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Case 1:20-cr-00330-AJN Document 140 Filed 02/04/21 Page 12 of 22 including Maxwell’s i, and not to share Confidential information with law Motion under the Due Process Clause to Suppress and Dismiss Counts 5 and 6, Ex. F, at 11 (emphases in original). Maxwell thus had a reasonable expectation of privacy in her I and everything else she designated as “Confidential” under the Protective Order.* Obtaining that confidential material by subpoena therefore amounted to a search under the Fourth Amendment. Because the government had neither probable cause nor a warrant, this Court should suppress the Ee 20d all material Maxwell designated as Confidential. 1. The third-party doctrine does not compel a different result. It is irrelevant that Maxwell’s I were in the possession of WE and not her own attorneys. The third-party doctrine does not apply here because + This argument adheres to Martindell’s holding that the government there should have either moved to intervene or issued a subpoena to obtain the [. For one thing, the Fourth Amendment was not at issue in Martindell, so the Court had no occasion to decide whether a warrant might have been required. For another, Martindell does not speak to what showing would have been required for the issuance of a subpoena, probable cause or something less. Even if a warrant weren’t required here, a showing of probable cause was. See People v. Mason, 989 P.2d 757, 760 (Colo. 1999) (noting jurisdictions that recognize an expectation of privacy in subpoenaed materials and that require a subpoena duces tecum of such records to be supported by probable cause). Finally, of course, the government didn’t comply with Martindell because it never gave Maxwell notice and an opportunity to quash the subpoena and to challenge the government’s misrepresentations through the adversary process. DOJ-OGR-00002560