ORDER GRANTING MOTION FOR PROTECTIVE ORDER
CHARLES R. BREYER, District Judge.
Now pending is the government's Motion for Protective Order (dkt. 279). That Motion states that the government and almost all defense counsel have negotiated1 a protective order to govern disclosure of the discovery materials in this case, which counsel for 24 of the 25 defendants who have appeared before the Court2 have signed. Mot. at 1-2. Only counsel for Defendant Kwok Cheung Chow has not signed the protective order. Id. at 2. The government therefore moves the Court to act pursuant to Federal Rule of Criminal Procedure 16(d) and require all parties, including Defendant Chow and his counsel, to comply with the protective order. Id. Defendant Chow opposes the government's Motion. See generally Opp'n (dkt. 292). The Court has carefully considered the parties' papers and GRANTS the government's Motion.
Central to Defendant Chow's opposition brief is the contention that the government has failed to demonstrate good cause for the protective order. Id. at 3.3 The concept of good cause stems from Rule 16(d)(1), which provides that "At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by written statement that the court will inspect ex parte." The Rule does not require a party to demonstrate good cause; it requires that the Court act for good cause. There is good cause here.
The government explained in its Motion that many of the materials at issue contain information which the government would otherwise seek to redact or limit from exposure, such as "sensitive materials that, if improperly disclosed, could be used to expose the true identities of undercover employees involved in the investigation, thereby placing them in harm's way." Mot. at 3. There are also "sensitive materials that, if improperly disclosed, could be used to identify individuals who have not yet been charged by the United States, but whose ongoing criminal activities are still under investigation." Id. There are also "sensitive materials identifying numerous individuals who are not believed to have engaged in any criminal activities, but who were nonetheless captured on FBI surveillance or documented in FBI reports." Id. And there are "sensitive materials that, if improperly disclosed, could conceivably raise witness safety issues." Id.
Defendant Chow complains that these are "merely . . . conclusory unsupported statement[s]," and argues that the Court should require the government to make a showing ex parte. Opp'n at 10. The government offered in its Motion, and again in its reply brief, to make an ex parte showing if the Court needed more information. Mot. at 6 n.7; Reply at 4. Of course no ex parte showing is required under Rule 16(d)(1) ("[t]he court may permit"). Moreover, the Court needs no additional showing here. On numerous occasions in the course of authorizing the Title III wiretaps, the Court personally reviewed the materials at issue. In light of its familiarity with the materials, the Court finds the government's representations as to the sensitive material to be entirely accurate.
The government also explained in its Motion that the sensitive material is so interwoven that to redact or extract it would be "an enormous, time-consuming, and expensive task" for it to undertake. Mot. at 3-4. Again, in light of the Court's familiarity with the materials, the Court finds the government's representations as to the interwoven nature of the sensitive material to be entirely accurate.
Given the volume of sensitive material and the fact that it is so enmeshed with non-sensitive material, the protective order negotiated between the government and all of the other defendants in this case is both practical and appropriate. It enables the defendants to have nearly immediate access to the materials,4 which they may use immediately in the service of their defense, and it outlines a clear process through which defendants can challenge the government's "SUBJECT MATERIALS" designations. Any defendant may identify the challenged materials, state the reasons why the materials should not be designated "SUBJECT MATERIALS" subject to the protective order, meet and confer with the government, give the government a reasonable opportunity to respond, and, if the parties cannot agree on a resolution, bring the matter to the attention of the Court. See Ex. 1 (protective order) ¶ 1. The burden will then be on the government to establish that the materials are indeed properly SUBJECT MATERIALS subject to the protective order.
Defendant Chow argues that "[t]his is nothing more than [the government] deflecting their responsibility onto Mr. Chow when, after five years of investigation, they are in the better position to identify protected material." Opp'n at 13. He urges the Court "to require the Government to complete their `herculean task' which is a result of their herculean investigation." Id. And he bemoans the burden of challenging the government's designations, claiming that such motions "will create a significant drain on defense resources creating the need to file ongoing motions to unprotect material which will absolutely place Mr. Chow in jeopardy of ineffective assistance of counsel." Id. at 9. The Court recognizes that this process is not perfect, but concludes that it is, as the government states, "the only way to produce the discovery in this case in an expeditions manner." Reply at 4. To follow the traditional path of selecting "Rule 16/Brady disclosures" from the vast amount of materials collected in a multi-year government investigation would entail many months of delay. The Court cannot abide by defendants sitting in custody (and their lawyers sitting on their hands) while the government engages in such time-consuming line-by-line redaction.
