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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`No. CR-18-00422-001-PHX-SMB
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`ORDER
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`United States of America,
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`Plaintiff,
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`v.
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`Michael Lacey - 001
`James Larkin - 002
`Scott Spear - 003
`John Brunst - 004
`Andrew Padilla - 006
`Joye Vaught - 007,
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`Defendant.
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`Pending before the Court is Defendant John Brunst’s Motion to Compel
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`Government Compliance with Court’s Order for Specific Identification of Documents
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`Subject to Protective Order.1 (Doc. 740, “Motion.”) The Government responded, (Doc.
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`767), and Defendant replied, (Doc. 771). The Court issues the following Order:
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`I.
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`BACKGROUND
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`This dispute arises out of two Court Orders relating to the public disclosure of
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`sensitive documents and materials subject to the Jencks Act (“Jencks Act materials”).2 (See
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`Docs. 730, 731.) The Court summarizes the Orders and parties’ relevant conduct before
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`addressing the Motion.
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`1 Defendants Scott Spear, James Larkin, Andrew Padilla, Michael Lacey join the Motion.
`(Docs. 741, 743, 745, 747.)
`2 The parties do not dispute whether specific documents are Jencks Act materials. Rather,
`they dispute whether certain documents, presumably covered by the Jencks Act, can be
`publicly disclosed.
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 2 of 7
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`A. Protective Order
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`On August 20, 2019, the Court ordered the Government disclose “any Jencks Act
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`[materials]3 not previously disclosed.” (Doc. 730 at 1, “Protective Order.”) The Court
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`further ordered Jencks Act materials may only be used “in connection with the defense of
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`this case” and “for no other purpose, and in connection with no other proceedings, without
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`further order of this Court.” (Id.) Copies of Jencks Act materials are not authorized. (Id. at
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`2.) Moreover, “Defendants . . . shall not disclose the [Jencks Act materials] or their
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`contents” either “[d]irectly or indirectly to any person or entity other than persons
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`employed to assist in the defense, persons who are interviewed as potential witnesses,
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`counsel for potential witnesses, and other persons to whom the Court may authorize
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`disclosure [(“authorized persons”)].” (Id. at 1-2.) Defendants must provide authorized
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`persons with a copy of this Protective Order. (Id. at 2.)
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`B. Protective Order’s Interpretation
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`On August 26, 2019, the Court interpreted the Protective Order upon Defendants’
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`request. (Doc. 731, “Interpretation.”) The Interpretation explicitly states the Protective
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`Order “applies ‘on a going-forward basis’ to all Jencks Act materials, not just those
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`disclosed on August 20, 2019.” (Id. at 1.) Moreover, the Protective Order’s disclosure
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`restrictions do not apply to the government. (Id. at 1.) Last, the Interpretation orders the
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`Government to “provide a list [(“the List”)] of Jencks Act material[s] disclosed and that it
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`considers to be part of [the Protective Order] by September 3, 2019.” (Id. at 2.) “The [List]
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`should,” the Court ordered, “include enough identifying information so [Defendants] can
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`locate and separate the materials subject to [the Protective Order].”4 (Id.)
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`C. Government’s Notice of Compliance
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`On September 3, 2019, the Government filed a Notice of Compliance with Doc. 730
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`and Doc. 731 after providing Defendants the List of Jencks Act materials. (Doc. 733; see
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`generally Doc. 740-1.) Specifically, the List contains two parts:
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`3 “Jencks Act materials,” per the Protective Order, includes “[any] materials provided by
`the United States in preparation for, or in connection with, any stage of the proceedings in
`this case.” (Id.)
`4 The Court did not order Bates numbers disclosed. (Id.)
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`- 2 -
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 3 of 7
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`First . . . is an excel spreadsheet identifying Jencks Act materials where each
`document is identified by witness, a short description of the document, and
`its Bates stamp. Second . . . the government incorporates by reference its
`August 20, 2019 letter entitled ‘Jencks Act Disclosure: Carl Ferrer.’ This
`letter lists the date and number of pages for each Memorandum of Interview,
`a disk containing reference materials, as well as a May 23, 2019, declaration
`from Brian Fichtner, with supporting video exhibits.
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`(Id. at 3) (emphasis in original). The Government also stated it will provide additional
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`Jencks Act materials as “victims and witnesses review and adopt their statements.” (Id.)
