Protective Order on Discovery With Personal Identifying Information — United States v. Baines (Document 22)

Summary

Protective Order Regarding Discovery Containing Personal Identifying Information and Privacy Act Information in United States v. Fontrell Antonio Baines, No. CR 20-522-MWF, filed November 20, 2020 as Document 22 and signed by Judge Michael W. Fitzgerald. Acting on the government's ex parte application of November 19, 2020, the Court finds the discovery relates to alleged mail fraud, unauthorized access device, aggravated identity theft and stolen property offenses, and that unlimited disclosure would risk third parties' privacy. Discovery marked "CONFIDENTIAL INFORMATION -- CONTENTS SUBJECT TO PROTECTIVE ORDER" may be used only by the Defense Team for the case, and is not to be left with the defendant. Defense counsel must make the team follow the Order.

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     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 1 of 8 Page ID #:91



 1   NICOLA T. HANNA
     United States Attorney
 2   BRANDON D. FOX
     Assistant United States Attorney
 3   Chief, Criminal Division
     RANEE A. KATZENSTEIN (Cal. Bar No. 187111)
 4   Assistant United States Attorney
     Chief, Major Frauds Section
 5        1100 United States Courthouse
          312 North Spring Street
 6        Los Angeles, California 90012
          Telephone: (213) 894-2432
 7        Facsimile: (213) 894-6269
          E-mail:    ranee.katzenstein@usdoj.gov
 8

 9   Attorneys for Plaintiff
     UNITED STATES OF AMERICA
10

11                           UNITED STATES DISTRICT COURT

12                    FOR THE CENTRAL DISTRICT OF CALIFORNIA

13   UNITED STATES OF AMERICA,              No. CR 20-522-MWF

14              Plaintiff,                  PROTECTIVE ORDER REGARDING
                                            DISCOVERY CONTAINING PERSONAL
15              v.                          IDENTIFYING INFORMATION AND
                                            PRIVACY ACT INFORMATION
16 FONTRELL ANTONIO BAINES,
     aka “Nuke Bizzle,”
17
             Defendant.
18

19
          The Court has read and considered the government’s ex parte
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     application for a Protective Order Regarding Discovery Containing
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     Personal Identifying Information and Privacy Act Information, filed
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     in this matter on November 19, 2020.
23
           FOR GOOD CAUSE SHOWN the Court hereby FINDS AND ORDERS as
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     follows:
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          1.    The government’s discovery in this case relates to
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     defendant’s alleged crimes, that is, violations of Title 18, United
27
     States Code, Sections 1341 (Mail Fraud), 1029(a)(2) (Use of
28
     Unauthorized Access Devices), 1028A(a)(1) (Aggravated Identity
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 2 of 8 Page ID #:92



 1   Theft) and 2314 (Interstate Transportation of Stolen Property.

 2        2.   A protective order for the discovery is necessary so that

 3   the government can produce to the defense materials containing third

 4   parties’ PII.    The Court finds that disclosure of this information

 5   without limitation risks the privacy and security of the

 6   information’s legitimate owners.      Because the government has an

 7   ongoing obligation to protect third parties’ PII, the government

 8   cannot produce to defendant an unredacted set of discovery

 9   containing this information without this Court entering the

10   Protective Order.    Moreover, PII makes up a significant part of the

11   discovery in this case and such information itself, in many

12   instances, has evidentiary value.         If the government were to attempt

13   to redact all this information in strict compliance with Federal

14   Rule of Criminal Procedure 49.1, the Central District of

15   California’s Local Rules regarding redaction, and the Privacy Policy

16   of the United States Judicial Conference, the defense would receive

17   a set of discovery that would be highly confusing and difficult to

18   understand, and it would be challenging for defense counsel to

19   adequately evaluate the case, provide advice to defendant, or

20   prepare for trial.

21        3.   An order is also necessary because the government intends

22   to produce to the defense materials that may contain information

23   within the scope of the Privacy Act, 5 U.S.C. § 552a (“Privacy Act

24   Information”).   The Court finds that, to the extent that these

25   materials contain Privacy Act information, disclosure is authorized

26   pursuant to 5 U.S.C. § 552a(b)(11).]

