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Case 1:20-cr-00330-PAE Document 244 _ Filed 04/23/21 Page 7 of 14 The Honorable Alison J. Nathan April 2, 2021 Page 7 admissible, either as a written supplement to the motions, or at any motion hearing under Fed. R. Evid. 104 and 803(6). Ms. Maxwell has requested, and is entitled to, an evidentiary hearing on her motions to suppress. The requested information would establish the substance and frequency of the communications between BSF and the government prior to the government’s end run around Martindell. Relegated to footnote 2 is BSF’s half-hearted attempt to claim that communications between civil plaintiffs’ lawyers who are conspiring to obtain an indictment against a civil defendant (to further their own economic interests) are “work product.” This footnote is, in fact, an astonishing admission. First, BSF admits that these communications occurred. Second, the communications about trying to get Ms. Maxwell indicted were “prepared in anticipation of litigation or for trial,” admitting both relevance and admissibility. BSF does not and cannot plausibly explain how a joint effort to procure a civil opponent’s indictment is protected by the work product doctrine. BSF’s ipse dixit fails because the “burden of justifying the application of the work product doctrine is on the asserting party, and the burden is a heavy one because privileges are neither lightly created nor expansively construed. In particular, the burden of showing a document is entitled to work-product protection may not be discharged by mere conclusory or ipse dixit assertions.” In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 293 F.R.D. 568, 574 (S.D.N.Y. 2013) (cleaned up); see also Wey, 252 F.Supp.3d at 251 (party asserting privilege may not discharge its burden with mere conclusory or ipse dixit assertions but rather must present those facts that are the essential elements of the privileged relationship). It is also noteworthy that when it claimed investigative privilege in its 2016 privilege log, BSF did not invoke the work product exception. DOJ-OGR- 00003978