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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 117 of 239 The defendant repeatedly argues that the Government’s failure to mention AUSA-1’s prior contact with Boies Schiller in 2016 was a misrepresentation that led to the modification of the protective order. The argument, which relies principally on hyperbolic rhetoric, is simply incorrect. As an initial matter, the Government did not insist, contrary to Maxwell’s twisted reading of the transcript, that “there had been no contact whatsoever” between Boies Schiller and the Government at any time prior to the Government opening its investigation. (Def. Mot. 3 at 1). Instead, Chief Judge McMahon’s question was more specific: referencing Chemical Bank and the desire to avoid “a Chemical Bank kind of situation,” Chief Judge McMahon asked about contacts between the two parties “prior to the issuance of the subpoena on the subject of your investigation.” (Def. Mot. 3, Ex. E at 2 (emphasis added); see also Def. Mot. 3 at 7 (omitting the italicized portion of the question)). In response, the Government described accurately its communications with Boies Schiller that had occurred in the time period surrounding the opening of its investigation and the issuance of the subpoena. Additionally, and in light of the Government’s prior arguments to Chief Judge McMahon relating to Chemical Bank,*° the Government attempted to address the misconduct at issue in that case: namely the production of confidential documents without seeking modification of a protective order by confirming that, here, no such production had yet occurred. (Def. Mot. 3, Ex. E at 2) (noting that Boies Schiller “generally advised us that they believed there * See, e.g., Exs. 8 & 9 at 2-3 (discussing Chemical Bank as rejecting a contempt request where a party “compl[ied] with a grand jury subpoena despite the existence of a protective order” and focusing arguments on the nature of the production of documents); (Def. Mot. 3, Ex. D at 15) (the Government describing Chemical Bank as “essentially say[ing]: You should have asked, but of course this is fine for you to disclose this information to the government based on the validly issued grand jury subpoena”); cf. (id. at 4 (Chief Judge McMahon describing Chemical Bank as saying “the proper procedure [for the production of documents] is for somebody to make a motion to be relieved from the terms of the protective order”), 20 (Chief Judge McMahon stating that “in the Chemical Bank case, it all was ex post facto and it all happened”’)). 90 DOJ-OGR-00003051