The protective order negotiated between the government and all of the other defendants in this case is not only practical, it is lawful. Defendant Chow cites no authority for the proposition that he has a First Amendment right to disclose information that is properly the subject of a protective order. Such disclosure risks not only bodily harm to undercover agents, but reputational harm to individuals who would be collateral damage.5 In the case of public officials, there is also a risk of unfairly undermining their abilities to govern. An investigation of government corruption conducted by means of wiretap will include speculative discussions about numerous public officials, when those individuals are not parties to the discussions, cannot interject to defend themselves, and never went on to act in a corrupt or criminal manner. Indeed, grand jury proceedings are intended to protect the innocent from public comment at a time in which there is only speculation of wrongdoing. See DeGeorge v. U.S. Dist. Court for Cent. Dist. of Cal., 219 F.3d 930, 937 (9th Cir. 2000) (recognizing "the traditionally non-adversarial and secret nature of grand jury investigations."); United States v. Providence Tribune Co., 241 F. 524, 526 (D.R.I. 1917) ("Secrecy is also required in order that the reputations of innocent persons may not suffer from the fact that their conduct is under investigation, or has been investigated, by a grand jury."); Federal Rule of Criminal Procedure 6(e)(2) (outlining obligations of secrecy in grand jury matters).
Although Defendant Chow complains that the government is "violating [his] Due Process [rights] by failing to turn over exculpatory evidence" pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the process he challenges would require the government to quickly turn over to him the Brady and Rule 16 materials to which he is entitled. Defendant Chow makes passionate arguments about his desire to counter the government's having "already wrongfully convicted [him] in the eyes of the public," see, e.g., Opp'n at 2, however he cites to no authority suggesting that a defendant can flout a protective order to distribute Brady material to the media. Put another way, Brady requires the disclosure of evidence favorable to an accused, not the disclosure of such evidence to the media.6
This is not to say that the Court fails to recognize the media's-indeed the public's-interest in this case. That interest is significant. The Court on Friday received a letter from the law firm of Davis Wright Tremaine LLP, written on behalf of non-party news organizations The Center for Investigative Reporting, The Los Angeles Times, The Sacramento Bee and the San Francisco Chronicle, which expresses concern "about the blanket nature and unlimited scope of the proposed Protective Order." The letter thoughtfully discusses the right of access to criminal proceedings established in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), and how such access includes pretrial criminal proceedings and records. The Court does not quarrel with any of this authority, or with the "importance of public oversight" of the judicial process. The distinction here is that this Motion pertains to criminal discovery materials, not criminal proceedings and records. Defendant Chow asserts that he "intends to litigate these matters frequently if necessary." Opp'n at 13. He is free to do so, as are the other defendants. Presuming the parties cannot agree on a resolution, the Court will adjudicate defendants' challenges to the government's "SUBJECT MATERIALS" designations, and at that point it will carefully weigh the relevant interests, not least of which is the public's right to access. In the meantime, the defendants will have the materials in their possession and be able to use them to mount their defenses.
For the foregoing reasons, the Motion is GRANTED.
IT IS SO ORDERED.
PROTECTIVE ORDER
The Court enters the following Protective Order:
Pursuant to the defendants' requests, the government will be providing, directly as well as through a copy vendor, copies of documents, recordings, and other materials (the "SUBJECT MATERIALS"), marked with identifying Bates numbers, in lieu of making them available for review as follows and under the conditions of this Protective Order:
1. Pursuant to its discovery obligations, the government intends to produce discovery including but not limited to Rule 16 and wiretap information. All the material that the government produces to the defense in the above-captioned case pursuant to its discovery obligations will be designated as SUBJECT MATERIALS. Defendants are signing this Protective Order for purposes of expediting discovery and are doing so with a reservation of rights to dispute the government's designation of specific materials as SUBJECT MATERIALS that should be subject to the terms of this Protective Order. Should any defendant disagree with the government's designation of any materials as SUBJECT MATERIALS, the defendant must initially meet and confer with the government to resolve the dispute if possible. If after meeting and conferring with the government the defendant disagrees with the government's determination as to the characterization of the material(s), the defendant's next avenue for resolution is to notify the Court and seek a judicial determination of whether the specific materials at issue should be designated as SUBJECT MATERIALS and continue to be subject to the terms of this Protective Order.
