EXHIBIT Case Document Filed Page of SDNY_GM_0853 Case Document Filed Page of SEALED STATES DISTRICT COURT DISTRICT OF NEW YORK Proceedings Ex Parte Conference New York N.Y March p.m HON COLLEEN McMAHON APPEARANCES BERMAN United States Attorney for the Southern District of New York ALEX ROSSMILLER Assistant United States Attorney District Judge SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0854 Case Document Filed Page of SEALED In the robing room THE COURT The following proceeding is being The problem is its not being conducted in a matter is one of my first questions to Mr Rossmiller Why not filed on the Courts docket with a miscellaneous file thiAgs under U.S Attorney numbers as a miscellaneous matter MR ROSSMILLER So your Honor it was originally with Judge Sweet THE COURT I understand what he did but I will tell the opinion that will never issue because Judge died but he had written and now Im stuck with this Sweet questioned why you had not made this an In re The of Application of the Grand Jury or something or other miscellaneous docket number The fact that it to Judge Sweet doesnt mean anything I have to docket USAO No Thats your reference MR ROSSMILLER I understand your Honor I think we that the submission should be made to the court protective order and that THE COURT Thats true but that doesnt mean it get a miscellaneous docket number The first thing thats going to happen this is going SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0855 Case Document Filed Page of SEALED re-legended and its going to get a miscellaneous docket MR ROSSMILLER Understood your Honor I apologize that oversight THE COURT Its okay All right Now my second question which is a the gov rnment here has moved for relief party to whom a grand jury subpoena has and that third party would like to be relieved of its under the protective order and that third party is firm full of brilliant lawyers that are fully capable of motion bringing a proceeding to be relieved from the ions of the protective order Why are you doing this for Why doesrit Boies Schiller make an application for be relieved from the protective order Because was going to violate some duty that it had to its in the underlying actions Did they give you a reason werent willing to come to court and MR ROSSMILLER No your Honor So I cant speak to in particular didnt make their own THE COURT Because I understand that you dont think Martindell is applicable here but I do and now Im the I wish I werent You know that the Second Circuit has SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0856 Case Document Filed Page of Xj3qlgra SEALED very clearly said that and Judge Broderick said in Chemical Bank the proper procedure is for somebody to make a motion to be relieved from the terms of the protective order And it aint you its somebody whos subject to the protective order MR ROSSMILLER I think a little bit of context may help explain how the procedure developed your Honor Originally we had submitted an All Writs Act application to Judge Sweet which we believe was appropriate given the sort of catch-all function of that THE COURT Yes I understand that but it still has to have a docket number in order to be a proceeding in this court MR ROSSMILLER Totally understand your Honor But just with respect to our supplemental submission Judge Sweet had reached out to us and asked us to submit an argument in connection with our application and so I think whether that was sort of past experience or his preference that is why we proceeded THE COURT So heres why Im being so persnickety Forgive me Not only do I have to like come up to speed pretty quickly but you know I assume you know but I certainly know and everybody who follows civil litigation knows that Judge Sweet is about to get reversed in connection with this protective order in the Second Circuit I mean I dont have SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0857 Case Document Filed Page of Xj3q1gra SEALED that on any authority other than my reading of the tea leaves after the extensive press reporting and the fact that the Second Circuit has already issued an order giving the parties until last week to say why the summary judgment papers and all the supporting papers should not be unsealed by the Second Circuit and indicating that there would be a further order with respect to all the rest of the I dont know or so sealed documents in connection with the underlying litigation but you can hear it in the questioning you can read it in the press reports you can intuit it from the order I dont know if youve seen the Second Circuits order that issued last week but MR ROSSMILLER I have your Honor THE COURT Okay You can intuit that something kind of unfavorable to Judge Sweet is happening its in the process of happening it seems to me its about to be happening in connection with this protective order and its enforceability Doesnt seem that way to you Mr Rossmiller MR ROSSMILLER Your Honor Ive read the same articles and THE COURT I mean really Mr Rossmiller MR ROSSMILLER So I would say your Honor that I would expect that any order to disclose materials that were filed in connection with for example the summary judgment papers if in fact they are released or if in fact the SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0858 