Protective Order for Discovery — No. 2:21-cr-00580 (Dkt. 16, C.D. Cal.)

Summary

A Protective Order for Discovery, Document 16, dated January 18, 2022 in United States v. Abdul-Malik McClain, No. 2:21-CR-580-MWF, in the U.S. District Court for the Central District of California. The Court states that it has considered the Stipulation and Joint Request filed on January 14, 2022 and that the government's discovery relates to alleged violations of 18 U.S.C. § 1343 (wire fraud) and 18 U.S.C. § 1028A(a)(1) (aggravated identity theft). It finds a protective order necessary because discovery includes personal identifying information, bank statements and other confidential material, and defines PII Materials, Medical Materials and Business Materials. A closing provision says new defense counsel must agree in writing to be bound before receiving Confidential Materials. The order is dated over the name of Judge Michael W. Fitzgerald.

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     Case 2:21-cr-00580-MWF Document 16 Filed 01/18/22 Page 1 of 8 Page ID #:53



 1   TRACY L. WILKISON
     United States Attorney
 2   SCOTT M. GARRINGER
     Assistant United States Attorney
 3   Chief, Criminal Division
     KERRY L. QUINN (Cal. Bar No. 302954)
 4   Assistant United States Attorney
     Major Frauds Section
 5        1100 United States Courthouse
          312 North Spring Street
 6        Los Angeles, California 90012
          Telephone: (213) 894-5423
 7        Facsimile: (213) 894-6269
          E-mail:    Kerry.L.Quinn@usdoj.gov
 8
     Attorneys for Plaintiff
 9   UNITED STATES OF AMERICA

10                          UNITED STATES DISTRICT COURT

11                    FOR THE CENTRAL DISTRICT OF CALIFORNIA

12   UNITED STATES OF AMERICA,              2:21-CR-580-MWF

13             Plaintiff,                   PROTECTIVE ORDER FOR DISCOVERY

14             v.

15 ABDUL-MALIK MCCLAIN,

16             Defendant.

17

18        The Court has read and considered the Stipulation and Joint

19   Request Regarding Protective Order for Discovery (the “Stipulation”)

20   filed on January 14, 2022, which this Court incorporates by

21   reference into this order, and FOR GOOD CAUSE SHOWN the Court hereby

22   FINDS AND ORDERS as follows:

23        1.   The government’s discovery in this case relates to

24   defendant’s alleged crimes, that is, violations of 18 U.S.C. § 1343

25   (wire fraud); and 18 U.S.C. § 1028A(a)(1) (aggravated identity

26   theft).

27        2.   A protective order is necessary because discovery in this

28   case includes PII and other confidential information, including,
     Case 2:21-cr-00580-MWF Document 16 Filed 01/18/22 Page 2 of 8 Page ID #:54



 1   among other things, bank statements and other financial records,

 2   unemployment insurance applications and employment-related

 3   information, other proprietary and confidential business

 4   information, criminal history records, and may include medical

 5   records and other confidential materials and information protected

 6   by the Privacy Act, 5 U.S.C. § 552a, provisions of 45 C.F.R. §§

 7   164.102-164.534, and/or provisions of 42 U.S.C. § 1306, and other

 8   statutes.   The government believes disclosure of this confidential

 9   information without a protective order may compromise the privacy,

10   security, and confidentiality of third parties, and absent court

11   order could otherwise be prohibited or restricted by statute.

12   Further, documents that contain confidential information make up a

13   significant portion of discovery in this case, and confidential

14   information itself may have investigative or evidentiary value.              In

15   this situation, redaction of all of the confidential information in

16   discovery, in addition to being prohibitively time consuming and

17   infeasible, may interfere with defense counsel’s ability to evaluate

18   the case, provide advice to defendants, and prepare for trial.

19        3.     The purpose of the this Protective Order is to (a) allow

20   the government to comply with its discovery obligations while

21   protecting confidential information, and (b) provide the defense

22   counsel with information necessary to represent defendant.

