United States District Court, D. Colorado
ORDER GRANTING A PROTECTIVE ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on the government's Motion
for a Protective Order [Docket No. 61], wherein the United
States seeks a protective order governing defense
counsel's use, custody, and circulation of materials and
discovery provided by the United States under the Jencks Act
and Rules 16 and 26.2 of the Federal Rules of Criminal
Procedure (“discovery material”). Good cause
appearing, it is ORDERED that the Motion for
a Protective Order [Docket No. 61] is granted. It is further
ORDERED
that
1.
Defense counsel may make copies of discovery material to
facilitate the defense of the accused and copies may be
provided to defense counsel's staff, investigator(s),
interpreter(s), expert(s), and prospective expert(s). In
addition, defense counsel may exercise his or her
professional judgment in disclosing discovery material to
defendants, witnesses, and prospective witnesses, giving due
regard to the sensitivity of the discovery material and the
need to disclose. For purposes of this Protective Order,
nothing set forth herein will limit the official use of the
discovery material by the defense.
2.
Defense counsel shall not duplicate or distribute audio files
containing wiretap information generated during the
investigation and disclosed by the government, except for use
in official court proceedings and for duplication and
delivery to the detention facility if requested.
3.
Defense counsel shall use all Jencks material, all witness
statements and reports of witness statement or debriefings
(both written and recorded on audio and video), photographs
depicting persons, documents with personal identifying
information of individuals such as addresses, dates of birth,
social security numbers, and any NCIC/CCIC or similar
records, and reports or statements of witnesses, furnished to
the defense by the government in this case, provided pursuant
to Jencks, Rule 26.2 or Rule 16, only for official purposes
related to any and all judicial proceedings in this case and
for no other purpose.
4. With
respect to defendants detained pending trial pursuant to 18
U.S.C. §§ 3142 or 3145, the parties shall
coordinate with either the U.S. Marshals Service or the
appropriate authority at the detention facility (a) to ensure
the reasonable availability of the pretrial discovery
material, by use of read-only computers, under the custody
and control of the warden, sheriff, superintendent or
official in charge of the facility where the defendant is
being detained before trial; (b) to ensure that such
facilities do not allow a defendant to email, print or
duplicate the discovery material; and (c) to ensure that all
discovery materials shall remain in the physical custody and
control of officials permitting a defendant to review
discovery material on a judicially provisioned computer in
relation to this case as described above.
5. With
respect to defendants on bond, the pretrial discovery
material may be reviewed under supervision of the defense
attorneys who have entered their appearances in this case,
their associates, and the confidential employees or
assistants working with such defense attorneys. The discovery
material shall not be entrusted to the care and custody of
any defendant without such supervision. Defendants on bond
shall not email, print, or duplicate the discovery material.
6. The
discovery material provided to the detention facilities shall
be the same as the unredacted set of discs provided to
defense counsel, unless the government prepares a separate
version for detained defendants and provides counsel with a
list of excluded pages by bates stamp number or document
control number. Any material excluded from the discs provided
to the detention facilities may be reviewed in person by
defendants and defense counsel during attorney client
detention facility visits, using the attorney's computer.
7. With
the exception of copies prepared by defense counsel or staff
for official use in relation to this case, unless defense
counsel and the government come to a specific understanding
to the contrary, the Jencks Act material and above-specified
Rule 26.2 and Rule 16 written and electronically recorded
material disclosed to the defense shall not be copied,
reproduced, published, or publicly circulated by the defense
without order of the Court or until such material is used in
judicial proceedings at time of trial or in official hearings
or proceedings related to this case.
8. In
the event defense counsel and the government agree that
certain materials or documents should be exempted from the
limits otherwise imposed by this Order, they may exempt such
material by mutual agreement. Conversely, if the parties
cannot agree on redaction as an appropriate remedy for some
of the material, they may seek a ruling by the Court. In the
event the defense and the government disagree or are unclear
about the meaning or application of this Order with respect
to some document, digital file, photograph, or other material
in the case, the parties may bring the issue to the attention
of the Court.
9. At
the conclusion of the case, the defense may either retain
discovery material, with the exception of grand jury
transcripts (see Colo. R. Prof. Conduct 1.15D(3) and
1.16A regarding file retention), or ...