case 2:16-cr-00046-gmn-pal document 608 filed · pdf filedefendants brian d. cavalier, woods,...

1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

* * *

UNITED STATES OF AMERICA,

Plaintiff, v. CLIVEN BUNDY, et al.,

Defendants.

Case No. 2:16-cr-00046-GMN-PAL

ORDER

(Mot. Protective Order – ECF. Nos. 354/357)

This matter is before the court on the government’s Motion for Protective Order (ECF.

Nos. 354/357).1 Defendants Peter T. Santilli, Jr., Gregory P. Burleson, Ryan W. Payne, Ammon

E. Bundy, David H. Bundy, and Cliven D. Bundy filed separate Oppositions (ECF. Nos. 315,

328, 331, 333, 347, 349, 360, 398) to the government’s Motion, and all but two Defendants

joined these opposition briefs.2 Additionally, the court has considered the Opposition (ECF

No. 570) filed by Intervenors the Las Vegas Review Journal, Battle Born Media, and the

Associated Press’ (jointly, “Intervenors”). These Motions are referred to the undersigned

pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 and 1-7 of the Local Rules of Practice.

1 The government subsequently filed a Notice of Corrected Document (ECF. No. 357) amending the Motion for Protective Order. 2 Defendants Gerald A. Delemus, Todd C. Engel, Steven A. Stewart, and Micah L. McGuire filed Motions for Joinder (ECF. No. 322, 325, 326, 330) to Defendant Santilli’s Opposition (ECF. No. 315). Defendants Melvin D. Bundy, Jason D. Woods, Joseph D. O’Shaughnessy, Eric J. Parker, Blaine Cooper, and Ammon Bundy filed Motions for Joinder (ECF. Nos. 335, 337, 340, 342, 343, 344) to Defendant Payne’s Opposition (ECF. No. 331). Defendants Brian D. Cavalier, Woods, and Engel filed Motions for Joinder (ECF. Nos. 338, 348, 370) to Defendant Ammon Bundy’s Opposition (ECF. No. 333). Defendants Ammon Bundy and O. Scott Drexler filed Motions for Joinder (ECF. Nos. 400, 444) to Defendant Payne’s Opposition (ECF. No. 398). The court granted these joinder motions. See Orders (ECF. Nos. 401, 402, 407, 481). Thus, it appears that Defendants Richard R. Lovelien and Ryan C. Bundy are the only defendants that did not oppose the government’s Motion for Protective Order.

Case 2:16-cr-00046-GMN-PAL Document 608 Filed 07/15/16 of 23

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

BACKGROUND

I. THE SUPERSEDING INDICTMENT AND UNDERLYING ALLEGATIONS

The history of this criminal prosecution is well known and need not be repeated at length.

The Superseding Indictment (ECF. No. 27) arises from a series of incidents that occurred in and

around Bunkerville, Nevada, in April 2014. The government alleges that the 19 Defendants

charged in this case planned, organized, conspired, led, and/or participated as gunmen in a

massive armed assault against federal law enforcement officers to threaten, intimidate, and extort

the officers into abandoning approximately 400 head of cattle owned by Defendant Cliven D.

Bundy. Law enforcement officers acted pursuant to three orders issued by a federal district court

to seize and remove the cattle from federal public lands based on Cliven Bundy’s refusal to

obtain the legally-required permits or pay the required fees to keep and graze his cattle on the

land.

The Superseding Indictment further alleges that a removal operation began on April 5,

2014; and on April 12th, Defendants along with hundreds of recruited “followers” executed a

plan to recover the cattle by force, threats, and intimidation. Defendants and their followers

demanded that officers leave and abandon the cattle and threatened to use force if the officers did

not do so. Armed gunman took sniper positions behind concrete barriers and aimed their assault

rifles at the officers. Defendants and their followers outnumbered the officers by more than

4 to 1 and the potential firefight posed a threat to the lives of the officers as well as unarmed

bystanders, which included children. Thus, the officers were forced to leave and abandon the

impounded cattle. After this confrontation, the leaders and organizers of the conspiracy

organized armed security patrols and checkpoints in and around Cliven Bundy’s Bunkerville

ranch to deter and prevent any future law enforcement actions against Cliven Bundy or his co-

conspirators and to protect Bundy’s cattle from future removal actions.

On February 17, 2016, a federal grand jury returned an Indictment (ECF. No. 5) against

Cliven Bundy, his sons, Defendants Ryan C. Bundy and Ammon E. Bundy, as well as

Defendants Ryan W. Payne and Peter T. Santilli, Jr. A Superseding Indictment (ECF. No. 27)

was returned March 2, 2016, which added 14 new Defendants (Melvin D. Bundy, David H.


thomasmitchell

Highlight

3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Bundy,3 Gerald A. Delemus, Eric J. Parker, O. Scott Drexler, Richard R. Lovelien, Steven A.

Stewart, Todd C. Engel, Gregory P. Burleson, Micah L. McGuire, and Jason D. Woods).

Nineteen defendants are now charged. The Defendants made their initial appearances in this

case between March 4, 2016, and April 15, 2016. All 19 Defendants are currently joined for trial

pursuant to the provisions of the Speedy Trial Act, 18 U.S.C. § 3161. See Case Management

Order (ECF. No. 321).

The Superseding Indictment charges Defendants with 16 counts of: conspiracy to commit

an offense against the United States in violation of 18 U.S.C. § 371; conspiracy to impede or

injure a federal officer in violation of 18 U.S.C. § 372; use and carry of a firearm in relation to a

crime of violence in violation of 18 U.S.C. § 924(c); assault on a federal officer in violation of

18 U.S.C. § 111(a)(1) and (b); threatening a federal law enforcement officer in violation of 18

U.S.C. § 115(a)(1)(B); obstruction of the due administration of justice in violation of 18 U.S.C.