23        4.     Accordingly, the discovery that the government will

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

25   subject to this Protective Order, as follows:

26               a.   The term “PII Materials” refers to any information

27   that can be used to identify a person, including a name, address,

28   date of birth, Social Security number, driver’s license number,

                                           2
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 1   telephone number, account number, email address, or other personal

 2   identification number or means of identification.

 3             b.     The term “Medical Materials” refers to any

 4   individually identifiable health information that is connected to a

 5   patient’s name, address, or other identifying number, such as a

 6   Social Security number or Medicare/Medi-Cal number.

 7             c.     The term “Business Materials” refers to any bank

 8   statements, loan files, mortgage statements, other financial

 9   records, property and escrow records, title reports, and other

10   proprietary or confidential business information.

11             d.     The term “Confidential Information” refers to CW

12   Materials, PII Materials, Medical Materials, Business Materials, and

13   other confidential information, including, among other things,

14   immigration records, criminal history records, and other

15   confidential materials and information protected by the Privacy Act,

16   5 U.S.C. § 552a, provisions of 45 C.F.R. §§ 164.102-164.534,

17   provisions of 42 U.S.C. § 1306, and other statutes.         The Court finds

18   that, to the extent that discovery contains information protected by

19   the Privacy Act, disclosure is authorized pursuant to 5 U.S.C.

20   § 552a(b)(11).   The term “Confidential Materials” refers to any

21   document, file, or other item of discovery that contains

22   Confidential Information.

23             e.     The term “defense team” refers to (1) defendant’s

24   counsel of record (“defense counsel”); (2) other attorneys at

25   defense counsel’s law firm who are or may be consulted regarding

26   case strategy in this case; (3) defense investigators who are

27   assisting defense counsel with this case; (4) retained experts or

28   potential experts; and (5) paralegals, legal assistants, and other

                                           3
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 1   support staff to defense counsel who are providing assistance on

 2   this case.    The term “defense team” does not include defendant,

 3   defendant’s family members, other associates, or other witnesses or

 4   third parties.

 5                f.    The government is authorized to produce Confidential

 6   Materials to the defense team, with or without redacting

 7   Confidential Information from the Confidential Materials.          The

 8   government shall label any Confidential Materials subject to the

 9   Protective Order as “CONFIDENTIAL,” “SUBJECT TO PROTECTIVE ORDER,”

10   or otherwise identify such materials by Bates Number, by discovery

11   disc number, or by some other identifiable means, such as by

12   labeling a file name with the term “CONFIDENTIAL.”         If defendant

13   objects to such a designation with respect to any materials, the

14   defendant may file a motion with the Court challenging the

15   designation.      However, before filing any such motion, defendant must

16   first meet and confer with the government regarding any objections

17   to the designation of materials.

18                g.    The defense team shall not permit anyone other than

19   the defense team to have possession of Confidential Materials, while

20   outside the presence of the defense team.        At no time, under no

21   circumstance, will any Confidential Materials be left in the

22   defendant’s possession, custody, or control, nor will defendant be

23   allowed to copy or make notes of Confidential Information, nor will

24   regardless of defendant’s custody status.

25                h.    Defendant may review Confidential Materials only in

26   the presence of a member of the defense team, who shall ensure that

27   defendant does not copy or make notes of Confidential Information

28   and that defendant is never left alone with any Confidential

                                           4
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 1   Materials.    At the conclusion of any meeting at which defendant is

 2   permitted to view Confidential Materials defendant must return any

 3   Confidential Materials to the defense team, and the member of the

 4   defense team present shall take all such materials with him or her.

 5   Defendant may not take any Confidential Materials out of the room in

 6   which defendant is meeting with the defense team.

