United States District Court, N.D. California
ORDER ON MOTION TO EXEMPT CERTAIN DISCOVERY FROM THE
PROVISIONS OF THE PROTECTIVE ORDER
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
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 ¶¶
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.
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.
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.”).
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.
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. Listening to thirty-two hours of
recordings is not unduly burdensome. 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
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,
 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).
 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.”).
 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.
 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 ...