STIPULATION AND ORDER REGARDING ACCESS TO MATERIAL FOUND ON DEFENDANT'S GOVERNMENT LAPTOP COMPUTER
JOHN A. MENDEZ, District Judge.
With the agreement of the parties, the Court enters the following order regarding access to data from defendant's government laptop computer.
Defendant is charged with six counts of making and subscribing false income tax returns, in violation of Title 26, United States Code Section 7206(1), one count of corruptly endeavoring to impede the administration of the Internal Revenue laws, in violation of Title 26, United States Code Section 7212(a), one count of theft of public money, in violation of Title 18, United States Code Section 641, and one count of destruction, alteration or falsification of records in federal investigations, in violation of Title 18, United States Code Section 1519. In connection with this indictment, the United States is in possession of computer media, materials, and property that were contained on the government laptop computer assigned to defendant during her employment with Internal Revenue Service, Criminal Investigation. The materials on this computer include information from criminal investigations in which defendant may have been involved that contain forms of protected information, including personal identifying information and financial information, return and return information protected under Title 26, United States Code Section 6103, and grand jury materials protected under Federal Rule of Criminal Procedure 6(e).
Consistent with the government's discovery obligations under the Federal Rules of Criminal Procedure, and in order to enable the defendant the greatest opportunity to prepare an effective defense in preparation for trial in this matter, in addition to providing to the defendant all discoverable materials identifiable by the government, the United States will make the material from the computer reasonably available to the defense and provide ample opportunity for the defense to examine it at a government facility. The United States and defendant agree that, in addition to the restrictions imposed by the Court's Protective Order dated November 15, 2016, access to and disclosure of the materials from the defendant's laptop computer media are subject to the following restrictions:
IT IS HEREBY STIPULATED AND AGREED:
1. The following individuals (the "defense team") may obtain and examine the materials under the conditions set forth herein for the sole purpose of preparing the defense and for no other purpose:
a. Counsel for defendant;
b. Persons employed by defense counsel who are assisting with the preparation of the defense;
c. Defendant, but only in the presence of her counsel;
d. Any expert retained on behalf of the defendant to assist in the defense of this matter;
e. Any investigator retained on behalf of defendant to assist in the defense of this matter.
2. The United States shall make one forensic copy of all seized computer media ("defense hard drive") for the defense team. The defense hard drive shall be made available in a private room at the offices of the Treasury Inspector General for Tax Administration, 4330 Watt Avenue, Sacramento, California 95821, or another location agreed upon by the parties (the "examination room"). The defense hard drive shall remain in the examination room at all times and shall not be removed from the examination room by any member of the defense team. The defense team will have access to the examination room during business hours, or on any other practicable terms that can be agreed upon by the parties, and will be escorted to and from the room by counsel for the United States or a person designated to act on counsel's behalf. While the defense team is reviewing the defense hard drive, no agents of the United States will be permitted inside the examination room, except in the event of a building emergency that requires immediate access to the examination room.
3. The examination room will have land-line telephone access and a computer workstation that meets the minimum system requirements for the defense team to view the defense hard drive and/or install software for forensic analysis of the defense hard drive. The computer workstation provided by the United States shall not be connected to the Internet or to any other computer network. The United States will provide a computer and the software necessary to conduct a forensic analysis of the defense hard drive. The defense team will also be permitted to bring in and use a computer that provides internet access at its own expense, provided that any computer used to provide access to the internet is not connected to the computer used to examine the defense hard drive. The defense team will be permitted to leave the computer work station provided by the United States and /or its own computer processing the defense hard drive in its absence. While a computer used by the defense team is processing the defense hard drive in the absence of the defense team, no agents of the United States will be permitted inside the examination room, except in the event of a building emergency that requires immediate access to the examination room. At the conclusion of defense team's use of the examination room, the workstation provided by the United States will be re-imaged. Neither the United States nor its agents will review the defense team's configurations on the workstation at any time.
4. If agreeable to all parties and practicable, a copy of the defense hard drive may be stored in a locked or restricted location designated by the United States for subsequent examination by the defense team, so that the United States will not have to reimage the defense hard drive for each examination by the defense team. The integrity of this hard drive may be verified by the use of a container sealed with tamper-evident evidence tape. When the defense team has advised counsel for the United States that it has completed its examination of the defense hard drive, the United States will re-image the hard drive to remove all data from the hard drive. Neither the United States nor its agents will review the defense team's configurations on the defense hard drive at any time.
5. Prior to receiving access to the materials on any occasion, the defense team members involved in that examination shall sign a copy of the enclosed Certification to be filed with the Court acknowledging that:
a. they have reviewed the Stipulation and Order;
b. they understand the contents;
c. they will only access the defense hard drive for the purposes of preparing a defense;
d. they will not access the defense hard drive from any computer that is connected to the Internet or any local network;
e. they will not remove the defense hard drive from the examination room; and
f. they understand that failure to abide by this Order may result in sanctions by this Court.
6. Upon conclusion of any examination, the defense team members involved in that examination will certify in writing, which may be filed with the Court, that they have not copied and have not removed the defense hard drive from the examination room. Except when a member of the defense team involved in that examination fails to provide this certification, no employee of the United States will examine or acquire in any fashion any of the items used by the defense team to conduct its analysis.
7. In the event that the defense team inadvertently removes any material, it shall immediately inform counsel for the United States and return it within 24 hours.
8. This Stipulated Order is a negotiated procedure by the parties in this case. It does not constitute a concession or waiver by the United States regarding discovery procedures generally for providing access.
9. A copy of this Stipulation and Protective Order shall be maintained with the defense hard drive at all times.
10. Any disputes concerning this Stipulation and Protective Order shall be resolved by this Court only after counsel for the United States and defendant have first conferred and attempted to resolve the dispute.
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11. By this stipulation and order, the parties agree that the Government's discovery obligations pursuant to Federal Rule of Criminal Procedure 16 necessitate an order authorizing the disclosure of the materials described herein.
IT IS SO STIPULATED.
IT IS SO ORDERED.
STIPULATION AND [PROPOSED] ORDER REGARDING ACCESS TO MATERIAL FOUND ON DEFENDANT'S GOVERNMENT LAPTOP COMPUTER
CERTIFICATION
By signing I acknowledge that I have received a copy of the Protective Order in the matter of United States v. Alena Aleykina, 16-cr-142-JAM, have read, understand, and agree to the terms of the Stipulation and Protective Order Regarding Access to Material Found on Defendant's Government Laptop Computer, and hereby submit to the jurisdiction of the United States District Court for the Eastern District of California for the purposes of enforcement of the terms and punishment of any violations thereof.
Date: ________________ __________________________
[Name]
[Title]
Having completed an examination of the defense hard drive, I hereby certify that I have not copied and have not removed the defense hard drive.
Date: ________________ __________________________
[Name]
[Title]
