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Case 1:20-cr-00330-AJN Document 262 Filed 08/21/20 Page 4 of 5

Honorable Alison J. Nathan
August 21, 2020
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e.g., United States v. Smith, 985 F. Supp. 2d 506, 531 (S.D.N.Y. 2013) (“As a general proposition,
courts have repeatedly recognized that materials, including even judicial documents which are
presumptively accessible, can be kept from the public if their dissemination might ‘adversely affect
law enforcement interests.’”) (citing United States v. Amodeo, 71 F.3d 1044, 1050)); see also
United States v. Park, 619 F. Supp. 2d 89, 94 (S.D.N.Y. 2009) (holding that the need to “maintain
the secrecy of the Government’s investigation” outweighed the public’s right of access to certain
sentencing documents).

Fourth, defense counsel cites not a single case to support the argument that a criminal
defendant should be permitted to use criminal discovery materials in her civil cases. Nor is the
Government aware of any. Though precedent on this issue appears to be somewhat sparse—
perhaps because few defendants attempt such a maneuver—see United States v. Calderon, 15 Cr.
025, 2017 WL 6453344, at *3 (D. Conn. Dec. 1, 2017) (discussing the relative lack of specific
guidance in the context of an application to modify protective orders in criminal cases), see also
United States v. Morales, 807 F.3d 717, 721 (5th Cir. 2015) (“[m]otions to modify protective
orders in criminal cases appear to be infrequent”), decisions that do exist have rejected the kind of
blurring of the line between criminal and civil proceedings that the defendant attempts here. See
Calderon, 2017 WL 6453344, at 5-6 (denying a defendant’s application for modification of a
criminal protective order so he could use certain discovery materials in a FOIA suit); United States
v. DeNunzio, --- F. Supp. 3d ---, 2020 WL 1495880, at *2-3 (D. Mass. March 27, 2020) (denying
a defendant’s motion to modify two protective orders in his criminal case for the purpose of
pursuing claims in a civil action, even following the completion of trial).

Absent any authority upon which to rely, the defendant, in urging a contrary conclusion,
makes various assertions and accusations, none of which warrant a different outcome. In
particular, there is no merit or particular relevance to the defendant’s argument that the
Government secretly obtained a volume of materials relevant to its criminal case without telling
the defendant. That is how grand jury subpoenas and investigations frequently work. Defense
counsel’s overheated rhetoric notwithstanding, there is simply nothing nefarious about the
Government obtaining materials through grand jury subpoena process, let alone anything about
the manner in which the Government obtained these materials that warrants the relief requested.

Certainly to the extent the defendant asserts that her adversary in civil litigation has
engaged in some sort of improper conduct—assertions the Government by no means intends to
suggest agreement with—such arguments even if credited would not be a proper basis to
circumvent the plain language of the protective order (or the existing sealing orders) in this case.
In any event, of the materials at issue, the only document the defendant’s civil adversary has access
to is the lone April 2019 order, meaning any purported imbalance between the parties in the Civil
Cases at this stage is significantly overstated. And to the extent the defendant may seek to make
similar accusations against the Government or challenge the manner in which the Government
obtained the materials at issue—a challenge that itself would not justify the relief presently

they recognize that the materials are appropriately sealed as relating to an ongoing grand jury
investigation.

App.093

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