Case Document Filed Page of Xj3qlgra SEALED protective order is overturned in some way that those would be redacted as to individuals names personally identifying information THE COURT Probably MR ROSSMILLER which I would expect your Honor I dont believe that any indication is that the underlying discovery materials are likely to be unsealed and Im not sure whether thats at issue but in any event THE COURT I dont think it is I think the only thing thats at issue in the case that the Second Circuit has heard is the publicly only here not publicly filed litigation documents which is essentially a lawsuit a libel action that has been filed and litigated under seal It was settled by terms that would have expired because the protective order doesnt extend until it goes on to a trial but there wasnt a trial And Im struggling with this for two reasons First of all its like how much deference to give to this protective order that was issued by some judge not myself on the basis of I dont know what except that from the questions that the Second Circuit asked about the litigation documents it seemed likethey were being critical of Judge Sweet for not having a particularized inquiry into each document that was sought to be filed in accordance with the protective order as to why this contained confidential SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0859 Case Document Filed Page of Xj3qlgra SEALED information and what was confidential about this and just reading the tea leaves I"m thinking to myself what am I supposed to do with this protective order that looks like it stands on precarious footing to begin with Is this the so-called improvidently granted protective order How could I know that Im trying to go back in the files to see what Judge Sweet relied on in granting the protective order I have no idea if there was an opinion I have no idea if there was I mean he recited the magic words at the beginning of the protective order But you know he was doing this for five years and hes dead and I cant ask him And his law clerks werent around when he did it although theyre trying to help me find stuff in the files So Im just trying to figure out if theres something thats going to happen in the Second Circuit that would help you out here or that would further your investigation in a way that would make it not necessary to deal with it MR ROSSMILLER Your Honor Im very sympathetic to that consideration I think that even were the Second Circuit to unseal the entirety of what I believe is at issue which is as the Court noted as the Court just noted THE COURT litigation documents and I dont think the Second Circuit is going to take the time that would be required to make the inquiry Im going to guess that you know some poor schlub in the district court is going to have SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0860 Case Document Filed Page of SEALED that And I hope its not me But ROSSMILLER And I believe it will apply to the filings in the case and not for example the discovery materials deposition materials igation materials THE COURT Okay ROSSMILLER And so I think that unfortunately circumstances for perhaps all of us that even were Second Circuit to grant sort of the most expansive idation of the protective order or sort of release of materials that our application would still be relevant and active THE COURT Would still be relevant and pending and Okay And you cant explain to me why Boies Schiller didn Because theres no question in my mind that disclosed to the parties and I appreciate were not going to do that but were this to be disclosed the parties Maxwell would protest and the first thing that would do would be to say the government lacks standing pa,rty of the prote tive order the issue 267can be if Boies Schiller chooses to make a motion to seek relieved from the protective order or to quash the or to do something but the government has no It hasnt moved to intervene in the civil action SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0861 Case Document Filed Page of Xj3qlgra SEALED It hasnt done any of those things So under Martindell the government lacks standing because remember in Martindell the government only had standing because all the parties were familiar with the governments application It wasnt a secret I dont know why it wasnt a secret but it wasnt a secret And nobody objected And so they said ah okay objection to standing waived So you know once again Judge Sweet I can tell you was somewhat troubled by the procedural posture of the case even though as I understand it he was perhaps partly to blame for the procedural posture of the case but its not like Boies Schiller came in here and asked for relief from the protective order And I am curious about why Boies Schiller didnt do that MR ROSSMILLER Your Honor what I can tell you about that is we the government thought that we were in a position to make the application via the All Writs Act submission that we originally made that that would be an appropriate vehicle for the relief that we as the government were seeking in connection with the protective order So Im not sure THE COURT Youre seeking to have a third party to have Boies Schiller who were counsel for the plaintiffs in the Maxwell action be relieved from the protective order but