EFTA01263227.pdf

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
IN RE APPLICATION TO UNSEAL CIVIL : SEALED AFFIRMATION AND
DISCOVERY MATERIALS, APPLICATION
USAO Reference No. 2018R01618.
X
ALEX ROSSMILLER, pursuant to Title 28, United States
Code, Section 1746, hereby declares under penalty of perjury:
1. I am an Assistant United States Attorney in the
office of Geoffrey S. Berman, United States Attorney for the
Southern District of New York. I make this Affirmation and
Application, pursuant to the All Writs Act, Title 28, United
States Code, Section 1651, for a limited order to unseal
discovery materials in the possession of Boies Schiller &
Flexner LLP, in connection with the matter of
Ghislaine Maxwell, et al.. 15 Civ. 7433 (RWS)
(S.D.N.Y.). As further discussed below, the materials are
currently subject to a protective order issued by this Court.
The Government seeks these materials in connection with a
federal grand jury investigation.
2. On or about September 21, 2015, plaintiff
iled a civil action in this Court against
defendant Ghislaine Maxwell, arising from allegations that the
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defendant made defamatory statements denying that the plaintiff
was a victim of sex crimes perpetrated by Jeffrey Epstein and
Ghislaine Maxwell, among others (the "Litigation"). Attorneys
for Boies Schiller & Flexner LLP, among others, represent the
plaintiff. On or about March 18, 2016, this Court issued a
protective order (the "Protective Order") in that action. The
Protective Order, attached hereto as Exhibit A, among other
things restricted the parties from disclosing discovery
materials marked "CONFIDENTIAL" to third parties, absent express
permission from the Court. On or about May 24, 2017, the
parties entered into a settlement agreement, and voluntarily
dismissed the civil action.
3. I am one of the prosecutors in this district in
charge of an ongoing investigation into JEFFREY EPSTEIN and
others, for possible violations of Title 18, United States Code,
Sections 1591 and 1594(c) (unlawfully trafficking minors) and
Section 2422(b) (unlawfully enticing minors) (the
"Investigation"). The existence and scope of the Investigation
in this district is not publicly known. As a result, premature
public disclosure of this affirmation or the requested order,
including to other parties involved in the Litigation, could
alert potential criminal targets that they are under
investigation, causing them to destroy evidence, flee from
prosecution, or otherwise seriously jeopardize the
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Investigation. Accordingly, this application is made ex parte
and is requested to be filed under seal.
4. Based on publicly available information regarding
the Litigation, including the complaint and other docketed
filings that appear to make reference to certain subjects
relating to the Investigation, the litigation files of Sigrid
Mc es Schiller & Flexner LLP, in the matter
v Ghislaine Maxwell, et al.. 15 Civ.
7433 (RWS) (S.D.N.Y.), are believed to contain information
relevant to the ongoing Investigation.
5. The Government has served a grand jury subpoena
upon Boies Schiller & Flexner LLP (the "Subpoena") requiring the
production of copies of discovery and related materials in the
matter of v. Ghislaine Maxwell, et al.. 15
Civ. 7433 (RWS) (S.D.N.Y.), solely for purposes of the above-
referenced grand jury Investigation. However, the Government
has been advised that although plaintiff's counsel would not
otherwise contest compliance with the Subpoena, plaintiff's
counsel believes that the Protective Order precludes plaintiff's
counsel from complying.
6. Accordingly, the Government respectfully requests
that the Court issue an order permitting Boies Schiller &
Flexner LLP to provide materials to the Government relating to
case . Ghislaine Maxwell, et al.. 15 Civ.
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7433 (RWS) (S.D.N.Y.), in compliance with grand jury process,
notwithstanding the Protective Order. Such materials will be
used solely in connection with the above-referenced grand jury
Investigation.
7. Because this application pertains to an ongoing
grand jury investigation, the existence of which is not publicly
known, it is requested that this Affidavit and Application, and
any resulting Order except as to the recipients of such Order,
be sealed pending further order of this Court.
