Opinion
No. 05 Civ. 916 (LAK), Related to: 03 Cr. 358 (LAK).
April 28, 2005
DAVID N. KELLEY, United States Attorney.
Daniel W. Levy, Assistant United States Attorney.
Alexander E. Eisemann, Esq., Attorney for Petitioners.
Michael G. Kessler for Michael G. Kessler Assocs. Ltd.
PROTECTIVE ORDER
WHEREAS, Alexander E. Eisemann, Esq., counsel to the Petitioners (hereinafter "Petitioners' Counsel"), has requested access to materials stored on hard disk drives previously possessed by Petitioner Russell E. Bretan ("Petitioner Bretan") and seized by Respondent the United States of America in connection with United States v. Russell E. Bretan, 03 Cr. 358 (LAK) (the "Hard Drives"); and
WHEREAS, the United States of America is willing, under the conditions set forth below, to make available particular images contained on the Hard Drives and requested by Petitioners' Counsel (the "Specified Images") solely for the purposes of the representation of the Petitioners by Petitioner's Counsel; and
WHEREAS, in the view of the United States of America, among the Specified Images are child pornography and images of child pornography, within the meaning of 18 U.S.C. §§ 2252A, 2256(8);
IT IS HEREBY agreed, by and between, the United States of America, David N. Kelley, United States Attorney, by Daniel W. Levy, Assistant United States Attorney, on the one hand, and Petitioners' Counsel and a computer consulting firm retained by Petitioners' Counsel to assist in his representation of the Petitioners, Michael G. Kessler Assocs. Ltd. ("Computer Consultant") on the other that:
1. The Government shall make available to Petitioners' Counsel a copy of the Specified Images (the "Copy") within 5 business days after the entry of this Protective Order by the Court.
2. Petitioners' Counsel or Computer Consultant shall maintain the Copy in a locked, safe, and occure place within Petitioners Counsel's office, located at 305 Broadway, Suite 602, New York, New York 10007, Petitioners Counsel's home office, located in Westchester County, New York, or Computer Consultant's office located at 140 Fell Court, Hauppague, New York 11788, which place shall be accessible only to Petitioner's Counsel or Computer Consultant, as the case may be.
3. Petitioners' Counsel and Computer Consultant shall not make any reproduction of the Copy or any material stored on the Copy, including, but not limited to, printing any material stored on the Copy. The prohibition on copying any material stored on the Copy set forth in the prior sentence of this paragraph 3 shall not prevent Petitioners' Counsel or Computer Consultant from summarizing information stored on the Copy or from creating other written descriptions of the material stored on the Copy.
4. Petitioners' Counsel and Computer Consultant shall not willfully destroy, erase, or alter the Copy or any material stored on the Copy.
5. Any material stored on the Copy shall be viewed by Petitioners' Counsel, any Petitioner other than Petitioner Bretan, and such employees of Computer Consultant as are reasonably necessary for the performance of the services for which Petitioners' Counsel has retained Computer Consultant. Such viewing shall occur only at the office of Petitioners' Counsel or the office of Computer Consultant, as the case may be, and nowhere else. Should Petitioners' Counsel believe it necessary to have Petitioner Bretan view any material stored on the Copy, such viewing shall be covered by a separate order to be agreed upon by Petitioners' Counsel for Petitioner Bretan and the United States of America, and entered by the Court.
6. Petitioners' Counsel and Computer Consultant shall make their best efforts to ensure that no person has access to the copy, or views any material stored on the Copy, except under the conditions set forth in paragraphs 2 and 5 of this Protective Order.
7. Petitioners' Counsel and Computer Consultant shall maintain a log (the "Log"), containing, for every instance in which any person, including, but not limited to, any employee of Computer Consultant and Petitioners' Counsel, views any material stored on the Copy, the following information: (1) the date; (2) time; and (3) identity of the person who viewed any material stored on the Copy.
8. Petitioners' Counsel shall return the Copy and the Log to the Government immediately upon the later of the disposition of: (a) the petition; or (b) any appeal with respect to the petition.
SO ORDERED.