EFTA00029951

IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) court order. Id. at ¶ 13. Finally, the Protective Order permits modification by the Court "at any time for good cause shown 2021 WL 1164272 following notice to all parties and an opportunity for them to Only the Westlaw citation is currently available. be heard." Id. at 1 15. United States District Court, S.D. New York. IN RE APPLICATION TO UNSEAL The United States Attorney has served a grand jury subpoena CIVIL DISCOVERY MATERIALS, on the Law Firm for documents that are covered by the USAO Reference No. 2o18Ro1618. Protective Order. 2 The Government has represented that the subpoena was validly issued as part of an ongoing 19-MC-00179 (SN) investigation into Jeffrey Epstein and others for possible violations of, Title IS, United States Code, Section 591 and Filed 03/24/2021 I 594(c) (unlawfully trafficking minors) and Section 2422(b) (unlawfully enticing minors). The production of the materials pursuant to the subpoena is solely for the purposes of the SEALED ORDER Investigation and is subject to the protections and restrictions SARAH NETBURN United States Magistrate Judge of Federal Rule of Criminal Procedure 6(e). The Law Finn has indicated its willingness to comply with the subpoena so *1 The United States Attorney for the Southern District of long as it is authorized to do so by a court order modifying New York has moved, pursuant to the All Writs Act, Title 28, the Protective Order. United States Code, Section 1651, for an order relieving Boies Schiller & Flexner LLP (the "Law Finn") of its obligations under the protective order issued on November 29, 2018, DISCUSSION in Jane Doe 43 v. Jeffrey Epstein. et al. I7-CV-616 (IGK) (SN) (S.D.N.Y.). The purpose of such order is to permit the *2 The All Writs Act provides, in relevant part, that "all Law Firm to comply with a grand jury subpoena and provide courts established by Act of Congress may issue all writs materials to the Government in connection with a federal necessary or appropriate in aid of their respective jurisdictions grand jury investigation. The motion is DENIED without and agreeable to the usages and principles of law." 28 prejudice. U.S.C. § 1651(a). The All Writs Act permits a court, in its "sound judgment," to issue orders necessary "to achieve the rational ends of law" and "the ends of justice entrusted to BACKGROUND it." United States v. New York Telephone Co 434 U.S. 159, 172.73 (1977) (internal quotation marks and citations The Law Firm represented Jane Doe 43, a plaintiff in a civil omitted). The All Writs Act provides a "residual source of suit against Jeffrey Epstein and others. The case involves authority to issue writs that are not otherwise covered by allegations of sex trafficking. Because of the sensitive nature of some of the discovery, the parties entered into a Protective statute." Penn. Bureau of Con. v. U.S. Marshals Serv. Order that deemed certain information to be "Confidential 474 U.S. 34, 43 (1985). "Although the Act empowers federal courts to fashion extraordinary remedies when the need arises, Information."' Protective Order, at ECF No. 177. As it does not authorize them to issue ad hoc writs whenever relevant here, the Protective Order provides that Confidential compliance with statutory procedures appears inconvenient Information shall not be disclosed or used for any purpose or less appropriate." Id. The Court finds that it is authorized other than the civil case. Id. at 1 4. At the conclusion of under the All Writs Act to modify the Protective Order. the case, the Protective Order requires the destruction of Confidential hard-copy documents or electronic files. Id. at 1 The Court, however, declines to exercise its discretion to 12. The Protective Order further prohibits the distribution of modify the Protective Order on the record before it. Before Confidential electronic non-file copies without a court order. modifying a protective order on which parties to a civil Id. The Protective Order contemplates that a subpoena for action presumptively relied, the Court of Appeals for the Confidential Information may be received and precludes the Second Circuit has directed district courts to find either receiving party from complying with the subpoena absent a that: (1) the protective was improvidently granted or (2) the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00029951 IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) government has established exceptional circumstances or a thereby foreclosing the possibility of atrial. Reliance on the compelling need. In re Grand Jury Subpoena Duces Tecum, continued effect of the Protective Order was and is, therefore, 945 F.2d 1221, 1224 (2d Cir. 1991); see also ? Martindell entirely reasonable. See SEC v. TheStreet.com 273 F.3d v. International Tel. and Tel. Corp. 594 F.2d 291 (2d 222, 230 (2d Cir. 2001) ("In some cases, settlement would not Cir. 1979). Because the Government does not argue that be possible but for the parties' reliance on a protective order.... the Protective Order was improvidently granted (nor could Thus, another compelling reason to discourage modification it), and because the Government has not, on this record, of protective orders in civil cases is to encourage testimony in established exceptional circumstances or a compelling need, pre-trial discovery proceedings and to promote the settlement the motion to modify is denied. of disputes."). The Government argues that the presumption against *3 In response to an identical application seeking to modify modifying protective orders articulated in Martindell and In a protective order in a different case between Epstein and an re Grand Jury does not apply here for two reasons. First, the alleged victim, another judge in this District has reached a Government argues that the standard from those cases applies different conclusion. That judge found that Epstein's reliance only to their specific procedural posture, specifically a motion on the protective order in that case was not reasonable, and to quash (In re Grand Jury) or an informal request without a therefore modified its terms to allow the Law Firm to respond grand jury subpoena (Martindell). This is a distinction without to the grand jury subpoena. I reach a different conclusion. a difference. Nothing in those decisions cabins the rule to the procedural posture presented, and there is no logical Courts look to four factors when assessing whether reliance reason to think a different standard should apply when the on a protective other was reasonable: "(I) the scope of the subpoena's recipient does not move to quash. If anything, protective order; (2) the language of the order itself; (3) the the presumption of confidentiality applies more forcefully level of inquiry the court undertook before granting the order, where, as is the case here, the Government's confidential and (4) the nature of reliance on the order"? I In re Ethylene application deprives the interested party of the chance to Propylene 255 quash the subpoena. F.R.D. 308, 318 (D. Conn. 2009). The Protective Order is