DOJ-OGR-00003039.pdf

Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 105 of 239 information protected thereunder, it was error for the district court to modify the magistrate's orders"). At the same time, in Martindell, the court noted that "[t]he reliance of a private party upon protection of pre-existing documents from disclosure to the Government would normally be more difficult to justify than that of a witness who would, absent the protective order, have invoked his privilege and given no testimony at all." Id. at 297 n.8; see also United States v. Davis, 702 F.2d 418, 422-23 (2d Cir. 1983) (finding Martindell inapplicable and affirming enforcement of a grand jury subpoena where "there [was] no indication that [a witness] agreed to testify only in reliance on [an] 'understanding'" of confidentiality and where many records sought "existed prior to the advent of the litigation"). In subsequent cases, the Second Circuit has clarified that the Martindell presumption comes into play only when a party reasonably relies on a protective order in providing deposition testimony. See, e.g., Davis, 702 F.2d 418; SEC v. TheStreet.com, 273 F.3d 222, 230-31 (2d Cir. 2001) (stating that "some protective orders may not merit a strong presumption against modification," as the nature of some orders "may not justify reliance by the parties"). In United States v. Davis, the Second Circuit explained that "[r]anged against these considerations [relating to the policy in favor of enforcing Rule 26(c) protective orders] are the reasons for permitting the grand jury broad subpoena power in a criminal investigation." 702 F.2d at 421. The Second Circuit noted the grand jury's "wide ranging authority to inquire into suspected violations of the criminal law; and to effectuate such investigations it may compel the production of documentary evidence or the testimony of witnesses, as it deems necessary." Id. at 421-22 (citing United States v. Calandra, 414 U.S. 338, 343 (1974). "Wide latitude in gathering evidence is vital to the grand jury's investigative function." Id. at 422; see Branzburg v. Hayes, 408 U.S. 665, 688 (1972) ("Although the powers of the grand jury are not unlimited and are subject to the 78 DOJ-OGR-00003039