27        4.   The purpose of this Protective Order is therefore to

28   (a) allow the government to comply with its discovery obligations

                                           2
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 3 of 8 Page ID #:93



 1   while protecting this sensitive information from unauthorized

 2   dissemination, and (b) provide the defense with sufficient

 3   information to adequately represent defendant.

 4        5.    Accordingly, the discovery that the government will

 5   provide to defense counsel in the above-captioned case will be

 6   subject to this Protective Order, as follows:

 7              a.   As used herein, “PII Materials” includes any

 8   information that can be used to identify a person, including a name,

 9   address, date of birth, Social Security number, driver’s license

10   number, telephone number, account number, email address, or personal

11   identification number.

12              b.   “Defense Team” includes (1) defendant’s counsel of

13   record (“defense counsel”); (2) other attorneys at defense counsel’s

14   law firm who may be consulted regarding case strategy in this case;

15   (3) defense investigators who are assisting defense counsel with

16   this case; (4) retained experts or potential experts; and

17   (5) paralegals, legal assistants, and other support staff to defense

18   counsel who are providing assistance on this case.         The Defense Team

19   does not include defendant, defendant’s family members, or any other

20   associates of defendant.

21              c.   The government is authorized to provide defense

22   counsel with Confidential Information marked with the following

23   legend: “CONFIDENTIAL INFORMATION -- CONTENTS SUBJECT TO PROTECTIVE

24   ORDER.”   The government may put that legend on the digital medium

25   (such as DVD or hard drive) or simply label a digital folder on the

26   digital medium to cover the content of that digital folder.           The

27   government may also redact any PII contained in the production of

28   Confidential Information.

                                           3
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 4 of 8 Page ID #:94



 1              d.   If defendant objects to a designation that material

 2   contains Confidential Information, the parties shall meet and

 3   confer.   If the parties cannot reach an agreement regarding

 4   defendant’s objection, defendant may apply to this Court to have the

 5   designation removed.

 6              e.   Defendant and the Defense Team shall use the

 7   Confidential Information solely to prepare for any pretrial motions,

 8   plea negotiations, trial, and sentencing hearing in this case, as

 9   well as any appellate and post-conviction proceedings.

10              f.   The Defense Team shall not permit anyone other than

11   the Defense Team to have possession of Confidential Information,

12   including defendant, while outside the presence of the Defense Team.

13              g.   At no time, under no circumstance, will any

14   Confidential Information be left in the possession, custody, or

15   control of defendant, regardless of defendant’s custody status.

16              h.   Defendant may review PII Materials only in the

17   presence of a member of the Defense Team, who shall ensure that

18   defendant is never left alone with any PII Materials.          At the

19   conclusion of any meeting with defendant at which defendant is

20   permitted to view PII Materials, defendant must return any PII

21   Materials to the Defense Team, and the member of the Defense Team

22   present shall take all such materials with him or her.          Defendant

23   may not take any PII Materials out of the room in which defendant is

24   meeting with the Defense Team.

25              i.   Defendant may see and review Confidential Information

26   as permitted by this Protective Order, but defendant may not copy,

27   keep, maintain, or otherwise possess any Confidential Information in

28   this case at any time.     Defendant also may not write down or

                                           4
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 5 of 8 Page ID #:95



 1   memorialize any data or information contained in the Confidential

 2   Information.

 3                j.   The Defense Team may review Confidential Information

 4   with a witness or potential witness in this case, including

 5   defendant.    A member of the Defense Team must be present if PII

 6   Materials are being shown to a witness or potential witness.           Before

 7   being shown any portion of Confidential Information, however, any

 8   witness or potential witness must be informed of, and agree in

 9   writing to be bound by, the requirements of the Protective Order.

10   No member of the Defense Team shall permit a witness or potential

11   witness to retain Confidential Information or any notes generated

12   from Confidential Information.

13                k.   The Defense Team shall maintain Confidential

14   Information safely and securely, and shall exercise reasonable care

15   in ensuring the confidentiality of those materials by (1) not

16   permitting anyone other than members of the Defense Team, defendant,

17   witnesses, and potential witnesses, as restricted above, to see

18   Confidential Information; (2) not divulging to anyone other than

19   members of the Defense Team, defendant, witnesses, and potential

20   witnesses, the contents of Confidential Information; and (3) not

21   permitting Confidential Information to be outside the Defense Team’s

22   offices, homes, vehicles, or personal presence.

23                l.   To the extent that defendant, the Defense Team,

24   witnesses, or potential witnesses create notes that contain, in

25   whole or in part, Confidential Information, or to the extent that

26   copies are made for authorized use by members of the Defense Team,

27   such notes, copies, or reproductions become Confidential Information

28

                                           5
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 6 of 8 Page ID #:96



 1   subject to the Protective Order and must be handled in accordance

 2   with the terms of the Protective Order.

 3             m.    The Defense Team shall use Confidential Information

 4   only for the litigation of this matter and for no other purpose.

 5   Litigation of this matter includes any appeal filed by defendant and

 6   any motion filed by defendant pursuant to 28 U.S.C. § 2255.           In the

 7   event that a party needs to file Confidential Information with the

 8   Court or divulge the contents of Confidential Information in court

 9   filings, the filing should be made under seal.         If the Court rejects

10   the request to file such information under seal, the party seeking

11   to file such information publicly shall provide advance written

12   notice to the other party to afford such party an opportunity to

13   object or otherwise respond to such intention.         If the other party

14   does not object to the proposed filing, the party seeking to file

15   such information shall redact any PII Materials and make all

16   reasonable attempts to limit the divulging of PII Materials.

17             n.    Any Confidential Information inadvertently produced

18   in the course of discovery prior to entry of the Protective Order

19   shall be subject to the terms of this Protective Order.          If

20   Confidential Information was inadvertently produced prior to entry

21   of the Protective Order without being marked “CONFIDENTIAL

22   INFORMATION -- CONTENTS SUBJECT TO PROTECTIVE ORDER,” the government

23   shall reproduce the material with the correct designation and notify

24   defense counsel of the error.      The Defense Team shall take immediate

25   steps to destroy the unmarked material, including any copies.

26             o.    Confidential Information shall not be used by any

27   member of the defense team, in any way, in any other matter, absent

28   an order by this Court.     All materials designated subject to the

                                           6
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 7 of 8 Page ID #:97



 1   Protective Order maintained in the Defense Team’s files shall remain

 2   subject to the Protective Order unless and until such order is

 3   modified by this Court.     Within 30 days of the conclusion of

 4   appellate and post-conviction proceedings, defense counsel shall

 5   return all PII Materials, certify that such materials have been

 6   destroyed, or certify that such materials are being kept pursuant to

 7   the California Business and Professions Code and the California

 8   Rules of Professional Conduct.

 9             p.    In the event that there is a substitution of counsel

10   prior to when such documents must be returned, new defense counsel

11   must be informed of, and agree in writing to be bound by, the

12   requirements of the Protective Order before defense counsel

13   transfers any Confidential Information to the new defense counsel.

14   New defense counsel’s written agreement to be bound by the terms of

15   the Protective Order must be returned to the Assistant U.S. Attorney

16   assigned to the case.    New defense counsel then will become the

17   Defense Team’s custodian of materials designated subject to the

18   Protective Order and shall then become responsible, upon the

19   conclusion of appellate and post-conviction proceedings, for

20   returning to the government, certifying the destruction of, or

21   retaining pursuant to the California Business and Professions Code

22   and the California Rules of Professional Conduct all PII Materials.

23   ///

24   ///

25   ///

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                                           7
     Case 2:20-cr-00522-MWF Document 22 Filed 11/20/20 Page 8 of 8 Page ID #:98



 1             q.    Defense counsel shall advise defendant and all

 2   members of the Defense Team of their obligations under the

 3   Protective Order and ensure their agreement to follow the Protective

 4   Order, prior to providing defendant and members of the Defense Team

 5   with access to any materials subject to the Protective Order.

 6        IT IS SO ORDERED.

 7
     November 20, 2020
 8   DATE                                      MICHAEL W. FITZGERALD
                                               UNITED STATES DISTRICT JUDGE
 9

10   Presented by:
11
      /s/Ranee A. Katzenstein
12   RANEE A. KATZENSTEIN
     Assistant United States Attorney
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