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Case 1:20-cr-00330-PAE Document 307 Filed 06/25/21 Page6of21 A. The Government did not violate Maxwell’s right against self-incrimination The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. “The [Supreme] Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege.” Fisher v. United States, 425 U.S. 391, 397 (1976) (quoting Perlman v. United States, 247 U.S. 7, 15 (1918)). It does not prohibit the Government from using a defendant’s voluntary statements in a subsequent criminal prosecution. To establish a violation of the right against compelled self-incrimination, Maxwell must “demonstrate the existence of three elements: 1) compulsion, 2) a testimonial communication, and 3) the incriminating nature of that communication.” Jn re Grand Jury Subpoena, 826 F.2d 1166, 1168 (2d Cir. 1987). Maxwell contends that the Government violated her right against compelled self-incrimination by obtaining copies of her deposition transcripts from her earlier civil case. She acknowledges that she could have, but did not, invoke her Fifth Amendment rights to avoid providing incriminating testimony. See, e.g., Pillsbury Co. v. Conboy, 459 U.S. 248, 263-24 & n.24 (1983). However, she contends that she testified only because she believed the protective order in that case would prevent the Government from obtaining her testimony and using it in a subsequent criminal case against her. Second Circuit precedent expressly forecloses Maxwell’s argument. “A Rule 26(c) protective order, no matter how broad its reach, provides no guarantee that compelled testimony will not somehow find its way into the government’s hands for use in a subsequent criminal prosecution.” Andover Data Servs. v. Stat. Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir. 1989). As the Second Circuit has explained, a civil protective order may (as here) be overturned DOJ-OGR-00004790