DOJ-OGR-00019597.pdf

Case 20-3061, Document 69, 09/28/2020, 2940206, Page6 of 15 In Flanagan v. United States, the Supreme Court ruled that an order disqualifying criminal counsel pretrial was not immediately appealable under the collateral order doctrine. 465 U.S. 259, 266 (1984). The Court explained that unlike an order denying a motion to reduce bail, which “becomes moot if review awaits conviction and sentence,” an order disqualifying counsel is fully remediable posttrial. Id. Moreover, a motion to disqualify counsel is “not independent of the issues to be tried” because its “validity cannot be adequately reviewed until trial is complete.” Id. at 268. Finally, unlike an appeal of a bail decision, “an appeal of a disqualification order interrupts the trial,” and any delay in a criminal case “exacts a presumptively prohibitive price.” Id. at 269. Unlike the disqualification order at issue in Flanagan, the appeal of Judge Nathan’s order is like the appeal of an order denying a motion to reduce bail. First, this appeal will “become[] moot if review awaits conviction and sentence.” See id. at 266. Unless Ms. Maxwell can share with Judge Preska what she learned from Judge Nathan, Judge Preska’s order unsealing the deposition material will go into effect without Judge Preska’s getting the chance to reconsider her decision in light of the new information. And once the deposition material is unsealed, the cat is irretrievably out of the bag. That is precisely why this Court stayed Judge Preska’s order pending appeal. Giuffre v. Maxwell, No. 20-2413 (2d Cir.), Doc. 30. 5 DOJ-OGR-00019597