Stipulation and Joint Request Regarding Protective Order for Discovery — No. 2:21-cr-00580 (Dkt. 15, C.D. Cal.)

Summary

An eight-page Stipulation and Joint Request Regarding Protective Order for Discovery, Document 15, filed 01/14/22 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, signed January 14, 2022 by Assistant United States Attorney Kerry L. Quinn of the Major Frauds Section for United States Attorney Tracy L. Wilkison and, by email permission, by defense counsel Alex R. Kessel. McClain is charged with wire fraud under 18 U.S.C. § 1343 and aggravated identity theft under § 1028A(a)(1) and is on bond. The parties say discovery includes bank statements, unemployment insurance applications and other records protected by the Privacy Act, too voluminous to redact, and ask for an order governing PII, confidential information and material about cooperating witnesses, with defense counsel as custodian.

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     Case 2:21-cr-00580-MWF Document 15 Filed 01/14/22 Page 1 of 8 Page ID #:37



 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,                   STIPULATION AND JOINT REQUEST
                                            REGARDING PROTECTIVE ORDER FOR
14                  v.                      DISCOVERY

15 ABDUL-MALIK MCCLAIN,

16             Defendant.

17

18        Plaintiff, United States of America (the “government”), by and

19   through its counsel of record, the United States Attorney for the

20   Central District of California and Assistant United States Attorney

21   Kerry L. Quinn, and defendant ABDUL-MALIK MCCLAIN (“defendant,”

22   collectively, with the government, the “parties”), by and through

23   his counsel of record, Alex R. Kessel, Esq., for the reasons set

24   forth below, request that the Court enter the proposed protective

25   order (the “Protective Order”) governing the use and dissemination

26   of (1) personal identifying information (“PII”); (2) other

27   confidential information; (3) material that may contain information

28
     Case 2:21-cr-00580-MWF Document 15 Filed 01/14/22 Page 2 of 8 Page ID #:38



 1   within the scope of the Privacy Act; and (4) information related to

 2   cooperating witnesses who may testify at trial.

 3        The bases for this stipulation and application are as follows:

 4        1.     Defendant is charged in this matter with violations of 18

 5   U.S.C. § 1343 (wire fraud); and 18 U.S.C. § 1028A(a)(1) (aggravated

 6   identity theft).    Defendant is on bond pending trial.

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

 8   case includes PII and other confidential information, including,

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

10   unemployment insurance applications and employment-related

11   information, other proprietary and confidential business

12   information, criminal history records, and may include medical

13   records and other confidential materials and information protected

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

15   164.102-164.534, and/or provisions of 42 U.S.C. § 1306, and other

16   statutes.    The government believes disclosure of this confidential

17   information without a protective order may compromise the privacy,

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

19   order could otherwise be prohibited or restricted by statute.

20   Further, documents that contain confidential information make up a

21   significant portion of discovery in this case, and confidential

22   information itself may have investigative or evidentiary value.              In

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

24   discovery, in addition to being prohibitively time consuming and

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

26   the case, provide advice to defendant, and prepare for trial.

27        3.     The purpose of the proposed protective order is to

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

                                           2
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 1   while protecting confidential information, and (b) provide the

 2   defense counsel with information necessary to represent defendant.

 3        4.   Accordingly, the parties hereby stipulate and ask the

 4   Court to issue a Protective Order for discovery under the following

 5   terms:

 6   Definitions

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

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

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

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

11   identification number or means of identification.

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

13   individually identifiable health information that is connected to a

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

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

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

17   statements, loan files, mortgage statements, other financial

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

19   proprietary or confidential business information.

20             d.    The term “Confidential Information” refers to PII

21   Materials, Medical Materials, Business Materials, and other

22   confidential information, including, among other things, immigration

23   records, criminal history records, and other confidential materials

24   and information protected by the Privacy Act, 5 U.S.C. § 552a,

25   provisions of 45 C.F.R. §§ 164.102-164.534, provisions of 42 U.S.C.

26   § 1306, and other statutes.     The term “Confidential Materials”

27   refers to any document, file, or other item of discovery that

28   contains Confidential Information.

                                           3
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 1             e.     The term “defense team” refers to (1) defendant’s

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

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

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

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

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

 7   support staff to defense counsel who are providing assistance on

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

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

10   third parties.

