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Case 1:20-cr-00330-PAE Document 311-4 Filed 07/02/21 Page 21 of 27 To Be Filed Under Seal that confidentiality originated with the consent of the parties, and not with a judicial determination that the materials at issue were deserving of protection, militates against a finding of reasonable reliance. “[C]ourts have been reluctant to find reliance, or that reliance was reasonable, where a protective order is, as here, a blanket order entered by stipulation of the parties.” In re NASDAQ Mkt.-Makers Antitrust Litig., 164 F.R.D. 346, 356 (S.D.N.Y. 1996). As for the last factor, the nature of the parties’ reliance on the order does seem to weigh against modification. “The classic situation in which a party ‘relies’ on a protective order is where the party creates material during the course of the litigation on the understanding that it will be kept confidential—for example, by . . . giving confidential testimony.” Allen v. City of N.Y., 420 F. Supp. 2d 295, 300-01 (S.D.N.Y. 2006). The record shows that Giuffre likely could not have secured Maxwell’s deposition—at least in the absence of substantial court involvement—without the Protective Order.® Maxwell specifically mentioned “the specter of some theoretical prosecution” when arguing in support of the entry of her version of the Protective Order. Although, as noted above, she discounted the likelihood of any such prosecution (see supra, at 18.), she argued that, “A witness adverse to Plaintiff would be reluctant to testify and may be bullied into asserting a Fifth Amendment privilege to avoid the potential of information being forwarded to a prosecutor by the Plaintiff or her lawyers.” (Def.’s Reply in Further Supp. of Mot. for Protective Order, 15-cv-7433, Dkt. No. 49 at 5); cf’ Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 743 (2d Cir. 1987) (“[O]ne of the primary reasons the protective order was originally entered was to prevent plaintiffs from using the threat 6 I cannot possibly second guess how Judge Sweet ran this litigation; he had far more experience than I and was justly respected for it. Had the case been before me, Maxwell would have been required to testify, or she would have been held in contempt or had issues resolved against her, Protective Order or no, And in every case in which I sign a protective order, I require the parties to agree to an addendum—the very terms of which would render blanket reliance on eternal confidentiality unreasonable. My practices make it difficult to put myself into Judge Sweet’s shoes for purposes of this application. But do so I must. 20 SDNY_GM_00000894 DOJ-OGR-00004944 i i i t i | i | i