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Case 1:20-cr-00330-PAE Document 204-9 Filed 04/16/21 Page5of6 Page 5 persons protected by a constitutional, common-law, or statutory privilege is particularly applicable to grand jury proceedings.”) (citations omitted).* Finally, even were the Court to apply the Martindell test here,* despite the significant distinguishing factors described above, this Investigation is a paradigmatic example of extraordinary circumstances. In the first instance, unlike in Subpoena Duces Tecum, the posture of the Application does not involve a motion to quash. Of course, should this Court permit Boies Schiller to respond, Boies Schiller would have the right to move to quash—including, for example, if a grand jury subpoena made any improper requests, such as for materials subject to privilege. But it is not anticipated that Boies Schiller will do so. Additionally, as set forth in the Application, the existence and scope of the Investigation in this district is not publicly known. While counsel for certain victims are aware of the Investigation, neither Epstein nor other subjects of the investigation are believed to be similarly aware. Accordingly, the ordinary exercise of grand jury power to “subpoena witnesses to testify, regardless of whether they have already testified or furnished documentary evidence in civil litigation,” Martindell, 594 at 296, would implicate and invite the very risk of disclosure—and the possibility of alerting potential criminal targets that they are under investigation, causing them to destroy evidence, flee from prosecution, or otherwise seriously jeopardize the Investigation—that caused the Government to proceed via subpoena and its related Application. Cf Subpoena Duces Tecum, 945 F.2d at 1224 (in which the party that moved to quash the relevant subpoena argued that the government could not meet its burden of showing need for deposition testimony until it had at least called the witness before the grand jury). The subject matter of the Litigation also demonstrates the extraordinary circumstances of the Government’s Investigation and Application, insofar as the materials at issue here appear not to be of the sort that ordinarily would provide protection against Government investigation. See > To read Martindell more broadly would not only be contrary to the opinion itself, as described above, but would risk rendering that opinion in even further conflict with the well-reasoned decisions of numerous other Circuits. In particular, the Fourth, Ninth, and Eleventh Circuits have each adopted a per se rule favoring enforcement of a grand jury subpoena even where a protective order exists. See In re Grand Jury Subpoena, 836 F.2d 1468, 1477 (4th Cir.), cert. denied, 487 U.S. 1240 (1988); Jn re Grand Jury Subpoena Served on Meserve, Mumper & Hughes, 62 F.3d 1222, 1226-1227 (9th Cir. 1995); In re Grand Jury Proceedings (Williams), 995 F.2d 1013, 1020 (11th Cir. 1993) (expressly criticizing the Martindell test and stating that it “is administratively unworkable,” “defies construction,” and “places prosecutors in untenable positions”). In the First and Third Circuits, a grand jury subpoena overrides a protective order unless the party seeking to quash the subpoena shows “exceptional circumstances that clearly favor subordinating the subpoena to the protective order.” In re Grand Jury Subpoena (Roach), 138 F.3d 442, 445 (1st Cir.), cert. denied, 524 U.S. 939 (1998); In re: Grand Jury, 286 F.3d 153, 157-158 (3d Cir. 2002). The Government is aware of no case in those circuits where the presumption was rebutted and the grand jury subpoena was not enforced. * An application of the Martindell test would not in any event preclude the provision of a list of witnesses deposed, see 594 F.2d at 293, and of pre-existing documents collected or produced in the course of discovery, see id. at 297 n.8. SDNY_GM_00000923 CONFIDENTIAL DOJ-OGR-00003554