not a blanket order that might be disfavored; instead, the Second, the Government argues that the presumption does not definition of Confidential Information is limited and subject apply because the Protective Order protects only documents to objective standards, and the parties may designate material exchanged in pretrial litigation. It is true that the Court of only in "good faith" after attorney review. Protective Order Appeals has said the presumption may not apply in some 11 3, 8. The Court entered the Protective Order after briefing, cases because the expectation of continued confidentiality oral argument, and a direction from the Court to make was unreasonable. See ? SEC v. TheStreet.com 273 F.3d modifications to their proposals. See ECF Nos. 163-177. The 222, 231 (2d Cir. 2001) ("[S]ome protective orders may Protective Order's language also specifically contemplated not merit a strong presumption against modification. For that confidentiality would not be waived a parte where the instance, protective orders that are on their face temporary government has subpoenaed documents that were exchanged or limited may not justify reliance by the parties."); see also in discovery but never used at trial. Protective Order ¶ 15 ("This Protective Order may be modified ... following notice In re "Agent Orange" Prod. Liah. Litig., 821 F.2d 139, to all parties and an opportunity for them to be heard."). 147 (2d Cir. 1987) ("[A]ppellants ... could not have relied Finally, no Confidential Information was filed with the Court on the permanence of the protective order. The ... order by after the entry of the Protective Order such that the parties its very terms was applicable solely to the pretrial stages of the litigation."). But this is not a case where the "conditions could anticipate its public disclosure. 3 On this record, the contemplated by the Court for revisiting the Protective Order Court finds that the parties' reliance on the Protective Order was reasonable and the presumption of confidentiality should have now occurred."? Allen v. City of N.Y. 420 F. Supp. 2d apply. 295, 301 (S.D.N.Y. 2006). All parties to the Protective Order have not been given notice and an opportunity to be heard. See Thus the Martindell/In re Grand Jury Subpoena test applies Protective Order ¶ 15. And although the Order contemplates here. Under that standard, the Government's arguments the disclosure of Confidential Information during trial, see id. for exceptional circumstances and compelling need are 1 14, that condition never arose. Instead, the parties settled, WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. EFTA00029952 IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) unpersuasive. The Government argues that it needs the protected documents because issuing subpoenas to other sources would alert the investigation's targets, possibly CONCLUSION leading them to destroy evidence or flee prosecution. But the Government has not offered any affirmations or facts The motion for an order relieving the Law Firm of its suggesting that the evidence in the Law Firm's possession obligations under the Protective Order to comply with the cannot be obtained from other sources without compromising grand jury's subpoena is DENIED without prejudice. This the investigation. Instead, it relies on the general desire order does not preclude the Law Firm from producing for secrecy. That abstract concern, which applies to all material in its possession responsive to the subpoena that confidential grand jury investigations, is not "a showing is not covered by the Protective Order. It also does not of exceptional circumstances or compelling need." In re preclude the Law Firm from disclosing to the Government an inventory of material in its possession that was marked Grand Jury, 945 F.2d at 1224.4 Indeed, if anything, the confidential pursuant to the Protective Order in order to allow extraordinary posture of the case requires the Court to police the Government to renew its application to the Court to carefully government intrusions into areas of protections establish extraordinary circumstances or a compelling need agreed to by civil litigants and so-ordered by the Court. for the materials it seeks. The Government is attempting to side-step these protections by serving a subpoena only upon a party who is willing Because the Government's application is filed in connection (and perhaps eager) to comply with the Government's with an on-going criminal investigation, this Order and all investigation. other documents filed within this Miscellaneous Case will remain UNDER SEAL until further Court Order. *4 The subject matter of the Government's investigation is obviously serious. But to pierce the Protective Order, the SO ORDERED. Government must demonstrate not that this investigation is an extraordinary circumstance, but that the reasonfor seeking the documents is so extraordinary or compelling that there is All Citations a need to modify the Protective Order. The Government has not met that standard. Slip Copy, 2021 WL 1164272 Footnotes 1 The Protective Order covers "information whose public release would violate common law and statutory privacy interests, including information reflecting medical or psychological conditions, medical or psychological treatment, prescriptions for controlled substances, non-public personal financial information, sexual activity or sexual contact, education records, email addresses, telephone numbers, home addresses, social security numbers and similarly personally identifying information for parties and third-party witnesses, any information subject to? I NY. Civil Rights Law § 50 or? 151, or any other information deemed private by a Court of competent jurisdiction to include the tort of publication of private facts." Protective Order, 1 3. 2 Because the Government has not provided the Court with a copy of the subpoena, the scope of that subpoena is unknown. 3 The other decision found that reliance on a protective order is not reasonable when the order contemplates that the confidential material may become public if used at trial. But that is an argument in favor of finding reliance on all protective orders unreasonable. The public has a strong presumption in favor of accessing trial documents. See Under Seal v. Under Seal, 273 F. Supp. 3d 460, 468 (S.D.N.Y. 2017) ("[The First Amendment] provides the public and the press a constitutional right of access to all trials, criminal or civil.") (citing r Richmond Newspapers. Inc. v. Virginia, 448 U.S. 555, 580 (1980)) (alterations omitted). WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00029953 IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) 4 The Government also argues that the Confidential Information covered by the Protective Order is not the sort of sensitive information that has been protected in the past, such as trade secrets. The fact that the protected material here is not of a specific type that has arisen in prior cases does not suggest that this case is extraordinary. End of Document O2021 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00029954