S.D.N.Y.: No REP in a civil deposition under protective order obtained by SW

Defendant had no reasonable expectation of privacy or due process right in a civil deposition subject to a protective order obtained by search warrant from the law firm. Her argument that she would have taken the Fifth if she thought it would someday be released is unavailing. United States v. Maxwell, 2021 U.S. Dist. LEXIS 123814 (S.D. N.Y. June 25, 2021):

B. Maxwell had no reasonable expectation of privacy in documents produced in civil litigation

“The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'” Carpenter v. United States, 138 S. Ct. 2206, 2213, 201 L. Ed. 2d 507 (2018) (alteration in original) (quoting U.S. Const. amend. IV). Government activity qualifies as a search under the Fourth Amendment only if it involves a physical intrusion into a constitutionally protected space or the violation of a person’s “reasonable expectation of privacy.” United States v. Jones, 565 U.S. 400, 406-07, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). Thus, government agents need a warrant to rummage through someone’s home, listen in on their phone calls, or search through their phones seized incident to arrest. The Fourth Amendment imposes no limitation on their ability to gather evidence of public activity or review public records.

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. Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). The Supreme Court has held that people generally lack a reasonable expectation of privacy in information they voluntarily disclose to others. See id. at 743-44; United States v. Miller, 425 U.S. 435, 440, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976). 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. Smith, 442 U.S. at 742; Miller, 425 U.S. at 440. 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. See Carpenter, 138 S. Ct. at 2219-20.

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. The protective order allowed them to be shared freely with each of the following categories of people:

• The parties to the case.
• Attorneys involved in the case.
• People employed by or associated with attorneys involved in the case.
• Expert witnesses.
• Fact witnesses.
• Potential witnesses.
• Court personnel and stenographers.

It also allowed any documents to be publicly used at trial. This is not a case like Carpenter where new technology has allowed police to access heretofore “unknowable” information about a person’s private life. Id. at 2218. This is a case where Maxwell shared information with third parties through the routine process of civil litigation and now objects that they shared it with the Government, too.

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. See Andover, 876 F.2d at 1083. Second Circuit precedent allows a court in a subsequent proceeding to modify a protective order. Id. 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. See Lugosch, 435 F.3d at 126. These are not remote or theoretical possibilities. Each of them predictably came to pass in this case. See Brown, 929 F.3d at 48 & n.22; Giuffre, 827 F. App’x at 145. It is “unrealistic” to believe that deposition testimony central to a civil case of high public interest will remain effectively sealed indefinitely. Andover, 876 F.2d at 1083.

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. See Smith, 442 U.S. at 743. 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.

Because Maxwell had no reasonable expectation of privacy in documents shared with third parties during the civil case, the Government did not engage in a search when it obtained those documents from a third party by subpoena. Maxwell also makes a half-hearted argument that obtaining those documents was a seizure of her personal property. Copies of documents held by a law firm that represented Maxwell’s adversary in a civil case were not Maxwell’s personal property. Thus, the Government engaged in neither a search nor a seizure, and so it did not violate Maxwell’s Fourth Amendment right against unreasonable searches and seizures.

The Government also contends that even if it improperly obtained documents pursuant to the grand jury subpoena, the Court should not suppress those documents because the Government acted in good faith and would have obtained the documents anyway. See Nix v. Williams, 467 U.S. 431, 446, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984); United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). The Court agrees that, at the very least, the exception to the exclusionary rule for inevitable discovery applies to the documents that have since been unsealed and made public in the civil case. But because the Court finds no violation of the Fourth Amendment, it concludes that none of the documents should be suppressed.

Reason: Government Can Use Ghislaine Maxwell’s Deposition in Civil Case, Without Violating Maxwell’s Fourth or Fifth Amendment Rights by Eugene Volokh (“The deposition was initially subject to a protective order, but the court concludes that this doesn’t matter.”)

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