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Case 20-3061, Document 104-1, 10/19/2020, 2955206, Page3 of 4

unreviewable on appeal from a final judgment.” United States v. Punn, 737 F.3d 1, 5 (2d Cir. 2013)
(internal quotation marks omitted).

Thus far, the Supreme Court has identified just four circumstances in criminal cases that
come within this exception: motions to dismiss invoking double jeopardy, motions to reduce bail,
motions to dismiss under the Speech or Debate Clause, and the forced administration of
antipsychotic medication. See Sell v. United States, 539 U.S. 166 (2003) (holding that an order
permitting the forced administration of antipsychotic medication is immediately appealable), see also
Midland Asphalt, 489 U.S. at 799 (listing the recognized exceptions). Maxwell does not appeal from
an order falling within one of these categories. Instead, she appeals from a denial of her motion to
modify a protective order, which we have held does not fall within the collateral order exception. See
Mohawk Indus. v. Carpenter, 558 U.S. 100, 107–08 (2009) (holding that pretrial discovery orders are not
immediately appealable absent a showing that “delaying review until the entry of a final judgment
would imperil a substantial public interest or some particular value of a high order” (internal
quotation marks omitted)); S.E.C. v. Rajaratnam, 622 F.3d 159, 168 (2d Cir. 2010) (holding that the
Court lacks jurisdiction to review interlocutory “discovery orders allegedly adverse to a claim of
privilege or privacy”); United States v. Caparros, 800 F.2d 23, 26 (2d Cir. 1986) (holding that the Court
lacks jurisdiction to review interlocutory protective orders governing “the right of a criminal
defendant to disclose information given to [her] in discovery”). We decline to exercise jurisdiction
where we have none, and accordingly dismiss this appeal for lack of jurisdiction.

In the alternative, Maxwell asks that this Court issue a writ of mandamus directing the
District Court to modify the protective order. This Court will issue the writ as an exception to the
finality rule “only in exceptional circumstances amounting to a judicial usurpation of power or a
clear abuse of discretion.” In re City of New York, 607 F.3d 923, 932 (2d Cir. 2010) (internal quotation
marks omitted). “[M]ere error, even gross error in a particular case, as distinguished from a
calculated and repeated disregard of governing rules, does not suffice to support issuance of the
writ.” United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972). Here, Maxwell failed to
demonstrate that such exceptional circumstances exist and that the District Court usurped its power
or abused its discretion. Accordingly, we decline to issue a writ modifying the protective order.

Finally, Maxwell also seeks to consolidate the instant appeal with the civil appeal pending in
Guiffre v. Maxwell, No. 20-2413-cv. Because this Court lacks jurisdiction over Maxwell’s appeal of the
denial of her motion to modify her protective order, and because mandamus relief is not warranted,
we deny as moot her motions to consolidate this appeal with the civil appeal. In any event, this
Court has heard Maxwell’s criminal appeal in tandem with her civil appeal. To secure the further
relief of formal consolidation, Maxwell “bear[s] the burden of showing the commonality of factual
and legal issues in different actions.” In re Repetitive Stress Injury Litig., 11 F.3d 368, 373 (2d Cir. 1993).
Here, the parties, Judges, and legal issues presented in these appeals lack common identity. The
criminal appeal concerns a denial of Maxwell’s motion to modify a protective order while the civil

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