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Case 1:20-cr-00330-PAE Document 307 Filed 06/25/21 Page 18 of 21

prosecutors. As the Court has explained above, this is consistent with the Second Circuit’s statement that a protective order “provides no guarantee that [evidence] will not somehow find its way into the government’s hands for use in a subsequent criminal prosecution.” Andover, 876 F.2d at 1083. Judge McMahon further reasoned that Maxwell could only have reasonably relied on the protective order insofar as it prohibited BSF from fomenting an investigation against her with confidential documents. If Judge McMahon had known of the 2016 meeting, it is arguable—albeit far from certain—that she might have instead concluded that BSF breached Maxwell’s reasonable reliance interests.

But Judge McMahon also held that the Government had shown extraordinary circumstances justifying ex parte modification of the protective order. She observed that modification of the protective order would serve a “significant public interest” and that the Government had demonstrated good cause to obtain the sought materials through a grand jury subpoena without alerting potential targets of its criminal investigation. Extraordinary circumstances or compelling need provide a sufficient, independent basis to modify a protective order under Martindell notwithstanding the parties’ reasonable reliance on that order. See Minpeco S.A. v. Conticommodity Servs., Inc., 832 F.2d 739, 742 (2d Cir. 1987) (citing Martindell, 594 F.2d at 296). Thus, even assuming that the Government should have told Judge McMahon about communications with BSF in 2016, and even assuming that information was material to her analysis of Maxwell’s reasonable reliance on the protective order, Judge McMahon would still have granted the Government’s application. Because the Government’s alleged misrepresentation was not necessary to Judge McMahon’s ruling, it cannot support suppression under Franks.

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