§ 1503; interference with interstate commerce by extortion in violation of 18 U.S.C. § 1951; and

interstate travel in aid of extortion in violation of 18 U.S.C. § 1952. The Superseding Indictment

also contains five forfeiture allegations against all 19 Defendants.

II. DISCOVERY PURSUANT TO THE CASE MANAGEMENT ORDER

On April 22, 2016, the court held a scheduling and case management conference to

determine whether this case should be designated as complex within the meaning of 18 U.S.C.

§ 3161(h)(7)(B)(ii), and to consider the parties’ proposed case management schedules. See

Order (ECF. No. 198), Proposed Complex Case Schedule (ECF. No. 270); Mins. of Proceedings

(ECF. No. 327). The court heard from all parties and found that this case is complex within the

meaning of § 3161(h)(7)(B) based in part on: (i) the number of Defendants and criminal charges,

(ii) the voluminous discovery, (iii) the number of law enforcement officers and witnesses

involved, and (iv) because 7 of the 19 Defendants are also facing criminal prosecution in

Oregon. See Case Management Order (ECF. No. 321).

3 Defendant Melvin D. Bundy represents that his true name is Mel Dallen Bundy. See Minutes of Proceedings (ECF. No. 143). Defendant David H. Bundy represents that his correct name is Dave H. Bundy. See Dave Bundy Memo. Opp’n Protective Order (ECF. No. 347).


4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

With regard to the volume of discovery, the government represents that discovery

includes 1.4 terabytes of digital data, consisting of hundreds of hours of video and audio

recordings made by law enforcement officers involved in the April 2014 events charged in the

Superseding Indictment; and audio and video recordings posted on social media and other

sources. Additionally, the government obtained hundreds of thousands of pages of documents

and communications produced by Facebook pursuant to court-authorized search warrants

relating to various Defendants’ and third-parties’ Facebook accounts. Discovery also includes

approximately 23 search warrants, search warrant applications, and supporting affidavits that are

also voluminous, consisting of 40 to 60 pages each on average. At least 100 law enforcement

officers from many different law enforcement agencies were involved in the events and

investigation. The government obtained hundreds of hours of recordings from law enforcement

officers, national media outlets, and social media. Over 100 witness interviews were also

conducted in the investigation, which is still ongoing.

In its Proposed Complex Case Schedule (ECF. No. 270), the government represented

that, within 30 days of entry of a scheduling order, it was prepared to produce discovery in

phases, provided the Defendants agreed to reciprocal disclosures and a protective order. The

Defendants generally disagreed to entry of a protective order as overly broad. The government

proposed that 60 days before trial Defendants make the disclosures required by Rule 16(b)(1)(A)

& (B) of the Federal Rules of Criminal Procedure4 and notices of defense required by Rule 12.1.

The government also proposed to disclose Jencks Act statements or reports of the witnesses it

intended to call at trial 30 days before trial with the caveat it did not consent to a preclusion

remedy for failing to meet the disclosure deadline. Defendants proposed disclosure of Jencks

Act materials 90 days before trial. The government proposed disclosing expert witness

disclosures required under Rule 16(a)(1)(G) 30 days before trial provided the Defendants make

their Rule 16(b)(1)(C) disclosures 30 days before trial.

The three phases of discovery in the government’s proposal were described as:

4 All references in this Order to a particular “Rule” or the “Rules” shall refer to the Federal Rules of Criminal Procedure unless otherwise stated.


5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Phase I – (i) Search warrants, applications, and affidavits relating to the search and

seizure of documents, property, or things belonging to Defendants; and (ii) statements,

documents, and objects (including audio or video recordings) required to be disclosed

pursuant to Rule 16(a)(l)(A)-(B) and (D). Id. at 14.

Phase II – Documents and objects the government is required to produce pursuant to

Rule 16(a)(l)(E). Id.

Phase III – All police or investigative reports relating to the charges in the Superseding

Indictment, except for reports, memoranda, or other internal government documents that

relate to interviews of prospective witnesses. Id.

On April 26, 2016, the court entered a Case Management Order (ECF. No. 321) requiring

the Government to produce Phase I and II discovery by May 6th. Id. at 13. No date was ordered

for Phase III, or the other categories of discovery on which no agreement was reached. Rather,

the parties were ordered to meet and confer to determine whether they could agree on a

stipulated protective order governing discovery materials, and if so, to file a proposed stipulated

protective order by April 29th. Id. at 14. If the parties were unable to agree, they were

instructed to file their own form of proposed protective order and supporting memorandum of

points and authorities, or a memorandum of points and authorities opposing entry of a protective

order. Id.

The court entered a Temporary Protective Order (ECF. No. 392) pending a decision on

the merits of whether a protective order should be entered in order to allow full and complete

briefing on the motions and to facilitate the prompt dissemination of discovery to defense

counsel. This temporary order allowed defense counsel to provide copies of discovery to the

Defendants in this case; individuals employed by the attorney of record, or standby counsel, who

are necessary to assist in preparation for trial or other proceedings in this case; and persons

defense counsel deem necessary to further legitimate investigation and preparation of this case.

It also required defense counsel to provide a copy of the order to any individual who receives

copies of discovery and restricted the use of discovery to anyone receiving it for use in assisting

the defense in the investigation and preparation of this case. Reproduction or dissemination of


6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the discovery was prohibited. The order applies only to materials and documents created or

written by the government, or obtained by the government through warrants or court orders. It

does not restrict reproduction or dissemination of discovery materials the defense may otherwise

obtain through open sources (e.g., social media posts by the defendants or others, news accounts

related to the events in this case, etc.). Finally, the order provides that if there is specific

discovery material that Defendants or defense counsel believe should be an exception to the

restrictions imposed the parties shall meet and confer prior to seeking relief from this court in

accordance with Local Rule IA 1-3. If the parties agree to any exceptions from this order, the

parties shall memorialize their agreement in a stipulation and proposed order.

