Opinion
23 CR 50021
06-16-2023
UNITED STATES OF AMERICA v. JAVIER GONZALEZ-VALENZUELA
PROTECTIVE ORDER GOVERNING DISCOVERY
LISA A. JENSEN, UNITED STATES MAGISTRATE JUDGE
Upon the agreed motion of the government, pursuant to Fed. R. Crim. P. 16(d), it is hereby ORDERED:
1. This Protective Order shall apply to certain documents, materials, manuals, books, papers, data, or other objects produced in connection with this case, pursuant to Rule 16, and marked “CONFIDENTIAL - DEFENDANT MAY VIEW BUT NOT POSSESS” (“CONFIDENTIAL INFORMATION”). This Protective Order shall apply to: 1) the government, its agents, consultants and experts; 2) the Defendants, through the Office of the Federal Defender Program and/or CJA counsel, its agents, consultants and experts; 3) the Court and its staff; 4) other parties identified only by amendment to this Order.
2. Unless otherwise agreed to by the parties, or ordered by this court, CONFIDENTIAL INFORMATION may be viewed, but not retained, by the Defendant.
3. The government may designate and disclose as CONFIDENTIAL INFORMATION: 1) non-privileged communications of the Defendant; 2) communications between the Department of Justice, the Federal Bureau of Investigation, and the Federal Bureau of Prisons; 3) documents containing information exempted from disclosure under the Freedom of Information Act; 4) documents containing information subject to the Health Insurance Portability and Accountability Act (HIPPA); 5) documents disclosing the Bureau of Prisons' sensitive deliberative process; 6) documents disclosing institutional adjustments of inmates; and 7) information protected by the Privacy Act of 1974.
4. The government may designate and disclose as ATTORNEYS' EYES ONLY documents disclosing 1) internal operations of the Federal Bureau of Prisons, [here, the United States Penitentiary in Thomson, Illinois (USP Thomson)] relating to institutional security and/or safety; 2) documents disclosing sensitive, internal law enforcement operations or techniques; 3) specific information provided by inmate witnesses that if disclosed to defendant could threaten the safety and wellbeing of the inmate witness(es) and/or the BOP facility that houses the inmate.
5. CONFIDENTIAL INFORMATION shall not be disclosed or used for any purpose except proceedings in this case.
6. This Order applies only to the dissemination of CONFIDENTIAL INFORMATION and is not intended to interfere with or prevent defense counsel from building general institutional knowledge in preparation of the defense. The protections granted by this Protective Order shall not be waived.
7. CONFIDENTIAL INFORMATION may be reproduced electronically for litigation management purposes only. Electronically reproduced CONFIDENTIAL INFORMATION must retain the “CONFIDENTIAL - DEFENDANT MAY VIEW BUT NOT POSSESS” watermark, header or footer. Information marked ATTORNEYS' EYES ONLY must retain the “ATTORNEYS' EYES ONLY” watermark, header or footer and may not be reproduced electronically and shall remain with the defense counsel.
8. Transmittal of CONFIDENTIAL INFORMATION: A copy of this Order shall accompany CONFIDENTIAL INFORMATION transmitted to an agent, consultant, or expert retained by either party. The transmitting party shall obtain from each recipient, a dated, signed acknowledgment of receipt of this Order and the CONFIDENTIAL INFORMATION transmitted, identified by bates number, or data file.
9. CONFIDENTIAL INFORMATION attached to a pleading shall be filed as a restricted document in conformance with N.D.Ill.L.Cr.R 5.8, and will maintain all original “CONFIDENTIAL INFORMATION” watermarks, headers and footers.
10. CONFIDENTIAL INFORMATION offered as an exhibit in pretrial proceedings must be submitted with all original “CONFIDENTIAL INFORMATION” watermarks, headers and footers and will be docketed as restricted.
11. Watermarks, headers, footers, and other indicia identifying a document as “CONFIDENTIAL - DEFENDANT MAY VIEW BUT NOT POSSESS” must be removed from any trial exhibit before the exhibit is tendered to a witness and/or disclosed to a jury. The government will cooperate with the defendant in the removal process prior to trial. Upon conclusion of the proceedings before this Court, all exhibits subject to this provision shall be returned to the government and preserved as modified under this provision for the record on appeal.
12. A party may object to the designation of discovery as CONFIDENTIAL INFORMATION and/or ATTORNEYS' EYES ONLY. Objections shall be filed within the deadline for filing of pretrial motions, or no later than 10 days after receipt of discovery tendered after the motions filing deadline. Documents subject to objection shall be filed as restricted, consistent with the provisions of this Order. Before filing any objection under paragraph 11, the objecting party must confer with counsel for the government to resolve any objections.
13. The Office of the Federal Public Defender and/or CJA counsel may retain a single electronic copy of the materials designated as CONFIDENTIAL INFORMATION. The digital file shall retain any original marks of “CONFIDENTIAL - DEFENDANT MAY VIEW BUT NOT POSSESS” designated as subject to a protective order and maintained with this Order.
14. The parties shall maintain a record of compliance with this Order.
15. This Protective Order may be modified by the Court at any time for good cause shown following notice to all parties and an opportunity for them to be heard.
16. Before providing CONFIDENTIAL INFORMATION to an authorized person, defense counsel must provide the authorized person with a copy of this Order.
17. Upon conclusion of all stages of this case, all of the CONFIDENTIAL INFORMATION and all copies made thereof shall be disposed of in one of three ways, unless otherwise ordered by the Court. The CONFIDENTIAL INFORMATION may be (1) destroyed; (2) returned to the United States; or (3) retained in defense counsel's case file. The Court may require a certification as to the disposition of any such materials. In the event that the materials are retained by defense counsel, the restrictions of this Order continue in effect for as long as the materials are so maintained, and the materials may not be disseminated or used in connection with any other matter without further order of the Court.
18. To the extent any CONFIDENTIAL INFORMATION is produced by the United States to defendant or defendant's counsel by mistake, the United States shall have the right to request the return of the CONFIDENTIAL INFORMATION and shall do so in writing. Within five days of the receipt of such a request, defendant and/or defendant's counsel shall return all such CONFIDENTIAL INFORMATION if in hard copy, and in the case of electronic materials, shall certify in writing that all copies of the specified material have been deleted from any location in which the material was stored.
19. The restrictions set forth in this Order do not apply to documents that are or become part of the public court record, including documents that have been received in evidence at other trials, nor do the restrictions in this Order limit defense counsel in the use of discovery materials in judicial proceedings in this case.