United States’ Unopposed Motion for Permission to Produce Records to Defense Counsel Pursuant to a Protective Order — United States v. Philossaint (Dkt. 39, S.D. Fla.)

Summary

The United States' Unopposed Motion for Permission to Produce Records to Defense Counsel Pursuant to a Protective Order in United States of America v. Joff Stenn Wroy Philossaint, Mariel Tollinchi, Regine Marie Rene, and Brianna Monique Gayle, Case No. 22-CR-80144-SMITH/MAYNARD, in the U.S. District Court for the Southern District of Florida, filed September 19, 2022. The government asks the Court to enter a protective order covering discovery that contains personally identifiable information of third parties, including hundreds of loan applications and payroll information. It states that redaction is not possible within the time limit for production because of the volume and electronic form of the material. The proposed terms provide for production on encrypted hard drives supplied by defense counsel, and the motion states that defense counsel do not object.

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Full text

Case 9:22-cr-80144-RS Document 39 Entered on FLSD Docket 09/19/2022 Page 1 of 4




                            UNITED STATES DISTRICT COURT
                            SOUTHERN DISTRICT OF FLORIDA

                          Case No. 22-CR-80144-SMITH/MAYNARD

 UNITED STATES OF AMERICA

 vs.

 JOFF STENN WROY PHILOSSAINT,
 MARIEL TOLLINCHI,
 REGINE MARIE RENE, and
 BRIANNA MONIQUE GAYLE,

             Defendants.
 ______________________________________/

                      UNITED STATES’ UNOPPOSED MOTION
               FOR PERMISSION TO PRODUCE RECORDS TO DEFENSE
                 COUNSEL PURSUANT TO A PROTECTIVE ORDER

        The United States of America, by and through the undersigned Assistant United States

 Attorney, hereby moves the Court for entry of a Protective Order. The undersigned has conferred

 with counsel for each of the defendants, and all counsel have stated that they have no objection to

 the entry of the United States’ proposed Protective Order.

        The arraigned defendants have requested entry of the Court’s Standing Discovery Order,

 and those that have not yet been arraigned have informally requested discovery. With regard to

 the Indictment in this case, responding to that Order will require the production and review of

 evidence in the possession of the government which contains personally identifiable information

 (“PII”), including names, dates of birth, Social Security numbers, and banking information for

 numerous individuals who are not parties to this proceeding. This includes hundreds of loan

 applications and payroll information which only exist electronically. Due to the volume of the

 information and the electronic form in which it has been collected and maintained, redaction of

Case 9:22-cr-80144-RS Document 39 Entered on FLSD Docket 09/19/2022 Page 2 of 4




 the PII is not possible.

         For example, electronic information collected from third parties are protected from

 modification, so redaction would require producing the material in hard copy rather than

 electronically and hand redacting the records page by page. In light of the volume of material

 involved, redaction of all PII within the time limit for production of discovery, and even within

 the Speedy Trial Period, would be impossible. Furthermore, the identities of the third parties and

 their Social Security Numbers, dates of birth, and bank account information may be relevant to the

 defendants’ preparation of the matter for trial because the defendants have been charged with

 conspiring to submit false loan applications and false tax documents.

         Accordingly, in order to protect the confidentiality of this PII and to satisfy its obligations

 under the Standing Discovery Order and Fed. R. Crim. P. 16, the government asks the Court to

 enter the attached Protective Order. As noted above, counsel for the defendants are in agreement

 with the language below, which is contained in the Proposed Order.

         1.      The government is authorized to produce discovery to the defendants, including PII

 of third parties, in encrypted form, that is, counsel for each defendant shall provide a 1 terabyte

 encrypted hard drive to counsel for the government, and government personnel shall load the

 discovery onto the encrypted drive provided by defense counsel and return it. Items that are not

 available in electronic format shall be made available for review at the offices of the FBI. If any

 of those documents later become available in electronic format, they shall be loaded onto defense

 counsel’s encrypted hard drives.

         2.      Defense counsel shall maintain the encrypted files in a secure area when not in use.

         3.      Any copies of the encrypted discovery must also be encrypted or placed on a secure


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Case 9:22-cr-80144-RS Document 39 Entered on FLSD Docket 09/19/2022 Page 3 of 4




 password-protected server. If documents containing PII are printed from the encrypted drive,

 they shall be maintained in a secure area when not in use and shredded when no longer needed.

 Records containing PII of third parties may be shown to the defendants, but the defendants cannot

 keep a copy of those records. Documents and information that do not contain PII are not subject

 to the restrictions set forth in this paragraph.

         4.      Any PII that is produced pursuant to the Standing Discovery Order or otherwise

 disclosed in this proceeding shall be held in strictest confidence by defense counsel, and access to

 this material shall be restricted. Access to this information shall be permitted to defense counsel

 staff only to the extent necessary to prepare their client’s defense. Such information may be

 further disclosed by defense counsel to their clients and to expert witnesses and consultants hired

 by the defense who must review and agree to be bound by the terms of the Protective Order.

 Persons to whom any such PII is disclosed on behalf of the defendants shall not further disclose or

 disseminate this information without further Order of the Court. Documents and information that

 do not contain PII are not subject to the restrictions set forth in this paragraph.

         5.      No PII related to individuals who are not defendants or witnesses shall be entered

 in the record during trial, either through testimony or documents, or in motions in this proceeding,

 unless all practicable means of masking or redacting PII have been employed. If it is not

 practicable to mask individual identifiers during testimony, or to redact individual identifiers from

 exhibits or motions, then the party wishing to proffer such evidence shall first seek approval from

 the Court to do so shall file such motions and exhibits under seal.

         6.      At the conclusion of this proceeding, all PII that was not entered in the record at

 trial through testimony or exhibits, and that is unnecessary to the maintenance of the record of the


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Case 9:22-cr-80144-RS Document 39 Entered on FLSD Docket 09/19/2022 Page 4 of 4




 proceeding, shall be destroyed. Counsel for the defendants may maintain the encrypted drive

 through the completion of any direct appeals. Upon entry of a final judgment in this matter and

 conclusion of any direct appeals, defense counsel shall destroy or cause to be destroyed all copies

 of covered information except as otherwise required to be maintained pursuant to document

 retention polices. Alternatively, counsel for the defendants may return the encrypted material to

 the FBI, who will dispose of it.

        7.      The U.S. Attorney’s Office and the investigating agencies may maintain the

 evidence collected in the case in accordance with their file retention and destruction protocols.

                                               Respectfully submitted,

                                               JUAN ANTONIO GONZALEZ
                                               UNITED STATES ATTORNEY

                                       By:      s/A. Marie Villafaña
                                               A. MARIE VILLAFAÑA
                                               Assistant United States Attorney
                                               Florida Bar No. 0018255
                                               500 South Australian Avenue, Suite 400
                                               West Palm Beach, FL 33401
                                               Telephone: 561 820-8711
                                               Facsimile: 561 820-8777
                                               ann.marie.c.villafana@usdoj.gov


                                    CERTIFICATE OF SERVICE

          I HEREBY CERTIFY that on September 19, 2022, I electronically filed the foregoing
 document with the Clerk of the Court using CM/ECF. According to the Court’s website, counsel
 for all parties are able to receive notice via the CM/ECF system.

                                                  s/A. Marie Villafaña
                                               A. MARIE VILLAFAÑA
                                               Assistant United States Attorney




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