DISCUSSION

I. THE PARTIES’ POSITIONS REGARDING THE PROPOSED PROTECTIVE ORDER

A. The Government’s Position

The government seeks a protective order to protect victims, witnesses, law enforcement

officers, agents, and investigators associated with this case from threats, intimidation, and

harassment from the Defendants’ supporters. Mot. for Protective Order (ECF. Nos. 354/357)

at 4. The Motion asserts that “Bundy supporters used various social media outlets such as

YouTube, Twitter, and Facebook to threaten and intimidate law enforcement officers/ witnesses/

victims in connection with impoundment operations at Bundy Ranch and thereafter.” Id. at

4:20–23. Motion Exhibit 2 (ECF. No. 357-2) provides 22 examples of redacted social media and

online posts, ranging in date from April 2014 to April 2016, to show that Bundy supporters have

used online platforms to publish and publically share the personal identifying information of the

law enforcement officers and witnesses associated with this case. The personal information

ranges from their names and pictures, id., Examples 1–3, 5–10, 12, 14–22, to phone numbers and

addresses, id., Examples 5, 16, 18–20, 22. Some of the posts encourage Bundy supporters to

contact the individuals or businesses involved in the April 2014 events leading to the

Superseding Indictment. See, e.g., id. at 7, Example 5 (identifying a BLM ranger with his home

phone number and instructing Bundy supporters to “call him from a land line”), id. at 18,

Example 19 (“EVERYONE PLEASE CALL … They need to know that they are doing is NOT


7

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

right and that we notices [sic] it and we are a shamed [sic] of them!”). Some posts ask for

assistance in identifying law enforcement and government officers. See, e.g., id. at 4, Example 2

(“WE MUST IDENTIFY THESE CONTRACT MERCENARIES … PLEASE HELP US

IDENTIFY THESE MEN IN THE PICTURE….”).5 Other posts make statements that could be

construed as threating or intimidating. See, e.g., id. at 12, Example 13 (“Sounds like to solve the

problem a lqnd [sic] owner will, have to take out an AR 10 and put a bullet in -head to save the

other land owners to stop this, if I had land. i will now, kniw [sic] who to shoot first….”).

Additionally, the government contends that officers have received threats of violence as a

result of their involvement in this case. Opp’n to Mot. to Intervene (ECF. No. 428) at 10–13.

For example, shortly after the April 2014 incidents, Bundy supporters, including Defendants

Parker and Stewart, publicly posted on the internet and social media the office and email address

information and photographs of a BLM Chief Ranger who had participated in the impoundment

of Cliven Bundy’s cattle. Id. at 12–13. Following the posts, the Chief Ranger received over 500

threating and harassing phone calls. Id. An individual named William Michael left a phone

message for the Chief Ranger, stating: “You’re a f***ing piece of s**t, [chief Ranger]. We’re

5 See also, e.g., Exhibit 2 (ECF. No. 357-2) at 4, Example 2 (dated April 12, 2016):


8

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

gonna find you; we’re gonna kill you, you f***ing BLM thug, you f***ing f****t.” Id. at 13:6–

9 (citing United States v. Michael, Case No. 5:15-cr-00086-MSG (E.D. Pa.)). Mr. Michael

admitted to leaving the voice mail message on the Chief Ranger’s telephone line after seeing a

post on a “support Bundy Ranch” Facebook page, which published the Chief Ranger’s contact

information and encouraged people to call him to voice their opinions of the BLM’s conduct in

connection with their enforcement of federal court orders. Id. Mr. Michael pleaded guilty to

threating a federal law enforcement officer and transmitting a threating communication. Id.

Government counsel has also received threats. On May 10, 2016, a Facebook user posted

an article referencing the Honorable Gloria M. Navarro’s ruling denying Defendant Santilli’s

appeal of the pretrial detention order and included the following message: “Remember the name

[name of government attorney] … it will be a joy to see this treasonous nazi hang or burn for

treason ... or to read about the lone wolf attack that put this rabid dog down for a dirt nap.” Id. at

10. The Government asserts that this post appears to call for a lone wolf attack similar to the

2014 incident involving Jared and Amanda Miller, a married couple with anti-government views

who associated with the Bundys and were present at Cliven Bundy’s ranch for part of the April

2014 incidents. Id. at 11. On June 8, 2014, the Millers killed two Las Vegas Metropolitan

Police Officers who were eating lunch in a local restaurant. The two draped a Gadsen flag6 over

one of the officers, and shouted to patrons that this was the start of “a revolution.” They later

killed a citizen who attempted to confront them. Id. In addition, government prosecutors have

“received through the mail, communications addressed to them at work that contain language

designed and intended to threaten and intimidate.” Mot. (ECF. No. 357) at 7:21–24.

Given the nature of the discovery in this case, the government argues that a protective

order is needed to shield law enforcement officers, witnesses, and victims from attempts to

threaten and intimidate. The discovery in this case is voluminous and involves hundreds of

hours of video recordings and many hundreds of photographs. The video recordings contain

“images of witnesses, victim-law enforcement officers, or law enforcement officers/agents

6 The Gadsen flag is a historical American flag with a yellow field depicting a coiled rattlesnake with the words “DONT [sic] TREAD ON ME” below.


thomasmitchell

Highlight

thomasmitchell

Highlight

thomasmitchell

Highlight

9

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

involved in the investigation.” Id. at 8. In Phase III of discovery production, the government

will produce investigative reports associated with the photos and video recordings that “will

reveal the name(s) of the investigating agent (s) and/or the names (or other identifying

information) of persons/witnesses/victims depicted in a photo or video” and “will likely contain

information related to witnesses or potential witnesses and victims.” Id. The victims and

witnesses in this case are vulnerable to cyberbullying, threatening communications, and

intimidation from Bundy supporters who have demonstrated their ability to rapidly disseminate

images and private information about victims and witnesses and encourage people to contact

victims and witnesses. These tactics “have the potential to disrupt and prejudice the truth-

finding function of a trial by influencing potential witnesses or chilling their willingness to

testify.” Accordingly, the government asks the court to grant the proposed protective order,

which is nearly identical to the Temporary Protective Order (ECF. No. 392) entered on May 10,

2016.