 7                i.   Defendant may see and review Confidential Materials

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

 9   keep, maintain, or otherwise possess any Confidential Materials in

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

11   memorialize any Confidential Information contained in the

12   Confidential Materials.

13                j.   The defense team may review Confidential Materials

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

15   defendant, only as provided under the Protective Order.          A member of

16   the defense team must be present if Confidential Materials are being

17   shown to a witness or potential witness and must, before showing

18   them any Confidential Materials, inform the witness or potential

19   witness of the requirements of the Protective Order, and obtain

20   their agreement to be bound by its terms.        No member of the defense

21   team shall permit a witness or potential witness to retain

22   Confidential Materials or to make or retain any notes of

23   Confidential Materials.

24                k.   The defense team shall maintain Confidential

25   Materials safely and securely, and shall exercise reasonable care in

26   ensuring the confidentiality of Confidential Materials by (1) not

27   permitting anyone other than members of the defense team, defendant,

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

                                           5
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 1   Confidential Materials; (2) not divulging to anyone other than

 2   members of the defense team, defendant, witnesses, and potential

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

 4   permitting Confidential Materials to be outside the defense team’s

 5   offices, homes, vehicles, or personal presence.

 6             l.    To the extent that defendant, the defense team,

 7   witnesses, or potential witnesses create notes or copies that

 8   contain, in whole or in part, Confidential Information, or to the

 9   extent that copies or reproductions of Confidential Materials are

10   made for authorized use by members of the defense team, such notes,

11   copies, or reproductions become Confidential Materials subject to

12   the Protective Order and must be handled in accordance with the

13   terms of the Protective Order.

14             m.    Members of the defense team shall use any and all

15   discovery produced in this case, including Confidential Materials,

16   only for the preparation, investigation, and litigation of this

17   matter, and for no other purpose.         Litigation of this matter

18   includes any appeal filed by defendant and any motion filed by

19   defendant pursuant to 28 U.S.C. § 2255.        Within 30 days of the

20   conclusion of the case including appellate and post-conviction

21   proceedings, defense counsel shall return Confidential Materials to

22   the government, certify that all Confidential Materials have been

23   destroyed, or certify that Confidential Materials are being kept

24   pursuant to the Business and Professions Code and the Rules of

25   Professional Conduct.

26             n.    In the event defense counsel needs to file

27   Confidential Materials with the Court, defense counsel shall provide

28   the government with advance written notice to afford the government

                                           6
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 1   an opportunity to object or otherwise respond to such intention.             If

 2   the government does not object or respond, defense counsel shall

 3   make reasonable attempts to limit disclosure of Confidential

 4   Information, including by redacting Confidential Information as

 5   required by court rules including Federal Rule of Criminal Procedure

 6   49.1 and Local Criminal Rule 49.1-1, but defense counsel need not

 7   request the entire filing be sealed, although defense counsel is not

 8   precluded from doing so.     The government may file Confidential

 9   Materials with the Court either under seal or on a public docket

10   after making reasonable attempts to limit disclosure of Confidential

11   Information, including by redacting Confidential Information.           If

12   the parties disagree about the treatment of Confidential Information

13   with regard to public filing, they may apply to the Court for

14   appropriate relief, but not before making a reasonable attempt to

15   meet and confer on the issue.

16             o.    In the event that there is a substitution of counsel,

17   new defense counsel must be informed of, and agree in writing to be

18   bound by, the requirements of the Protective Order before the

19   undersigned defense counsel transfers any Confidential Materials to

20   the new defense counsel.     New defense counsel’s written agreement to

21   be bound by the terms of the Protective Order must be returned to

22   the Assistant United States Attorney assigned to the case.           New

23   defense counsel then will become the defense team’s custodian of

24   Confidential Materials and assume all obligations of defense counsel

25   under this stipulation and the Protective Order.

26             p.    Defense counsel shall advise defendant and all

27   members of the defense team of their obligations under the

28   Protective Order and ensure their agreement to follow the Protective

                                           7
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 1   Order, prior to providing defendant and members of the defense team

 2   with access to any Confidential Materials.

 3

 4   Dated: January 18, 2022            MICHAEL W. FITZGERALD
                                        UNITED STATES DISTRICT JUDGE
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     Presented by:
 7

 8      /s/
     KERRY L. QUINN
 9   Assistant United States Attorney

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