Connolly v. Deutsche Bank AG

Background

The government asked the court to enforce a protective order entered in the closed criminal case against Matthew Connolly and Gavin Campbell Black. The government said grand-jury transcripts produced to Connolly’s criminal defense counsel had been disclosed to and used by Connolly’s civil counsel in Connolly’s malicious-prosecution lawsuit against Deutsche Bank. The civil action was pending before Judge Jesse Furman.

The government sought an order requiring Connolly and his civil counsel to identify materials covered by the protective order and certify that the materials had been or were being destroyed. The opinion states that Black’s counsel represented that they were complying with the protective order’s return-and-destroy provision and had not shared protected documents outside the criminal defense team, but the government did not request relief concerning Black’s civil action.

Court’s analysis

The court agreed that Connolly’s attorneys would have been better advised to ask the court to release him from the protective order before using the materials. But it also found that Connolly’s civil attorneys were not involved in the criminal case, apparently did not know about the protective order, and acted in good faith. The court noted that defendants who obtain grand-jury materials are not subject to the general grand-jury secrecy obligation described in Federal Rule of Criminal Procedure 6(e), although it did not decide whether a protective order could impose such an obligation on a criminal defendant.

The court also observed that most of the relevant material had been publicly disclosed during the criminal trial. It found no reason for continued grand-jury secrecy or for enforcing provisions that would require Connolly to destroy the material or prevent its later use. The materials were highly relevant to Connolly’s civil lawsuit because he needed to address the presumption that the grand jury had probable cause to indict him. The court expressly declined to decide the merits of Deutsche Bank’s motion to dismiss or Connolly’s opposition; Judge Furman would decide those issues.

Order

The court did not grant the government’s requested destruction-and-certification relief. It gave the government ten business days, until March 14, 2023, to identify any grand-jury material still covered by the protective order that it believed should remain confidential. Unless the government made that particularized showing, the portion of the protective order concerning grand-jury materials would dissolve at the close of business on March 15, 2023.

If the government identified materials for continued protection, Connolly—or Black, if he wished to respond—would have ten business days to explain why continued protection should be denied. The government could file its showing and any response under temporary seal while the court reviewed the identified materials. The court also stated that it would not grant contempt or sanctions relief against Connolly or his civil attorneys based on the described conduct.