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Case 1:20-cr-00330-AJN Document 262 Filed 08/21/20 Page 2 of 5

Honorable Alison J. Nathan
August 21, 2020
Page 2

In particular, the Defense Letter seeks this Court’s authorization to use materials relating
to applications the Government made seeking the modification of certain protective orders in other
judicial proceedings. By way of background, the Government sought such modifications to permit
compliance with criminal grand jury subpoenas (the “Subpoenas”). Those Subpoenas were issued
to a certain recipient (the “Recipient”) after the Government opened a grand jury investigation into
Jeffrey Epstein and his possible co-conspirators. For obvious reasons and in keeping with its
standard practice, the Government did not notify the defendant or her counsel that it had issued
the Subpoenas. In response to receiving the Subpoenas, the Recipient advised the Government
that it believed that certain existing protective orders precluded full compliance. Accordingly, in
or about February 2019, the Government applied ex parte and under seal to each relevant court to
request modification of the respective protective orders to permit compliance with the Subpoenas.
In or about April 2019, one court (“Court-1”) granted the Government’s application, and permitted
that the Government share its order—and only that order, which itself prohibited further
dissemination—to the Recipient.² Subsequently, the second court (“Court-2”) denied the
Government’s application. Because the relevant grand jury investigation remains ongoing, both
Court-1 and Court-2 have ordered that the filings regarding the Subpoenas remain under seal,
except that both have expressly permitted the Government to produce those filings to the defendant
as part of its discovery obligations in this criminal case. The Defense Letter now seeks to use
those discovery materials in the Civil Cases.

At base, the defendant’s application fundamentally misapprehends the nature and process
of criminal proceedings, and it further reflects an inappropriate effort to blur the lines between the
criminal discovery process and civil litigation. To be clear: the purpose of criminal discovery is
to enable the defendant to defend herself in the criminal action, not to provide her with a trove of
materials she can mine to her advantage in civil discovery. Her motion is nothing more than an
effort to evade the directives of the protective order entered by this Court just three weeks ago. It
should be denied for multiple reasons.

First, and as the defendant concedes, the protective order in this case expressly provides
that any and all discovery material produced to the defendant by the Government, regardless of
designation, “[s]hall be used by the Defendant or her Defense Counsel solely for purposes of the
defense of this criminal action, and not for any civil proceeding or any purpose other than the
defense of this action.” Protective Order ¶¶ 1(a), 10(a), 14(a) (emphasis added) (Dkt. 36). Indeed,
the defendant included that same provision, word-for-word, in her own proposed protective order.
This was not a provision about which the defendant and the Government disagreed. See
Defendant’s Proposed Protective Order ¶ 1(a) (Dkt. 29-1). Yet less than a month later, the
defendant is asking the Court to sanction her effort to utilize materials produced by the

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² In the Defense Letter, the defendant argues that the Government “must have given a copy of the
sealed order” to the Recipient, which defense counsel suggests is inconsistent with the
Government’s statement that it rarely provides discovery material to third parties. The defendant’s
suggestion is patently incorrect. The relevant order was signed in April 2019 and was issued for
the purpose of being provided to the Recipient. Indeed the order contained an explicit provision
that it could be transmitted to the Recipient. Accordingly, the order was conveyed to the Recipient
well over a year before it became “discovery” in this criminal case.

App.091

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