B. Defendants’ Position

The Defendants argue that the government has not shown good cause to justify a

protective order that shields all of the evidence in this case from the public. See, e.g., Ammon

Bundy Memo. Opp’n Protective Order (ECF. No. 333). Defendants assert that the discovery in

this case amounts to garden-variety social media posts, surveillance footage, witness statements,

and law enforcement reports that should not be hidden from the public. The government used

transcribed witness statements at detention hearings held in open court, and is attempting to

make selective public use of discovery materials. Defendants argue the government must make a

particularized showing as to each document for which a protective order is sought, and that

broad, conclusory, allegations of harm are insufficient. The government has not shown good

cause for a blanket or umbrella protective order over all discovery in this case. There has been

no allegation that any discovery documents are classified or affect national security, see Dave

Bundy Memo. Opp’n Protective Order (ECF. No. 347) at 2. Since many of the social media

posts are over two years old, Defendants assert the discovery materials are public information.

Payne Opp’n (ECF. No. 398) at 7.


thomasmitchell

Highlight

thomasmitchell

Highlight

10

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Should the court find that the government has made an initial good cause showing,

Defendants argue that the balancing the competing interests tips in their favor. A protective

order would prejudice them and impair their ability to investigate and prepare for trial.

Defendants also contend the public’s interest in this case is high, and the case involves “heavy-

handed tactics of a highly militarized and over-reaching BLM over which the public has an

interest in keeping a watchful eye. See Dave Bundy Memo. (ECF. No. 347) at 5. Additionally,

Nevada has a long and storied history of dealing with public land use controversies.

Ammon Bundy’s opposition asserts this case is “about assembly and speech in the face of

a paramilitary compound set up” in a sparsely populated rural ranch, and a case of public interest

because “many people safely visited the Bundy Ranch during the protest, where they held signs,

sang songs, and cooked.” Ammon Bundy Memo. (ECF. No. 333) at 4:16–19. Thus far the

government has shaped the explanations and presumptions about what happened at the Bundy

ranch, while Defendants’ peaceful protests have been “openly mocked, decried, and derided” by

numerous officials. Id. at 2:8–9. The Defendants fear that a protective order will prevent their

side of the story from being told and undermine their efforts to mount an effective defense. Dave

Bundy Memo. (ECF. No. 347) at 3. Defense counsel are actively seeking information from

witnesses with the assistance of the public and social media and assert that this strategy can

unearth defenses “in mere minutes where traditional investigative efforts might take weeks or

lead nowhere.” Ammon Bundy Memo. (ECF. No. 333) at 4:14–15. Defendants contend that a

protective order will freeze their investigative efforts and allow the government to continue the

skewed narrative with the edited discovery it has already disclosed to the public.

With regard to the alleged threats to government counsel, law enforcement officers,

witnesses, and victims and efforts to intimidate, Defendants assert that the government has

shown only broad, unsubstantiated allegations of potential harm. They claim that “nothing

remarkable has happened to any of the players in the two years it took the Government to bring

the indictment.” Ammon Bundy Memo. (ECF. No. 333) at 3:19–20; see also Santilli Opp’n

(ECF. No. 360) (“Years have passed since the incident at the Bundy Ranch and there has been no

credible threats made against any person involved in this case.”). Defendants contend there is


thomasmitchell

Highlight

thomasmitchell

Highlight

thomasmitchell

Highlight

thomasmitchell

Highlight

thomasmitchell

Highlight

thomasmitchell

Highlight

11

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

“no indication that the posts or comments connected to them were directly sent to any of the

government agents in question.” Payne Opp’n (ECF. No. 398) at 4:11–12. Defendants also note

that despite receiving third-party communications about this case, government counsel and the

court are not the parties to whom the protective order is directed. Id. at 5 n.2. Although some of

the government’s examples are hyperbolic, they contain legitimate criticisms “of alleged

wrongdoing by specific agents performing duties on behalf of the U.S. government,” and the

criticisms are not an appropriate basis for a protective order. Id. at 6:6–7. Defendants assert that

the true purpose of the proposed protective order is to protect the government “from the

embarrassment of having its machinations exposed to the light of day.” Cliven Bundy Memo.

Opp’n Protective Order (ECF. No. 349) at 2.

If the court finds that a protective order is warranted, Defendants ask the court to narrow

the scope of the proposed protective order. However, none of the Defendants submitted their

own form of alternative proposed order. Defendants argue that a less restrictive protective order

would require the government to redact the names of the witnesses and law enforcement

investigators that need to be shielded. See Santilli Memo. Opp’n Protective Order (ECF.

No. 315). Defendants fear that the proposed protective order that allows defense counsel to

provide discovery to persons they “deem necessary to further their legitimate investigation and

preparation” is so vague that they may be faced with sanctions for violating it or forced to

“preclear” their defense efforts with government counsel or the court. Additionally, the

Defendants charged in the Oregon prosecution argue there is no legitimate reason why their

Oregon lawyers should be prohibited from seeing Nevada discovery and determining whether it

has any relevance to their defense in the Oregon matter. See Payne Memo. Opp’n Protective

Order (ECF. No. 331) at 6.

