The Volokh Conspiracy

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Government Can Use Ghislaine Maxwell's Deposition in Civil Case, Without Violating Maxwell's Fourth or Fifth Amendment Rights

The deposition was initially subject to a protective order, but the court concludes that this doesn't matter.


From the opinion in U.S. v. Maxwell by Judge Alison Nathan (S.D.N.Y.), decided June 25 but just unsealed on Thursday:

Maxwell moves to suppress evidence obtained through a grand jury subpoena to a law firm involved in earlier civil litigation against her. She contends that because the documents sought by the subpoena were previously subject to a protective order, the Government obtained them in violation of her rights against compelled self-incrimination, against unreasonable searches and seizures, and to due process of law. For the reasons that follow, the Court concludes that the evidence should not be suppressed and that Maxwell is not entitled to an evidentiary hearing….

In late 2015, Virginia Giuffre sued Maxwell for defamation. Giuffre alleged that Maxwell defamed her by accusing her of lying about Maxwell and Jeffrey Epstein sexually abusing her. The law firm Boies Schiller Flexner LLP (BSF) represented Giuffre in the dispute. The parties litigated the case for about two years before signing a confidential settlement agreement.

Early in the civil litigation, one of the attorneys representing Giuffre approached an Assistant United States Attorney (AUSA) in the Southern District of New York and requested a meeting to provide the Government information on possible criminal conduct. The AUSA met with three attorneys who represented Giuffre on February 29, 2016. The AUSA's notes from the meeting reflect that it focused primarily on Epstein. However, the notes also identify Maxwell as Epstein's "head recruiter" of underage girls. The attorneys sent a few follow-up emails to the AUSA in the following weeks. The United States Attorney's Office did not pursue a criminal investigation at that time….

About two weeks after the February 29, 2016 meeting, the judge presiding over the civil case entered a protective order that allowed the parties in that case to designate documents produced in discovery as confidential. That order prohibited the parties from disclosing confidential documents to anyone other than people involved in the case….

[The protective order] allowed the court to modify the order at any time for good cause after notice to the parties. It also allowed the parties to use any confidential information at trial, at which point that information would become public. It required the parties to return or destroy confidential records after the case ended.

Following entry of the protective order, Maxwell testified in two depositions in the civil case. The parties designated the depositions as confidential under the protective order. [Several counts of the] superseding indictment[s] in this case … charge that Maxwell made false statements under oath in each of the depositions.

The Government represents that the Office of the U.S. Attorney for the Southern District of New York formally opened its investigation into Epstein on November 30, 2018, following a series of articles in the Miami Herald about Epstein's conduct and the lenient plea deal he received in the Southern District of Florida. The same day, the AUSA who attended the February 2016 meeting forwarded the emails she received from attorneys in the civil case to the prosecutors working on the fledgling investigation. There is no indication that she was involved in the decision to begin the investigation into Epstein in 2018.

About two months later, the Government served a grand jury subpoena on BSF seeking to obtain documents for its investigation of Epstein. BSF informed the Government that many of the requested documents fell under the protective order. The Government then applied for an ex parte order modifying the protective order to allow BSF to comply with the subpoena. The Government made a second, similar application in connection with a protective order in a different case….

[In 2019,] Judge McMahon issued [an] order granting the Government's application [to modify the protective order, for two reasons:] First, Maxwell did not reasonably rely on the protective order because it was subject to modification. Second, the Government had shown extraordinary circumstances supporting modification of the protective order because it could not otherwise obtain information about the high-profile targets of its investigation without tipping them off….

Following Judge McMahon's order, BSF turned over its records from the civil litigation to the Government. Those documents included transcripts of Maxwell's depositions. The Second Circuit later held that the court in the civil case withheld far too many documents from public view and ordered that many of them be made publicly available. Much of what the Government obtained through its subpoena, including the bulk of the deposition transcripts Maxwell now seeks to suppress, have since been unsealed by court order in the civil case.

The court concluded that this didn't violate Maxwell's privilege against self-incrimination:

Maxwell contends that the Government violated her right against compelled self-incrimination by obtaining copies of her deposition transcripts from her earlier civil case. She acknowledges that she could have, but did not, invoke her Fifth Amendment rights to avoid providing incriminating testimony. However, she contends that she testified only because she believed the protective order in that case would prevent the Government from obtaining her testimony and using it in a subsequent criminal case against her.

Second Circuit precedent expressly forecloses Maxwell's argument. "A Rule 26(c) protective order, no matter how broad its reach, provides no guarantee that compelled testimony will not somehow find its way into the government's hands for use in a subsequent criminal prosecution." Andover Data Servs. v. Stat. Tabulating Corp. (2d Cir. 1989). As the Second Circuit has explained, a civil protective order may (as here) be overturned or modified by another court in another proceeding. A civil protective order may (as here) be limited by its terms to pretrial proceedings, in which case the parties must expect that confidential documents will come to light as the case progresses. A court may (as here) unseal documents covered by a civil protective order in the public interest. Civil litigants have neither a reasonable basis nor legal entitlement to rely on a civil protective order against the use of their testimony in a subsequent criminal proceeding….

The Government would also be entitled to use Maxwell's deposition testimony against her in her perjury trial notwithstanding any violation of her right against compelled self-incrimination. The Supreme Court has held that a defendant may be prosecuted for false statements in unlawfully compelled testimony. See United States v. Wong (1977); United States v. Knox (1969)….

The court also concluded that the government's use of the documents doesn't violate the Fourth Amendment:

A person has a reasonable expectation of privacy only if they seek to keep something private and have an objectively reasonable expectation that it will remain private. The Supreme Court has held that people generally lack a reasonable expectation of privacy in information they voluntarily disclose to others. This is true even if they expect that information to be safeguarded and used only for specific purposes. Thus, the Supreme Court has held that police may obtain bank records or a list of phone numbers a person has dialed without a warrant. In a lone exception to this rule, the Supreme Court has held that people have a reasonable expectation of privacy in geographical information obtained from their cell phones, because that information provides a comprehensive account of a person's movements akin to invasive physical surveillance.

Under this standard, Maxwell had no reasonable expectation of privacy in the documents produced during the civil litigation. Those documents may not have been public, but they were hardly private….

Second Circuit precedent makes clear that Maxwell had no reasonable expectation that documents covered by the protective order would remain shielded from view of the public or prosecutors. The Second Circuit has cautioned civil litigants that a civil protective order is no guarantee against the use of evidence in a subsequent criminal prosecution. Second Circuit precedent allows a court in a subsequent proceeding to modify a protective order. And if confidential materials turn out to be relevant to a court's ruling, Second Circuit precedent creates a strong presumption that they will be made public notwithstanding any protective order. These are not remote or theoretical possibilities. Each of them predictably came to pass in this case. It is "unrealistic" to believe that deposition testimony central to a civil case of high public interest will remain effectively sealed indefinitely.

Maxwell claims that she did not expect the Government to be able to obtain her deposition testimony, and that if she knew it would, she never would have testified. If Maxwell subjectively harbored this belief, it was nonetheless unreasonable. The Court further notes that Maxwell was ably represented by a number of attorneys during the civil litigation, who the Court is confident were familiar with the precedents governing protective orders and public access to judicial documents.

And the court likewise rejected arguments based on the government's apparent omission of certain information in the 2019 hearing before Judge McMahon.