Jennie Shulkin
Steptoe & Johnson LLP
Nicholas Silverman
Steptoe & Johnson LLP
The public-facing effects of the COVID-19 pandemic are well documented: courthouse closures, remote hearings, and the spread of the virus throughout prisons and jails. The behind-the-scenes effects on preparing a criminal defense have been just as onerous — with attorney access to jails limited and fewer or no in-person meetings for released defendants in an effort to prevent viral spread. Preparing for trial has consequently become more difficult than ever.
Defendants and their counsel can ensure that this uphill climb does not become even steeper by watching out for unnecessarily restrictive, “one-size-fits-all” protective orders that prosecutors are increasingly favoring over individualized inquiries into the specific facts of the underlying case. Seemingly innocuous provisions — like limiting a defendant’s personal access to discovery materials when counsel is not present — can seriously hamper a defendant’s ability to prepare for trial and participate in his own defense.
Fortunately, there are many tools available to defense attorneys to successfully combat these overly broad protective orders and ensure that any such orders accommodate the government’s privacy concerns while reasonably allowing for trial preparation. We share practice pointers for challenging these orders based on our recent success in litigating this issue in the Central District of California.
The Basics: The Law on Protective Orders
A federal criminal defendant is generally entitled to relevant discovery under Federal Rule of Criminal Procedure 16. Fed. R. Crim. P. 16(a)(1)(A) & (B). Yet this is not an absolute right, and the court may at any time, “for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1). The government bears the burden of showing “good cause” for each particular document it seeks to protect, meaning that it must show that “disclosure will work a clearly defined and serious injury.” United States v. Arredondo, 12-cr-1055-PHX-FJM (LOA) (D. Ariz. May 30, 2012) (quoting United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007)). When determining if the government has demonstrated “good cause” for a proposed protective order, the court typically considers witness safety, risk of witness intimidation or perjury, protection of information vital to national security, and protection of business enterprises from economic reprisals. Andrew D. Leipold & Peter J. Henning, 2 Wright & Miller, Fed. Prac. & Proc. Crim. Section 262 (4th ed.).
Importantly, “[b]road allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing.” United States v. Calderon, 14-cr-103-CAS (C.D. Cal. Apr. 8, 2014) (quoting Arredondo and Wecht and denying government application for protective order except as to agreed-upon matters and grand jury proceedings). The injury that would result from disclosure without a protective order must be shown with specificity. Id. Once the specific injury is demonstrated, the court then has to weigh a defendant’s constitutional interest in disclosure of the information against the injuries that disclosure might cause. Id. (citing Wecht, 484 F .3d at 211). The defendant bears the burden of showing that a protective order would prejudice him. See, e.g., United States v. Yassine, 574 F. App’x 455, 461 (5th Cir. 2014) (citing United States v. Carriles, 654 F. Supp. 2d 557, 565–66 (W.D. Tex. 2009)). And it is the court’s responsibility to strike the appropriate balance between these competing interests. It must not do so in a way that is “broader than is necessary to accomplish [its] goals,” United States v. Lindh, 198 F. Supp. 2d 739, 742 (E.D. Va. 2002), since the defendant’s right to a fair trial is not to be overridden by privacy concerns of others. See United States v. O’Keefe, 06-0249 (PLF) (D.D.C. Apr. 27, 2007) (“Protective orders are expressly designed to assure that a defendant’s right to a fair trial are not overridden by the confidentiality and privacy interests of others.”), subsequent determination at 537 F, Supp. 2d 14 (D.D.C. 2008).
Be on the Lookout: Overly Broad Protections and Lack of Defendant Access
Every defendant and defense attorney should be on the lookout for two types of provisions (among others) in government-proposed protective orders: (1) provisions that define “confidential information” or “personal identifying information” in overly broad terms, and (2) provisions that prevent defendants from personally accessing discovery without the defense team’s supervision.
In our recent case, the United States attorney’s office in the Central District of California originally proposed a protective order defining “confidential information” as “any document ... containing” “a name,” an “email address,” “financial information,” an “address,” or any other “information that can be used to identify a person.” In other words, the government sought to categorize every document as “confidential information.” The government’s proposal then mandated that the defendant could not “maintain, or otherwise possess any confidential information [i.e., any document produced by the government] in this case at any time.” Taken together, the defendant would not be permitted to copy any information, take any notes, receive any notes from the defense team, or be left alone with any of the discovery without supervision from a member of the defense team (which as defined, did not include the defendant himself).
A proposed order like this creates both logistical and constitutional issues.
