DOJ-OGR-00004940.pdf

--- Page 1 --- **Document Header** Case 1:20-cv-00330-PAE Document 311-4 Filed 07/02/21 Page 17 of 27 **To Be Filed Under Seal** **Text** strong presumption against access to documents ... we have held more recently in United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995) (“Amodeo I”), that a subspecies of sealed documents in civil cases—so-called “judicial documents”—deserve a presumption in favor of access.”) (emphasis in original). That, I gather, is the subject of the pending appeal. Press reports of the oral argument suggest that perhaps the necessary findings might not have been made before certain court filings were sealed. I cannot and will not pretend not to know that the issue is out there. However, I know of no reason why it would have been improper to shield sensitive materials from public disclosure before any court filings were made. **D. If Any Party Relied on the Protective Order To Shield Confidential Materials from Disclosure to Law Enforcement, That Reliance Was Unreasonable** Under Martindell, a court must consider the degree to which the party opposing unsealing (or, in this case, the party who could be expected to oppose unsealing) reasonably relied on the protective order. "Once a confidentiality order has been entered and relied upon, it can only be modified if an ‘extraordinary circumstance’ or ‘compelling need’ warrants the requested modification." F.D.I.C. v. Ernst & Ernst, 677 F.2d 230, 232 (2d Cir. 1982) (emphasis added) (internal quotation omitted). I will assume, for purposes of argument, that Maxwell would oppose releasing Boies Schiller from the terms of the Protective Order in order to accommodate the grand jury subpoena; that is fairly obvious from her refusal to agree to a protective order that would have permitted Boies Schiller to comply with the subpoena without a court order authorizing compliance. I further assume she would argue that she relied on the Protective Order in deciding whether and how to comply with various discovery requests. The question to be decided is whether such reliance was reasonable. **Footer** SDNY_GM_00000890 DOJ-OGR-00004940