WHEREFORE, it is respectfully requested that the Court
grant this Application for an Order permitting Boies Schiller &
Flexner LLP to comply with grand jury process to provide
materials to the Government relating to case
v. Ghislaine Maxwell, et al.. 15 Civ. 7433 (RWS) (S.D.N.Y.),
notwithstanding the Protective Order.
The foregoing is true under penalty of perjury.
ALEX ROSSMILLER
Assistant United States Attorney
Tel. (212) 637-2415
Dated: New York, New York
February 5, 2019
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Exhibit A
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 1 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 2 of 7
United States District Court
Southern District Of New York•'
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15-cv-07433-RWS
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PROTECTIVE ORDER
Upon a showing of good cause in support of the entry of a protective order to
protect the discovery and dissemination of confidential information or information which
will improperly annoy, embarrass, or oppress any party, witness, or person providing
discovery in this case, IT IS ORDERED:
1. This Protective Order shall apply to all documents, materials, and information,
including without limitation, documents produced, answers to interrogatories,
responses to requests for admission, deposition testimony, and other
information disclosed pursuant to the disclosure or discovery duties created by
the Federal Rules of Civil Procedure.
2. As used in this Protective Order, "document" is defined as provided in
FED.R.Civ.P. 34(a). A draft or non-identical copy is a separate document
within the meaning of this term.
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 2 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 3 of 7
3. Information designated "CONFIDENTIAL" shall be information that is
confidential and implicates common law and statutory privacy interests of (a)
plaintiff' land (b) defendant Ghislaine Maxwell.
4. CONFIDENTIAL information shall not be disclosed or used for any purpose
except the preparation and trial of this case.
5. CONFIDENTIAL documents, materials, and/or information (collectively
"CONFIDENTIAL INFORMATION") shall not, without the consent of the
party producing it or further Order of the Court, be disclosed except that such
information may be disclosed to:
a. attorneys actively working on this case;
b. persons regularly employed or associated with the attorneys actively
working on this case whose assistance is required by said attorneys in the
preparation for trial, at trial, or at other proceedings in this case;
c. the panics;
d. expert witnesses and consultants retained in connection with this
proceeding, to the extent such disclosure is necessary for preparation, trial
or other proceedings in this case;
e. the Court and its employees ("Court Personnel") in this case;
f. stenographic reporters who are engaged in proceedings necessarily incident
to the conduct of this action;
g. deponents, witnesses, or potential witnesses; and
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 3 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 4 of 7
h. other persons by written agreement of the parties.
6. Prior to disclosing any CONFIDENTIAL INFORMATION to any person
listed above (other than counsel, persons employed by counsel, Court
Personnel and stenographic reporters), counsel shall provide such person with
a copy of this Protective Order and obtain from such person a written
acknowledgment stating that he or she has read this Protective Order and
agrees to be bound by its provisions. All such acknowledgments shall be
retained by counsel and shall be subject to in camera review by the Court if
good cause for review is demonstrated by opposing counsel.
7. Documents are designated as CONFIDENTIAL by placing or affixing on them
(in a manner that will not interfere with their legibility) the following or other
appropriate notice: "CONFIDENTIAL." Discovery material designated
CONFIDENTIAL shall be identified by Bates number. To the extent practical,
the respective legend shall be placed near the Bates number.
8. Designation of a document as CONFIDENTIAL INFORMATION shall
constitute a representation that such document has been reviewed by an
attorney for the designating party. that there is a valid and good faith basis for
such designation, made at the time of disclosure or production to the receiving
party, and that disclosure of such information to persons other than those
permitted access to such material would cause a privacy harm to the
designating party.
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 4 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 5 of 7
9. Whenever a deposition involves the disclosure of CONFIDENTIAL
INFORMATION, the deposition or portions thereof shall be designated as
CONFIDENTIAL and shall be subject to the provisions of this Protective
Order. Such designation shall be made on the record during the deposition
whenever possible, but a party may designate portions of depositions as
CONFIDENTIAL after transcription, provided written notice of the
designation is promptly given to all counsel of record within thirty (30) days
after notice by the court reporter of the completion of the transcript, and until
the expiration of such thirty (30) days after notice by the court reporter of the
completion of the transcript, no party or counsel for any such party may share
the contents of the deposition outside the limitations of this Protective Order.
