DOJ-OGR-00003781.pdf

--- Page 1 --- **Document Header** Case 1:20-cf-00330-PAE Document 212 Filed 04/16/21 Page 7 of 20 **Text** investigation firm). "The governing rule in these circumstances is that the possessor of the claimed privilege or right may intervene to assert it." Id. (quoting Appeal of Hughes, 633 F.2d 282, 288 (3d Cir. 1980)). See also US Bank Nat. Ass'n v. PHL Variable Ins. Co., No. 12 CIV. 6811 CM JCF, 2012 WL 5395249, at *2 (S.D.N.Y. Nov. 5, 2012) ("A party [has] standing to challenge ... a subpoena served on a non-party ... [when] the moving party assert[s] some right or privilege personal to it, such as an interest in proprietary, confidential information that would be disclosed or an interest in maintaining a privilege that would be breached by disclosure." (citing cases)). In turn, in determining whether there is standing, "[c]ourts should consider whether the information itself is private, confidential, privileged, or highly sensitive, and not the form the records take." Refco Grp. Ltd., LLC v. Cantor Fitzgerald, L.P., No. 13 CIV. 1654 RA HBP, 2014 WL 5420225, at *4 (S.D.N.Y. Oct. 24, 2014). In United States v. Lavender, the Second Circuit held that while a defendant could not file an interlocutory appeal of the district court's denial of his motion to quash a third-party subpoena, he was "free to raise his Fourth Amendment claims via motions to suppress." ... 583 F.2d 630, 632 (2d Cir. 1978). Since Maxwell never had notice of the subpoena to Boies Schiller, she is doing here exactly what Lavender allows: filing a motion to suppress. To be sure, if the government were right—that the mere fact of a third-party's possession of property eliminates a defendant's standing—then Carpenter v. United States would have come out differently, since the defendant's historical cell-site location information was in the possession of MetroPCS and Sprint. 138 S. Ct. 2206, 2212 (2018). But the United States Supreme Court rejected application of the third-party doctrine for two reasons, as this Court should here. **Footer** DOJ-OGR-00003781