if theres anybody on this planet who is capable of asking Please relieve us from the strictures of this protective SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0862 Case Document Filed Page of Xj3glgra SEALED order it is David Boies and his partners I mean really MR ROSSMILLER Im sure youre right your Honor and THE COURT They dont need the governments protection MR ROSSMILLER Not that I dont begrudge the dozens of hours that I have spent on it in lieu of Boies Schiller but I think and with apologies of perhaps being persnickety myself but the relief that we are seeking is not precisely to allow Boies Schiller to do something but rather for the modification of the protective order that would then allow that but we did think that we were able to make the application via the All Writs Act and I think it was our general understanding from Judge Sweets response asking us for support for our submission rather than for example denying it based on lack of standing at the outset or simply asking us to have Boies Schiller make the application I dont know what if any difference there would be in terms of the legal analysis from Boies Schiller but I can say that I think the current posture does allow the government to explain why the investigation is extraordinary in the sense of how other decisions and courts have described it and where we the government are better able to explain THE COURT But what do you mean by what you just said I mean you have an investigation into an allegation of SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0863 Case Document Filed Page of Xj3qlgra SEALED human trafficking I have no idea if youre up against a statute of limitations so that I could take the time that really is needed to kind of grapple with the procedural issues because you havent told me that youre up against a statute of limitations MR ROSSMILLER I can tell your Honor Im sorry I didnt mean to interrupt But I can tell you that as most of our investigations do this is moving sort of as fast as possible This was a significant application that we thoroughly considered before making and made originally nearly two months ago so we are hopeful to get an answer soon Nevertheless let me say that THE COURT Unfortunately but for the dead judge opinion and the Supreme Court last month you would have gotten an answer but MR ROSSMILLER That said I would not describe this as an emergency application Theres not a particular day by which we are requesting a response We had hoped to hear back from Judge Sweet THE COURT Before MR ROSSMILLER Before Yes your Honor THE COURT Would that that had happened MR ROSSMILLER And if I may just very briefly I think with respect to the postural question particularly regarding Boies Schiller Boies Schiller simply isnt in a SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0864 Case Document Filed Page of Xj3qlgra SEALED position to be able to describe the investigation in the way that we have in our submission THE COURT Well thats clear Thats clear I mean were I Boies Schiller I would have never mind We wont say what I would have done So Im looking at the protective order itself and of course not having been privy to any of the materials in the case and theyre all under seal so I mean I can dissolve the seal and get them but there are documents there that are under seal for filings there are multiple documents that are under seal MR ROSSMILLER Not to mention all the underlying materials of course THE COURT Not to mention all the underlying materials So you argue there isnt any truly confidential material in this this isnt a trade secrets case and obviously its not a trade secrets case Its a libel case It would seem that the most scurrilous of accusations would have already floated across the face of the complaint But since Maxwell cant object how can I know that all this is about is information that would be you know embarrassing MR ROSSMILLER I would point the Court in the first instance to the definition of confidential materials in the protective order itself which describes confidential SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0865 Case Document Filed Page of SEALED as information that is confidential and implicates a statutory privacy interests of plaintiff THE COURT I have absolutely no idea what that means you dont either and none of us does MR ROSSMILLER I dont your Honor but I think we THE MR that it at least on its face does type of materials that are confidential trade secrets Ordinarily the subject of ordinarily the subject of the in some of the cases that we cited THE COURT Okay ROSSMILLER And I should also say that in to the E:ubpoena Boies Schiller has the ability to not produce certain materials because they they believe that there is some larger ity issue at which point we would be I am not aware that they have as confidential that they would note that we would not ask for and would not leged materials THE COURT Okay Did you provide Judge Sweet with a order MR ROSSMILLER we did yes your Honor DISTRICT REPORTERS P.C SDNY_GM_0866 Case Document Filed Page of Xj3qlgra SEALED THE COURT Could I see what you provided Judge Sweet MR ROSSMILLER Yes of course And your Honor just for the record Im handing over what was our initial sealed affirmation and application to the Court for an