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Case 1:20-cr-00330-PAE Document 311-4 Filed 07/02/21 Page 11 of 27 To Be Filed Under Seal and that such an order should not be vacated or modified merely to accommodate the Government’s desire to inspect protected testimony for possible use in a criminal investigation[.|” Martindell, 594 F.2d at 296. Since Martindell, “It is well-settled [in this Circuit]... that a Rule 26(c) protective order may be overturned or modified [only] based on a finding of improvidence, extraordinary circumstances or compelling need.” Andover Data Servs., a Div. of Players Computer, Inc. v. Statistical Tabulating Corp., 876 F.2d 1080, 1083 (2d Cir. 1989). Moreover, the Second Circuit has held that Martindell applies to the Government, as well as to any other third party seeking to modify a protective order. TheStreet.Com, 273 F.3d at 229 n.7. The Government argues that Martindell should not apply to the instant application, for three reasons. (Gov’t Letter Br. at 3-5.) First, it argues that the rule of Martindell is inapplicable because here the grand jury issued a valid and proper subpoena to Boies Schiller, while in Martindell the Government ““was proceeding outside of its usual investigative powers to secure the requested testimony, not by grand jury subpoena,’ Davis, 702 F.2d at 422.” (See Gov’t Letter Br. at 3-4.) However, the statement from Davis that is quoted above concerned the testimony of a non-party appellant whose testimony was not subject to a Rule 26(c) protective order, but rather to an informal “understanding of confidentiality” that was never reduced to writing. Davis, 702 F.2d at 422. The opinion underscored that the parties’ unwritten understanding about the confidentiality of this deponent’s testimony would not trump a formal grand jury subpoena. That discussion is irrelevant to the question of whether this Court is required to apply the Martindell rule in evaluating this application. 10 SDNY_GM_00000884 DOJ-OGR- 00004934 i i I i