. Wash. 
2019) ("The Court ... will extend Carpenter to new circumstances only if they directly implicate 
the privacy concerns that animated the majority. [T]he majority was overwhelmingly concerned 
with `Carpenter's anticipation of privacy in his physical location.' In other words, Carpenter was 
about surveillance." (internal citation omitted)). 
There can be no serious argument that the facts of this case, or the materials obtained 
pursuant to the subpoena issued here, revealed Maxwell's physical location over a period of time 
or are otherwise in any way analogous to the narrow category of information contemplated by the 
majority in Carpenter. To the extent the defendant argues that her 
implicate 
such interests because she "did not `voluntarily convey' 
" (Def. Mot. II 
85 
EFTA00095177

at 10), the Court should reject the defendant's efforts to twist Carpenter's exception to the third 
party rule beyond recognition. The defendant was not compelled to 
or to answer a 
without invoking her Fifth Amendment right against self-incrimination; she 
voluntarily chose to do so. Even if she chose to do so in reliance on the protective order, that 
protective order was subject to modification under well-settled case law and by its own terms. 
Contrary to the defendant's claims (Def. Mot. 11 at 10), she assumed the risk that the 
would divulged to the Government. See, e.g., United States v. Schaefer, No. 17 Cr. 400 
(HZ), 2019 WL 267711, at *5 (D. Or. Jan. 17, 2019) (declining to apply Carpenter where 
government obtained defendant's eBay transactions without a warrant as defendant "assumed the 
risk that [eBay] would reveal to police the purchases he made" and defendant "did not have a 
reasonable expectation of privacy in the records of his purchases"). 
Because Maxwell had no legitimate Fourth Amendment privacy interest in the materials in 
possession, she has no standing to challenge their seizure, and no warrant was 
required to obtain those materials. Her motion should be rejected on this ground alone. 
b. 
The Government Acted in Good Faith 
Even if the defendant had standing to bring this motion, it still fails because the 
Government only obtained these materials after obtaining a court order authorizing it to do so. The 
Government accordingly acted in good faith when it acted pursuant to that judicial order. 
i. 
Applicable Law 
Under the so-called "good faith" exception, the exclusionary rule and its remedy of 
suppression does not apply "when the Government `act[s] with an "objectively reasonable good-
faith belief that their conduct is lawful."' United States v. Zodhiates, 901 F.3d 137, 143 (2d Cir. 
2018) (quoting Davis v. United States, 564 U.S. 229, 238 (2011) (internal quotation marks 
86 
EFTA00095178

omitted)). "As the rule seeks to deter future Fourth Amendment violations, the Supreme Court 
advises district courts to only suppress evidence where it serves such a purpose." United States v. 
Williams, No. 10 Cr. 622 (ADS), 2018 WL 4623017, at *4 (E.D.N.Y. Sept. 26, 2018) (internal 
quotation marks and citations omitted). "`[T]he exclusionary rule is not an individual right and 
applies only where it results in appreciable deterrence." United States v. Eldred, 933 F.3d 110, 
118 (2d Cir. 2019) (quoting Herring v. United States, 555 U.S. 135, 141 (2009)); see also Herring, 
555 U.S. at 144 (concluding that "[t]o trigger the exclusionary rule, police conduct must be 
sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such 
deterrence is worth the price paid by the justice system."). As a result, exclusion should be a "last 
resort" rather than a "first impulse." United States v. Rosa, 626 F.3d 56, 64 (2d Cir. 2010) (internal 
quotation marks and citation omitted). The exclusionary rule should be used only where law 
enforcement "`exhibit[s] deliberate, reckless, or grossly negligent disregard for Fourth 
Amendment rights."' United States v. Raymonda, 780 F.3d 105, 117-18 (2d Cir. 2015) (quoting 
United States v. Stokes, 733 F.3d 438, 443 (2d Cir. 2013)); see also United States v. Green, 981 
F.3d 945, 957 (11th Cir. 2020) ("It follows that when officers act with `an objectively reasonable 
good-faith belief that their conduct is lawful'—i.e., by acting in reasonable reliance on a warrant, 
statute, or court order—the exclusionary rule does not apply because there is little, if any, 
deterrence benefit in such circumstances." (citations omitted)). 
In the context of search warrants, suppression will generally not be warranted where the 
evidence at issue was "obtained in objectively reasonable reliance on a subsequently invalidated 
search warrant." United States v. Leon, 468 U.S. 897, 922 (1984). As a result, although the burden 
is on the Government to establish good faith, "[s]earches pursuant to a warrant will rarely require 
any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to 
87 
EFTA00095179

