Opinion
No. CR-S-05-314 PAN GEB.
February 24, 2006
DANIEL J. BRODERICK, Acting Federal Defender, Designated Counsel for Service, Sacramento, California, JEREMY FLINN, JULIE DENNY, KAREN SANDERS, Attorney for Defendant.
AMENDED PROTECTIVE ORDER
This cause is before the Court on Defendant's Motion for Discovery of Certain Items Pursuant to Rule 16 and for a Protective Order. The parties, the United States of America, by Assistant United States Attorney Carolyn Delaney, by his attorney, Acting Federal Defender Daniel J. Broderick, have consulted and agreed to entry of the following Order concerning discovery in this matter.
IT IS HEREBY ORDERED THAT:
1. The government shall provide the defense team with a bit by bit (also known as mirror image) copy of the Compaq Presario computer with a 10 GB Maxtor hard drive, the Seagate hard drive, the 20 GB Maxtor hard drive, the 26 GB Samsung hard drive; Maxtor DiamondMax Plus 9 120 GB hard drive from "Compaq"; and the Omega zip drive seized from defendant's home, along with any software that includes disks and/or CDs, videos, pictures and e-mail message logs. If necessary, defendant will provide the blank computer media for copying of same.
2. The hard drive may be used by the defense team subject to the terms of this Protective Order.
3. All such identified matter shall be kept by the defense team in a locked, secure place accessible only to the defense team. The following individuals may examine this material: (a) any member of the defense team; (b) the defendant, with counsel present; and (c) any expert retained by the defendant to assist in the defense of this case.
4. All individuals who receive access to the materials pursuant to this Protective Order, prior to receiving access to the materials, shall sign a copy of this Protective Order, acknowledging that: (a) they have reviewed the Protective Order; (b) they understand its contents; (c) they agree that they will only access the digital media for the purposes of preparing a defense for defendant; (d) they will not make copies of any images within the digital media inconsistent with this Order without further order of the Court; (e) they will not access the digital media from any computer that is connected to the Internet or any local network; and, (f) they understand that failure to abide by this Protective Order will result in sanctions by the Court and may result in state or federal criminal charges for possession or dissemination of child pornography or obscene materials.
5. Defense counsel shall be permitted to transfer these materials to any forensic expert retained in this case by common carrier such as Federal Express or United Parcel Service and the forensic expert may return them by the same means.
6. Counsel for the defendant shall promptly file signed copies of this Protective Order.
7. All materials shall be maintained by defense counsel, and shall be used by counsel and any members of his staff and/or expert witness solely and exclusively in connection with this case (including trial preparation, trial and appeals or other related legal proceedings) and for no other purposes.
8. None of the materials shall be copied, printed, electronically mailed, or in any way reproduced, distributed or disseminated absent a specific order of this Court, except that copies may be made for the exclusive purpose of generating exhibits for use at trial.
9. Any computer used to view or analyze the mirror images shall be a "stand alone" computer, that is, not connected to any computer network. Neither the mirror image nor any computer to which it is connected shall be accessible to the Internet, and not be accessible by any wireless device(s) including infrared devices, wireless network devices, or other similar equipment.
10. At the conclusion of this case, the defense team shall return the materials to the government so that they may be destroyed. The hard drives and any other media previously provided by the defense team for "mirrored" copies shall be returned to the government by the defense team for erasure. Thereupon, the erased hard drives and other media shall be returned to the defense team.
11. Defendant reserves the right to renew his motions and/or seek to modify these procedures should an issue arise. The government reserves the right to object to any modification of these procedures, or to seek a modification in these procedures should an issue arise.
12. The parties agree that time will continue to be excluded under 18 U.S.C. § 3161(h)(8) because of the complexity of the factual investigation involved that is required to permit defendant to analyze the aforementioned materials.
13. A copy of this Order shall be kept with the aforementioned materials at all times.
14. The defense team is hereby protected from prosecution while possessing the aforementioned materials because the government has alleged that the defendant's computer hard drive and software, including disks and/or CD Roms contain contraband material and the defense team would necessarily have to view and to possess such contraband while they inspect and examine the aforementioned materials. However, no member of the defense team is protected from prosecution for intentionally violating this Order. An intentional violation of this Protective Order may result in sanctions and/or prosecution of persons who possessed, received, copied or distributed contraband (that is, pornography or obscene materials).