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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 121 of 239

“The government bears the burden of proving inevitable discovery by a preponderance of
the evidence.” Stokes, 733 F.3d at 444 (citing Nix, 467 U.S. at 444). This requires establishing,
“‘with a high level of confidence, that each of the contingencies necessary to the legal discovery
of the contested evidence would be resolved in the government’s favor.’” Id. (quoting Heath, 455
F.3d at 60). As the Supreme Court has explained, if the Government can establish that the evidence
inevitably would have been discovered by lawful means, “then the deterrence rationale [for the
exclusionary rule] has so little basis that the evidence should be received.” Nix, 467 U.S. at 444.

ii. Discussion

Even if the Court were to find that there had been some constitutional violation in the
Government obtaining a modification of the protective order—which it should not—the question
in an inevitable discovery analysis is whether the Government would inevitably have found the
disputed evidence. The answer is yes, at least as to some of the evidence, including the April 2016
deposition that forms the basis of Count Five and part of the July 2016 deposition that forms the
basis of Count Six.41

41 In January 2021, the defendant asked Judge Preska to reconsider her order unsealing certain
portions of her testimony on the basis that, among other things, public release of the section would
make it more difficult for Maxwell to suppress the testimony as evidence against her at her criminal
trial. On February 8, 2021, Judge Preska “decline[d] Ms. Maxwell’s invitation to reconsider its
order” and noted that the defendant had both filed a suppression motion and available tools under
the Federal Rules of Evidence and Procedure. (See 15 Civ. 7433 (LAP), Dkt. No. 1211 at 3, 5).
The portion of the July 2016 deposition transcript that forms the basis of Count Six that has been
unsealed relates to the defendant denying that she has given a massage to anyone, including Epstein
or Minor Victim-2. (See 15 Civ. 7433 (LAP), Dkt. No. 1212-1 at 113). The fact that the defendant
argued against unsealing the transcript by pointing to her suppression argument is irrelevant. Judge
Preska determined that the public’s First Amendment right of access outweighed the defendant’s
interests. If the Government had not modified the protective order and charged the defendant with
perjury based on the deposition transcript, that argument would have been unavailable and the
balance would have tipped still more in favor of public access, leading to the transcript’s inevitable
discovery.

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