Finally, Defendants contend that the distinction between materials that the government

created, wrote, or obtained and materials available via “open sources” is inherently vague and

susceptible to confusion. See, e.g., Payne Memo. (ECF. No. 331) at 7; Burleson Memo. Opp’n

Protective Order (ECF. No. 328) at 2. The government’s proposed protective order would apply

“only to materials, information and documents created or written by the government, obtained by


thomasmitchell

Highlight

12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the government in the course of its investigation and/or through warrants and court orders,” and

would “not restrict reproduction or dissemination of materials and information the defendants

obtained in the course of their investigations through open sources, such as news accounts

related to the events in this case.” Mot. Ex. 1 (ECF. No. 357-1) at 2–3. Defendants raised this

objection before the government filed its formal motion, yet the Motion does nothing to resolve

this confusion. Instead, the Motion specifically cites Facebook postings containing “personal

identifying information” of law enforcement officers as examples of discovery requiring a

protective order—even though this material has been publically available for over two years.

Payne Opp’n (ECF. No. 398) at 7. For all of these reasons, Defendants ask the court to deny the

Motion or significantly narrow the proposed protective order.

C. Intervenors’ Position

The Intervenors argue that the government’s proposed order is overbroad and would

impede the rights of Intervenors and other news outlets to report on a case of local and national

importance. See Intervenors’ Opp’n (ECF. No. 570) at 2. Although Intervenors acknowledge

that the media and the public do not have an absolute right to access discovery materials or the

same right to access discovery materials as they do to access court filings and hearings, they

argue that district courts must still consider the First Amendment implications when considering

whether a movant has shown good cause for a protective order. Id. at 3 (citing United States v.

Smith, 985 F. Supp. 2d 506, 523 (S.D.N.Y. 2013)); United States v. Benzer, Case No. 2:13-cr-

00018-JCM-GWF, 2015 WL 9200365, at *5 (D. Nev. Dec. 15, 2015)). The need for

transparency is particularly important here since this case involves vocal critics of the federal

government.

The Intervenors contend that the government’s proposed protective order “totally thwarts

the public’s right to information about this case” by protecting virtually all discovery documents

from disclosure. Id. The audio/video recordings to be produced in Phase I were primarily posted

on Facebook and YouTube and this discovery is very likely to consist of documents that are

already public. Id. at 12. This renders the proposed protective order overbroad and

impermissibly vague because it is impossible to know what materials the government received


thomasmitchell

Highlight

13

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

from Facebook and YouTube as a product of the search warrants and what materials were

already available to the public. Id. If “the cat has already been let out of the bag” the

government cannot “force it back in.” Id.

With regard to the catch-all category of documents to be produced in Phase II and the

investigative materials in Phase III, the Intervenors maintain that the government has failed to

show good cause for a blanket protective order. Concern for “witness safety and security” is a

generalized assertion that does not satisfy the government’s burden of establishing good cause,

even though such concern is “undoubtedly a compelling government interest.” Id. at 13. The

Intervenors assert that the government “has failed to provide proof that, absent the entry of a

protective order, any particular witness or witnesses’ safety would be endangered.” Id. at 14. In

addition, redactions and procedural mechanisms to challenge confidentiality were not proposed.

Accordingly, the Intervenors ask the court to deny the government’s Motion. However, if the

court determines that a protective order is necessary, it should narrow the scope of the order to

balance the interests of all parties, including Intervenors and the general public.

II. LEGAL STANDARDS

A. The Qualified Right of Access to Judicial Proceedings and Records

The federal courts have long recognized a common law right of public access to judicial

files and records. Nixon v. Warner Comm’ns, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the

court of this country recognize a general right to inspect and copy public records and documents,

including judicial records and documents.”). This general right is subject to the court’s

supervisory power to deny access when the court finds disclosure may become a “vehicle for

improper purposes.” Id. The decision to allow or restrict access is “one best left to the sound

discretion of the district court, a discretion to be exercised in light of the relevant facts and

circumstances of the particular case.” Id. at 599.

The Supreme Court has held that the First Amendment guarantees public attendance at

criminal trials unless a defendant’s right to a fair trial or some other overriding consideration

requires closure. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982). The

right of access to judicial proceedings includes access to trial testimony of minor sex offense


14

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

witnesses. id.; access to voir dire proceedings, Press Enterprise Co. v. Superior Court, 464 U.S.

501 (1984) (Press Enterprise I); access to pretrial criminal hearings, Press Enterprise Co. v.

Superior Court, 478 U.S. 1 (1986) (Press Enterprise II); and pretrial hearings on motions to

suppress evidence, United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982). The Ninth

Circuit has held “that in general, the public and press have a qualified first amendment right of

access to pretrial hearings and documents.” Seattle Times v. U.S. District Court, 845 F.2d 1115,

1515 (9th Cir. 1998).

In Globe Newspaper, the Supreme Court described the two features of the criminal

justice system which explain the right to access in criminal trials “is properly afforded protection

by the First Amendment.” 457 U.S. at 605. First, criminal trials have historically been open to

the press and general public. Id. Second, “the right of access to criminal trials plays a

particularly significant role in the functioning of the judicial process and the government as a

whole. Public scrutiny of a criminal trial enhances the quality and safeguards the integrity of the

factfinding process, with benefits to both the defendant and to society as a whole.” Id. at 606.

The Supreme Court has emphasized that the right of access to criminal trials is not

absolute. Id. Rather, it is a qualified right of access. Nixon, 435 U.S. at 599 (“It is uncontested,

however, that the right to inspect and copy judicial records is not absolute. Every court has

supervisory power over its own records and files, and access has been denied where the court

files might have become a vehicle for improper purposes.”). As the court explained in Press

Enterprise II, some proceedings would be “totally frustrated if conducted openly.” 478 U.S. at 8.

