DOJ-OGR-00019626.pdf

Case 20-3061, Document 82, 10/02/2020, 2944267, Page19 of 37 13 opening brief, Maxwell concedes that her appeal of the Order does not concern one of the four types of pretrial orders that the Supreme Court has identified as satisfying the collateral order doctrine in criminal cases, but she fails to offer a basis for expanding those categories to embrace her claim here. (Br. 12.) The rights implicated by the Order—namely, the use of pretrial discovery materials—do not justify expanding the limited collateral order exception, which is “interpreted with the utmost strictness.” Midland Asphalt, 489 U.S. at 799. Maxwell relies principally on three cases in seeking to overcome decades of Supreme Court precedent narrowly construing the exception to the requirement that appeals in criminal cases be from the final judgment of conviction. As discussed in the Government's Motion to Dismiss, the cases Maxwell cites do not support the existence of an exception here. All three cases involved appeals by intervenors—not parties—seeking to modify protective orders in civil cases. Pichler v. UNITE, 585 F.3d 741, 745-746 (3d Cir. 2009) (third party intervenor foundation appealing order denying motion to modify protective order in civil litigation to allow third party access to discovery materials); Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 741 (2d Cir. 1987) (Commodity Futures Trading Commission (“CFTC”) acting as third party intervenor appealing order denying motion to modify protective order in civil litigation to allow CFTC to obtain discovery exchanged by parties to civil case permissible because “[t]he entire controversy between the CFTC and the defendants in this case was disposed of by the district court's denial of the government's motion to modify the DOJ-OGR-00019626