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l The Honorable Alison J. Nathan August 24, 2020 Page 2 a> oO government’s ad hominem suggestion that Ms. Maxwell has “cherry-pick[ed] materials” to seek an “advantage in their efforts to defend against accusations of abuse” or “delay court-ordered disclosure of previously sealed materials” reveals a fundamental (or feigned) lack of understanding i! . It also begs the question, to be fleshed out at a later tir, lll Ms. Maxwell simply seeks to alert the judicial officers in the related Civil Litigation to facts about which her adversary is already aware. Issuance of the Subpoenas Not “Standard Practice”: Second, the government tries to normalize, without citation to authority, its conduct as “standard practice.” Resp. at 2. To the contrary, the controlling case in this Circuit, Martindell v. Int’] Telephone & Telegraph Corp., 594 F.2d 291, 293 (2d Cir. 1979), mandates a wholly different procedure: the use of a non-ex parte subpoena with an opportunity for the aggrieved party to move to quash. Similar cases in this district demonstrate the “non-standard” nature of the government’s conduct regarding these subpoenas. For example, Judge Koeltl observed when considering whether to release a single deposition transcript to the government: “the Second Circuit has made clear that the Government may not use its ‘awesome’ investigative powers to seek modification of a protective order merely to compare the fruits of the plaintiff's discovery in a civil action with the results of a prosecutorial investigation in a criminal action.” Botha v. Don King Prods., Inc., No. 97 CIV. 7587 (JGK), 1998 WL 88745, at *3 (S.D.N.Y. Feb. 27, 1998) (citing Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 743 (2d Cir. 1987) and Martindell, 994 F.2d at 297). DOJ-OGR-00001764