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`D. September 13, 2019 Hearing
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`On September 13, 2019, the Court stated it is “not willing to remove from [the
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`Protective Order] anything other than to say publicly available information.” (Doc. 767-1
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`at 6.) The Court further told Defendants: “If there is something else that should be removed
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`from the [Protective] [O]rder, then . . . you need to file something specific with that
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`designation so [the Court] can make that determination.” (Id.) As they again argue in this
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`Motion, Defendants argued at the hearing that the Government “should tell [Defendants]
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`what needs to be protected.” (Id. at 8.) The Court responded: “They just did. You disagree
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`with it.” (Id.) The Court further explained: “[I]f you want anything more specific than
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`things that are public are not protected . . . all you need to do is send [the Court] a list with
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`your motion saying this is what I don’t think should be protected and here’s why.” (Id. at
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`10.) Defendants replied: “[U]nderstood, and we can do that. We can provide the specifics
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`to the Court after we confer with the government further.” (Id.)
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`E. Post-hearing Dispute About Meaning of “Publicly-Available”
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`The parties began discussions about what should be excluded from the Protective
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`Order after the hearing. On September 15, 2019, the Government clarified which
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`documents it agreed are excluded from the Protective Order because they are publicly
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`available.5 (Doc. 740-1 at 30.) Two days later, Defendants responded disputing whether
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`5 A “publicly available document” is one obtained outside of this Court’s discovery
`process.
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`- 3 -
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 4 of 7
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`certain materials are publicly available. (Id. at 28-29.)
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`On September 23, 2019, the Government again clarified which materials it agreed
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`are excluded from the Protective Order but disputed Defendants’ assertion that identified
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`emails are publicly available. (Id. at 27) (“If a document is publicly-available then we don’t
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`believe it’s subject to the protective order.”) In addition, the Government explained the
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`extent to which certain documents are publicly available. (Id.)
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`On September 24, 2019, Defendants filed this Motion requesting the Court order
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`the Government to specifically identify documents it believes are subject to the Protective
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`Order. (Doc. 740 at 6.) Alternatively, Defendants request the Court remove the Protective
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`Order. (Id.) The Court denies Defendants’ Motion.
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`II.
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`LEGAL STANDARD
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`Federal Rule of Civil Procedure 26(c) provides that a “court may, for good cause,
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`issue an order to protect a party or person from annoyance, embarrassment, oppression, or
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`undue burden or expense, including . . . forbidding the disclosure . . . [and] prescribing a
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`discovery method other than the one selected by the party seeking discovery.” Fed. R. Civ.
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`P. 26(c)(1)(A), (C). “It is well-established that the fruits of pretrial discovery are, in the
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`absence of a court order to the contrary, presumptively public. Rule 26(c) authorizes a
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`district court to override this presumption where ‘good cause’ is shown.” San Jose Mercury
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`News, Inc. v. U.S. Dist. Ct., 187 F.3d 1096, 1103 (9th Cir. 1999) (citations omitted).
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`A protective order under Rule 26(c) is appropriately granted when the requesting
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`party makes a “particularized showing of good cause with respect to [each] individual
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`document.” San Jose Mercury News, 187 F.3d at 1103. In other words, “the party seeking
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`protection [must show] specific prejudice or harm will result if no protective order is
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`granted.” Phillips, 307 F.3d at 1210-11; see also In re Roman Catholic Archbishop of
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`Portland in Or., 661 F.3d 417, 424 (9th Cir. 2011) (“The party opposing disclosure has the
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`burden of proving ‘good cause.’”), cert. denied, 132 S. Ct. 1867 (2012). “[B]road
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`allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not
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`satisfy the Rule 26(c) test.” Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 5 of 7
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`Cir. 1992). “The law . . . gives district courts broad latitude to grant protective orders to
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`prevent disclosure of materials for many types of information.” Phillips, 307 F.3d at 1211.
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`In fact, the Supreme Court has interpreted Rule 26(c) to confer “broad discretion on the
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`trial court to decide when a protective order is appropriate and what degree of protection
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`is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). But “good cause” is
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`nevertheless required. San Jose Mercury News, 187 F.3d at 1103.
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`III. DISCUSSION
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`Defendants move to compel the Government to “specifically identify documents –
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`by title and Bates number – that it contends are subject to the protective order.” (Doc. 740
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`at 6.). Alternatively, Defendants move for removal of the Protective Order. (Id.)
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`Defendants do not argue that they have not received a list of documents subject to the
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`Protective Order.
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`A. Good Cause Exists for the Protective Order.
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`As a preliminary matter, Defendants do not challenge whether the Government has
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`shown good cause exists for the Protective Order. Nevertheless, the Court finds good cause
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`still exists in light of recent disclosures of the Government’s internal memoranda.6 While
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`“broad allegations of harm, unsubstantiated by specific examples or articulated reasoning,
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`do not satisfy the Rule 26(c) test,” Beckman Indus., 966 F.2d at 476, the Government has
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`provided concrete examples of pretrial disclosures. Requiring the Government to predict
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`precise harm for each Jencks Act material or other sensitive document’s disclosure is
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`unnecessary under Rule 26(c)’s test where similar harms are present for any disclosure.