The classic example is grand jury proceedings which depend on secrecy. Id. at 9.

The press and the public have a qualified First Amendment right of access to pretrial

hearings and documents. Seattle Times, 845 F.2d at 1515. However, there is no general right of

access to information a government official knows, but has not released to the public. United

States v. Blagojevich, 612 F.3d 558, 562 (7th Cir. 2010); see also L.A. Police Dep’t v. United

Reported Publ’g Co., 528 U.S. 32, 40 (1999) (no First Amendment right to names and addresses

of arrested individuals); Houchins v. KQED, Inc., 438 U.S. 1 (1978) (no First Amendment right

to enter a county jail, interview inmates, and take pictures).


15

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Moreover, the qualified First Amendment right of access to judicial proceedings and

documents does not extend to discovery materials. Seattle Times v Rhinehart, 467 U.S. 20, 37

(1984); see also United States v. Loughner, 807 F. Supp. 2d 828, 831 (D. Ariz. 2011) (finding

the qualified First Amendment Right of access to judicial proceedings and documents does not

extend to discovery materials). Because materials from criminal investigations are not “judicial

records under federal law, the public has no presumptive right of access to them.” Id. at 834; see

also United States v. Kravetz, 706 F.3d 47, 54 (1st Cir. 2013) (noting that “judicial records” are

“materials on which a court relies in determining the litigants’ substantive rights”); In re Boston

Herald, Inc., 321 F.3d 174 (1st Cir. 2003) (concluding no common law or First Amendment right

of access to CJA eligibility documents); United States v. Tomison, 969 F. Supp. 587, 595 (E.D.

Cal. 1997) (finding that the pretrial production process for subpoenas issued under Rule 17(c) is

not a “historically open proceeding”).

Protective orders relating to criminal discovery are not subject to constitutional or

common law scrutiny because discovery is usually conducted in private, unlike the trial itself.

Smith, 985 F. Supp. 2d at 519–20 (citing Citizens First Nat'l Bank of Princeton v. Cincinnati Ins.

Co., 178 F.3d 943, 945 (7th Cir. 1999)). Although the public and press do not have a common

law or First Amendment right of access to pretrial discovery materials, the First Amendment is

still a relevant concern for the court to consider when determining whether good cause exists for

a protective order. Id. at 523.

B. Discovery in Criminal Cases

As a general rule, a defendant has no constitutional right to discovery in a criminal case.

Weatherford v. Bursey, 429 U.S. 545, 559 (1997) (“There is no general constitutional right to

discovery in a criminal case.”); see also Kaley v. United States, --- U.S. ----, 134 S.Ct. 1090

(2014) (reaffirming Weatherford’s holding). However, the Supreme Court has held that the

prosecution has a constitutional duty under the due process clause to disclose material

exculpatory information, including evidence bearing on the credibility of government witnesses.

See, e.g., Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Bagley, 473 U.S. 667 (1985);

Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963).


16

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A defendant is entitled to limited discovery under Rule 12.1, Rule 16, and Rule 26.2 of

the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500. Rule 16 has

been significantly expanded since it was initially adopted, and it now imposes reciprocal

obligations on the government and criminal defendants. See United States v. Fort, 478 F.3d

1099, 1102 (9th Cir. 2007). Rule 16 gives criminal defendants a limited right to discovery and

requires the government to disclose, upon request, information within the government’s

possession, custody, or control material to preparing the defense. See United States v. Stever,

603 F.3d 747, 752 (9th Cir. 2013) (quoting Fed. R. Crim. P. 16(a)(1)(E)(i)). This rule imposes

broader disclosure obligations on the government than Brady. See United States v. Muniz-

Jaquez, 718 F.3d 1180, 1183 (9th Cir. 2013). Rule 16 obligates the government to disclose

information that, although not exculpatory or impeaching, may be relevant to developing a

possible defense. Id. The government’s pretrial disclosure obligations under Rule 16 also

impose a continuing duty to disclose evidence prior to or during trial. United States v.

Mikaelian, 168 F.3d, 380, 389 (9th. Cir. 1999).

Rule 16(a) sets forth the government’s disclosure obligations. The following information

is subject to disclosure upon request:

1. A defendant’s oral statements. Fed. R. Crim. P. 16(a)(1)(A);

2. A defendant’s written or recorded statements. Fed. R. Crim. P. 16(a)(1)(B) and (C);

3. A defendant’s prior criminal record. Fed R. Crim. P. 16(a)(1)(D);

4. Certain documents and objects. Fed. R. Crim. P. 16(a)(1)(E);

5. Certain examination and test reports. Fed. R. Crim. P. 16 (a)(1)(F); and

6. The content and bases of expert testimony the government intends to rely upon in its

case-in-chief. Fed. R. Crim. P. 16 (a)(1)(G).

Effective December 1, 2013, Rule 16(a)(2) was amended to correct a “scrivener’s error”

and clarify the information that is not subject to disclosure. Notably, discovery or inspection of

reports, memoranda or other internal government documents made by a government attorney or

other government agent investigating or prosecuting the case are not discoverable, except as

permitted in Rule 16(a)(1)(A) through (D), (F) and (G). Fed. R. Crim. P. 16(a)(2). The rule also


17

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

clarifies that statements made by prospective government witnesses are not discoverable except

as provided in the Jencks Act. Id.

The Jencks Act, 18 U.S.C. § 3500, governs demands for production of statements and

reports of witnesses. It requires the government to produce all prior relevant statements of a

witness after the government has called the witness to testify on direct examination:

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified….

