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Case 1:20-cr-00330-AJN Document 35 Filed 07/29/20 Page 3 of 5

The Honorable Alison J. Nathan
July 29, 2020
Page 3

both the criminal case and in civil suits against him. United States v. Epstein, 19-CR-00490-RMB (Dkt. 38 ¶ 4).¹

The government’s position would unfairly limit the defense, and goes further than is required to protect valid privacy interests. More to the point, it does not meet the government’s burden under the law. As this Court recently recognized in Hernandez v. Kirby Forensic Psychiatric Hosp., No. 14-CV-5910 (AJN), 2019 WL 4640054 (S.D.N.Y. Sept. 24, 2019), an individual’s privacy interest in sensitive information is relinquished by knowing and intentional public disclosure. In that case, the plaintiff alleged that hospital staff violated his privacy rights by disclosing his HIV status to patients and other staff. Nevertheless, because the plaintiff had, himself, disclosed his HIV status to the entire hospital ward, he “forfeited any reasonable expectation that this information would remain confidential[.]” Id. at *5; see also In re Avaya, Inc., No. 17-10089 (SMB), 2019 WL 1750908, at *7 (Bankr. S.D.N.Y. Mar. 28, 2019) (“[A] person waives his right to privacy when he puts the private information at issue in a lawsuit.”); Smith v. NBC Universal, 524 F. Supp. 2d 315, 328-29 (S.D.N.Y. 2007) (holding that facts disclosed in video broadcast on national television with plaintiff’s express permission “cannot be considered private”); id. at n. 84 (“There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public.”) (quoting Restatement (Second) of Torts § 652D cmt. b (1977)). The cases that the government cites in its letter are inapposite, as none addressed the privacy rights of victims and witnesses who had voluntarily disclosed their identities to the public. (Gov. Resp. at 2.)²

Moreover, the language proposed by the defense will permit it to conduct a full and meaningful investigation, upon receiving the discovery, which is required for the effective assistance of counsel. Our client, of course, is presumed innocent, and intends to fight the charges against her. The defense believes that there are individuals who have exculpatory evidence concerning Ms. Maxwell, and information bearing on the credibility of the alleged victims and witnesses. Although the government’s proposed protective order would allow for some investigation in this regard, permitting defense counsel and defense investigators to

¹ The government indicates that there may be alleged victims and witnesses who have chosen to remain anonymous. (Gov’t Resp. at 4). As reflected in our proposed order, the defense has agreed not to mention publicly the identities of any such individuals. Instead, to satisfy its burden, the government posits a series of “hypothetical examples” relating to individuals and the type of interactions they may have had with various public fora. (Id.). Hypothetical examples are not a showing of “good cause.” Moreover, the defense cannot address these scenarios without knowing if they relate to actual persons, and if so, the nature of such interactions.

² See United States v. Corley, No. 13-CR-48 (AJN), 2016 WL 9022508, at *3-*4 (S.D.N.Y. Jan. 15, 2016) (this Court denied the defendant’s request for the disclosure of the full names of victims whose surnames had previously been concealed from the public record); United States v. Paris, No. CR. 3:06-CR-64 (CFD), 2007 WL 1484974, at *2 (D. Conn. May 18, 2007) (permitting several victim witnesses to testify at trial without disclosing their full names where they had not previously been publicly identified as sex workers); United States v. Kelly, No. 07-CR-374 (SJ), 2008 WL 5068820, at *2 (E.D.N.Y. July 10, 2008) (prohibiting public disclosure of identities of government witnesses where there was no indication that the names previously appeared in the public record).

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