Opinion
21 Cr. 714 (KPF)
12-15-2021
United States of America v. Nickolas Sharp, Defendant.
Damian Williams United States Attorney, Vladislav Vainberg Assistant United States Attorney, Matthew Myers, Esq. Counsel for Nickolas Sharp
Damian Williams United States Attorney, Vladislav Vainberg Assistant United States Attorney, Matthew Myers, Esq. Counsel for Nickolas Sharp
PROTECTIVE ORDER
HONORABLE KATHERINE POLK FAILLA UNITED STATES DISTRICT JUDGE
Upon the application of the United States of America, with the consent of the undersigned counsel, and the defendant having requested discovery under Fed. R Crim. P. 16, the Court hereby finds and orders as follows:
1. Disclosure Material. The Government will make disclosure to the defendant(s) of documents, objects and information, including electronically stored information (“ESI”), pursuant to Federal Rule of Criminal Procedure 16, 18 U.S.C. §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.” The Government's disclosure material may include material that (i) affects the privacy, confidentiality and business interests of individuals and entities; (ii) would impede, if prematurely disclosed, the Government's ongoing investigation of uncharged individuals; (iii) would risk prejudicial pretrial publicity if publicly disseminated; and (iv) that is not authorized to be disclosed to the public or disclosed beyond that which is necessary for the defense of this criminal case.
2. Business Sensitive Information. Certain of the Government's disclosure material, referred to herein as “business sensitive information, ” contains information that may reveal trade secrets or other information that may cause financial loss or other harm to the affected business entity.
NOW, THEREFORE, FOR GOOD CAUSE SHOWN, IT IS HEREBY ORDERED:
1. Disclosure material shall not be disclosed by the defendant or defense 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 action. The defense shall not post any disclosure material on any Internet site or network site to which persons other than the parties hereto have access, and shall not disclose any disclosure material to the media or any third party except as set forth below.
2. Disclosure material that is not business sensitive information may be disclosed by counsel to:
(a) Personnel for whose conduct 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.
3. The defendant may only access and review business sensitive disclosure materials (1) in the presence of counsel or (2) if outside the presence of counsel, only on an electronic device with monitoring software installed and monitored by Pretrial Services. Counsel may provide business sensitive information only to:
(a) Personnel for whose conduct 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.
4. The Government may authorize, in writing, disclosure of disclosure material beyond that otherwise permitted by this Order without further Order of this Court.
5. 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, business 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.
6. Except for disclosure material that has been made part of the record of this case, the defense shall return to the Government or securely destroy or delete all disclosure material, including the seized ESI disclosure material, within 30 days of the expiration of the period for direct appeal from any verdict in the above-captioned case; the period of direct appeal from any order dismissing any of the charges in the above-captioned case; or the granting of any motion made on behalf of the Government dismissing any charges in the above-captioned case, whichever date is later. If disclosure material is provided to any prospective witnesses, counsel shall make reasonable efforts to seek the return or destruction of such materials.
7. 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 and shall be required to execute a consent to be bound by this Order. Defense counsel shall maintain a record of what information has been disclosed to which such persons.
8. This Order places no restriction on a defendant's use or disclosure of ESI that originally belonged to the defendant, except, for the avoidance of doubt, any ESI that has been designated as business sensitive materials shall be subject to the full restrictions of this Order.
Retention of Jurisdiction
9. 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.