18 U.S.C. § 3500(b) (emphasis added). The Jencks Act defines a “statement” as: 1. A written statement made by the witness and signed or otherwise adopted or

approved by him;

2. A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statements; or

3. A statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

18 U.S.C. § 3500(e)(1)-(3); see also United States v. Mincoff, 574 F.3d 1186 (9th Cir. 2009).

The Jencks Act further requires that “the government disclose all witness statements, regardless

of whether state obtained or federally obtained, so long as the statements are in the actual

possession of the federal government at the time of trial.” United States v. Fort, 472 F.3d 1106,

1117 (9th Cir. 2007).

The Ninth Circuit has held that the district court lacks authority to force the government

to produce Jencks Act statements before the witness testifies. See United States v. Mills, 641

F.2d 785, 789–90 (9th Cir. 1981). An order requiring early disclosure of Jencks Act statements

is unenforceable. See United States v. Taylor, 802 F.2d 1108, 1118 (9th Cir. 1986). “When the

defense seeks evidence which qualifies as both Jencks Act and Brady material, the Jencks Act

standards control.” United States v. Alvarez, 358 F.3d 1194. 1211 (9th Cir. 2003).

The Ninth Circuit has observed that Rule 26.2 “basically implements the Jencks Act.”

See United States v. Riley, 189 F.3d 802, 805 (9th Cir. 1999). It provides:

/ / /


18

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the government or the defendant and the defendant’s attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.

Fed. R. Crim. P. 26.2. Like the Jencks Act, Rule 26.2 creates no right to production of witness

statements until after the witness has testified on direct examination. The Late Charles Allen

Wright and Peter J. Henning, 2A Fed. Prac. & Proc. Crim. § 438. The rule does not allow

production to be compelled before completion of the direct testimony. Id. (observing that Rule

17(h), which provides that witness statements may not be subpoenaed and was adopted at the

same time as Rule 26.2, expressly provides that Rule 26.2 governs production of witness

statements).

These rules and the Jenks Act plainly demonstrate the different public policies underlying

criminal and civil litigation, constitutional requirements, and special ethical obligations of

prosecutors and defense counsel. The rules governing federal civil and criminal discovery are

fundamentally different. The Federal Rules of Civil Procedure allow liberal discovery in civil

cases. By contrast, the Federal Rules of Criminal Procedure are quire restrictive. The Supreme

Court has observed:

A criminal defendant is entitled to rather limited discovery, with no general right to obtain the statements of the Government’s witnesses before they have testified. Fed. Rules Crim. Proc. 16(a)(2), 26.2. In a civil case, by contrast, a party is entitled as a general matter to discovery of any information sought if it appears “reasonably calculated to lead to the discovery of admissible evidence.” Fed. Rule Civ. Proc. 26(b)(1).

Degen v. United States, 517 U.S. 820, 825–26 (1996). Although some district courts have

looked to civil discovery rules for guidance, courts have generally refrained from applying civil

discovery rules to criminal discovery. See, e.g., United States v. Warshak, 631 F.3d 266, 296

(6th Cir. 2010); United States v. O’Keefe, 537 F. Supp. 2d 14, 18–19 (D.D.C. 2008).

C. Protective Orders Under Rule 16(d)(1)

Rule 16(d)(1) of the Federal Rules of Criminal Procedure governs protective orders in

criminal cases. It provides: “[a]t any time the court may, for good cause, deny, restrict, or defer

discovery or inspection, or grant other appropriate relief.” Good cause exists “when a party


19

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

shows that disclosure will result in a clearly defined, specific and serious injury.” Smith, 985 F.

Supp. 2d at 523 (quoting In re Terrorist Attacks on September 11, 2001, 454 F. Supp. 2d 220,

222 (S.D.N.Y. 2006)). The 1975 Advisory Committee Note states that “[a]lthough the rule does

not attempt to indicate when a protective order should be entered, it is obvious that one would be

appropriate where there is reason to believe that a witness would be subject to physical or

economic harm if his identity is revealed.” A finding of harm must be based on a particular

factual demonstration of potential harm, not conclusory statements. Id. (citing United States v.

Wecht, 484 F.3d 194, 211 (3d Cir. 2007)) (“Broad allegations of harm, unsubstantiated by

specific examples or articulated reasoning, do not support a good cause showing.”). “The nature

of the showing of particularity, however, depends upon the nature or type of protective order at

issue.” United States v. Bulger, 283 F.R.D. 46, 52 (D. Mass. 2012). “In cases of unusual scope

and complexity ... broad protection during the pretrial stages of litigation may be warranted

without a highly particularized finding of good cause.” In re Terrorist Attacks, 454 F. Supp. 2d

at 222.

The district court has broad discretion in making its decision whether to issue a protective

order. See United States v. Sedaghaty, 728 F.3d 885, 905–07 (9th Cir. 2013) (addressing a

protective order restricting defense access to classified information). The Supreme Court has

stated that “the trial court can and should, where appropriate, place a defendant and his counsel

under enforceable orders against unwarranted disclosure of the materials which they may be

entitled to inspect.” Alderman v. United States, 394 U.S. 165, 185 (1969) (ordering disclosures

of transcripts of defendant’s recorded statements and those that took place on his premises

obtained by electronic surveillance, but denying access to all of the recordings and surveillance

records involved in the investigation.).

