Stipulation and Joint Request for Protective Order; [Proposed] Protective Order — No. 2:22-cr-00239 (Dkt. 12, E.D. Cal.)

Summary

An eight-page Stipulation and Joint Request for Protective Order with a proposed order, Document 12, filed 02/06/23 in United States v. Eric Michael Jaklitsch, Case No. 2:22-CR-0239-WBS, in the U.S. District Court for the Eastern District of California, signed February 2, 2023 by Assistant United States Attorney Denise N. Yasinow for United States Attorney Phillip A. Talbert and by defense counsel Alex Kessel. The Information, transferred from New Jersey under Rule 20, charges wire fraud under 18 U.S.C. § 1343; the defendant waived indictment and pleaded guilty on January 9, 2023. Ahead of sentencing the government wants to produce unredacted materials holding victims' and third parties' names, addresses, Social Security numbers, card and bank account numbers, so the parties ask for an order restricting their use to the Defense Team.

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“Stipulation and Joint Request for Protective Order; [Proposed] Protective Order — No. 2:22-cr-00239 (Dkt. 12, E.D. Cal.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/stipulation-and-joint-request-for-protective-order-proposed-protective-ad40a2c41c/, SHA-256 38001873d6d08bab7ea74abb2efef7268e4c2a96e51333a847d7039ef29c9dd7.

Full text

Case 2:22-cr-00239-WBS Document 12 Filed 02/06/23 Page 1 of 8

1 PHILLIP A. TALBERT
United States Attorney
2 DENISE N. YASINOW
Assistant United States 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. 2:22-CR-0239-WBS
11 STIPULATION AND JOINT REQUEST FOR
PROTECTIVE ORDER; [PROPOSED]
12 Plaintiff, PROTECTIVE ORDER
13 v.

14 ERIC MICHAEL JAKLITSCH,
15 Defendant.

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

19 ERIC MICHAEL JAKLITSCH (“defendant”), by and through his respective counsel of record

20 (collectively, the “parties”), for the reasons set forth below, hereby stipulate, agree, and jointly request

21 that the Court enter a Protective Order in this case restricting the use and dissemination of certain

22 materials containing personal identifying information of real persons and other confidential information

23 of victims, witnesses, and third parties.

24 2. The Information in this case, transferred from New Jersey under Rule 20 of the Federal

25 Rules of Criminal Procedure, charges the defendant with a violation of 18 U.S.C. § 1343 – Wire Fraud.

26 The defendant waived indictment and pleaded guilty on January 9, 2023.

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

28 of documents relating to the charge against the defendant and seeks to provide those documents to

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 1
Case 2:22-cr-00239-WBS Document 12 Filed 02/06/23 Page 2 of 8

1 counsel for the defendant in advance of sentencing.

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, dates of birth, employment information, credit/debit card numbers, and bank account numbers.

6 These real persons and entities are victims, witnesses, 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 the defendant without limitation, it

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

11 itself 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 a prompt

19 sentencing hearing in this matter.

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.

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 2
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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, collectively

5 “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) – as well as home addresses, physical address information, and personal phone numbers –

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

10 anyone other than the defendant.

11 11. For purposes of the Protective Order, the term “Protected Materials” includes: any

12 discovery that the United States has provided or made available to Defense Counsel and has designated

13 “PROTECTED MATERIALS- SUBJECT TO PROTECTIVE ORDER” by a notation written, stamped,

14 or inscribed on the discovery itself or a discovery container (e.g., a physical or electronic folder, disc, or

15 flash drive).

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

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

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

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

20 B. Defense Team

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

22 of record.

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

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

25 consulted regarding case strategy in the above-captioned matter, (3) defense investigators who are

26 assisting defense counsel with this case, (4) retained experts or potential experts, and (5) paralegals,

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

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

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 3
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1 of the defendant.

2 15. Defense Counsel must provide a copy of this Order to all members of the Defense Team.

3 Defense Counsel must obtain written acknowledgement from members of the Defense Team that they

4 are bound by the terms and conditions of this Protective Order, prior to providing any Protected

5 Materials to the members of the Defense Team. The written acknowledgement need not be disclosed or

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

7 C. Disclosure of Discovery and Protected Materials
8 16. No person or party shall use any discovery produced by the government in this action,

9 including without limitation Protected Materials and information derived therefrom, for any purpose

10 other than use in the above-captioned case. All such discovery shall be used solely for the purpose of

11 conducting and preparing for post-conviction, sentencing, and and appellate proceedings (both direct

12 and collateral) and in this criminal action for no other purposes whatsoever, and shall not be used for the

13 economic or other benefit of the defendant, or any third party. Protected Materials may be disclosed

14 only to the categories of persons and under the conditions described in this Order.

15 17. The Defense Team shall not permit anyone other than the Defense Team to have

16 possession of the Protected Materials, including the defendant himself.

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

18 member of the Defense Team, and Defense Counsel shall ensure that he 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 the 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 the defendant, the member of the Defense Team

25 present 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 he is

27 incarcerated.

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

STIPULATION AND [PROPOSED] 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 20. 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 21. 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 22. 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 23. To the extent that Protected Materials, or any copies or reproductions thereof, are stored

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

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

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

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

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

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

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

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

28 with the above notation.

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 5
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1 E. Filings

2 25. In the event that a party needs to file Protected Materials containing PII, or materials

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

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

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

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

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

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

9 limit the divulging of PII or confidential materials.

10 F. Conclusion of Prosecution

11 26. The provisions of this Order shall not terminate at the conclusion of this prosecution. All

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

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

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

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

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

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

18 a longer duration of time.

19 G. Termination or Substitution of Counsel

20 28. In the event that there is a substitution of counsel prior to final disposition of the case,

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

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

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

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

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

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

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

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 6
Case 2:22-cr-00239-WBS Document 12 Filed 02/06/23 Page 7 of 8

1 H. Redaction of Protected Materials

2 29. Nothing in this Order shall prevent the United States Attorney’s Office from redacting

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

4 informants.

5 I. Modification of Order

6 30. Nothing in this Order shall prevent any party from seeking modification to the Order or

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

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

9 J. Violation of Order

10 31. Any person who willfully violates this Order may be held in contempt of court and may

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

12 expand or narrow the Court’s contempt powers.

13 K. Application of Laws

14 32. Nothing in this Order shall be construed to affect or comment on the admissibility or

15 discoverability of the Protected Materials.

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

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

19 Dated: February 2, 2023 PHILLIP A. TALBERT
United States Attorney
20

21 /s/ DENISE N. YASINOW
DENISE N. YASINOW
22 Assistant U.S. Attorney

23
Dated: February 2, 2023 /s/ ALEX KESSEL
24 Alex Kessel
Counsel for Defendant
25 ERIC MICHAEL JAKLITSH
26

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 7
Case 2:22-cr-00239-WBS Document 12 Filed 02/06/23 Page 8 of 8

2 [PROPOSED] FINDINGS AND ORDER

3 The Court having read and considered the Stipulation and Joint Request for a Protective Order,

4 which this Court incorporates by reference into this Order in full, hereby finds that GOOD CAUSE

5 exists to enter the above Order.

6 IT IS SO FOUND AND ORDERED this 3rd day of February, 2023

STIPULATION AND [PROPOSED] PROTECTIVE ORDER 8

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