DOJ-OGR-00004162.jpg

Case 1:20-cr-00330-PAE Document 285 Filed 05/20/21 Page 27 of 34 Maxwell had a due process right to notice and an opportunity to be heard on the government’s request to modify the Protective Order and issue a subpoena to Boies Schiller. Mot. Ex. A, §] 14 (permitting modification of the Protective Order only “for good cause shown following notice to all parties and an opportunity to be heard”); Mot. Ex. H (Judge Netburn denying the government’s ex parte request to modify the Jane Doe 43 Protective Order in part because the government was attempting to deprive Maxwell of notice and an opportunity to be heard); Martindell, 594 F.2d at 294; see U.S. CONST. amend. V. Maxwell also had a privacy interest in the materials subject to the subpoena, including most especially her deposition transcripts. Mot. Ex. A (defining “confidential” material as that which “implicates common law and statutory privacy interests of... Ghislaine Maxwell”); see U.S. CONST. amend. IV. The government violated these rights when it secured an ex parte modification of the Protective Order based on materially false statements to Judge McMahon. In resisting any sanction for its misconduct, and in denying that Maxwell should even be afforded a hearing, the government asks this Court to “condon[e] a fraud perpetrated upon it.” See Cortina, 630 F.2d at 1214. To be sure, AUSA JJ misled Judge McMahon in answering the singular question she posed, and he did so with full knowledge of the facts. AUSA JJ misrepresentations were material to Judge McMahon’s decision, because she would not have modified the Protective Order if AUSA [gg had been candid about Boies Schiller’s role in initiating the investigation. As Judge McMahon put it, “the only thing on which Maxwell .. . might reasonably have relied is that Giuffre or her lawyers” would not approach prosecutors and “foment the Government’s investigation.” Mot. Ex. G, p 21. I. That is, in fact, exactly what happened. As in Cortina, the modification of the Protective Order “never should have taken place.” Jd. When, as here, a prosecutor—from the public corruption unit no less—misrepresents 22. DOJ-OGR-00004162