EFTA00029951.pdf

IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) 2021 WL 1164272 Only the Westlaw citation is currently available. United States District Court, S.D. New York. IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY MATERIALS, USAO Reference No. 2o18Ro1618. 19 -MC-00179 (SN) Filed 03/24/2021 SEALED ORDER SARAH NETBURN United States Magistrate Judge *1 The United States Attorney for the Southern District of New York has moved, pursuant to the All Writs Act, Title 28, United States Code, Section 1651, for an order relieving Boies Schiller & Flexner LLP (the "Law Finn") of its obligations under the protective order issued on November 29, 2018, in Jane Doe 43 v. Jeffrey Epstein. et al. I7-CV-616 (IGK) (SN) (S.D.N.Y.). The purpose of such order is to permit the Law Firm to comply with a grand jury subpoena and provide materials to the Government in connection with a federal grand jury investigation. The motion is DENIED without prejudice. BACKGROUND The Law Firm represented Jane Doe 43, a plaintiff in a civil suit against Jeffrey Epstein and others. The case involves allegations of sex trafficking. Because of the sensitive nature of some of the discovery, the parties entered into a Protective Order that deemed certain information to be "Confidential Information."' Protective Order, at ECF No. 177. As relevant here, the Protective Order provides that Confidential Information shall not be disclosed or used for any purpose other than the civil case. Id. at 1 4. At the conclusion of the case, the Protective Order requires the destruction of Confidential hard-copy documents or electronic files. Id. at 1 12. The Protective Order further prohibits the distribution of Confidential electronic non-file copies without a court order. Id. The Protective Order contemplates that a subpoena for Confidential Information may be received and precludes the receiving party from complying with the subpoena absent a court order. Id. at ¶ 13. Finally, the Protective Order permits modification by the Court "at any time for good cause shown following notice to all parties and an opportunity for them to be heard." Id. at 1 15. The United States Attorney has served a grand jury subpoena on the Law Firm for documents that are covered by the Protective Order. 2 The Government has represented that the subpoena was validly issued as part of an ongoing investigation into Jeffrey Epstein and others for possible violations of, Title IS, United States Code, Section 591 and I 594(c) (unlawfully trafficking minors) and Section 2422(b) (unlawfully enticing minors). The production of the materials pursuant to the subpoena is solely for the purposes of the Investigation and is subject to the protections and restrictions of Federal Rule of Criminal Procedure 6(e). The Law Finn has indicated its willingness to comply with the subpoena so long as it is authorized to do so by a court order modifying the Protective Order. DISCUSSION *2 The All Writs Act provides, in relevant part, that "all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). The All Writs Act permits a court, in its "sound judgment," to issue orders necessary "to achieve the rational ends of law" and "the ends of justice entrusted to it." United States v. New York Telephone Co 434 U.S. 159, 172.73 (1977) (internal quotation marks and citations omitted). The All Writs Act provides a "residual source of authority to issue writs that are not otherwise covered by statute." Penn. Bureau of Con. v. U.S. Marshals Serv. 474 U.S. 34, 43 (1985). "Although the Act empowers federal courts to fashion extraordinary remedies when the need arises, it does not authorize them to issue ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate." Id. The Court finds that it is authorized under the All Writs Act to modify the Protective Order. The Court, however, declines to exercise its discretion to modify the Protective Order on the record before it. Before modifying a protective order on which parties to a civil action presumptively relied, the Court of Appeals for the Second Circuit has directed district courts to find either that: (1) the protective was improvidently granted or (2) the WESTLAW © 2021 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00029951 IN RE APPLICATION TO UNSEAL CIVIL DISCOVERY..., Slip Copy (2021) government has established exceptional circumstances or a compelling need. In re Grand Jury Subpoena Duces Tecum, 945 F.2d 1221, 1224 (2d Cir. 1991); see also ? Martindell v. International Tel. and Tel. Corp. 594 F.2d 291 (2d Cir. 1979). Because the Government does not argue that the Protective Order was improvidently granted (nor could it), and because the Government has not, on this record, established exceptional circumstances or a compelling need, the motion to modify is denied. The Government argues that the presumption against modifying protective orders articulated in Martindell and In re Grand Jury does not apply here for two reasons. First, the Government argues that the standard from those cases applies only to their specific procedural posture, specifically a motion to quash (In re Grand Jury) or an informal request without a grand jury subpoena (Martindell). This is a distinction without a difference. Nothing in those decisions cabins the rule to the procedural posture presented, and there is no logical reason to think a different standard should apply when the subpoena's recipient does not move to quash. If anything, the presumption of confidentiality applies more forcefully where, as is the case here, the Government's confidential application deprives the interested party of the chance to quash the subpoena. Second, the Government argues that the presumption does not apply because the Protective Order protects only documents exchanged in pretrial litigation. It is true that the Court of Appeals has said the presumption may not apply in some cases because the expectation of continued confidentiality was unreasonable. See ? SEC v. TheStreet.com 273 F.3d 222, 231 (2d Cir. 2001) ("[S]ome protective orders may not merit a strong presumption against modification. For instance, protective orders that are on their face temporary or limited may not justify reliance by the parties."); see also In re "Agent Orange" Prod. Liah. Litig., 821 F.2d 139, 147 (2d Cir. 1987) ("[A]ppellants ... could not have relied on the permanence of the protective order. The ... order by its very terms was applicable solely to the pretrial stages of the litigation."). But this is not a case where the "conditions contemplated by the Court for revisiting the Protective Order have now occurred." ? Allen v. City of N.Y. 420 F. Supp. 2d 295, 301 (S.D.N.Y. 2006). All parties to the Protective Order have not been given notice and an opportunity to be heard. See Protective Order ¶ 15. And although the Order contemplates the disclosure of Confidential Information during trial, see id. 1 14, that condition never arose. Instead, the parties settled, thereby foreclosing the possibility of atrial. Reliance on the continued effect of the Protective Order was and is, therefore, entirely reasonable. See SEC v. TheStreet.com 273 F.3d 222, 230 (2d Cir. 2001) ("In some cases, settlement would not be possible but for the parties' reliance on a protective order.... Thus, another compelling reason to discourage modification of protective orders in civil cases is to encourage testimony in pre-trial discovery proceedings and to promote the settlement of disputes."). *3 In response to an identical application seeking to modify a protective order in a different case between Epstein and an allege