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`Again, and most importantly, the Protective Order’s instructions for public
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`disclosure do not prevent Defendants’ receipt or use of discovery. Rather, they prescribe
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`reasonable restrictions for Defendants’ public disclosure of materials. These procedures
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`are appropriate considering the importance of protecting the integrity of this Court’s
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`judicial processes. Not only does the Court find good cause for these simple measures,
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`especially considering disclosure of sensitive materials has already occurred, but they in
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`6 The Government cites two recent publications of its internal memoranda with Bates
`numbers in their entirety. (Doc. 767 at 2 n.1.)
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 6 of 7
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`no way inhibit Defendants’ trial preparation. “[Rule 26(c)] allows a court to deny discovery
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`altogether. In the instant case, the order does not go so far, for it allows plaintiffs to obtain
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`information.” Curley v. Cumberland Farms Dairy, Inc., 728 F. Supp. 1123, 1141 (D. N.J.
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`Dec. 29, 1989). “In fact, the order does no more than set forth a procedure by which the
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`parties may present a dispute concerning the confidentiality of information.” Id. In fact,
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`these Court ordered assurances, by way of procedures relating to public disclosure,
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`expedite discovery.
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`Having found good cause exists for the Protective Order, the Court turns to
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`Defendants’ Motion as it relates to compelling the Government to specifically identify
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`documents subject to the Protective Order.
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`A. Materials Subject to the Protective Order Are Already Identified.
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`Defendants request the Government specifically identify each document subject to
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`the Protective Order. (Doc. 740 at 3.) Without knowing which documents are subject to
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`the Protective Order, Defendants argue they are “unable to evaluate the propriety of the
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`government’s designations (or comply with the Court’s Order).” (Id. at 4-5.) More
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`precisely, Defendants claim the “category of ‘non-public’ documents . . . needs further
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`elucidation and . . . [t]he defense should not be left to guess, or be forced to consult with
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`the government before copying a document, showing it to a potential witness, or otherwise
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`doing something that could result in an unwitting violation of the Protective Order.” (Doc.
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`771 at 3-4.) In essence, Defendants argue the Government bears the burden of identifying
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`documents subject to the Protective Order. (Id. at 2.)
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`On the other hand, the Government argues the Motion should be denied because it
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`has already provided a list of materials subject to the Protective Order. (Doc. 767 at 3)
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`(citing Doc. 740-1 at 3-5.) Moreover, the Government claims another list would be
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`unnecessary because the Court already interpreted the Protective Order’s scope. (Doc. 767
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`at 2.) Specifically, it argues the Court already specified “that the [sic] Protective Order
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`regarding Jencks Act material [is limited] to ‘an interview memorandum of Carl Ferrer, all
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`civil discovery material that remains under the Protective Order and other Jencks Act
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`Case 2:18-cr-00422-SMB Document 802 Filed 11/13/19 Page 7 of 7
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`materials not publicly available.’” (Id.) (quoting Doc. 737 at 2). The Government
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`highlights the Court’s unwillingness “to remove from [the Protective Order] anything other
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`than . . . publicly available information,” (Doc. 767 at 2) (quoting 767-1 at 6), as well as
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`the Court’s prescribed dispute process for Defendants: “[I]f there is something [besides
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`publicly available information] that should be removed from the protective order, then . . .
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`[Defendants] need to file something specific with that designation so [the Court] can make
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`that determination.” (Doc. 767 at 3) (quoting Doc. 767-1 at 6). The Court agrees that
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`requiring the Government to provide another list is unnecessary. The Government has
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`already provided it’s position concerning which materials are protected.
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`The Court stands by the Protective Order’s straightforward instructions. First, the
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`Government provides Defendants materials it believes are subject to the Protective Order.
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`If Defendants believe something should be excluded from the Protective Order, as seems
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`to be their primary concern here, (Doc. 740-1 at 11), then they must confer with the
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`Government and file a specific objection with the Court stating why they should be able to
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`disclose it. Only then will the Court determine whether disclosure is appropriate. Instead
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`of complying with the Court’s instructions, Defendants ask the Court to reconsider them.
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`The Court declines.
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`IV. CONCLUSION
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`The Court finds that the Government has complied with the Court’s Order by
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`providing Defendants a list of twenty-six (26) documents identified by description and
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`Bates numbers. Defendants properly discussed areas of disagreement with the
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`Government. The Government agreed with some of Defendants’ arguments but disagreed
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`with others. If there is still a dispute, the proper procedure is to ask the Court to find that
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`certain items are publicly available.
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`Accordingly,
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`IT IS ORDERED that Defendants’ Motion, (Doc. 740), is DENIED.
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`Dated this 13th day of November, 2019.
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