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Case 1:20-cr-00330-PAE Document 311-4 Filed 07/02/21 Page 25 of 27 To Be Filed Under Seal destroy evidence, flee from prosecution, or otherwise seriously jeopardize the Investigation— that caused the Government to proceed via subpoena [to Boies Schiller] and its related Application.” (Gov’t Letter Br. at 5.) To be sure, the convenience of having potentially incriminating testimony readily available does not in and of itself rise to the level of an extraordinary circumstance. In Martindell itself, for example, the Second Circuit found no extraordinary circumstance because “the Government, by discharging the grand jury investigating the matters in connection with which the Government sought the witnesses’ deposition transcripts, apparently chose not to use grand jury investigative processes to obtain their testimony.” 594 F.2d at 296 n.5. Therefore, the mere unavailability of the information was not extraordinary. Similarly, in Nosik v. Singe, 40 F.3d 592 (2d Cir. 1994), the Circuit again declined to find that the Government had made a showing of extraordinary circumstance, explaining, “[T]he possibility that [an individual] might one day invoke the Fifth Amendment at her criminal trial does not automatically create for prosecutors a compelling need for the testimony that [the individual] might have given [in the civil proceeding]... [.] Prosecutors often make do without the testimony of a defendant.” Jd. at 595-96 (citing Martindell, 594 F.2d at 296). Here, however, the extraordinary amount of publicity surrounding all aspects of what I will call the Epstein matter does create practical limitations to the grand jury’s ability to secure certain information with the secrecy it requires to conduct an appropriately thorough and thoughtful investigation. Moreover, it does not appear to this Court that we are in a situation in which the Government seeks information merely to “ascertain the truth of much of what it has independently discovered.” Minpeco, 832 F.2d at 743. This is not a case, like United States v. Oshatz, 700 F. Supp. 696, 703 (S.D.N.Y. 1988), where the Government was trolling for evidence 24 SDNY_GM_00000898 DOJ-OGR-00004948