order under the All Writs Act and that includes an affirmation and application that I signed with an exhibit attached of the original protective order followed by which is a proposed order for entry by Judge Sweet which we of course would be happy to submit to the Court in Word form or in revised form subject to the Courts views THE COURT Right I just wanted to see if it had a certain provision MR ROSSMILLER If there is a provision that the Court thinks would address some of these issues we would of course be happy to hear it THE COURT Of course Im not Judge Sweet so I dont know exactly what was going on in his head I assume it would be the governments position that reliance on the nondisclosure of confidential materials to law enforcement in connection with a grand jury subpoena that has been duly authorized would be unreasonable It wouldnt be reasonable reliance to assume that the protective order could never be modified to allow I mean the parties to this negotiated the protective order and the protective order does not contain the provision that is in every protective order I SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0867 Case Document Filed Page of SEALED which is you can disclose it without the permission of if you know law enforcement puts a gun to your head Thats not in here MR ROSSMILLER Thats right your Honor THE COURT I dont know Its my understanding that have been negotiated out It may have been I will only say believe Im on less firm ground than in the that we disc 265ssed specifically but I believe that the would be void for public policy in other words you be able to put in That was my question MR ROSSMILLER you may not disclose this to law even given a duly authorized grand jury subpoena Thank you for saying the words void for I was going there I take it it would position that because it would be void as to absolutely prohibit the disclosure of that if a party were to say relied on this that it would not be disclosed to law that would not in your view be reasonable MR ROSSMILLER Yes your Honor I think thats and I think that that is borne out by the opinion in Bank which essentially says You should have asked DISTRICT REPORTERS P.C SDNY_GM_0868 Case Document Filed Page of SEALED course this is fine for you to disclose this information based on the validly issued grand jury for the same type of reasons that the Court COURT Okay So let me see what other million that I have files subpoena Did you take them for all I mean everything thats in Boies than privileged documents which of you dont exclude from your subpoena but presumably they from their production But its literally remember I know very little about the Maxwell both because it wasnt my case and to the shock of everyone that I talk to were all too busy to worry some li thats being handled by somebody else to have been litigated entirely under seal found out anything about it Everything I about this I learned from reading about the Second argument Literally everything So what assurance do I have that so broad a grand jury that I have these competing interests between protective order and the governments interest an investigation what assurance do I have that all that stuff that thats all somehow going to be to your investigation That is a concern from me DISTRICT REPORTERS P.C SDNY_GM_0869 Case Document Filed Page of Xj3qlgra SEALED because I dont know anything about the case MR ROSSMILLER Okay your Honor and I think the answer to that is in a couple parts The first is I would point the Court towards some of the opinions that have talked about the governments investigative ability and authority being broad and it is the case that sometimes we issue grand jury subpoenas THE COURT But that was true in Martindell too MR ROSSMILLER Yes of course your Honor but I just need to say that it is entirely possible that in any grand jury subpoena that materials will come back that are not helpful to our investigation are not relevant for whatever reason that it was however unintentionally overbroad or included unnecessary aspects Here we are essentially unable to significantly narrow the request for information in part for exactly the reasons that you describe We have either little or no additional information than the Court does in terms of what materials there are who was deposed and that is in marked contrast to some of the other cases THE COURT Every other case in the whole world MR ROSSMILLER Of course your Honor Exactly For exactly the reasons we described So what I can say in terms of assurance is we are not sort of an ordinary third-party intervenor All of these materials will be subject to the extraordinary protections of SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0870 Case Document Filed Page of Xj3qlgra SEALED Rule We will be extremely restricted in our use of them To the extent that we receive materials that otherwise wouldnt have been narrowly connected with our investigation they will not go anywhere that they shouldnt they will not be treated in any way they should not be THE COURT Let me ask a question that you may not wish to answer and Ill appreciate it if you dont I know who the target of your investigation is at least the one that youve identified Is there any expectation that these materials would be used to commence