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Case 1:20-cr-00330-PAE Document 311-4 Filed 07/02/21 Page 14 of 27 To Be Filed Under Seal Ce On the Current Record, the Court Cannot Find That the Protective Order Was “Improvidently Granted” Under Martindell, a Rule 26(c) protective order may be modified, for among other reasons, Where a party can show “improvidence in the grant.” 594 F.2d at 296. While the Government has not moved for modification on these grounds, I address this factor in light of the current proceedings before the Second Circuit. The term is not well understood. See United States v. Talco Contractors, Inc., 153 F.R.D. 501, 511 (W.D.N.Y. 1994) (observing that the Circuit “provided no guidance as to what might constitute ‘improvidence in the grant of a... protective order’”). To date, the Second Circuit has identified two ways in which an order might be considered “improvidently granted.” The first is, essentially, that it was issued in bad faith. However, this is a high bar. For example, a sealing order is “improvidently granted” where the presiding judge “reasonably should have recognized that [it] would facilitate or further criminal activity.” Palmieri, 779 F.2d at 865-66. But there is absolutely no evidence that the district court harbored any such realization; indeed, at the time Judge Sweet entered the Order, it appeared that criminal activity against Maxwell and Epstein was a thing of the past.* Nothing in the record indicates that the entry of the Protective 2 In 2007, financier Jeffrey Epstein plead guilty to two prostitution charges in state court, arising from allegations that he “assembl[ed] a large, cult-like network of underage girls-—with the help of young female recruiters” (including Maxwell)—whom he coerced into performing sex acts “behind the walls of his opulent waterfront mansion,” among other locations, “as often as three times a day.” Julie K. Brown, How a future Trump Cabinet member gave a serial sex abuser the deal of a lifetime, Miami Herald (Nov. 28, 2018), https://www.miamiherald.com/news/local/article220097825.html. The deal also included a non-prosecution agreement with the Department of Justice, which immunized Epstein and four named accomplices from all federal charges, broadly immunized “any potential co-conspirators,” and—in contravention of federal law—kept the agreement secret from Epstein’s victims. Jd. Epstein served just thirteen months in county jail, during part of which he was permitted to continue working from his downtown office. Id. In November 2018, the Miami Herald published a series of feature articles describing the allegations against Epstein and suggesting that the plea deal constituted Government misconduct. Liam Stack, U.S. Opens Inquiry Into Handling of Jeffrey Epstein’s Sex Abuse Case, N.Y. Times (Feb. 6, 2019), https://www.nytimes.com/2019/02/06/us/fbi-jeffrey-epstein.html. The exposé garnered attention from the media and from Congress and has apparently prompted an investigation by the Department of Justice. Jd. Whether the grand jury subpoena arose out of this renewed interest in Epstein’s behavior is ultimately not relevant to the Court’s decision—but it seems likely. [3 SDNY_GM_00000887 DOJ-OGR-00004937 | | | i | | | | | 1 i | 1 | i j i