establish that a law enforcement officer has acted in good faith in conducting the search." Id. 
(internal quotation marks and citations omitted); see also Golino v. City of New Haven, 950 F.2d 
864, 870 (2d Cir. 1991) (noting that the "issuance of a warrant by a neutral magistrate, which 
depends on a finding of probable cause, creates a presumption that it was objectively reasonable 
for the officers to believe that there was probable cause"). Indeed, the good faith exception does 
not apply only in four narrow circumstances: 
(1) where the issuing magistrate has been knowingly misled; (2) 
where the issuing magistrate wholly abandoned his or her judicial 
role; (3) where the application is so lacking in indicia of probable 
cause as to render reliance upon it unreasonable; and (4) where the 
warrant is so facially deficient that reliance upon it is unreasonable. 
United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992) (citing Leon, 468 U.S. at 923). The good 
faith exception analysis applies in the context of court orders. See, e.g., Zodhiates, 901 F.3d at 
143 (applying good faith analysis in Fourth Amendment challenge to cell phone location 
information obtained by subpoena issued pursuant to 18 U.S.C. § 2703(c)(2)); United States v. 
Serrano, No. 13 Cr. 58 (KBF), 2014 WL 2696569, at *7 (S.D.N.Y. June 10, 2014) (finding good 
faith exception would apply to cell site information obtained pursuant to a subpoena authorized by 
magistrate judge pursuant to 18 U.S.C. § 2703(d)); United States v. Ashburn, 76 F. Supp. 3d 401, 
406, 414-18 (E.D.N.Y. 2014) (applying Leon to § 2703(d) orders for historical cell-site data 
obtained and finding that the good faith exception applied). 
ii. 
Discussion 
The exclusionary rule and its remedy of suppression should not apply here as the 
Government issued a grand jury subpoena; sought the materials after applying to the district court 
for an order to modify the civil protective order; and only obtained the materials after the district 
88 
EFTA00095180

court modified the protective order and issued 
decision. The Government acted in 
reasonable reliance on the district court's decision. 
The defendant argues that the Government misled the Court when it "claimed not to know 
what was in 
file and that 
had no role in instigating the investigation 
of Maxwell." (Def. Mot. 11 at 1). The defendant's claims are factually inaccurate and meritless. 
First, the Government did not mislead 
about its contacts with 
As an initial matter, Maxwell's argument is premised solely on her use of selective 
snippets from a lone Daily News Article that is premised, in meaningful part, on anonymous 
sources and hearsay. As the factual background set forth above—as corroborated by notes and 
correspondence produced alongside this brief—makes clear, David Boies and Boies Schiller 
played no role in initiating, let alone "fomenting" the Government's investigation. 
That 
investigation was opened more than two and a half years after the last known contact between any 
lawyer associated with any civil counsel for Giuffre and, in any event, was initially focused on 
Epstein, not this defendant. As detailed above, the USAO-SDNY opened the instant investigation 
in late November 2018 and shortly after the Miami Herald published a series of articles about 
Epstein. AUSA-1 was not involved in that decision, which in any event had nothing to do with a 
meeting that had taken place nearly three years prior.40 (Ex. 4 at 6). 
The defendant repeatedly argues that the Government's failure to mention AUSA-1's prior 
contact with Boies Schiller in 2016 was a misrepresentation that led to the modification of the 
4° Maxwell repeatedly claims that Boies Schiller urged AUSA-1 to open an investigation of 
Epstein and Maxwell, (Def. Mot. 3 at 8), but that allegation, which is supported by nothing aside 
from the above-referenced media report, is incorrect. While AUSA-1 did meet with the three 
attorneys in February 2016, she understood the attorneys to be focused on Epstein, and not on 
Epstein and Maxwell as a "duo." (Ex. 4 at I, 4). The presentation to AUSA-1 focused on urging 
an investigation into Epstein with only passing references to Maxwell. Simply put, the pitch was 
to investigate Epstein, not Maxwell. 
89 
EFTA00095181

