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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 106 of 239 supervision of a judge, the longstanding principle that ‘the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege is particularly applicable to grand jury proceedings.” (internal citations omitted)). b. Discussion The Government did not, in any way, attempt to circumvent Martindell. To the contrary, the Government presented Martindell squarely to the relevant courts, first arguing that its test was not applicable, and then, in the alternative, that the requested relief should be granted even if the courts applied the Martindell standard. It cannot possibly be the case that the Government was attempting to “circumvent” a case that it cited 11 times in its argument to both relevant courts. (See (Exs. 8 & 9). Instead, the Government issued a subpoena to Boies Schiller in connection with its investigation and made an application to two judges to modify Rule 26(c) protective orders that precluded full compliance with those subpoenas. While the Government argued that the court need not employ the Martindell balancing test for several reasons, it also made arguments under Martindell in the alternative. Ultimately, both Chief Judge McMahon and Judge Netburn found that Martindell applied and analyzed the Government’s application under that framework. As Chief Judge McMahon found, even under the Martindell approach, testimony provided pursuant to a protective order can be divulged to a grand jury if the government establishes “some extraordinary circumstance or compelling need.” Martindell, 594 F.2d at 296. After concluding that reliance on the protective order was unreasonable,*° Chief Judge McMahon found that the “Government [ ] persuasively demonstrated extraordinary circumstances,” citing “significant 6 See, e.g., Int’! Equity Invs., Inc. v. Opportunity Equity Partners Ltd., No. 05 Civ. 2745 (JGK) (RLE), 2010 WL 779314, at *8 (S.D.N.Y. Mar. 2, 2010) (finding that the parties’ reliance on a civil protective order “was not unreasonable given the nature of the litigation,” but “not so overwhelming as to warrant the indefinite application of Martindell’s strong presumption against modification because the order’s broad scope and express language, and the minimal level of court inquiry outweigh the Parties’ reliance.”). 79 DOJ-OGR-00003040