DOJ-OGR-00004801.jpg

Case 1:20-cr-00330-PAE Document307 Filed 06/25/21 Page17 of 21 communications between BSF and the Government related to Epstein or Maxwell. But an equally plausible understanding of the phrase “‘on the subject of your investigation” is “related to the investigation itself.” That interpretation is all the more reasonable in context, because Chemical Bank involved communications between a party subject to a protective order and prosecutors during a pending criminal investigation. See Chemical Bank, 154 F.R.D. at 93. It was not unreasonable for the prosecutor to assume that Judge McMahon was concerned with those sorts of communications, not communications years earlier that did not lead to a criminal investigation. The Government has represented that its present investigation into Epstein (and later Maxwell) began only following publication of the Miami Herald exposé in 2018. Maxwell has made no substantial preliminary showing to the contrary. The Court also concludes that Maxwell has made no substantial preliminary showing that Judge McMahon would have denied the Government’s application to modify the protective order if she knew about the 2016 communications. Materiality under Franks requires more than that a fact be important. It allows suppression only if “the allegedly false statement is necessary” to the court’s finding. Franks, 438 U.S. at 156 (emphasis added). If Judge McMahon would still have ruled that the Government was entitled to ex parte modification of the protective order even after setting aside the Government’s alleged misrepresentation, then Maxwell is not entitled to suppression. Judge McMahon’s opinion reflects that she would have. Judge McMahon’s ruling rested on two independent grounds. Analyzing the Government’s application under Martindell, she first held that Maxwell could not have reasonably relied on the protective order to keep the Government from obtaining documents produced during the civil litigation. Judge McMahon reasoned that a civil litigant ordinarily may not rely on a protective order subject to modification to keep evidence out of the hands of 17 DOJ-OGR-00004801