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Case 1:20-cr-00330-PAE Document 267 Filed 05/03/21 Page2of7 The Hon. Alison J. Nathan May 3, 2021 Page 2 disclosure of merely prospective witnesses would infringe upon Ms. Maxwell’s Fifth and Sixth Amendment rights because it would force Ms. Maxwell to reveal potential defense strategies. However, in the spirit of cooperation and to avoid any unnecessary trial delay, the defense proposes that to the extent there are any non-public Rule 26.2 witness statements in the defense possession (not already in the possession of the government) such statements be produced to the government after (1) the government closes its evidence and (2) the conclusion of the argument on the first defense Rule 29(a) motion.' 1. Rule 26.2 Does Not Mandate Advance Disclosure of Statements of Prospective Defense Witnesses. Rule 26.2(a) provides: After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant’s attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness’s testimony. Fed. R. Crim. P. 26.2(a). The requirements of Rule 26.2 “essentially track those of the Jencks Act.” United States v. Scotti, 47 F.3d 1237, 1249 (2d Cir. 1995). The Rule provides that the defense, like the prosecution, must produce witness statements. See Fed. R. Crim. P. 'Ms. Maxwell understands that the Court has ordered that “The Defendant’s Rule 16(b)(1)(A) and 16(b)(1)(B) disclosures and witness list are due three weeks before the trial commencement date.” See Dkt. No. 250. Fed. R. Crim. P. 16(b)(1)(A) applies to documents and objects that the defendant intends to use in the defendant’s case-in-chief at trial. Fed. R. Crim. P. 16(b)(1)(B) applies to reports of examinations or tests and witnesses who prepared any report or examination if the defense intends to call the witness at trial during the defendant’s case-in-chief. At this stage of the proceeding Ms. Maxwell continues to review the evidence and witness materials recently provided by the government and has not identified any documents, tests, or witnesses that would fall into these categories. DOJ-OGR-00004085