protective order. The argument, which relies principally on hyperbolic rhetoric, is simply 
incorrect. As an initial matter, the Government did not insist, contrary to Maxwell's twisted 
reading of the transcript, 
no contact women_ 
the ant 
at nallavernment 
ongation. 
(Def. Mot. 3 at 1). 
Instead, ChiefJudgeltNahon's cAlgaismore 
specific: rearing Chemical figgrand 
desire to avoid "a Chemical Bank kind OREM5n," Chief Judge Mahon asked about cont
between the two parties "prior to the issuance of the subpoena on the subject qfyour investigation7 
(Def. Mot. 3, Ex. E at 2 (emphasis added); see also Def. Mot. 3 at 7 (omitting the italicized portion 
of the question)). In response, the Government described accurately its communications with 
Boies Schiller that had occurred in the time period surrounding the opening of its investigation and 
the issuance of the subpoena. Additionally, and in light of the Government's prior arguments to 
Chief Judge McMahon relating to Chemical Bank,4' the Government attempted to address the 
misconduct at issue in that case: namely the production of confidential documents without seeking 
modification of a protective order by confirming that, here, no such production had yet occurred. 
(Def. Mot. 3, Ex. E at 2) (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."). 
I' See, e.g., Exs. 8 & 9 at 2-3 (discussing Chemical Bank as rejecting a contempt request where a 
party "compl[ied] with a grand jury subpoena despite the existence of a protective order" and 
focusing arguments on the nature of the production of documents); Def. Mot. 3, Ex. D at 15 (the 
Government describing Chemical Bank as "essentially say[ing]: You should have asked, but of 
course this is fine for you to disclose this information to the government based on the validly issued 
grand jury subpoena"); cf. id. at 4 (Chief Judge McMahon describing Chemical Bank as saying 
"the proper procedure [for the production of documents] is for somebody to make a motion to be 
relieved from the terms of the protective order"), 20 (Chief Judge McMahon stating that "in the 
Chemical Bank case, it all was ex post facto and it all happened"). 
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While the Government appreciates, with the benefit of hindsight, that an answer that had 
also referenced the February 2016 meeting (and the fact that USAO-SDNY took no action as a 
result of that meeting) would have provided additional context—and would have further reinforced 
that this was not a "Chemical Bank situation"—as noted above, the Government's response 
accurately described its contacts with Boies Schiller as relevant to "your investigation" and the 
issuance of the subpoena at hand. Indeed, there is no reason to believe that a description of the 
February 2016 meeting would have been material to Chief Judge McMahon's analysis of %Taber
she was facing a "Chemical Bank kind of situation." (Def. Motla 
E 
In Chemical Bank, counsel for a civil party approached the Manhattan District Attorney's 
Office "suggesting that it had evidence of criminal violations relating to the case." 154 F.R.D. at 
93. In response, a grand jury subpoena was issued and "confidential documents were produced by 
the defendant without complying with any of the specific procedures or exceptions provided in the 
[confidentiality] orders." Id. Here, by contrast, 
ga on in late 0111 
Schiller shortly the 
na in Februan 
Miran 
order, Aside from rank speculation loosely premised on 
an anonymously sourced news report, the defendant offers nothing to support her assertion that 
was instrumental in fomenting the Maxwell prosecution" (Def. Mot. 3 at 2) 
(emphasis in original), or that AUSA-1's February 2016 meeting with Boies Schiller (as it actually 
occurred) undercut the accuracy of the Government's representations to 
or played any role in the Government opening its investigation in November 2018, or its decision 
to issue a subpoena to 
in February 2019. 
91 
EFTA00095183

Second, the Government did not misrepresent the extent of its knowledge of the contents 
of 
had 
files. As the Government correctly represented to the court, the Government 
-tittle or no a 
tion than the&
leima 
(Def. Mot. 3, Ex. D at 17). In support of her argument, Maxwell 
cites again to the Daily News Article, which reports that "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' (Def. Mot. 3 at 8). But the 
Government has uncovered no evidence that such a meeting ever occurred. AUSA-1 does not 
recall ever speaking with or meeting David Boies in her life. (Ex. 4 at 4). Moreover, AUSA-1 
does not recall being asked if the USAO-SDNY would consider charging Maxwell with perjury 
(id. at 5), and while notes of the February 2016 meeting refer to the existence of depositions 
generally, there can be no question 
understanding that 
appreciated the Government's general 
(Def. Mot. 3, Ex. G at 
21). Simply put, there is no evidence that the Government had any significant knowledge of the 
contents of 
were incorrect. 
In sum, Maxwell has failed to put forth any evidence that the Government misled chief
and as such, the good faith exception applies. To the contrary, the record before 
the Court demonstrates that the Government directly responded to 
question and accurately described the contacts between 
files, or that the Government representations to 
nd the USAO-SDNY in 
connection with the investigation, the Government's lack of knowledge of the contents of that file, 
and the fact that no protected materials had been produced in violation of the protective order. 
Upon receiving a court order issued by a 
who had carefully 
92 
EFTA00095184

