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Case 1:20-cr-00330-PAE Document 204-9 Filed 04/16/21 Page3of6 Page 3 Indeed, the Chemical Bank opinion specifically rejected judicial protection for the type of information the Protective Order appears to cover in the Litigation: Avoiding embarrassment may be a reason for a party to seek confidentiality. It is not by itself.a valid reason for courts to uphold confidentiality as against a legitimate law enforcement need for the information. Courts must honor restrictions laid down by the Fourt or Fifth Amendment or applicable statutes. But aside from those restrictions, hiding possible criminal violations from law enforcement authorities is hardly a ground for judicial protection of confidentiality. Chemical Bank, 154 F.R.D. at 94 (emphasis added). Although parties may rely on confidentiality agreements and protective orders generally, such classification “is not binding on the court” and the “risk of disclosure is well known to the Bar, in part because disclosure may be required where such information is needed for judicial decisions, to the basis for which the public should have access. /d. (collecting cases). Under some circumstances, courts in this Circuit have applied a balancing test to evaluate the government’s ability to obtain access to materials covered by a protective order. Specifically, in Martindell v. International Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979), the government informally—and without use of a grand jury subpoena—sought access to discovery materials from a civil litigation. The Court held that the Government was not entitled to the materials unless it could show either that the protective order was improvidently granted or some extraordinary circumstance or compelling need for the material; see also In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991 (“Subpoena Duces Tecum”), 945 F.2d 1221, 1224 (2d Cir. 1991) (in connection with bankruptcy proceeding, and citing Martindell, vacating denial of a motion to quash a grand jury subpoena seeking production of documents subject to protective order and remanding for determination of showing that the order was improvidently granted or of extraordinary circumstance or compelling need). As an initial matter, the Court need not employ the Martindell balancing test here. This is so for two reasons. First, Martindell and cases employing its balancing test generally relate to motions to quash or other challenges to a grand jury subpoena, or else instances where the Government sought protected information without such grand jury process. See Martindell, 594 F.2d 291 (in which the government informally, and without use of a grand jury subpoena, sought access to discovery materials); Subpoena Duces Tecum, 945 F.2d at 1224 (vacating denial of a motion to quash a grand jury subpoena). Here, there is no such deficiency in the form of request nor a challenge by the recipient of the subpoena. Indeed, in Chemical Bank, which cited Martindell, the district court opined that had the Government obtained judicial relief to issue an such as documents and depositions are not likely to include the kind of confidential business information that Chemical Bank describes as having the potential to give rise to “difficult balancing.” See id.; see also Jane Doe, Protective Order (“Prot. Order”) (Dkt. 177) (defining “confidential” information as, in sum and substance, medical and psychological information, personal identifying information, and information relating to sexual activity or sexual contact). SDNY_GM_00000921 CONFIDENTIAL DOJ-OGR-00003552