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Case 1:20-cr-00330-PAE Document307 Filed 06/25/21 Page16of21 deliberately or recklessly misrepresented facts to Judge McMahon. Second, she must make a substantial preliminary showing that Judge McMahon would have denied the Government’s application absent any such misrepresentation. The Court finds that Maxwell has not made a substantial preliminary showing on either prong. Maxwell’s argument here centers on the Government’s statements to Judge McMahon during the second proceeding on April 9, 2019, concerning its application to modify the protective order. At that proceeding, Judge McMahon explained that she wanted to make sure the Government’s request did not present a similar situation to that in Chemical Bank v. Affiliated FM Ins. Co., 154 F.R.D. 91 (S.D.N.Y. 1994), where a party in civil litigation urged prosecutors to instigate a criminal investigation and then provided confidential documents in violation of a protective order. To that end, she asked the Government to explain “contacts between the United States Attorney’s Office and the Boies Schiller firm prior to the issuance of the subpoena on the subject of your investigation.” The prosecutor at that hearing informed Judge McMahon about all communications between the U.S. Attorney’s Office and BSF after the current investigation began—namely, that the Government told the firm that it intended to make a document request and that the firm told the Government that some of the materials were subject to a protective order. Although the prosecutor was included on an email several months earlier from the AUSA who met with Giuffre’s attorneys in 2016, he did not inform Judge McMahon about any communications with BSF before the current investigation began. Maxwell has not made a substantial preliminary showing that the Government’s statement was a deliberate or reckless misrepresentation. The AUSA could reasonably have understood Judge McMahon’s question to concern only communications about the Government’s current investigation. Maxwell contends that the question asked for any 16 DOJ-OGR-00004800