2. Except when being actively examined, transferred as permitted by this Protected Order, or used for the purpose of the preparation of the defense of defendants, the SUBJECT MATERIALS shall be maintained in safe and secure places in defense counsel's office(s) and/or secured in a password protected electronic format, which shall be accessible only to defense counsel, members and employees of his or her law firm who are working with him or her to prepare defendants' defense, the defendants, retained investigators and experts, and others identified in Paragraphs 3. Defense counsel, members and employees of his or her law firm, the defendants, and the investigator(s) shall not permit any person access of any kind to the SUBJECT MATERIALS except as set forth below.
3. The following individuals may obtain copies of the SUBJECT MATERIALS for the sole purpose of preparing the defense of defendants in this action and for no other purpose:
a) Counsel for defendants;
b) Members and employees of defense counsels' law office who are assisting with the preparation of defendants' defense;
c) Court appointed discovery coordinator;
d) Defendants, as follows:
i. In the presence of defense counsel or another authorized person listed in this paragraph;
ii. In a room at defense counsels' offices under the following conditions: the SUBJECT MATERIALS will be available by paper copy or on a computer or electronic media that will lack Internet access and lack the ability to copy the SUBJECT MATERIALS onto a disk, a drive, or other media; no telephones or cameras will be permitted in the room while the defendant is reviewing the SUBJECT MATERIALS; a member of defense counsel's staff will supervise the review but need not be present in the room during the review; and defense counsel will take reasonable steps to comply with this provision.
iii. For defendants represented by defense counsel appointed under the Criminal Justice Act, SUBJECT MATERIALS might be provided for review in space located at the federal building at 450 Golden Gate Avenue in San Francisco under procedures to be determined.
iv. Defendants may not take or maintain the SUBJECT MATERIALS or copies thereof outside of the parameters set forth above.
e) Potential witnesses, but only in the presence of defense counsel or another authorized person listed in this Protective Order, (potential witnesses may not take or maintain the SUBJECT MATERIALS or copies thereof);
f) Investigators, experts, paralegals and law clerks retained to assist in the defense of this matter;
g) Vendors or personnel whose services are employed to copy, transcribe, use, prepare, or translate SUBJECT MATERIALS.
4. A copy of this Order shall be maintained by defense counsel at all times in the principal place where the SUBJECT MATERIALS are maintained.
5. All individuals described in Paragraph 3, other than defense counsel (and employees of his/her office) and potential witnesses, who receive access to the SUBJECT MATERIALS, prior to receiving access to the materials, shall sign a copy of this Order acknowledging that:
a) they have reviewed the Order and are bound by its terms;
b) they understand its contents;
c) they agree that they will only access the SUBJECT MATERIALS and information for the purposes of preparing a defense for defendant;
d) they understand that failure to abide by this Order may result in sanctions by this Court.
e) they agree that they will not give the SUBJECT MATERIALS to any other individuals.
Counsel for the parties shall maintain in their files signed copies of the Order to be made available upon request under seal to the Court.
6. Defense counsel may provide copies of SUBJECT MATERIALS to experts and/or investigators working for defense counsel, but only in accordance with the procedures described below. The experts and investigators who receive SUBJECT MATERIALS must maintain them in a safe and secure place in their office(s), which shall be accessible only to them, and/or secured in a password protected electronic format, except when the SUBJECT MATERIALS are being actively examined or used for the purpose of the preparation of the defense or are being transferred as permitted by this Protective Order.
