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United States v. Worthen

United States District Court, N.D. California

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ERIC WORTHEN, ET AL., Defendants.

          ORDER ON MOTION TO EXEMPT CERTAIN DISCOVERY FROM THE PROVISIONS OF THE PROTECTIVE ORDER

          CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.

         The parties in this case stipulated to a Protective Order, which mirrors the protective order in United States v. Chow, No. 14-cr-0196-CRB. See Protective Order (dkt. 44); Order on Motion for Protective Order in Chow (dkt. 301); Protective Order in Chow (dkt. 301-1). The Protective Order here provides, among other things, that the government turn over all discovery to the defendants, that the government designate such materials “SUBJECT MATERIALS, ” and that defendants' access to the SUBJECT MATERIALS be subject to certain restrictions. Protective Order ¶¶ 1-3.[1] The Protective Order also sets out a process by which defendants may challenge the designation of any materials as SUBJECT MATERIALS: they are first to meet and confer with the government, and then, if necessary, to seek a judicial determination. Id. ¶ 1.[2]

         Defendants Lance and Len Turner (hereinafter “Defendants”), having already attempted to meet and confer with the government, ask the Court to exempt twenty-one items from the provisions of the Protective Order. See generally Mot. (dkt. 60); Boersch Decl. (dkt. 60-1) ¶¶ 4, 5. Defendants argue that the Protective Order is “restrictive and burdensome” and that there is “no obvious basis” for it to apply to those items. See Mot. at 3-5. Defendants do recognize that the Court may “for good cause, ‘deny, restrict, or defer discovery or inspection, or grant other appropriate relief.'” Id. at 5 (citing Fed. R. Crim. P. 16(d)(1)). But they assert that the government has not made an adequate showing of any need here. Id. at 6.

         The government responds, first, that the Protective Order in this case is appropriate. See Response (dkt. 64) at 4-8. The Court has already recognized that the blanket Protective Order, to which all of the defendants stipulated, is appropriate. See Protective Order (signed by counsel for each defendant); Status Conference of 4/25/17 (dkt. 40) (discussing protection of third parties); see also Order on Motion for Protective Order in Chow at 2-5 (discussing third party and other interests, and concluding that, “[g]iven the volume of sensitive material and the fact that it is so enmeshed with non-sensitive material, the protective order . . . is both practical and appropriate.”). The Court is mindful that the materials include “all recordings made by the confidential human source over the course of his two-year participation in the FBI investigation, and not just those relating to the eight defendants charged in the instant indictment, ” see Mot. at 4, and the Court remains concerned about, among other things, the privacy interests of third parties captured on, or discussed in, the recordings. See United States v. Smith¸ 985 F.Supp.2d 506, 526 (S.D.N.Y. 2013) (“interests of third parties as justifying non-disclosure of certain materials speak to the unfairness of being stigmatized from sensationalized and potentially out-of- context insinuations of wrongdoing, combined with the inability of these third parties to clear their names at trial.”).

         The government next turns to Defendants' specific requests, and it agrees that the seven sets of documents that Defendants ask the Court to exempt “do not contain the type of sensitive material that underlies the need for a protective order in this case.” Response at 9. Accordingly, the Court GRANTS the Motion as to those items. The government argues, however, that the recordings that Defendants ask the Court to exempt are “an entirely different matter, ” as they raise third party privacy concerns and would require the government to undertake “the unduly burdensome task of sifting through hours of recordings to determine if they contain sensitive materials.” Id. The government represents that items 1 through 6 on Defendants' list consist of forty separate recordings, totaling thirty-one hours, and that items 14 through 21 on Defendants' list total one hour. Id. The government does not currently have transcripts of the recordings, and thus notes that “[w]ithout listening to all thirty-two hours of recordings, the government does not know whether these recordings contain sensitive materials.” Id. at 10. It concludes: “Having to go back and review hours of recordings in order to ascertain whether they contain sensitive materials, and then to evaluate and redact those materials, was the exact thing the Protective Order was designed to avoid.” Id.

         The Protective Order was not designed to spare the government from ever having to review the discovery materials. It was designed to avoid delaying the defendants' access to the discovery materials while such a review was underway. See Order on Motion for Protective Order in Chow at 3 (“It enables the defendants to have nearly immediate access to the materials, 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 . . . designation.”). The Protective Order here is therefore different from the one in Smith, in which “ongoing investigations into potentially serious criminal conduct” made it “virtually impossible, let alone unduly burdensome” for the government to conduct a careful review of the discovery materials. See 985 F.Supp.2d at 545-46.[3] Listening to thirty-two hours of recordings is not unduly burdensome.[4] Defendants are availing themselves of the process agreed to in the Protective Order. See Protective Order ¶ 1. The government must now review the materials in order to participate in that same process.

         For the foregoing reasons, the Court: (1) GRANTS the Motion in part; (2) DIRECTS the government to review the relevant materials and to file within thirty days of this Order a submission detailing its proposed redactions, if any; and (3) VACATES the hearing on this motion currently set for July 24, 2017.

         IT IS SO ORDERED.

---------

Notes:

[1] Pursuant to the Protective Order, defendants may access copies of the SUBJECT MATERIALS, in the presence of defense counsel or another authorized person, in a room at defense counsel's offices, under certain conditions, or at the federal building at 450 Golden Gate Ave. in San Francisco. Id. ¶ 3(d). Defendants may not take or maintain the SUBJECT MATERIALS or copies thereof outside of the parameters described in the Protective Order. Id. ¶ 3(d)(iv).

[2] See also Order on Motion for Protective Order in Chow at 3 (“The burden will then be on the government to establish that the materials are indeed properly SUBJECT MATERIALS subject to the protective order.”).

[3] Even in Smith, the court explained that defendants would “be able to challenge the designation of certain documents, or otherwise request a modification of the Protective Order should circumstances change.” Id at 546.

[4] The government complains that these and other defendants will likely challenge the designations of additional items in the future. See Response at 10. The Court will evaluate such challenges ...


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