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Case 1:20-cr-00330-AJN Document 35 Filed 07/29/20 Page 4 of 5

The Honorable Alison J. Nathan
July 29, 2020
Page 4

reference the identities of the alleged victims in conversations with prospective witnesses (Gov’t Resp. at 2), the defense will be limited in our ability to locate these witnesses without the broader language proposed in our protective order. It is therefore important to the defense investigation and Ms. Maxwell’s right to a fair trial that the protective order not restrict the defense’s ability to publicly reference the names of Ms. Maxwell’s accusers who have already chosen to publicly identify themselves.³

Finally, the government’s claim that the discovery will include the identities of individuals “whom the Government does not expect to call as witnesses, and whose accounts—much less identities—will have no bearing on this case” is beside the point. (Gov’t Resp. at 4). If the government were prepared to represent that it will base its case solely on the three individuals referenced in the indictment, the analysis might be different. But that is unlikely. And it goes without saying that since the defense does not have a single page of discovery yet, much less the government’s witness list, we cannot know which of the individuals referenced in the discovery the government plans to use as a witness at trial, or whether such witnesses may be relevant to a potential defense presentation. Accordingly, the defense needs the ability to conduct an appropriate investigation and the protective order should not curtail that ability when there is no countervailing privacy interest to protect.

2. Preventing the Improper Use of Discovery Materials by Potential Government Witnesses and Their Counsel

The defendant’s proposed protective order subjects potential government witnesses and their counsel to the same restrictions as the defense concerning appropriate use of the discovery materials—namely, if these individuals are given access to discovery materials during trial preparation in this case, they may not use those materials for any purpose other than preparing for trial in the criminal case and may not post those materials on the Internet. (See Dkt. 29 at 2; Ex. A ¶¶ 3, 5).

The government construes the defense’s proposal as one that “impose[s] restrictions upon the Government” itself. (Gov. Resp. at 5 (emphasis added)). It then provides a list of other statutes and regulations that might impose restrictions on the government that may be in conflict with the protective order, arguing that this possibility for conflict warrants rejection of the defense’s proposed language.⁴

³ It is not, as the government gratuitously asserts, so that the defense can engage in witness intimidation. (Gov’t Resp. at 3 n.2).

⁴ The government does not explain why, in the event of such conflict, it could not apply to the Court for resolution of potentially competing obligations.

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