considered the Government's application and then issued a lengthy opinion ruling on that 
application, the Government was entirely reasonable in its understanding that the order was lawful. 
It was therefore similarly reasonable for the Government to obtain materials from 
in response to the subpoena that had been analyzed and blessed by a court order. The Government 
acted with an "objectively reasonable good-faith belief' that its conduct was lawful and in 
reasonable reliance on the district court's order. Zodhiates, 901 F.3d at 143 (internal quotation 
marks and citations omitted). 
c. 
Suppression of Certain Materials Would Be Improper Under 
the Inevitable Discovery Doctrine 
To the extent materials the Government obtained from 
have now been 
unsealed and posted on the public docket, there is no basis to suppress such materials because the 
Government would have inevitably been able to access them upon unsealing. 
i. 
Applicable Law 
Under the inevitable discovery doctrine, "evidence that was illegally obtained will not be 
suppressed `if the government can prove that the evidence would have been obtained inevitably' 
even if there had been no statutory or constitutional violation." United States v. Roberts, 852 F.2d 
671, 675-76 (2d Cir. 1988) (quoting Nix v. Williams, 467 U.S. 431, 447 (1984)). When a claim of 
inevitable discovery is raised, the court must "determine, viewing affairs as they existed at the 
instant before the unlawful search occurred, what would have happened had the unlawful search 
never occurred." Stokes, 733 F.3d at 444 (citation omitted) (emphasis in original); see also United 
States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) (The application of the inevitable discovery 
doctrine "turns on a central question: Would the disputed evidence inevitably have been found 
through legal means `but for' the constitutional violation? If the answer is `yes,' the evidence 
seized will not be excluded."). 
93 
EFTA00095185

"The government bears the burden of proving inevitable discovery by a preponderance of 
the evidence." Stokes, 733 F.3d at 444 (citing Mr, 467 U.S. at 444). This requires establishing, 
"'with a high level of confidence, that each of the contingencies necessary to the legal discovery 
of the contested evidence would be resolved in the government's favor." Id. (quoting Heath, 455 
F.3d at 60). As the Supreme Court has explained, if the Government can establish that the evidence 
inevitably would have been discovered by lawful means, "then the deterrence rationale [for the 
exclusionary rule] has so little basis that the evidence should be received." Nix, 467 U.S. at 444. 
ii. 
Discussion 
Even if the Court were to find that there had been some constitutional violation in the 
Government obtaining a modification of the protective order in the civil matter—which it should 
not—the question in an inevitable discovery analysis is whether the Government would inevitably 
have found the disputed evidence. The answer is yes, at least as to some of the evidence, including 
the April 2016 deposition that forms the basis of Count Five and part of the July 2016 deposition 
that forms the basis of Count Six.42
42 In January 2021, the defendant asked Judge Preska to reconsider her order unsealing certain 
portions of her testimony on the basis that, among other things, public release of the section would 
make it more difficult for Maxwell to suppress the testimony as evidence against her at her criminal 
trial. On February 8, 2021, Judge Preska "decline[d] Ms. Maxwell's invitation to reconsider its 
order" and noted that the defendant had both filed a suppression motion and available tools under 
the Federal Rules of Evidence and Procedure. (See 15 Civ. 7433 (LAP), Dkt. No. 1211 at 3, 5). 
The portion of the July 2016 deposition transcript that forms the basis of Count Six that has been 
unsealed relates to the defendant denying that she has given a massage to anyone, including Epstein 
or Minor Victim-2. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1 at 113). The fact that the defendant 
argued against unsealing the transcript by pointing to her suppression argument is irrelevant. Judge 
Preska determined that the public's First Amendment right of access outweighed the defendant's 
interests. If the Government had not modified the protective order and charged the defendant with 
perjury based on the deposition transcript, that argument would have been unavailable and the 
balance would have tipped still more in favor of public access, leading to the transcript's inevitable 
discovery. 
94 
EFTA00095186