10. Whenever a party seeks to file any document or material containing
CONFIDENTIAL INFORMATION with the Court in this matter, it shall be
accompanied by a Motion to Seal pursuant to Section 6.2 of the Electronic
Case Filing Rules & Instructions for the Southern District of New York.
II. A party may object to the designation of particular CONFIDENTIAL
INFORMATION by giving written notice to the party designating the disputed
information. The written notice shall identify the information to which the
objection is made. If the parties cannot resolve the objection within ten (10)
business days alter the time the notice is received, it shall be the obligation of
the party designating the information as CONFIDENTIAL to file an
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 5 of 6
• Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 6 of 7
appropriate motion requesting that the Court determine whether the disputed
information should be subject to the terms of this Protective Order. If such a
motion is timely filed, the disputed information shall be treated as
CONFIDENTIAL under the terms of this Protective Order until the Court rules
on the motion. If the designating party fails to file such a motion within the
prescribed time, the disputed information shall lose its designation as
CONFIDENTIAL and shall not thereafter be treated as CONFIDENTIAL in
accordance with this Protective Order. In connection with a motion filed under
this provision, the party designating the information as CONFIDENTIAL shall
bear the burden of establishing that good cause exists for the disputed
information to be treated as CONFIDENTIAL.
12. At the conclusion of this case, unless other arrangements arc agreed upon, each
document and all copies thereof which have been designated as
CONFIDENTIAL shall be returned to the party that designated it
CONFIDENTIAL, or the parties may elect to destroy CONFIDENTIAL
documents. Where the parties agree to destroy CONFIDENTIAL documents,
the destroying party shall provide all parties with an affidavit confirming the
destruction.
13. This Protective Order shall have no force and effect on the use of any
CONFIDENTIAL INFORMATION at trial in this matter.
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Case 1:15-cv-07433-RWS Document 62 Filed 03/18/16 Page 6 of 6
Case 1:15-cv-07433-RWS Document 39-1 Filed 03/02/16 Page 7 of 7
14. This Protective Order may be modified by the Court at any time for good cause
shown following notice to all parties and an opportunity for them to be heard.
BY THE
STATES DISTRICT JUDGE
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
X
IN RE APPLICATION TO UNSEAL CIVIL SEALED ORDER
DISCOVERY MATERIALS,
USAO Reference No. 2018R01618.
X
Upon the annexed Affirmation and Application of the
United States Attorney for the Southern District of New York, by
Assistant United States Attorney Alex Rossmiller, pursuant to
the All Writs Act, Title 28, United States Code, Section 1651,
requesting that an Order be issued relieving Boies Schiller &
Flexner LLP of their obligations under the protective order
issued on March 18, 2016 in case v.
Ghislaine Maxwell, et al.. 15 Civ. 7433 (RWS) (S.D.N.Y.), for
the limited and exclusive purpose of complying with grand jury
process to provide materials to the Government in connection
with a federal grand jury investigation:
IT IS HEREBY ORDERED, that Boies Schiller & Flexner
LLP is permitted to provide the Government with copies of
materials generated, received, obtained, or otherwise possessed
in connection with case V . Ghislaine
Maxwell, et al.. 15 Civ. 7433 (RWS), including discovery
materials marked "CONFIDENTIAL" pursuant to the protective order
dated March 18, 2016. Boies Schiller & Flexner LLP may provide
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these materials to the Government notwithstanding their
obligations under the November 29, 2018 protective order.
IT IS FURTHER ORDERED that, with the exception of a
copy of this Order to Boies Schiller & Flexner LLP and the clerk
of the court for files and testimony subject to this Order, this
Order and the Affirmation and Application in support thereof are
to be sealed pending further order of this Court.
Dated: New York, New York
February , 2019
THE HONORABLE ROBERT W. SWEET
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF NEW YORK
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