The logistical nightmare is figuring out how a defendant can meaningfully view and comment on discovery in light of these restrictions. The issue is critical for both incarcerated and released defendants. Incarcerated defendants awaiting trial would only be able to view discovery when the jail and counsel are able to align schedules. And it should be no surprise to anyone that jails do not consistently allow defense counsel several hours-long visits to go through voluminous discovery with their clients in person. Released defendants are also highly prejudiced when they are unable to review the discovery themselves without counsel’s supervision. As another successful challenge to a similar protective order pointed out, it would be impractical (not to mention cost prohibitive) for defense counsel to sit with the defendant hour-after-hour while the defendant reviewed the information. Reply Supp. Disc. Appl. at 5, United States v. Estopare, 20-cr-79 (TJH) (C.D. Cal. May 18, 2020), ECF No. 105. This is especially true because criminal discovery is complex and often requires multiple readings, especially by laypeople. Id. The court agreed with these defendants, issuing an amended and more appropriate protective order. See Order, Estopare, ECF No. 110.
Especially during the pandemic, a protective order including the provisions mentioned above requires defense counsel to have to use video-conference technology such as Zoom or WebEx to screen share documents and click through each individual page as the defendant reviewed the pages one-by-one. This is time that could be used to prepare for trial. And it is commonplace knowledge that videoconferencing software often experiences disabling glitches, especially when trying to accommodate complicated actions like screen sharing. See, e.g., United States v. Baker, 20-cv-299 (LJL) (S.D.N.Y. Aug. 10, 2020) (rejecting similar government-proposed protective order because video-conferencing required by COVID-19 makes it even more time consuming and unworkable to review every document with counsel present). Now more than ever, overbroad protective orders preventing defendants from reviewing their own discovery are prejudicial to their defense.
Even without the logistical headaches exacerbated by the pandemic, the constitutional issues are no less important. As the U.S. Supreme Court observed, the rights guaranteed by the Sixth Amendment (including the ability to receive discovery), are held by the defendant, not his lawyers: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. ... Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” Faretta v. California, 422 U.S. 806, 819-20 (1975).
Since it is the accused holding a personal, constitutional right to make his defense, it is critically important that he is personally able to review his own discovery and on his own time. As the one who will “suffer[] the consequences if the defense fails,” id. at 820, the defendant is often more willing and able than his attorneys to spend greater time and energy reviewing discovery. The defendant may also be more equipped to find exculpatory evidence that counsel may miss because he, not counsel, possesses the critical background information and context to the discovery being produced.
The defendant himself is essential in forming the best defense possible, and protective orders limiting his involvement prejudice him as a result.
Practical Steps: Advocating for Appropriate Case-Specific Protective Orders
There are several strategies defense counsel should employ to achieve the best possible result with respect to protective orders.
1. Locate orders applied to similar defendants. The first step is to research what is realistic and reasonable for a defendant’s specific circumstances. Finding favorable language from protective orders previously issued in substantially similar cases is a great starting point and is highly persuasive to both the government and the court. In our recent case in the Central District of California, we proposed to the court language that was consistent with protective orders utilized by the government in eight substantially similar cases within the district. While a prosecutors’ office may have shifted its policy in favor of more restrictive, “one-size-fits-all” protective orders, this policy change does not alter the scope of the Sixth Amendment.
2. Meet-and-confer and come prepared. Proposing to meet-and-confer with the government in an attempt to resolve the dispute is another important strategic step and is always advisable before involving the court. In these negotiations, defense counsel should ask the government to articulate the specific facts and circumstances necessitating the proposed conditions. The government has the burden of identifying facts as to why disclosure of certain information would pose a specific and identifiable risk; a generalized fear that a defendant is charged with a serious offense is insufficient to warrant overly restrictive protective order conditions. Defense counsel should also point out the difficulties and prejudice to the defendant that would follow from the proposed order.
3. Avoid further delays and abide by a proposed protective order while you litigate the issue. A dispute over a protective order is a barrier to the defendant receiving timely discovery. When immediate discovery is desired, and delayed discovery would further prejudice the client, a good strategy is to volunteer that the defendant temporarily abide by the more restrictive terms of the government’s proposed order so that discovery can be produced while a reasonable alternative is negotiated or litigated. This should help move the government to produce discovery more quickly.
A willingness to meet-and-confer and abide by the government’s protective order terms while the issue is negotiated or litigated has the added benefit of demonstrating to the court that defense counsel is being cooperative and acting in good faith, which could tip the scales when the court makes its ultimate decision on the protective order.
Conclusion
Protective orders are “the exception, not the rule.” United States v. Stone, 10-cr-20123 (E.D. Mich. Jan. 18, 2012) (denying motion for protective order because “[t]he government has not met its burden to show disclosure will cause a clearly defined and serious injury”). And while protective orders are sometimes necessary, “one-size-fits-all” orders can be overbroad and unnecessary. If savvy defense attorneys, armed with tools like the ones discussed above, can advocate and win narrower protective orders that allow defendants to personally participate in their own defense, then prosecutors’ offices may be deterred from continuing to pursue such unnecessarily restrictive orders. Winning the battle over a protective order is a seemingly small step that can make a big difference in preparing a defense, especially during turbulent times.