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Case 1:20-cr-00330-AJN Document 140 Filed 02/04/21 Page 16 of 22 decision in Martindell v. International Telephone & Telegraph Corp. and violated Maxwell’s rights. In Martindell, the government tried to obtain deposition transcripts of twelve individuals deposed in a private shareholders’ derivative lawsuit. 594 F.2d at 292—93. All twelve depositions were taken “pursuant to a court-approved stipulation to the effect that the depositions should be treated as confidential and used solely by the parties for prosecution or defense of the action.” Jd. at 292. Without seeking to intervene, and without serving a subpoena or warrant, the government called and then wrote to the district court to request access to the deposition transcripts. /d. at 293. The government claimed that the deposition transcripts were relevant to its investigation of perjury, subordination of perjury, and conspiracy related to the 1970 presidential election in Chile. Jd. The government, “moreover, feared that unless it could obtain the deposition transcripts, it would be unable to secure statements from the witnesses because they would claim their Fifth Amendment rights in any investigative interviews.” /d. The district court denied the government’s request, “holding that the deposition testimony had been given in reliance upon the protective order, thus rendering unnecessary invocation by the witnesses of their Fifth Amendment rights, that the requested turnover would raise constitutional issues, and that principles of fairness mandated enforcement of the protective order.” /d. The government appealed, and the Second Circuit affirmed. The Second Circuit was blunt in explaining the government’s missteps: The government may not .. . simply by picking up the telephone or writing a letter to the court (as was the case here), insinuate itself into a private civil lawsuit between others. The proper procedure, as the government should know, was either to subpoena the deposition transcripts for use in a pending proceeding such as a grand jury investigation or trial, in which the issue could be raised by motion to quash or modify the subpoena, see Rule 17(c), or to seek permissive intervention in the private action pursuant to Rule 24(b), for the purpose of obtaining vacation or modification of the protective order. {2 DOJ-OGR-00002564