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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 95 of 239 materials in violation of a protective order, without first obtaining authorization from the court, because the court would have granted such authorization had it been sought. (/d.). The court also stated that such formal judicial approval could be obtained ex parte if sufficient reason was provided. (/d.). In its letters, the Government noted that its “specific knowledge of the subject matter of discovery materials is relatively limited, due to the confidential nature” of the litigation. (/d. at 2 n.1). The Government also submitted that the court need not employ the Martindell balancing test to evaluate the Government’s ability to obtain access to materials covered by a protective order because (1) the Martindell balancing test generally relates to “instances where the Government sought protected information without [ ] grand jury process” and (2) “any presumption against modification of a protective order is unreasonable where, as here, the protective order is on its face temporary or limited.” (/d. at 3-4). 6. Proceedings before Chief Judge McMahon a. March 26, 2019 Hearing Judge Sweet passed away in March 2019 before ruling on the Government’s application. After Judge Sweet’s death, but before the civil case was reassigned to a new judge, Chief Judge McMahon took up the Government’s application. Chief Judge McMahon subsequently inquired about the Government’s application in two transcribed ex parte and sealed hearings. (Def. Mot. 3, Exs. D & E). At the first hearing, on March 26, 2019, Chief Judge McMahon inquired as to why Boies Schiller did not make an application for permission to be relieved from the protective order, to which the Government replied that it could not “speak to why Boies Schiller in particular didn’t make their own application.” (Def. Mot. 3, Ex. D at 3). The Government further noted that Boies Schiller “simply isn’t in a position to be able to describe the investigation in the way that we have in our submission.” (/d. at 11-12). Chief Judge McMahon noted that she believed that 68 DOJ-OGR-00003029