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Case 1:20-cr-00330-PAE Document 311-4 Filed 07/02/21 Page 10 of 27 To Be Filed Under Seal need. Here such a showing was amply demonstrated. To have refused access to these records in the face of a subpoena from a grand jury would have been an abuse of discretion.” Jd. at 423. | I will, therefore, consider the Government’s application. B. The Martindell Standard Applies Ordinarily, “Where there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order granted under Rule 26(c).” S.E.C. v. TheStreet.Com, 273 F.3d 222, 229 (2d Cir. 2001). However, the Second Circuit established a limited exception to this rule in Martindell vy. International Tel. and Tel. Corp., 594 F.2d 291 (2d Cir. 1979). Martindell arose after the Government made an informal, telephonic request to the district court in a stockholder derivative suit for access to deposition transcripts, which were subject to a protective order and which the Government planned to use in a criminal investigation. Jd. at 293. The district court denied the Government’s request to modify the protective order to enable it to access the transcripts. Jd. Affirming the lower court, the Second | Circuit reasoned that, when the Government moves to modify a protective order, it is especially | appropriate to require a higher showing, because the Government both (i) possesses | extraordinary police powers that it can use to obtain the information in other ways, and (ii) typically seeks the information “in the context of a public investigation in which the assertion of a privilege might be of critical importance.” In re Agent Orange Prod. Liab. Litig., 104 F.R.D. 559, 570 (E.D.N.Y. 1985), aff'd, 821 F.2d 139 (2d Cir. 1987) (citing Martindell, 594 F.2d | at 295). The court concluded, “After balancing the interests at stake, we are satisfied that, absent a showing of improvidence in the grant of a Rule 26(c) protective order or some extraordinary circumstance or compelling need, none of which appear here, a witness should be entitled to rely | upon the enforceability of a protective order against any third parties, including the Government, SDNY_GM_00000883 DOJ-OGR-00004933