11   Terms of Protective Order

12             f.     The government is authorized to produce Confidential

13   Materials to the defense team, with or without redacting

14   Confidential Information from the Confidential Materials.          The

15   government shall label any Confidential Materials subject to the

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

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

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

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

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

21   defendant may file a motion with the Court challenging the

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

23   first meet and confer with the government regarding any objections

24   to the designation of materials.

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

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

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

28   circumstance, will any Confidential Materials be left in the

                                           4
     Case 2:21-cr-00580-MWF Document 15 Filed 01/14/22 Page 5 of 8 Page ID #:41



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

 2   allowed to copy or make notes of Confidential Information,

 3   regardless of defendant’s custody status.

 4             h.    Defendant may review Confidential Materials only in

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

 6   defendant does not copy or make notes of Confidential Information

 7   and that defendant is never left alone with any Confidential

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

 9   permitted to view Confidential Materials defendant must return any

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

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

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

13   which defendant is meeting with the defense team.

14             i.    Defendant may see and review Confidential Materials

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

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

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

18   memorialize any Confidential Information contained in the

19   Confidential Materials.

20             j.    The defense team may review Confidential Materials

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

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

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

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

25   them any Confidential Materials, inform the witness or potential

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

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

28   team shall permit a witness or potential witness to retain

                                           5
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 1   Confidential Materials or to make or retain any notes of

 2   Confidential Materials.

 3             k.    The defense team shall maintain Confidential

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

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

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

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

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

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

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

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

12   offices, homes, vehicles, or personal presence.

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

14   witnesses, or potential witnesses create notes or copies that

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

16   extent that copies or reproductions of Confidential Materials are

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

18   copies, or reproductions become Confidential Materials subject to

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

20   terms of the Protective Order.

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

22   discovery produced in this case, including Confidential Materials,

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

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

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

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

27   conclusion of the case including appellate and post-conviction

28   proceedings, defense counsel shall return Confidential Materials to

                                           6
     Case 2:21-cr-00580-MWF Document 15 Filed 01/14/22 Page 7 of 8 Page ID #:43



 1   the government, certify that all Confidential Materials have been

 2   destroyed, or certify that Confidential Materials are being kept

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

 4   Professional Conduct.

 5             n.    In the event defense counsel needs to file

 6   Confidential Materials with the Court, defense counsel shall provide

 7   the government with advance written notice to afford the government

 8   an opportunity to object or otherwise respond to such intention.             If

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

10   make reasonable attempts to limit disclosure of Confidential

11   Information, including by redacting Confidential Information as

12   required by court rules including Federal Rule of Criminal Procedure

13   49.1 and Local Criminal Rule 49.1-1, but defense counsel need not

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

15   precluded from doing so.     The government may file Confidential

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

17   after making reasonable attempts to limit disclosure of Confidential

18   Information, including by redacting Confidential Information.           If

19   the parties disagree about the treatment of Confidential Information

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

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

22   meet and confer on the issue.

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

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

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

26   undersigned defense counsel transfers any Confidential Materials to

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

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

                                           7
     Case 2:21-cr-00580-MWF Document 15 Filed 01/14/22 Page 8 of 8 Page ID #:44



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

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

 3   Confidential Materials and assume all obligations of defense counsel

 4   under this stipulation and the Protective Order.

 5             p.    Defense counsel agree to advise defendant and all

 6   members of the defense team of their obligations under the

 7   Protective Order and ensure their agreement to follow the Protective

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

 9   with access to any Confidential Materials.

10             q.    Defense Counsel has conferred with defendant

11   regarding this stipulation and the proposed order, and defendant

12   agrees to the terms of the proposed order.

13   IT IS SO STIPULATED.

14   DATED: January 14, 2022                   TRACY L. WILKISON
                                               United States Attorney
15
                                               SCOTT M. GARRINGER
16
                                               Assistant United States Attorney
17                                             Chief, Criminal Division

18                                               /s/ Kerry L. Quinn
                                               KERRY L. QUINN
19                                             Assistant United States Attorney
20                                             Attorneys for Plaintiff
21                                             UNITED STATES OF AMERICA

22

23   DATED: January 14, 2022                    /s/ by email permission ____
                                               ALEX R. KESSEL
24                                             Attorneys for Defendant
                                               ABDUL-MALIK MCCLAIN
25

26

27

28

                                           8


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