7. Counsel for defendants shall maintain a log of SUBJECT MATERIALS provided to any experts and/or investigators, which log shall include the Bates numbers of documents provided and the names of the person(s) receiving the materials. The logs will be maintained in a secure manner. If (1) upon a showing of good cause to believe that there was a breach of this Protective Order and that a copy of the log should be requested from specified defense counsel and (2) after specified defense counsel receives notice of the reason(s) the log is being requested and has an opportunity to be heard by the Court on the matter, the Court may order the specified defense counsel to produce the log to the Court. In that event, the directed defense counsel shall submit a copy of the log to the Court ex parte and under seal and waives any objection based on the work-product doctrine to producing a copy of the log to the Court in this manner. Before the Court discloses the log to the government or to any third party, defense counsel shall receive notice of the potential disclosure and shall have an opportunity to be heard by the Court and to object to any such disclosure; in that event, defendant and defense counsel reserve all rights to object to disclosure of the log to the government or to any third-party, including, without limitation, objections based on the work-product doctrine.
8. Counsel for the defendants, within thirty calendar days of the conclusion of the above-captioned proceedings before the Court, shall retrieve all copies of the SUBJECT MATERIALS provided to anyone pursuant to this Order. Counsel may then destroy copies which counsel deems unnecessary to preserve, and maintain or return to the government the balance in a manner consistent with this Order.
9. No other person may be allowed to examine the SUBJECT MATERIALS without further order of the Court. Examination of the SUBJECT MATERIALS shall be done in a secure environment which will not expose the materials to other individuals not authorized to access the SUBJECT MATERIALS.
10. The SUBJECT MATERIALS may be duplicated to the extent necessary to prepare the defense of this matter. Any duplicates will be treated as originals in accordance with this Order.
11. Notwithstanding the foregoing, SUBJECT MATERIALS, including audio recordings, can be reviewed by the defendants who are detained outside the presence of counsel under conditions to be determined and described in an amendment to this Protective Order.
12. The protocol for SUBJECT MATERIALS set forth in paragraph 11 does not bind any jail in which the defendants may be housed to accepting the protocol. Rather, the protocol set forth in paragraph 11 is merely an agreement between the government and the defendants only. The defendants shall separately confer with the jail in which they are housed regarding whether and how the jail will maintain the SUBJECT MATERIALS. Nothing in this stipulation is intended to divest jail officials of their discretion and authority in operating the jail and maintaining the safety and security of the jail.
13. The government shall request that the defense team return copies of the SUBJECT MATERIALS to the United States thirty calendar days after any one of the following events, whichever occurs latest in time: dismissal of all charges against the defendant; the defendant's acquittal by court or jury; or the conclusion of any direct appeal, including the time required for counsel to comply with Ninth Circuit Rule 4-1(e). Defense counsel shall comply with the government's request. Defense counsel, however, may retain for its records one copy of the SUBJECT MATERIALS, which shall be kept in a secure location. Defense counsel need not disclose to the government any work product that incorporates any SUBJECT MATERIALS.
14. After the conclusion of proceedings in the district court or any direct appeal in the above-captioned case, including the time required for counsel to comply with Ninth Circuit Rule 4-1(e), the government will maintain a copy of the SUBJECT MATERIALS. The government will maintain the SUBJECT MATERIALS until the time period for filing a motion pursuant to 28 U.S.C. § 2255 has expired. After the statutory time period for filing such a motion has expired, the government may destroy the SUBJECT MATERIALS. In the event defendant is represented by counsel and files a motion pursuant to 28 U.S.C. § 2255, the government will provide that counsel with a copy of the SUBJECT MATERIALS under the same restrictions as trial and direct appeal defense counsel. Defendant's attorney in any action under 28 U.S.C. § 2255 shall return the same materials thirty calendar days after the district court's ruling on the motion or thirty calendar days after the conclusion of any direct appeal of the district court's denial of the motion, whichever is later.
15. This Protective Order does not limit or modify the parties' rights to use the SUBJECT MATERIALS in judicial proceedings in this action, including in any trial or pretrial matters before the Court, using appropriate procedures to protect the safety and security of third parties when necessary. Any SUBJECT MATERIALS that reveal the images or the true identities of any federal undercover agents or confidential human sources shall be filed under seal.
IT IS SO ORDERED.
