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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 108 of 239

way circumvented Martindell; rather, the Government sought court approval to enforce a subpoena and then followed the directives it received.37

Most critically, however, even if the Government’s motion did not satisfy Martindell, Maxwell offers no legal authority for the proposition that suppression is the proper remedy.38 Indeed, none of the Second Circuit cases applying Martindell contemplate suppression as a remedy. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated Apr. 19, 1991, 945 F.2d at 1224 (remanding for findings “on whether the protective order was improvidently granted or whether the government had made a showing of exceptional circumstances or a compelling need”); Palmieri, 779 F.2d at 862 (reversing district court’s modification of protective orders where district court did not make an “express finding” of improvidence, extraordinary circumstances, or compelling need and “remand[ing] for further proceedings consistent with this opinion”).

37 Maxwell asks this Court to review and reverse Chief Judge McMahon’s exercise of her discretion in modifying the protective order, because she disagrees with Chief Judge McMahon’s analysis of the Martindell factors. Although Chief Judge McMahon’s order modifying the civil protective order was not entered on the civil docket, that order, along with the Government’s application and related materials, were produced to the defense on or about August 12, 2020. As a result, Maxwell could have sought review of Chief Judge McMahon’s order in the Second Circuit. See Fed. R. App. P. 4(a)(6). Maxwell asks this Court to second-guess a coequal district court’s decision to modify a protective order. Putting aside the question of whether this Court even has the authority to do so, it should in any event decline Maxwell’s invitation to act as a reviewing court to Chief Judge McMahon’s decision, which was made in her “sound discretion.” In re “Agent Orange” Prod. Liab. Litig., 821 F.2d at 147.

38 To the extent that Maxwell seeks suppression of documents created prior to the entry of the protective order (or created after its entry but not subject to its protections), that aspect of her motion should be denied. A significant amount of the materials provided in response to the subpoena included such pre-existing documents not created in reliance on a protective order, which do not trigger the Martindell presumption in the Second Circuit, see TheStreet.com, 273 F.3d at 234-235; Davis, 702 F.2d at 422. Maxwell’s arguments also do not extend to transcripts of other individuals’ depositions, who were not parties to the protective order.

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