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Case 1:20-cr-00330-PAE Document 204 _ Filed 04/16/21 Page 121 of 239 “The government bears the burden of proving inevitable discovery by a preponderance of the evidence.” Stokes, 733 F.3d at 444 (citing Nix, 467 U.S. at 444). This requires establishing, “with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would be resolved in the government’s favor.’” /d. (quoting Heath, 455 F.3d at 60). As the Supreme Court has explained, if the Government can establish that the evidence inevitably would have been discovered by lawful means, “then the deterrence rationale [for the exclusionary rule] has so little basis that the evidence should be received.” Nix, 467 U.S. at 444. ii. Discussion Even if the Court were to find that there had been some constitutional violation in the Government obtaining a modification of the protective order—which it should not—the question in an inevitable discovery analysis is whether the Government would inevitably have found the disputed evidence. The answer is yes, at least as to some of the evidence, including the April 2016 deposition that forms the basis of Count Five and part of the July 2016 deposition that forms the basis of Count Six.*! “1 In January 2021, the defendant asked Judge Preska to reconsider her order unsealing certain portions of her testimony on the basis that, among other things, public release of the section would make it more difficult for Maxwell to suppress the testimony as evidence against her at her criminal trial. On February 8, 2021, Judge Preska “decline[d] Ms. Maxwell’s invitation to reconsider its order” and noted that the defendant had both filed a suppression motion and available tools under the Federal Rules of Evidence and Procedure. (See 15 Civ. 7433 (LAP), Dkt. No. 1211 at 3, 5). The portion of the July 2016 deposition transcript that forms the basis of Count Six that has been unsealed relates to the defendant denying that she has given a massage to anyone, including Epstein or Minor Victim-2. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1 at 113). The fact that the defendant argued against unsealing the transcript by pointing to her suppression argument is irrelevant. Judge Preska determined that the public’s First Amendment right of access outweighed the defendant’s interests. If the Government had not modified the protective order and charged the defendant with perjury based on the deposition transcript, that argument would have been unavailable and the balance would have tipped still more in favor of public access, leading to the transcript’s inevitable discovery. 94 DOJ-OGR-00003055