criminal proceedings against either of the parties to the libel case MR ROSSMILLER I can say that just as a general matter that any materials that we gather in any part of any investigation that appear to give rise to criminal liability for individuals implicated in those materials could cause us to proceed with an investigation of any such individual Thats a little broad your Honor obviously but THE COURT Oh no I understand what youre saying And I think Judge Sweet had some concerns about that MR ROSSMILLER But I dont think that theres any additional protection for the parties of the lawsuit as opposed to nonparties information THE COURT Theyre the ones who relied on the protective order Of course you say its not reasonable to rely but theyre the ones who relied on the protective order SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0871 Case Document Filed Page of SEALED to give whatever in discovery they gave whether it ueu ition testimony they gave or then again I cant why anybody who has any criminal exposure would not have Fifth Amendment in response to questions in a civil but I dont know ROSSMILLER So just taking that very briefly in I do not know but I think it is entirely we are seeking is page after page of people the Fifth That is entirely possible But to the that it is not or there are other materials and this bad for our argument but in all transparency and think there may be other individuals who also relied protective order In other words anyone other than the were deposed may have in theory and perhaps relied on it For example the target of your MR ROSSMILLER For example the target of our But I dont think that the parties would be situated in terms of their rights and there are cases that talk about how the government has the in a criminal investigation but not through restricting materials THE COURT But thats the whole point of the needing to follow the procedure the proper SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0872 Case Document Filed Page of it SEALED of either having the target of the subpoena make a quqsh or a motion for relief or the government moving ief to intervene instead of engaging in self-help isnt an application like this in any case except the cal Bank case and in the Chemical Bank case it all was facto and it all happened Right And Ill just note without at all about the posture I the Courts questions about that I cannot recall Martindell or one of the other cases but one of cases in this line one of the issues was that the gotten on the pllone with the judge and requested it know sort of informally right THE COURT Yes MR ROSSMILLER Despite our errors in the precise we did want to have a formal application with then subsequently at the request of Judge Sweet law And so I do apologize for the precise posture the approach that we did in the hopes that we could the types of problems that had been engendered by other applications Which I think were made by the government cases and so thats what we did here as well THE COURT Okay All right Well Ill tell you one that I am going to do I am going to ask the clerk of court to assign a miscellaneous number to this case and SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0873 Case Document Filed Page of Xj3qlgra SEALED everything will be filed under seal and it will be In Re Grand Jury you know the usual and it will have the treatment that In Re Grand Jury materials get and everything will be filed under seal But that way I at least have a place to put this okay MR ROSSMILLER I appreciate that your Honor I think we had expected that had the order been either granted or denied that consistent with our usual All Writs application that it would have then been identified with a number but frankly Im not in the clerks office so THE COURT Okay But it has to have one and Im particularly acutely desirous of making sure that this is filed under a docket number with this court because I am concerned about the way everything has happened to date given the Second Circuits kind of it seems to me obvious displeasure with the fact that this whole thing has been litigated under seal So grand jury material absolutely But lets be sure that there is a docket you know that we don"t have something thats off the radar screen MR ROSSMILLER Totally understood your Honor and I appreciate that and were grateful to the Court for that THE COURT Great Okay And youll get your answer by early next week I have to go to the annual meeting of the chief district judges MR ROSSMILLER I don"t envy the Court that SOUTHERN DISTRICT REPORTERS P.C SDNY_GM_0874 Case Document Filed Page of Xj3qlgra SEALED THE CQURT It would be fine but my biggest problem frankly is I dont know when Judge Sweets funeral is and Im trying to figure out when I need to be here for Judge Sweets funeral MR ROSSMILLER Were very grateful THE COURT This goes to the top of the pile I appreciate that this should have been dealt with sooner and Im sorry that it wasnt dealt with a week sooner or you would have had an answer MR ROSSMILLER Were gratef for the Courts attention and certainly appreciate the opportunity to explain how we ended up here THE COURT Okay Thank you MR ROSSMILLER Thank you your Honor THE COURT I appreciate it Mr Rossmiller oOo SOUTHERN DISTRICT REPORTERS P.C
26,344 characters
