Opinion
21 Cr. 537 (LTS)
11-05-2021
United States of America v. Kendall Jackson, and Johnny Stevens Defendants.
Damian Williams United States Attorney Jacob Gutwillig Assistant United States Attorney Neil Kelly Counsel for Kendall Jackson Jeffrey Pittell Counsel for Johnny Stevens
Damian Williams United States Attorney
Jacob Gutwillig Assistant United States Attorney
Neil Kelly Counsel for Kendall Jackson
Jeffrey Pittell Counsel for Johnny Stevens
PROTECTIVE ORDER
HONORABLE LAURA T. SWAIN CHIEF UNITED STATES DISTRICT JUDGE
Upon the application of the United States of America, with the consent of the undersigned counsel, the Court hereby finds and orders as follows:
1. Protected Material. The Government will make disclosure to the defendant of documents, objects, and information, including electronically stored information (“ESI”), pursuant to Rule 16 of the Federal Rules of Criminal Procedure; Title 18, United States Code, Section 3500; and the Government's general obligation to produce exculpatory and impeachment material in criminal cases, all of which will be referred to herein as “disclosure material.” Certain of the Government's disclosure material, referred to herein as “Protected Material, ” includes information that (i) affects the privacy and confidentiality of individuals and entities; (ii) impacts the safety of individuals; (iii) would impede, if prematurely disclosed, the Government's ongoing investigation of uncharged individuals; (iv) would risk prejudicial pretrial publicity if publicly disseminated; and (v) is not authorized to be disclosed to the public or disclosed beyond that which is necessary for the defense of this criminal case. Disclosure material produced by the Government to the defendant or their counsel that is marked as “Protected, ” shall be deemed Protected Material.
2. Sensitive Disclosure Material. Certain of the Government's disclosure material, referred to herein as “Sensitive Material, ” contains sensitive information that identifies, or could lead to the identification of, witnesses who may be subject to intimidation or obstruction, and whose lives, persons, and property, as well as the lives, persons and property of loved ones, will be subject to risk of harm absent the protective considerations set forth herein. The Government believes in good faith that such sensitive disclosure material should be reviewed by the defendants only in the presence of counsel. The Government further believes in good faith that the defendants should not maintain, retain, or keep copies of any records containing such Sensitive Material outside the presence of counsel. In the event that defense counsel disagrees about the Government's designation of material as Sensitive Material, counsel for the objecting party and the Government shall meet and confer in an effort to resolve such dispute. However, the Government's designation of material as Sensitive Material shall be controlling absent contrary order of the Court. Disclosure material produced by the Government to the defendant or their counsel that are marked as “Sensitive, ” shall be deemed Sensitive Material.
3. Redactions to Disclosure Material. As both defendants want to avoid any inappropriate use of the disclosure material, the defendants consent to appropriate redactions, agreed upon by their counsel, to the copies of the disclosure material that will be provided to them. In the event that counsel for the Government and counsel for the defendants are unable to agree whether specific redactions are appropriate, the matter will be presented to the Court for resolution.
NOW, THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED:
4. Disclosure material designated as Protected Material or Sensitive Material shall not be disclosed by the defendant or his counsel, including any successor counsel (“the defense”), other than as set forth herein, and shall be used by the defense solely for purposes of defending this case. The defense shall not post any Protected Material or Sensitive Material on any Internet site or network site to which persons other than the parties hereto have access, and shall not disclose any Protected Material or Sensitive Material to the media or any third party except as set forth below.
5. Protected Material may be disclosed by the defense to:
(a) Personnel for whose conduct defense counsel is responsible, i.e., personnel employed by or retained by counsel, as needed for purposes of defending this action;
(b) Prospective witnesses for purposes of defending this action;
(c) The defendant; and
(d) Such other persons as hereafter may be authorized by the Court.
6. Counsel may disclose Sensitive Material to the defendant only for the defendant's review in the presence of counsel for purposes of defending this case. The defendant shall not maintain, retain, or keep copies of any records containing Sensitive Material or information therefrom outside the presence of counsel. Counsel may otherwise disclose Sensitive Material only to personnel for whose conduct counsel is responsible, i.e., personnel employed by or retained by counsel, as needed for purposes of defending this case; and prospective witnesses for purposes of defending this case.
7. The Government may authorize, in writing, disclosure of disclosure material beyond that otherwise permitted by this Order without further Order of this Court.
8. This Order does not prevent the disclosure of any disclosure material in any hearing or trial held in this action, or to any judge or magistrate judge, for purposes of this action. However, sensitive disclosure material pertinent to any motion before the Court should initially be filed under seal, absent consent of the Government or Order of the Court. All filings should comply with the privacy protection provisions of Fed. R. Crim. P. 49.1 9. At any time, the defense may seek leave from the Government to alter the designations for materials designated as Protected Material or Sensitive Material (“Requested Material”). The Government will promptly review such Requested Material and (i) consent to the requested designation alteration or sharing of the material; or (ii) provide the defense with an explanation as to why the Requested Material cannot be designated or shared in the manner requested, so as to facilitate the Court's consideration of any disputes regarding the Requested Material. The Government's designation of material as Protected Material or Sensitive Material will be controlling absent contrary order of the Court.
Disclosure and Protection of Seized ESI
10. The Government has advised that information that may be subject to disclosure in this case may be contained within ESI that the Government has seized during the course of the investigation from various cellphones.
11. The Government is authorized to disclose to counsel for the defendant(s), for use solely as permitted herein, the entirety of such seized ESI as the Government believes may contain disclosure material (“the seized ESI disclosure material”). The defendant(s), defense counsel, and personnel for whose conduct counsel is responsible, i.e., personnel employed by or retained by counsel, may review the seized ESI disclosure material to identify items pertinent to the defense. They shall not further disseminate or disclose any portion of the seized ESI disclosure material except as otherwise set forth under this Order.
12. This Order places no restriction on a defendant(s)'s use or disclosure of ESI that originally belonged to the defendant(s).
14. The defense shall provide a copy of this Order to prospective witnesses and persons retained by counsel to whom the defense has disclosed disclosure material or the Government's ESI production. All such persons shall be subject to the terms of this Order. Defense counsel shall maintain a record of what information has been disclosed to which such persons.
Retention of Jurisdiction
17. The provisions of this order shall not terminate at the conclusion of this criminal prosecution and the Court will retain jurisdiction to enforce this Order following termination of the case.
SO ORDERED: