Stipulation and Joint Request for Protective Order; Protective Order — United States v. Gervais (Dkt. 17)

Summary

Stipulation and joint request for a protective order, with the protective order and findings, filed January 25, 2021 as Document 17 in a Case 2:21-cr-00058-KJM filing in the U.S. District Court for the Eastern District of California, in the matter against Andrea M. Gervais, also known as Andrea M. Dangerfield. It recites that a Criminal Complaint filed December 11, 2020 charged one count of mail fraud under 18 U.S.C. § 1341, and that the government will produce unredacted discovery containing personal identifying information of victims, witnesses and third parties. The order limits the Protected Materials to the Defense Team, bars the defendant from keeping copies, requires secure storage, and calls for such information to be filed under seal. Its provisions continue after the prosecution until modified, and the findings dated January 22, 2021 find good cause.

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                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 1 of 8

 1 MCGREGOR W. SCOTT
   United States Attorney
 2 ROBERT J. ARTUZ
   Special Assistant U.S. Attorney
 3 501 I Street, Suite 10-100
   Sacramento, CA 95814
 4 Telephone: (916) 554-2700
   Facsimile: (916) 554-2900
 5

 6 Attorneys for Plaintiff
   United States of America
 7

 8                               IN THE UNITED STATES DISTRICT COURT

 9                                   EASTERN DISTRICT OF CALIFORNIA

10   UNITED STATES OF AMERICA,                            CASE NO. 2:20-MJ-0189-AC
11                                 Plaintiff,             STIPULATION AND JOINT REQUEST FOR
                                                          PROTECTIVE ORDER; PROTECTIVE ORDER
12                          v.
13   ANDREA M. GERVAIS,
     aka ANDREA M. DANGERFIELD,
14
                                  Defendant.
15

16

17                                              I.    STIPULATION
18          1.      Plaintiff United States of America, by and through its counsel of record, and Defendant

19 ANDREA M. GERVAIS (“defendant”), by and through her respective counsel of record (collectively,

20 the “parties”), for the reasons set forth below, hereby stipulate, agree, and jointly request that the Court
21 enter a Protective Order in this case restricting the use and dissemination of certain materials containing

22 personal identifying information of real persons and other confidential information of victims, witnesses,

23 and third parties.

24          2.      On December 11, 2020, the government filed a Criminal Complaint in the above-

25 captioned matter charging the defendant with one count of mail fraud in violation of 18 U.S.C. § 1341.

26          3.      As part of its investigation in the above-captioned case, the United States is in possession

27 of documents relating to the charges against the defendant, and seeks to provide those documents to

28 counsel for the defendant. Some of the materials may exceed the scope of the United States’s discovery


       STIPULATION AND PROTECTIVE ORDER                   1
                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 2 of 8

 1 obligations, but will be produced to promote a prompt and just resolution or trial of the case.

 2          4.      The United States intends to produce to the Defense Team, as defined below, materials

 3 containing personal identifying information (“PII”) and other confidential information of real persons

 4 and entities, including, among other things, personal names, addresses, phone numbers, Social Security

 5 numbers, employers, credit/debit card numbers, and bank account numbers. These real persons and

 6 entities are victims, witnesses, co-defendants, or third parties to this case.

 7          5.      The purpose of the proposed Protective Order is to prevent the unauthorized

 8 dissemination, distribution, or use of materials containing the PII and confidential information of others.

 9 If this information is disclosed without protective measures, or to defendant without limitation, it will

10 risk the privacy and security of the people to whom the information relates. The information could itself

11 be used to further criminal activity if improperly disclosed or used. The United States has ongoing

12 statutory and ethical obligations to protect victims.

13          6.      Due to the nature of the charges and the alleged conduct in this case, PII and other

14 confidential information make up a significant part of the discovery materials in this case and such

15 information itself, in many instances, has evidentiary value. The documentary evidence contains a very

16 large quantity of privacy-protected information that would be difficult or time-consuming to redact.

17 Further, if the government were to attempt to redact all this information, the defense would receive a set

18 of discovery that would be highly confusing and difficult to understand, and could inhibit prompt and

19 just resolution of the case or preparation for trial.

20          7.      Accordingly, the parties jointly request a Protective Order that will permit the United

21 States to produce discovery that is unredacted, but preserves the privacy and security of victims, witness,

22 and third parties. The parties agree that the following conditions, if ordered by the Court in the proposed

23 Protective Order, will serve the government’s interest in maintaining the privacy and security of victims

24 and third parties, while permitting the Defense Team to understand the United States’s evidence against

25 the defendant.

26          8.      This Court may enter protective orders pursuant to Rule 16(d) of the Federal Rules of

27 Criminal Procedure, Local Rule 141.1, and its general supervisory authority.

28 / / /


       STIPULATION AND PROTECTIVE ORDER                    2
                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 3 of 8

 1                              II.       PROPOSED PROTECTIVE ORDER

 2          A.      Protected Materials

 3          9.      This Order pertains to all discovery provided or made available to defense counsel in this

 4 case that contains unredacted “Personal Identifying Information” as defined below (hereafter,

 5 collectively “Protected Materials”).

 6          10.     For purposes of the Protective Order, the term “Personal Identifying Information” (“PII”)

 7 includes: any information within the definition of a “means of identification” under 18 U.S.C. §

 8 1028(d)(7) – including home addresses and personal phone numbers, but not including names – or any

 9 information within the definition of an “access device” under 18 U.S.C. § 1029(e)(1), for anyone other

10 than the defendant.

11          11.     To the extent that notes are made that memorialize, in whole or in part, the PII in any

12 Protected Materials, or to the extent that copies are made for authorized use by members of the Defense

13 Team, such notes, copies, or reproductions become Protected Materials, subject to the Protective Order

14 and must be handled in accordance with the terms of the Protective Order.

15          B.      Defense Team

16          12.     For purposes of this Order, the term “Defense Counsel” refers to the defendant’s counsel

17 of record.

18          13.     For purposes of this Order, the term “Defense Team” refers to (1) the defendant’s counsel

19 of record, (2) other attorneys at defense counsel’s law firm or defense organization who may be

20 consulted regarding case strategy in the above-captioned matter, (3) defense investigators who are
21 assisting defense counsel with this case, (4) retained experts or potential experts, and (5) paralegals,

22 legal assistants, and other support staff to defendant’s counsel of record providing assistance on this

23 case. The term “Defense Team” does not include defendant, the defendant’s family, or other associates

24 of the defendant.

25          14.     Defense Counsel must provide a copy of this Order to all members of the Defense Team.

26                  a)      Defense Counsel must obtain written acknowledgement from members of the

27          Defense Team that they are bound by the terms and conditions of this Protective Order, prior to

28          providing any Protected Materials to the members of the Defense Team. The written


      STIPULATION AND PROTECTIVE ORDER                    3
                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 4 of 8

 1          acknowledgement need not be disclosed or produced to the United States unless ordered by the

 2          Court.

 3                   b)     Members of the defense team who are employees of the Federal Defender’s

 4          Office who have signed a confidentiality agreement as part of their employment are not required

 5          to sign a written acknowledgement. The confidentiality agreement need not be disclosed or

 6          produced to the United States unless ordered by the Court.

 7          C.       Disclosure of Protected Materials
 8          15.      The Defense Team shall not permit anyone other than the Defense Team to have

 9 possession of the Protected Materials, including the defendant herself.

10          16.      No person or party shall use any Protected Materials or information derived from

11 Protected Materials produced in this action for any purpose other than use in the above-captioned case.

12 All Protected Materials shall be used solely for the purpose of conducting and preparing for pre-trial,

13 post-trial, and appellate proceedings (both direct and collateral) and in this criminal action for no other

14 purposes whatsoever, and shall not be used for the economic or other benefit of the defendant, or any

15 third party. Protected Materials may be disclosed only to the categories of persons and under the

16 conditions described in this Order.

17          17.      The defendant may review Protected Materials in this case only in the presence of a

18 member of the Defense Team, and her Defense Counsel shall ensure that she is never left alone with any

19 Protected Materials. The defendant may not copy, keep, maintain, or otherwise possess any of such

20 Protected Materials at any time. The defendant must return any Protected Materials to the Defense
21 Team at the conclusion of any meeting at which defendant reviews the Protected Materials. The

22 defendant may not take any Protected Materials out of the room in which they are meeting with the

23 Defense Team. The defendant may not write down or memorialize any PII contained in the Protected

24 Materials. At the conclusion of any meeting with defendant, the member of the Defense Team present

25 shall take with him or her all Protected Materials. At no time, under any circumstances, will any

26 Protected Materials be left in the possession, custody, or control of the defendant, whether or not she is

27 incarcerated.

28          18.      The Defense Team may review Protected Materials with a witness or potential witness in


      STIPULATION AND PROTECTIVE ORDER                    4
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 1 this case, including the defendant, subject to the requirement above that a member of the Defense Team

 2 must be present if Protected Materials are being shown to the defendant. Before being shown any

 3 portion of the Protected Materials, however, any witness or potential witness must be informed of the

 4 existence of the Protective Order and given a copy of the Protective Order. No witness or potential

 5 witness (other than members of the Defense Team) may retain Protected Materials, or any copy thereof,

 6 after his or her review of those materials with the Defense Team is complete.

 7          19.      This Order does not limit employees of the United States Attorney’s Office for the

 8 Eastern District of California from disclosing the Protected Materials to members of the United States

 9 Attorney’s Office, law enforcement agencies, the Court, and defense.

10          20.      Defense Counsel shall advise the United States with reasonable notice of any subpoenas,

11 document requests, or claims for access to the Protected Materials by third parties if Defense Counsel is

12 considering disseminating any of the Protected Materials to a third party, in order that the United States

13 may take action to resist or comply with such demands as it may deem appropriate.

14          D.       Ensuring Security of Protected Materials
15          21.      The Defense Team shall maintain the Protected Materials safely and securely, and shall

16 exercise reasonable care in ensuring the security and confidentiality of the Protected Materials by storing

17 the Protected Materials in a secure place, such as a locked office, or otherwise secure facility where

18 visitors are not left unescorted.

19          22.      A copy of the Protective Order must be stored with the discovery, in paper form and

20 electronically.
21          23.      To the extent that Protected Materials, or any copies or reproductions thereof, are stored

22 electronically, the Protected Materials will be stored on a password-protected or encrypted storage

23 medium, including a password-protected computer, or device. Encryption keys must be stored securely

24 and not written on the storage media that they unlock.

25          24.      If a member of the Defense Team makes, or causes to be made, any further copies of any

26 of the Protected Materials, Defense Counsel will ensure that the following notation is written, stamped

27 or inscribed on whatever folder, container, or media contains the copies: “PROTECTED MATERIALS-

28 SUBJECT TO PROTECTIVE ORDER.” For example, if Defense Counsel makes a copy of a disc or


      STIPULATION AND PROTECTIVE ORDER                    5
                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 6 of 8

 1 physical file containing Protected Materials, the duplicate disc or file must be encrypted and marked

 2 with the above notation.

 3          E.      Filings
 4          25.     In the event that a party needs to file Protected Materials containing PII, or materials

 5 otherwise identified as containing confidential information of victims, witnesses, or third parties with

 6 the Court, or disclose PII in court filings, the filing should be made under seal. If the Court rejects the

 7 request to file such information under seal, the party seeking to file such information shall provide

 8 advance written notice to the other party to afford such party an opportunity to object or otherwise

 9 respond to such intention. If the other party does not object to the proposed filing, the party seeking to

10 file such information shall redact the PII or confidential materials and make all reasonable attempts to

11 limit the divulging of PII or confidential materials.

12          F.      Conclusion of Prosecution
13          26.     The provisions of this Order shall not terminate at the conclusion of this prosecution. All

14 Protected Materials subject to the Protective Order maintained in the Defense Team’s files shall remain

15 subject to the Protective Order unless and until such Order is modified by the Court.

16          27.     Upon final disposition of the case, including exhaustion of direct and collateral appellate

17 proceedings, Defense Counsel shall return the Protected Materials to the government, or certify in

18 writing that the Protected Materials have been destroyed, unless the California Rules of Professional

19 Conduct, as interpreted by the State Bar of California, require Defense Counsel to retain the material for

20 a longer duration of time, in which case Defense Counsel will seek appropriate modification of this
21 Order. If any Protected Materials are used as defense exhibits, they shall be maintained with

22 government exhibits so long as those are required to be maintained.

23          G.      Termination or Substitution of Counsel
24          28.     In the event that there is a substitution of counsel prior to final disposition of the case,

25 new counsel of record must join this Protective Order before any Protected Materials may be transferred

26 from the undersigned defense counsel to the new defense counsel. New defense counsel then will

27 become Defense Counsel for purposes of this Protective Order, and become Defense Team’s custodian

28 of materials, and shall then become responsible, upon the conclusion of appellate and post-conviction


      STIPULATION AND PROTECTIVE ORDER                     6
                 Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 7 of 8

 1 proceedings, for complying with the provisions set forth in this Protective Order. All members of the

 2 Defense Team, whether current or past counsel, are at all times subject to the Protective Order and are

 3 not relieved by termination of representation or conclusion of the prosecution.

 4          H.      Redaction of Protected Materials
 5          29.     Nothing in this Order shall prevent the United States Attorney’s Office from redacting

 6 PII or other confidential information in any Protected Materials related to the identity of cooperators and

 7 informants.

 8          I.      Modification of Order
 9          30.     Nothing in this Order shall prevent any party from seeking modification to the Order or

10 from objecting to discovery it otherwise believes to be improper. Nothing in this Order shall prevent

11 any party from seeking a more restrictive protective order with regard to particular discovery items.

12          J.      Violation of Order
13          31.     Any person who willfully violates this Order may be held in contempt of court and may

14 be subject to monetary of other sanctions as deemed appropriate by the Court. This provision does not

15 expand or narrow the Court’s contempt powers.

16          K.      Application of Laws
17          32.     Nothing in this Order shall be construed to affect or comment on the admissibility or

18 discoverability of the Protected Materials.

19 / / /

20 / / /
21 / / /

22 / / /

23 / / /

24 / / /

25 / / /

26 / / /

27 / / /

28 / / /


      STIPULATION AND PROTECTIVE ORDER                   7
              Case 2:21-cr-00058-KJM Document 17 Filed 01/25/21 Page 8 of 8

 1          33.    Nothing in this Order shall be construed to affect the application of and the parties’

 2 compliance with the Federal Rules of Criminal Procedure, Local Rules, and applicable statutes.

 3

 4   Dated: January 22, 2021                                 MCGREGOR W. SCOTT
                                                             United States Attorney
 5

 6                                                           /s/ ROBERT J. ARTUZ
                                                             ROBERT J. ARTUZ
 7                                                           Special Assistant U.S. Attorney
 8
     Dated: January 22, 2021                                 /s/ CHRIS COSCA
 9                                                           CHRIS COSCA
                                                             Counsel for Defendant
10
                                                             ANDREA M. GERVAIS
11

12

13                                         FINDINGS AND ORDER
14          The Court having read and considered the Stipulation and Joint Request for a Protective Order,
15 which this Court incorporates by reference into this Order in full, hereby finds that GOOD CAUSE

16 exists to enter the above Order.

17          IT IS SO FOUND AND ORDERED.
18          Dated: January 22, 2021
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      STIPULATION AND PROTECTIVE ORDER                   8


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