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Case 1:20-cr-00330-PAE Document 204 Filed 04/16/21 Page 129 of 239

Contrary to the defendant’s argument (Def. Mot. 11 at 16), this case is distinguishable from United States v. Oshatz, 700 F. Supp. 696 (S.D.N.Y. 1988). There, the defendant had already been indicted at the time of his deposition in a civil case, “was reluctant to be deposed because of the pending indictment, and he agreed only after the parties in the civil case stipulated that the deposition would be sealed.” Id. at 699-700. The court found that the subpoenas for the deposition transcript were “unenforceable” because the “government has not argued that the protective order was improvidently granted or that there are some extraordinary circumstances or compelling need, in view of the holding in Martindell.”43 Id. at 701. The court found that the protective order served the “‘vital function’” described in Martindell, as the defendant had already been indicted at the time of his deposition in a civil case for almost seven months; the defendant “consistently resisted the use of his testimony in the criminal action against him”; and the Government did not seek the deposition “to aid it in a criminal investigation or grand jury proceeding.” Id. at 700; see also Botha v. Don King Productions, Inc., No. 97 Civ. 7587 (JGK), 1998 WL 88745 (S.D.N.Y. Feb. 27, 1998) (noting importance of policy concerns of Martindell where Government obtained an indictment against witness “long before his deposition in the civil action” and where federal criminal case remains pending after civil action is resolved). Here, by contrast, Chief Judge McMahon found that the “Government has persuasively demonstrated extraordinary circumstances, which would entitle it to modification in any event.” (Def. Mot. 3, Ex. G at 22). As she noted in her opinion, the situation was distinct from Oshatz “where the Government was trolling for evidence to use at a trial, rather than seeking information as part of a criminal investigation or grand jury proceeding.” (Id. at 24-25). As Chief Judge McMahon already concluded, Oshatz does not warrant a different result here.

43 In Martindell, the Second Circuit explicitly deemed it “unnecessary for us to decide the Fifth Amendment issues raised by the parties.” Martindell, 594 F.2d at 297.

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