III. ANALYSIS

The government has not asked to restrict press or public access to pretrial or trial

proceedings, or to judicial files and records in this case. Rather, the government seeks to restrict

public access to pretrial discovery. Although the press and public have a qualified right to access

to judicial files and records there is no common law or First Amendment right to access to


20

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

pretrial discovery. “The news media and public are spectators, not participants, in the process of

adjudication.” United States v. McVeigh, 918 F. Supp. 1452, 1460 (W.D. Okla. 1996). Papers

filed with the court, records of court activity, exhibits received at hearings and trial, and orders of

the court are all judicial records normally accessible to the press and public. The presumptive

right of access does not attach to discovery materials from criminal investigations because they

are not are not judicial records. Loughner, 807 F. Supp. 2d at 834. Rather, judicial records are

materials the court relies upon in making substantive rulings in a case. Kravetz, 706 F.3d at 54;

Fed. Trade Comm’n v. Standard Fin. Mgmt Corp., 830 F.2d 404, 408 (1st Cir. 1987) (finding

documents that play no role in the adjudication process are not covered by the common law

presumption); In re Boston Herald, 321 F.3d at 189 (stating a judicial record refers to materials

on which the court relies on determining substantive rights).

The government has agreed to produce more than it is required to produce in pretrial

discovery provided a protective order restricting dissemination is entered. The government has

also agreed to produce discovery earlier than it is obligated to produce it. It has agreed to

produce 30 days before trial Jencks materials that it is not required to produce until after the

witness testifies on direct examination. It seeks a protective order limiting dissemination of

discovery materials to the Defendants, individuals employed by their counsel to assist in

preparation for trial, and those defense counsel deem necessary to further legitimate investigation

and preparation of the case.

The court finds that the government has established good cause for a protective order

under Rule 16(d)(1) restricting dissemination of pretrial discovery materials not already in the

public domain. The government has made a sufficient threshold showing of actual and potential

threats, intimidation, and harassment to victims, witnesses, and law enforcement officers to show

good cause for a protective order restricting dissemination of pretrial discovery. Many of the 22

examples provided by the government are over two years old, but some are more recent.

Cumulatively, the 22 examples are sufficient to establish a credible risk that public disclosure of

broad discovery the government has agreed to produce before trial may be used for the improper

/ / /


thomasmitchell

Highlight

thomasmitchell

Highlight

21

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

purpose of threatening, intimidating, or influencing potential witnesses, or, at a minimum,

chilling their willingness to testify.

The Defendants and Intervenors argue that the government has not made a sufficiently

particularized showing that discovery should be subject to a protective order. However this is a

case of unusual scope and complexity which involves in excess of 1.4 terabytes of digital

discovery as well as voluminous paper discovery. Protective orders are routinely entered to

facilitate the parties’ discovery exchanges precisely so that precious time and effort better spent

on the merits of their claims and defenses is not wasted on protracted collateral litigation on

whether individual documents are entitled to protection. The court lacks the time or resources to

review this volume of discovery to make findings on a document-by-document basis. However,

any protective order is subject to modification if Defendants believe specific documents or

categories of documents should be exempted.

In short, the court finds a protective order will facilitate defense access to materials they

are not entitled to receive and materials they would not receive until trial. Much of the discovery

the government has produced and agreed to produce, subject to a protective order, is information

the Defendants are not entitled to receive until after a witness testifies on direct examination at

trial. Some of the discovery the government has agreed to produce, subject to a protective order,

is information the government is not required to produce at all, such as reports and memoranda

of investigating agents. See Fed R. Crim. P. 16(a)(2). Grand jury transcripts and pre-indictment

warrant materials are examples of materials “traditionally kept secret for important public policy

reasons.” Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006). Rule 6

of the Federal Rules of Criminal Procedure was adopted in 1944 to formalize the historical

secrecy of grand jury proceedings. In Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,

219 (1979), the Supreme Court summarized the policy reasons for grand jury secrecy as follows:

First, if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appeared before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to


22

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

influence individual grand jurors to vote against an indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused, but exonerated by the grand jury will not be held up to public ridicule.

However, the court finds that the government’s proposed form of protective order lacks

clarity and may lead to confusion, unintentional violations, and collateral litigation. The

government’s proposed protective order would apply “only to materials, information and

documents created or written by the government, obtained by the government in the course of its

investigation and/or through warrants and court orders.” It would “not restrict reproduction or

dissemination of materials and information the defendants obtained in the course of their

investigations through open sources, such as news accounts related to the events in this case.”

Mot. Ex. 1 (ECF. No. 357-1) at 2–3. But as Defendants and Intervenors point out, nearly all of

the online posts on websites including Facebook and YouTube have been publically available for

over two years. They correctly observe, that to the extent the information is publically available

it cannot be pulled back with a protective order. In addition, the government has not explained

how Defendants and their counsel would be able to determine what internet and social media

materials the government received from search warrants and court orders, and what discovery

materials were already available to the public. The court will enter a protective order which

clarifies that it does not restrict dissemination of materials already in the public domain applying

the Ninth Circuit’s definition of “public domain” as articulated in United States v. Gowadia, 760

F.3d 989, 996 (9th Cir. 2014).

Finally, Defendants argue that the government’s proposed protective order is too vague in

describing the persons to whom dissemination of discovery is permitted. They fear they will

face sanctions if they do not “preclear” dissemination with the government or the court. These

concerns are unfounded. Defense counsel are officers of the court and will have the discretion to

disseminate discovery materials to individuals they believe in good faith are necessary to further

legitimate investigation and preparation of this case for trial, including Oregon counsel for the

seven Defendants charged in the Oregon indictment. The court does not expect, nor will it

require, defense counsel to “preclear” those to whom it proposes to share materials for legitimate

/ / /


23

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

defense purposes. Rather, the court will hold defense counsel to their ethical obligations to

comply with the Professional Rules of Responsibility and the orders of this court.

For the reasons explained,

IT IS ORDERED:

1. The government’s Motion for Protective Order (ECF. No. 354) is GRANTED to

the extent the court will enter a protective order restricting access and

dissemination of discovery the government produces in this case.

2. The motion is DENIED with respect to the request to enter the government’s

proposed order. The court will enter its own form of protective order in a separate

order.

Dated this15th day of July, 2016. PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE
