OPINION AND ORDER
KENNETH M. KARAS, District Judge:
In this multi-defendant case, the Government seeks a protective order governing the discovery materials it has produced and will be producing. Three of six Defendants oppose the Government's Application. For the reasons discussed herein, the Government's Application is granted, though with some modifications.
A. Factual Background
1. The Arrests and the United States Attorney's Press Conference
The Defendants in this case were arrested on April 2, 2013, and charged in a 28-page,
Later that day, the United States Attorney held a press conference to announce the arrests. Defendants base their opposition to the Government's Application, in part, on statements made by the United States Attorney at this press conference (and on other occasions). The United States Attorney began the press conference by introducing himself and then stating that "[t]oday is another sad and disappointing day for every New Yorker who hasn't yet given up on the dream of honest government." Preet Bharara, U.S. Att'y for the S. Dist. of N.Y., United States v. Malcolm Smith et al, Prepared Remarks (Apr. 2, 2013), available at http://www. justice.gov/usao/nys/pressconference/ malcolmsmith/remarks.pdf. The United States Attorney then stated that this case "demonstrate[d], once again, that a show-me-the-money culture seems to pervade every level of New York government." Id. He also said that this case involved "an unappetizing smorgasbord of graft and greed." Id. The United States Attorney then described in some detail the allegations in the criminal complaint that had been filed. Id. After noting that the "case against these defendants will unfold in federal court, and each is presumed innocent unless and until proven guilty," the United States Attorney went on to "make a general point" about how common corruption was in New York. Id. After citing the public-corruption cases the United States Attorney's Office has brought as proof of how common corruption was in New York, the United States Attorney said, "don't take my word for it," and asked those in attendance to "[c]onsider the words of [Defendant] Halloran, caught on tape in this case." Id. After quoting from Halloran, the United States Attorney observed that "[p]utting dirty politicians in prison may be necessary but it is not sufficient." Id. He then went on to explain that "even after a parade of politicians have been hauled off to prison," "it's time for others to step up" to also combat public corruption. Id.
2. The Indictment
On April 18, 2013, a grand jury returned an Indictment in ten counts,
Count Four charges only Smith with extortion under the Hobbs Act, Title 18, United States Code, Section 1951, in connection with his alleged promise to obtain state funding for a community-center project in Spring Valley, New York, in exchange for bribes related to the scheme charged in Counts One through Three, Counts Five and Six charge Halloran with honest-services wire fraud and a Travel Act violation, in connection with his alleged acceptance of bribes in exchange for discretionary funds from the New York City Council.
Counts Seven through Ten charge Defendants Noramie Jasmin ("Jasmin") and Joseph Desmaret ("Desmaret") with honest-services mail fraud, in violation of Title 18, United States Code, Sections 1343 and 1346, and Hobbs Act extortion, in violation of Title 18, United States Code, Section 1951, in connection with a scheme in which Jasmin and Desmaret allegedly accepted bribes in exchange for their help in completing the community-center project to which Smith allegedly agreed to send state money.
3. Discovery Production
At the initial appearance before the Court, on April 23, 2013, the Government described the discovery materials it would be producing in this case. This discovery included line sheets, recordings, text messages, and transcripts from both court-authorized and consensually recorded electronic surveillance, (See Apr. 23, 2013 Initial Conference Tr. ("Apr. 23 Conference Tr.") 4-5.) The discovery also included financial records, the fruits of physical searches (including several computers), and the affidavits and other documents submitted in support of the court-authorized electronic surveillance and searches. (See id.; see also Letter of Douglas B. Bloom, Esq. to the Ct., June 3, 2013 ("June 3 Bloom Ltr.").) These materials were mostly provided to Defendants in electronic format by copying them onto a hard drive. (See Apr. 23 Conference Tr. 4.)
Also, at this initial conference, counsel for Defendant, referring to a "local rule," shared his concern about public statements that had been made by the United States Attorney for this District and the District Attorney for Rockland County. (Id. at 9, 11 (noting that "there were a number of interviews given by law enforcement [in connection with this case]," and then specifically commenting, "I shouldn't say `law enforcement'[;][t]he United States Attorney, the District Attorney of Rockland County").) Counsel specifically expressed his concern about the possibility that the recorded conversations in this case might be leaked to the media. (Id. at 9-10.) While counsel acknowledged that he trusted the Assistant United States Attorney ("AUSA") assigned to this case, he noted that "there is a press office in the United States Attorney's Office," and that the
Regarding the possibility that the recorded conversations might be leaked to the media, the Court inquired of the Government whether it would be seeking a protective order of some kind, without suggesting that such an order was necessary or appropriate. (Id. at 12.) In response, the AUSA said that it was not the Government's intention to seek such an order, but noted that if "defense counsel have concerns about other defense counsel's conduct," then the issue could be re-visited. (Id.) The Court then reminded all counsel about the local rule of this District regarding extrajudicial statements by counsel, specifically citing the concern that no extrajudicial statements jeopardize the Parties' right to a fair trial. (Id. at 13-12; see also S.D.N.Y. Local Crim. R. 23.1 ("Free Press-Fair Trial Directives").)
The Court held a second conference on July 19, 2013. At that conference, the Government represented that it had produced the discovery it had promised to produce at the April 23 conference. (July 19, 2013 Conference Tr. ("July 19 Conference Tr.") 4-5.)
B. Procedural History
As noted, the Indictment in this case was returned on April 18, 2013. (See Dkt. No. 42.) On August 21, 2013, the Government filed an Application requesting that the Court enter a protective order pursuant to Fed.R. Crim.P. 16(d)(1) "governing the use and disclosure of discovery materials containing personal, proprietary or other confidential information produced by the Government in this action." (Letter of Justin Anderson, Esq. to the Ct., Aug. 21, 2013 ("Aug. 21 Anderson Ltr.") 1.) The proposed protective order would deem "[a]ll materials ... provided by the Government to the defense in this action pursuant to Rule 16 of the Federal Rules of Criminal Procedure, Title 18 United States Code Section 3500; Brady v. Maryland; or United States v. Giglio" to be considered "Confidential Information." (Letter of Deborah N. Misir, Esq. to the Ct., Aug. 28, 2013 ("Aug. 28 Misir Ltr.") Ex. A.) Under the protective order, this "Confidential Information" is to be used by Defendants and their counsel "only for purposes of defending this criminal action," but it may be disclosed to certain individuals (investigators, paralegals, etc.) who are called "Designated Persons" and who are assisting in the defense. (Id.) These "Designated Persons" are to sign an acknowledgment
Three Defendants (Halloran, Tabone, and Jasmin) submitted letters opposing the Government's request for this protective order. (See Letter of Benjamin Ostrer, Esq. to the Ct., Aug. 27, 2013 ("Aug. 27 Ostrer Ltr."); Aug. 28 Misir Ltr.; Letter of Vinoo P. Varghese, Esq. to the Court, Aug. 30, 2013 ("Aug. 30 Varghese Ltr.").) The Court held oral argument on October 7, 2013. On October 15, 2013, at the Court's direction, the Government submitted ex parte and for in camera review a letter outlining the Government's ongoing investigation of "possible misconduct connected to this case," which the Government contends would be at risk in the absence of a protective order. On October 16, 2013, counsel for Defendant Halloran submitted a letter to the Court arguing that the United States Attorney had committed "multiple infringements of the local rules, which have severely prejudiced Mr. Halloran's absolute right to a fair trial." (Oct. 16 Varghese Ltr. 1.) The Government responded to this letter on October 21, 2013. (See Letter of Douglas B. Bloom, Esq. to the Ct., Oct. 21, 2013 ("Oct. 21 Bloom Ltr."),)
A. Standard of Review
1. Right of Access
The Government seeks a protective order limiting the dissemination of the discovery materials it has produced, and will be producing, to Defendants. In particular, the Government's proposed protective order seeks to prevent Defendants from making the discovery materials available to the public, including the media.
The Supreme Court has held that "the press and general public have a constitutional right of access to criminal trials." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980)). This right serves a vital function in our government: "The presumption of access is based on the need for federal courts, although independent — indeed, particularly because they are independent — to have a measure of accountability and for the public to have confidence in the administration of justice." United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995) ("Amodeo II"); see also Richmond Newspapers, 448 U.S. at 584, 100 S.Ct. 2814 (Stevens, J., concurring) ("[T]he First Amendment protects the public and the press from abridgment of their rights of access to information about the operation of their government, including the Judicial Branch...."); Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 518, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ("Press-Enter. I") (Stevens, J., concurring) (noting that First Amendment access should be promoted where it "makes a positive contribution to th[e] process of self-governance"); In re Providence Journal, 293 F.3d 1, 9 (1st Cir.2002) ("Courts long have recognized that public monitoring of the judicial system fosters the important values of quality, honesty, and respect for our legal system." (internal quotation marks omitted)).
Subsequent to Globe Newspaper, the Supreme Court has used the same rationale to extend the First Amendment right of access to certain other criminal proceedings. In Press-Enterprise Co. v. Superior
The Second Circuit has applied the "`experience-and-logic' approach ... to both judicial proceedings and documents, and asks `both whether the documents have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question.'" Newsday LLC v. Cnty. of Nassau, 730 F.3d 156, 164 (2d Cir.2013) (emphasis removed) (quoting Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 120 (2d Cir.2006)). The Second Circuit uses another approach when analyzing only judicial documents related to judicial proceedings themselves covered by the First Amendment. Id. Under this approach, the Second Circuit "asks whether the documents at issue `are derived from or are a necessary corollary of the capacity to attend the relevant proceedings.'" Id. (quoting Lugosch, 435 F.3d at 120).
Applying these approaches, the Second Circuit has held that the First Amendment right of access applies to pretrial suppression hearings, see In re Herald Co., 734 F.2d 93, 98 (2d Cir.1984); voir-dire proceedings, see ABC, Inc. v. Stewart, 360 F.3d 90, 105-06 (2d Cir.2004); plea hearings, see United States v. Holler, 837 F.2d 84, 86 (2d Cir.1988); and sentencing hearings, see United States v. Alcantara, 396 F.3d 189, 191-92 (2d Cir.2005). In In re New York Times Co., 828 F.2d 110 (2d Cir.1987) ("New York Times I"), the Second Circuit extended the constitutional right to "written documents submitted in connection with judicial proceedings that themselves implicate the right of access," which in that case involved papers related to a motion to suppress an electronic-surveillance order. Id. at 114. Indeed, the Second Circuit has consistently affirmed that the right of access applies to "judicial documents" in criminal cases. See, e.g., United States v. Aref, 533 F.3d 72, 81-82 (2d Cir.2008) (applying the First Amendment right of access to a court order and legal memoranda filed with the court); United States v. Gerena, 869 F.2d 82, 85 (2d Cir.1989) (extending right of access to "briefs and memoranda" filed in connection with pre-trial and post-trial motions); Haller, 837 F.2d at 86 (applying the qualified right of access to plea agreements); In re New York Times Co., 834 F.2d 1152, 1154 (2d Cir.1987) ("New York Times II") (applying right of access to suppressionmotion papers). See generally Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir.2004) (noting that the "qualified right of access to judicial documents" is a "necessary corollary of the capacity to attend the relevant proceedings"); United States v. Madoff, 626 F.Supp.2d 420, 423-24 (S.D.N.Y.2009) (discussing the First Amendment right of access to certain judicial documents); Di Pietro v. United States, No. 02-CR-1237, 2009 WL 801609, at *2 (S.D.N.Y. Mar. 24, 2009) ("The right of access to judicial documents stems from the right of access to criminal trials"),
Apart from a constitutional right of access to court proceedings and documents, the Supreme Court has held that
Under the qualified right of access, whether as a matter of common or constitutional law, "[i]t is beyond dispute that ... members of the media and the public may bring third-party challenges to protective orders that shield court records and court proceedings from public view." Bond v. Utreras, 585 F.3d 1061, 1074 (7th Cir.2009); see also Nixon, 435 U.S. at 597, 98 S.Ct. 1306 ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."). However, neither the First Amendment nor the common law right of access is absolute. See Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (noting that the constitutional right of access may "give way ... to other rights or interests"); Stewart, 360 F.3d at 98 ("The constitutional right of access ... is not absolute...."). Indeed, the Supreme Court has cautioned that access
While protective orders related to judicial documents and criminal proceedings are subject to constitutional and common law scrutiny, protective orders related to discovery are not. This is because experience and logic show that there is no right of access to discovery materials. With respect to experience, pre-trial discovery, "unlike the trial itself, is usually conducted in private," Citizens First Nat'l Bank of Princeton v. Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir.1999); see also Bond, 585 F.3d at 1074 ("At common law, pretrial proceedings were closed to the public, and the federal discovery rules have not changed this common-law tradition." (citation omitted)); United States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986) ("Discovery, whether civil or criminal, is essentially a private process because the litigants and the courts assume that the sole purpose of discovery is to assist trial preparation. That is why parties regularly agree, and courts often order, that discovery information will remain private."); Richard L. Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L.Rev. 1, 37 (1983) ("[T]here simply is no tradition of public access to discovery.").
Because discovery is a private process between the parties to an action (even if governed by specific rules and managed by trial judges), courts generally view the documents or materials shared between them as outside the judicial function and therefore not presumptively accessible. See Amodeo II, 71 F.3d at 1050 (noting that because documents "passed between the parties in discovery" "play no role in the performance of Article III functions," they "lie entirely beyond" the common law presumption of access); accord Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984) (noting that "restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information"); United States v. Kravetz, 706 F.3d 47, 54 (1st Cir.2013) ("[T]here is no tradition of access to criminal discovery."); Baxter Int'l, Inc. v. Abbott Labs., 297 F.3d 544, 545 (7th Cir.2002) (noting that "[s]ecrecy is fine at the discovery stage, before the material enters the judicial record."); Bank of Am. Nat'l Trust & Sav. Ass'n v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir.1986) (stating that "discovery ... which is ordinarily conducted in private, stands on a different footing than does a motion filed by a party seeking action by the court"); Travelers Indem. Co. v. Excalibur Reinsurance Corp., No. 11-CV-1209, 2013 WL 4012772, at *11 (D.Conn. Aug. 5, 2013) ("Put simply, the public has no constitutional, statutory or common-law right of access to unfiled discovery."); United States v. Gangi, No. 97-CR-1215, 1998 WL 226196, at *3 (S.D.N.Y. May 4, 1998) (noting that there is no common law tradition of public access to discovery in criminal
With respect to logic, the courts have recognized the pitfalls in allowing unfettered public access to discovery materials. For one, the purpose of the discovery rules — to encourage the disclosure of information and materials to avoid unnecessary surprise and to level the playing field — might be undermined. See Kravetz, 706 F.3d at 54 (noting that decisions restricting public access to criminal discovery materials "are grounded largely on the concerns surrounding the deleterious effect that public access would have on the parties' search for and exchange of information in the discovery process"); Anderson, 799 F.2d at 1441 ("If ... discovery information and discovery orders were readily available to the public and the press, the consequences to the smooth functioning of the discovery process would be severe."). For another, there is the risk that disclosure of some of the discovery materials could taint a trial. See United States v. McVeigh, 119 F.3d 806, 813 (10th Cir.1997) (upholding district court's sealing of discovery materials deemed inadmissible at trial, holding that "disclosure of such [materials] would play a negative role in the functioning of the criminal process, by exposing the public generally, as well as potential jurors, to incriminating evidence that the law has determined may not be used to support a conviction"); United States v. White, No. 04-CR-370, 2004 WL 2399731, at *5 (E.D.Pa. Sept. 22, 2004) (noting that "[i]f the prosecutors and/or defense counsel had a practice of disclosing discovery materials to the media, this could be disruptive to a fair trial for all parties...."). And, because the discovery rules are reciprocal, there is the risk that unfettered public access could jeopardize a defendant's trial strategy. See Kravetz, 706 F.3d at 54 (noting, in context of journalist's request for materials obtained by Rule 17(c) subpoena, that "there is scant value and considerable danger in a rule that could result in requiring counsel for a criminal defendant to prematurely expose trial strategy to public scrutiny").
In the end, there is no presumptive right of access to the discovery materials provided in this Case. Thus, "an order prohibiting dissemination of discovered information
2. Rule 16(d) and Good Cause
The sought-after protective order would restrict public dissemination of discovery materials. "Rules authorizing discovery ... are a matter of legislative grace." Seattle Times, 467 U.S. at 32, 104 S.Ct. 2199; see also Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 788 (1st Cir.1988) (noting that the Supreme Court, in evaluating the legality of discovery protective orders, has "focused on the fact that discovery is a `matter of legislative grace'"). As a general matter, these rules are meant to foster "the use of compulsory process to facilitate orderly preparation for trial, not to educate or titillate the public." Joy v. North, 692 F.2d 880, 893 (2d Cir.1982). Here, as in all federal criminal cases, it is Rule 16 that principally governs pre-trial discovery. See Fed.R. Crim.P. 16; see also United States v. Briggs, No. 10-CR-184S, 2011 WL 4017886, at *5 (W.D.N.Y. Sept. 8, 2011) ("Federal Rule of Criminal Procedure 16 governs discovery in criminal cases."); United States v. Louis, No. 04-CR-203, 2005 WL 180885, at *2 (S.D.N.Y. Jan. 27, 2005) ("Rule 16 is ... the sole authorized vehicle under the Federal Rules of Criminal Procedure for pre-trial discovery in criminal cases."); United States v. Sturman, No. 93-CR-167, 1993 WL 262458, at *5 (N.D.Ill. July 12, 1993) ("It is only by virtue of Rule 16 of the Federal Rules of Criminal Procedure that pretrial discovery is generally provided for in criminal cases."). See generally Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (observing that "[t]here is no general constitutional right to discovery in a criminal case").
Rule 16 also contains a provision governing protective orders related to the production of pretrial discovery. Indeed, it is this provision, Rule 16(d)(1), that the Government cites in support of its request for a protective order. See Fed. R. Crim P. 16(d)(1) (providing that "[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief."); see also In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 122 (2d Cir.2008) (noting that Rule 16(d) grants district courts the discretion to establish conditions "under which the defense may obtain access to discoverable information"); United States v. Delia, 944 F.2d 1010, 1018 (2d Cir.1991) (noting that because the language of Rule 16(d)(1) "is ... permissive," the district court may "limit or otherwise regulate discovery had pursuant to the Rule"); United States v. Bulger, 283 F.R.D. 46, 51 (D.Mass.2012) ("Where... a defendant seeks unlimited access to discovery that is subject to a protective order, the federal rules provide the framework to adjudicate the disclosure and dissemination issue."); United States v. Lindh, 198 F.Supp.2d 739, 741 (E.D.Va. 2002) ("Analysis of the government's request for a protective order ... appropriately begins with Rule 16(d)....").
Good cause exists "when a party shows that disclosure will result in a clearly defined, specific and serious injury." In re Terrorist Attacks on September 11, 2001, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006) (quoting Shingara v. Skiles, 420 F.3d 301, 306 (3d Cir.2005)). A finding of harm "must be based on a particular factual demonstration of potential harm, not on conclusory statements." Gangi, 1998 WL 226196, at *2 (quoting Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir.1986)); see also Wecht, 484 F.3d at 211 ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." (internal quotation marks omitted)). "The nature of the showing of particularity, however, depends upon the nature or type of protective order at issue." Bulger, 283 F.R.D. at 52. Protective orders come in all shapes and sizes, "from true blanket orders (everything is tentatively protected until otherwise ordered) to very narrow ones limiting access only to specific information after a specific finding of need." Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir.1993). "A blanket protective order `extend[s] broad protection to all documents produced by [a party], without a showing of good cause for confidentiality as to any individual documents.'" Bulger, 283 F.R.D. at 52-53 (quoting Public Citizen, 858 F.2d at 790) (alterations in original); see also In re Terrorist Attacks on Sept. 11, 2001, 454 F.Supp.2d at 222 ("In cases of unusual scope and complexity ... broad protection during the pretrial stages of litigation may be warranted without a highly particularized finding of good cause.").
"Examining [a] protective order under the framework of Rule 16(d) ... does not eliminate the First Amendment as a relevant concern." Bulger, 283 F.R.D. at 50. Rather, "[t]he existence of the protective order ... confines First Amendment scrutiny, including defendant's right to disseminate the discovery material, to the framework of Rule 16(d)'s good cause requirement." Id.; see also Chi. Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir.2001) ("The district court required Firestone to meet a compelling interest standard. To the extent this was predicated on a constitutional right of access, it was error."); Public Citizen, 858 F.2d at 788 (noting that Seattle Times did not eliminate the First Amendment "as a relevant consideration in protective order," but rather established that protective orders must be considered "within the framework of [the] requirement of good cause"); Anderson, 805 F.2d at 7 (noting that under Seattle Times, if the good-cause standard is met, then a protective order "does not offend the First Amendment"). Applying this standard requires courts to balance several interests, including whether dissemination of the discovery materials inflicts "hazard to others," Carriles, 654 F.Supp.2d at 566 (quoting Alderman, 394 U.S. at 185, 89 S.Ct. 961), and whether "the imposition of the protective order would prejudice the defendant," id.; see also United States v. Davis, 809 F.2d 1194, 1210 (6th Cir.1987) (requiring the defendant to "demonstrate substantial prejudice" from "imposition of a Rule 16 protective order"). Finally, "[t]he good cause determination must also balance the public's interest in the information
1. Government's Claim of Good Cause
The Government seeks a blanket protective order in this case, claiming it is necessary to further two interests. One is the protection of third parties whose interests might be jeopardized by being associated with the Defendants and their alleged misconduct. The other is the integrity of what the Government contends are ongoing investigations into the criminal conduct of others connected to this case.
a. Privacy Interests of Third Parties
The Government asserts that a protective order is appropriate here because the "discovery ... includes recorded conversations of and references to third parties who have not been charged with any criminal offenses." (Aug. 21 Anderson Ltr. 3.) According to the Government, the "use of the discovery to besmirch the character and reputation of uncharged third parties should not be allowed," (Id.)
The Government is correct that courts have recognized that the interests of third parties may justify restrictions on public access to judicial and other documents and materials. See, e.g., Amodeo II, 71 F.3d at 1050-51 (noting that the "privacy interests of innocent third parties ... should weigh heavily in a court's balancing equation" in determining the public's access to judicial documents) (quoting Gardner v. Newsday, Inc., 895 F.2d 74, 79-80 (2d Cir.1990)); TheStreet.Com, 273 F.3d at 232 (same); United States v. Gerena, 869 F.2d 82, 85 (2d Cir.1989) (noting, in context of disclosure of Title III intercepts, that district courts must "balance the public's right of access against the privacy and fair trial interests of defendants, witnesses and third parties"); New York Times I, 828 F.2d at 116 ("Certainly, the privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure of Title III material should weigh heavily in a court's balancing equation in determining what portions of motion papers in question should remain sealed or should be redacted."); Carriles, 654 F.Supp.2d at 567 ("It is well settled that preventing harm to a person's economic interests is an appropriate purpose of a protective order."); United States v. Simpson, No. 09-CR-249, 2010 WL 3633611, at *2 (N.D.Tex. Sept. 20, 2010) ("Simpson I") ("The court can order the redaction of [third-party] names if it finds that substantial privacy interests would be violated by disclosure ......").
Defendants do not contest the general authority of courts to enter protective orders to protect innocent third parties, but they reject the need for any such order here. First, Defendants argue that because the third parties in this case are public officials, any misconduct on their part should not be shielded from the public. (See Aug. 28 Misir Ltr. 3.) In support of this point, Defendants rely on United States v. Huntley, 943 F.Supp.2d 383 (E.D.N.Y.2013), In Huntley, members of the media sought the unsealing of a memorandum filed by a defendant in anticipation of sentencing in a public-corruption case. See Huntley, 943 F.Supp.2d at 384-85. The letter argued for a lower sentence because of the defendant's cooperation, and listed the state legislators and other elected officials who were recorded by the defendant as part of her cooperation. Id. In granting the media's request for access to the letter, the court noted that the privacy interests of the elected officials were at their "lowest," because these officials were "well-equipped" to "respond to any accusations of wrongdoing." Id. at 387; see also Pansy, 23 F.3d at 787 (noting that "privacy interests are diminished when the party seeking protection is a public person subject to legitimate public scrutiny"); White, 2004 WL 2399731, at *5 (holding that disclosure of grand-jury testimony of city employees was proper because "they cannot be expected to have any personal privacy interest in their duties as [c]ity employees").
Huntley, however, provides limited support to Defendants' position. First, that case involved a sentencing letter filed with the court and thus was a judicial document that was presumptively accessible to the public as a matter of constitutional and common law. See Huntley, 943 F.Supp.2d at 385-88 (explaining why defense letter filed in advance of sentencing was presumptively accessible under First Amendment and common law). Here, on the other hand, the materials at issue are not judicial documents and, as explained above, are not presumptively accessible to the public as a matter of common and constitutional law. This difference is legally significant as discovery materials may be subject to a protective order on a mere showing of good cause, but then become
Second, the cases that recognize the interests of third parties as justifying non-disclosure of certain materials speak to the unfairness of being stigmatized from sensationalized and potentially out-of-context insinuations of wrongdoing, combined with the inability of these third parties to clear their names at trial. See, e.g., United States v. Ladd, 218 F.3d 701, 703 (7th Cir.2000) ("[T]he only reason for disclosing the identities was to stigmatize the individuals.... [B]ut [they] would have no opportunity to clear their names at trial."); Simpson I, 2010 WL 3633611, at *2 ("The primary concern is that public disclosure of the persons associated with criminal activity may cause damage to the unindicted person's reputation with no corresponding opportunity to defend his reputation at trial."). Thus, while it may be that elected officials have easier access to the media, thus facilitating public denials of any wrongdoing, they are not able to clear their names through such denials with the same force as a favorable verdict might provide. The Eighth Circuit recognized this when it denied the media access to intercepted communications in a case involving "allegations of widespread fraud and bribery within the Department of Defense and the defense industry." Certain Interested Individuals v. Pulitzer Publ'g Co., 895 F.2d 460, 461 (8th Cir.1990). In that case, the court explained the incurable damage that could be caused by disclosure of the intercepted conversations against those who are not charged and who therefore will not be tried:
Id. at 466-67 (citations, internal quotation marks, and brackets omitted).
A similar conclusion was reached by the Third Circuit in United States v. Smith, 776 F.2d 1104 (3d Cir.1985). In that case, the defendants were indicted on fraud and racketeering charges related to an alleged scheme to corruptly obtain certain government
In affirming, the Third Circuit determined that the bill of particulars was "more akin to the functions of an indictment than to discovery," id. at 1111, and therefore was a judicial document that should be presumptively accessible under the First Amendment and common law, id. at 1112 ("[W]e hold that ... access [to the bill of particulars] is protected by the First Amendment and the common law...."). Nonetheless, the Third Circuit found that the privacy interests of the unindicted co-conspirators outweighed the public's qualified right of access. Id. at 1105, 1113-14. The publication of the list, especially in the absence of sufficient facts to explain why these individuals might be viewed as co-conspirators in the alleged corruption scheme, was viewed as risking more "than mere embarrassment" to these third parties. Id. at 1114. Instead, because these individuals had not been indicted, "and, accordingly, [would] not have an opportunity to prove their innocence at trial," the Smith court concluded that these individuals would suffer "clearly predictable injuries to [their] reputations" that were "likely to be irreparable," and "career ending." Id. at 1113-14. In reaching this conclusion, the court was "mindful of the fact that the list contains the names of some individuals who are public officials and some who are public employees," and "that the public has a substantial interest in the integrity or lack of integrity of those who serve them in public office." Id. at 1114. However, the court rejected the notion that "the subject matter of the particular information to which access is sought can control the issue...." Id. As the court explained:
Id. at 1114-15. There may well be, and indeed there should be, public interest in
Moreover, in this case, it is far from clear that all the third parties whose reputations might be tainted from public disclosure of the discovery materials are, in fact, public officials. See United States v. Luchko, 2007 WL 1651139, at *7 (E.D.Pa. June 6, 2007) (noting that while "some of the persons involved in the discovery materials are certainly public officials for whom privacy interests are diminished, many of the persons referenced ... are private persons who have personal privacy interests"). Indeed, the Indictment contains allegations against non-government individuals whose connection to this case is that they are members of, or associated with, political parties. And, the Indictment contains other allegations relating to certain business transactions that could well involve non-public officials.
This point, in fact, segues into Defendants' second objection to the Government's claim of good cause. Specifically, Defendants argue that the Government has not identified the third parties whose reputations might be affected by public disclosure of information, or how their interests would be compromised. (See Aug. 30 Varghese Ltr. 3.) This is a fair point, because to establish good cause based on the interests of third parties, the Government may not rely on conclusory allegations. See Pansy, 23 F.3d at 786 ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing." (internal quotation marks omitted)); United States v. Simpson, No. 09-CR-249, 2010 WL 4282173, at *2 (N.D.Tex. Oct. 28, 2010) ("Simpson II") (rejecting prosecutor's request to redact certain portions of an affidavit because it included names of third parties, noting that "the government does not specifically establish how disclosure of these individuals' names amounts to a firm accusation, or how disclosure violates substantial privacy interests"); HSqd, LLC v. Morinville, No. 11-CV-1225, 2013 WL 1149944, at *3 (D.Conn. Mar. 19, 2013) (rejecting request for protective order because movant's "alleged example of injury is rife with speculative
In its initial letter seeking a protective order, the Government argued that "the discovery in this matter includes recorded conversations of and references to third parties who have not been charged with any criminal offenses." (Aug. 23 Anderson Ltr. 3.)
The Court has no basis to accept or reject the Government's claim that third parties could be tainted because they are picked up on the recordings in this case, or otherwise appear in the discovery in this case. See Gerena, 869 F.2d at 86 ("Certainly, the privacy interests of innocent third parties as well as those of defendants that may be harmed by disclosure of the Title III material should weigh heavily in a court's balancing equation ...." (quoting New York Times I, 828 F.2d at 116)). However, the absence of specific examples beyond Isaacs (which cannot be undone) leaves a gap in the record that prevents the Court from making a finding, either way, as to whether there is good cause to enter a protective order. For example, the Government has not offered information about, among other things, the identities of the third parties, whether these other third parties are public officials or private citizens, which specific discovery materials would unfairly sully their reputation, and whether the conduct of these individuals would be proven at trial (which would be open to the public). Without this information, the Court cannot determine, for example, how much weight to give to the interests of the third parties, whether redactions to the discovery might alleviate the Government's concerns, or instead, whether a blanket protective order would be the only way to protect the interests of the third parties. See, e.g., United States v. Swartz, 945 F.Supp.2d 216, 221 (D.Mass. 2013) ("[R]edaction of even judicial records may be appropriate when third-party privacy interests are jeopardized."); Bulger, 283 F.R.D. at 57 ("[T]he government's statement regarding privacy presents a viable argument. At this point, however, and without a description of the material or reviewing the documents at issue, it is difficult to make a determination."). Thus, as it currently stands, the Government's case for good cause is quint-essentially one based on conclusory allegations and cannot be the basis for the protective order the Government seeks. See S.E.C. v. Rajaratnam, 622 F.3d 159, 185 (2d Cir.2010) ("[A] definitive balancing of the interests at stake in this case is impossible, because the record is not adequately developed to support the broad order appealed from."); Simpson I, 2010 WL 3633611, at *3 ("The government has not established that the unindicted persons will suffer injury to their reputations because of public disclosure of their names."). If the Government wishes to augment the Record on this point, it may seek leave to do so. See Simpson I, 2010 WL 3633611, at *3 (providing the prosecution with additional time to establish good cause to keep sealed a post-indictment restraining-order application on the claim that disclosure of the application threatened the interests of unindicted third parties). For now, therefore, the Court will not enter a protective order on this basis.
b. Ongoing Investigations
In its initial application for the Protective Order, the Government asserted that disclosure of the discovery materials might "impede" ongoing investigations. (Aug. 21 Anderson Ltr. 3.) In
As a general proposition, courts have repeatedly recognized that materials, including even judicial documents which are presumptively accessible, can be kept from the public if their dissemination might "adversely affect law enforcement interests." Amodeo II, 71 F.3d at 1050; see also Lugosch, 435 F.3d at 120 (noting that the "danger of impairing law enforcement" may be a countervailing factor outweighing the qualified right of access); Madoff, 626 F.Supp.2d at 427 (rejecting press access to emails sent by victims in a major fraud case, because "disclosing the details of the Government's efforts to obtain evidence will undoubtedly hamper the investigation"); United States v. Park, 619 F.Supp.2d 89, 94 (S.D.N.Y.2009) (holding that the need to "maintain the secrecy of the Government's investigation" outweighed the public's right of access to sentencing documents). Thus, where public disclosure of certain materials might officially reveal the sources and methods law-enforcement officials have used, and will continue to use, to investigate other criminal conduct related to the publicly filed charges, courts have found it appropriate to enter a protective order. See, e.g., United States v. Bin Laden, No. 98-CR-1023, 2001 WL 66393, at *2 (S.D.N.Y. Jan. 25, 2001) (noting that the court adopted a protective order because dissemination of discovery materials would "jeopardize the ongoing Government investigation into the activities of alleged associates of the Defendants"); United States v. Milken, 780 F.Supp. 123, 127 (S.D.N.Y. 1991) ("[T]he public should have access to information as to the general nature and extent of defendant's cooperation, if disclosure can be made without jeopardizing ongoing or future investigations ...." (emphasis removed)).
As is true with the assertion of protecting the interests of third parties, the Government has the burden of demonstrating, and not just alleging, that public disclosure of the Rule 16 materials in this case could jeopardize ongoing investigations. In support of its application, the Government has submitted ex parte a letter for in camera review. (See Sealed Letter from the Government to the Ct., Oct. 15, 2013 ("Sealed Ltr.").)
Defendants, who have not been made privy to the Government's ex parte submission, and who do not quarrel with the legal supposition that protective orders may be appropriate in certain cases, contest the Government's need for a protective order (especially one as broad as that sought here) on three grounds: that (i) the public has a right to know which public officials are under investigation; (ii) media reports already have revealed the Government's cooperating witness; and (iii) the Government jeopardized its own investigation during its "loud" press conference, (See Aug. 28 Misir Ltr. 3-4 (explaining that press reports which came out within a day of Defendants' arrest about the Government's cooperating witness have already alerted other targets of the ongoing investigation); Aug. 30 Varghese Ltr. 1, 4 (discussing the public's interest in knowing about how "the government investigates and prosecutes" public officials and the press conference announcing the arrests in this case).) None of these objections, however, sufficiently undercuts the Government's good-cause claim.
First, as Defendants suggest, while there may be great public interest in learning about the Government's investigation of public officials, there is a greater public interest in allowing those investigations to run their course. Indeed, Defendants argued, in response to the Government's claim about the privacy interests of unindicted third parties, that the public has an interest in learning about the misdeeds of their public officials. If true, then presumably the public would not want these officials to escape accountability because they are able to frustrate law-enforcement investigations that are prematurely revealed. Thus, there is no countervailing interest that would outweigh the Government's substantiated interest in meeting its discovery obligations in this case in a way that does not jeopardize the investigation of other public officials suspected of violating the law. See Swartz, 945 F.Supp.2d at 222 ("[A]lthough the public has expressed a strong interest in the investigation and prosecution of Mr. Swartz, that fact does not bestow upon his estate the right to disclose criminal discovery materials produced to his counsel solely for the purpose of preparing for trial."); Mannino, 480 F.Supp. at 1188 (delaying the prosecution's production of certain discovery materials and the trial to avoid disclosing an ongoing criminal investigation, noting that "[a]lthough the public ordinarily has a strong interest in prompt disposition of criminal charges, in this case the public has an even stronger stake in
As to the second point, that media sources have already burned the investigation by revealing the Government's cooperating witness, the Court concludes that this is no basis to reject the Government's proposed protective order. To begin, Defendant's argument is premised on the notion that there is only one cooperating witness, and that that witness is the only source of the information that is part of the ongoing investigations. Based on the sealed letter that the Government has submitted, this premise appears to be inaccurate. (See Sealed Ltr.) Moreover, even if there were press reports suggesting the identity of the cooperating witness, and even if those reports prove to be accurate, see Senior Aide Implicating Bin Laden in Terrorism, N.Y. Times (Dec. 3, 1998), http://nytimes.com/1998/12/03/world/senior-aide-implicating-bin-laden-interrorism.html (citing unnamed sources to identify prosecution's cooperating witness in ongoing terrorism investigation, but the sources' information proved inaccurate), that is not the functional equivalent of officially acknowledging the cooperating witness, let alone the information that the witness has provided. See Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C.Cir.1983) ("[E]ven if a fact — such as the existence of ... [a secret] liaison — is the subject of widespread media and public speculation, its official acknowledgment by an authoritative source might well be new information that could cause damage to the national security."); cf. Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009) (noting that under the Freedom of Information Act ("FOIA"), "the law will not infer official disclosure of information classified by the CIA from ... widespread discussion of a classified matter"); Halpern v. FBI, 181 F.3d 279, 294 (2d Cir.1999) (under FOIA, the government may be deemed to have waived its right to keep certain information confidential "only where the government has officially disclosed the information the requester seeks" (emphasis added)).
However, after the Parties fully briefed this issue, the Government officially recognized the existence of a cooperating witness. On November 12, 2013, the Court accepted the guilty plea of Defendant Savino. In media reports immediately following this plea, Savino's attorney would not say whether his client was cooperating with the Government and specifically declined to "speculate" how Savino's plea would affect the cases of the other Defendants in this Case. See Courtney Gross, Former Bronx GOP Chairman Pleads Guilty in Connection with Alleged Bribery Scheme, N.Y. 1 (Nov. 12, 2013), http//www. nyl.com/content/politics/political — news/ 198612/former-bronx-gopchairman-pleas-guilty-in-connection-with-alleged-bribery-scheme. However, over the next two
The official disclosure that Savino is cooperating weakens the Government's claimed need for the Protective Order. Again, without revealing the details of the Sealed Letter, it is clear that some of the investigative fault lines described in the letter can now be ascertained by those whose cooperation Savino would implicate. See Huntley, 943 F.Supp.2d at 387 ("Every legislator who has conversed with this defendant
Third, and finally, Defendants' claim that the Government has undermined its own investigative interests through the "loud" press conference misses the mark. (See Aug. 30 Varghese Ltr. 4.) Defendants have failed to identify anything in the substance of what was said during the press conference that was beyond the public record. Indeed, at oral argument, the Government explained how each of the conversations that were quoted during the press conference was lifted from the criminal complaint. (Oct. 7 Conference Tr. 17-18.) Therefore, the Government did not waive its claim for a protective order by revealing at the press conference anything in the discovery materials that is not already part of the public record. And, because, as explained, the discovery materials do contain information that is germane to the ongoing investigations, the Court concludes that nothing about the press conference, or any of the other statements made by the United States Attorney, jeopardized the Government's ongoing investigations.
Accordingly, the Court finds that the Government has established that the ongoing investigations related to this case and/or the Defendants constitutes good cause under Rule 16(d)(1) for a protective order.
2. Defense Objections
Apart from rebutting the Government's claims of good cause, the Defendants who oppose the Government's request have lodged other objections to the entry of a protective order. These objections are as follows: (i) the Defense should be given a fair opportunity to rebut the inappropriate extrajudicial statements by the United States Attorney; (ii) the Government has waived its right to a protective order because of the delay in seeking it; and (iii) a blanket protective order would unfairly prejudice the Defendants by adversely affecting their trial preparation.
a. Fair Response to the United States Attorney's Extrajudicial Statements
In Halloran's initial opposition to the Government's application, he argued that "the United States Attorney in this district called a widely publicized press conference to announce the defendants' arrests, and made comments effectively rendering the presumption of innocence null and void." (Aug. 30 Varghese Ltr. 6-7.) At oral argument, counsel for Tabone concurred with this assessment, claiming that the United States Attorney violated Local Rule 23.1 by making certain statements during the aforementioned press conference and during his appearance before the Moreland Commission which prejudged the guilt of Defendants. (Oct, 7 Conference Tr. 33.) After oral argument, Halloran submitted a letter outlining in greater detail why he thinks the United States Attorney violated Local Rule 23.1. (See Oct. 16 Varghese Ltr.) However, while Halloran believes that the Government should be admonished for this violation of Local Rule 23.1, he explicitly declined in his follow-up letter to seek sanctions for the alleged violations of this Local Rule. (Id. at 8.) Instead, Halloran and Tabone argue that the Court should take the alleged
There are a number of rules, regulations, and ethical canons governing extrajudicial statements in criminal cases. Local Rule 23.1 sets forth a number of requirements regarding extra-judicial commentary regarding pending cases:
S.D.N.Y. Local Crim. R. 23.1 (last updated 1997). This rule mirrors Rule 3.6 of the New York Rules of Professional Conduct, which provides that:
N.Y. Rules of Prof'l Conduct 3.6 (adopted Apr. 1, 2009).
Moreover, the Department of Justice "has issued guidelines to its employees governing trial publicity.... DOJ employees are permitted only to release identifying information regarding the defendant, the substance of the charges, the identity of the investigating agency and the circumstances immediately surrounding an arrest." United States v. Corbin, 620 F.Supp.2d 400, 410 (E.D.N.Y.2009) (citing 28 C.F.R. § 50.2) (internal quotation marks omitted). The applicable DOJ regulations specifically provide that "[d]isclosures should include only incontrovertible, factual matters, and should not include subjective observations." 28 C.F.R. § 50.2(b)(3)(iv). These regulations also instruct DOJ personnel to refrain from making any comments about "[s]tatements, admissions, confessions, or alibis attributable to a defendant," or offering "[a]ny opinion as to the accused's guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense." 28 C.F.R. §§ 50.2(b)(6)(h) and (vi). This regulation is supplemented by guidelines in the Department of Justice United States Attorneys' Manual. The Manual instructs that "[p]ress conferences should be held only for the most significant and newsworthy actions, or if a particularly important deterrent or law enforcement purpose would be served." U.S. Dep't of Justice, U.S. Att'ys' Manual § 1-7.401(A) (2009) ("U.S. Att'ys' Manual"). The Manual also counsels that "[p]rudence and caution should be exercised in the conduct of any press conference or other media contact." Id.
Taking the claims in reverse order, the argument that the Government violated Local Rule 23.1 when it mentioned in a court filing that there were plea discussions is without merit. Local Rule 23.1 is addressed only to extrajudicial statements, not to court filings. Indeed, it is common for counsel in criminal cases to comment in written submissions and during court proceedings that there are plea discussions when, for example, seeking an extension of time in which to file pretrial motions and asking that time be excluded from the Speedy Trial Act.
Similarly unpersuasive is Halloran's claim that the statements made by the United States Attorney during the Moreland Commission hearing violated
Turning to the comments made by the United States Attorney at his April press conference, Defendants point to the United States Attorney's descriptions of the charges in this case as representing an "unappetizing smorgasbord of graft and greed," and a "show me the money" culture of corruption, and argue that those statements improperly taint them in the public eye. Defendants' concerns about these phrases are not entirely baseless, for whatever goal these phrases were meant to serve, it is hard to find that they had any compelling law-enforcement purpose. As such, there is room to question whether these comments are the type of "subjective observations" that the regulations eschew, see 28 C.F.R. § 50.2(b)(3)(iv), or whether they reflect the degree of "prudence and caution" that is to be exercised by prosecutors during press conferences, see U.S. Att'ys' Manual § 1-7.401(A). But, these phrases do not cross the line drawn by Rule 23.1 in the sense that they do not, by themselves, constitute opinions as to the Defendants' guilt, and are not otherwise the type of statements proscribed by the rule. The same is true of the characterization that Halloran "quarterbacked" the scheme. This merely describes Halloran's alleged role in the conspiracy. That the United States Attorney chose to use the word "quarterbacked," as opposed to "led" or "directed," does not make for a Rule 23.1 violation.
Halloran also objects to the United States Attorney's reference to "dirty" and "corrupt" politicians in the same press conference. The Government defends the use of these words because they were used later in the press conference when the United States Attorney "addressed the problem of corruption more generally," and after he noted that each of the Defendants was presumed innocent. (Oct. 21 Bloom Ltr. 2.) It is true that after describing the particular charges in this case (which description included the above-discussed phrases), the United States Attorney elected to address the general topic of public corruption, and inserted the line about the presumption of innocence between these two topics. But, in commenting about how pervasive corruption was in New York, the United States Attorney
The Government's effort to decouple the general comments about public corruption from this case is tenuous. The statements about "dirty" and "corrupt" politicians being "hauled off to prison" were made at the very same conference where the charges against these Defendants were announced. And, the link between the charges in this case and the "general point" about "pervasive" public corruption in New York state was made by quoting Halloran's recorded statements. Thus, it would not be irrational for some to interpret the statements at the press conference, taken in their entirety, as holding Defendants out as the latest examples of "dirty" and "corrupt" politicians who will be "hauled off to prison" in the broad-scale efforts to combat corruption and, therefore, to be a comment on the guilt of Defendants. See Corbin, 620 F.Supp.2d at 411 (finding statements by the United States Attorney and a senior FBI official about how public-official defendant "will... be held to account" for his crimes, and how "[t]he people rightly expect their elected representatives ... to behave honorably," to be improper).
But, even if these statements could be considered opinions on the Defendants' guilt, they do not justify rejecting the requested Protective Order, given the Government's demonstration of good cause here. First, Defendants have not demonstrated, and, in fact, have not asked the Court to determine, that the statements at the press conference have "compromised this criminal proceeding and the future trial." Id.; see also United States v. Perryman, No. 12-CR-123, 2013 WL 4039374, at *13 (E.D.N.Y. Aug. 7, 2013) (same). Indeed, to make out such a claim, Defendants would have to show that the press conference "so permeated the public as to have hindered the ability of the Court, probably some six months or more from now, to impanel a fair and impartial jury in this case, especially in light of the size of the jury pool in this huge district." Corbin, 620 F.Supp.2d at 411; Perryman, 2013 WL 4039374, at *13 (same).
Second, regardless of the propriety of these statements, "Defendants] [have] no constitutional right to use the media to influence public opinion concerning [t]his case so as to gain an advantage at trial." Lindh, 198 F.Supp.2d at 743. Thus, the "argument that a protective order would impede such a right is entirely unconvincing." Id. Put another way, and in the simplest terms, two wrongs do not make a right. Indeed, apart from any "right" of Defendants to use the discovery to counter the Government's extra-judicial statements, the Court has an independent obligation to "avoid the creation of a `carnival atmosphere' in high-profile cases." United States v. Brown, 218 F.3d 415, 429 (5th Cir.2000) (quoting Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966)). As Justice Holmes explained over a century ago: "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and
However, none of this discussion should be interpreted as giving senior prosecutorial officials a one-time pass, let alone a blank check, to make any statements they might like about a case that has not reached its conclusion. "The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). As such, the prosecutor's interest "is not that [he] shall win a case, but that justice shall be done." Id. Because of the unique role played by prosecutors in our justice system, "[t]he prevailing view is that prosecutor statements are more likely to influence prospective jurors," than those of other advocates. Scott M. Matheson, Jr., The Prosecutor, the Press, and Free Speech, 58 Fordham L.Rev. 865, 868 (1990); see also Lipman, 47 Am.Crim. L.Rev. at 1533 ("Statements by prosecuting attorneys, in particular, have increased likelihood to influence the public because the attorneys speak with the inherent authority of the government." (citation and internal quotation marks omitted)). Thus, it is essential that prosecutors respect both the power of their words and their office, and ensure that their public comments are carefully tailored solely to further valid law enforcement interests and to steer far clear of violating a defendant's fundamental right to a fair trial. See Barkow, 44 Ga. L.Rev. at 1019 (noting that press conferences "provide little benefit relative to the dangers that they may pose in creating bias against the defendant"). And, it is well within the courts' authority to adopt appropriate measures to ensure that the entire process, from arrest to disposition, is fair and is perceived to be fair. See United States v. Capra, 372 F.Supp. 609, 615-16 (S.D.N.Y.1974) (noting that "mere gnashing of judicial teeth should not remain the sole response to... [instances where] the indictment and arrest become the circuses they too often are, complete with prosecutors' press conferences and photographic spreads"). Included in that authority is the ability to impose a wide range of sanctions or other remedies. See, e.g., Dow Jones, 842 F.2d at 609-12 (approving of "gag order"); United States v. Scrushy, No. 03-CR-530, 2004 WL 848221, at *2 (N.D.Ala. Apr. 13, 2004) (noting that because of the Government's "press conferences, press releases, and statements created and/or played to the intense publicity
Halloran also argues that the Government "waived any rights" to a protective order by waiting to seek judicial intervention until after "a local newspaper ... published an article casting negative light on the government's investigation." (Aug. 30 Varghese Ltr. 2.) According to Halloran, "in the same way that a district court, absent extraordinary circumstances, should not modify a protective order relied upon by the parties, the Court should not grant one after-the-fact." (Id.) The Government counters that it had been negotiating with Defendants for two months on language for a mutually-acceptable protective order, and that it sought "Court intervention only when it became clear that no agreement could be reached and the risk of inappropriate dissemination had become plain." (Sept. 3 Anderson Ltr. 4.)
Rule 16(d)(1) itself imposes no time limit on when a protective order must be sought, and Halloran cites no authority from the Second Circuit suggesting that there is some time limit in which the Government must seek a Rule 16 protective order. Cf. Dorsett v. Cnty. of Nassau, 800 F.Supp.2d 453, 460 (E.D.N.Y.2011) (noting that Fed.R.Civ.P. 26(c) "makes no mention of a timeliness requirement for seeking a protective order"). Therefore, to determine whether the Government has truly waived its option of seeking a protective order, the Court starts with the definition of "waiver," which is "`an intentional relinquishment or abandonment of a known right or privilege.'" Doe v. Marsh, 105 F.3d 106, 111 (2d Cir.1997) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). Here, Halloran has not explained how the Government intentionally relinquished its "right" to seek a protective order in this case. Indeed, as discussed above, the Government made clear at the second status conference back in July that it would be seeking a protective order in this case, at least as to "some" of the discovery in this case, including discovery yet to be produced. (Conf. Tr. 5.)
The same result holds even if the Court adopts Halloran's comparison of the Government's application for the protective order here to cases involving a litigant's effort to modify an existing protective order. It is true that courts have rejected modifications to protective orders in civil cases where "there has been reasonable
Here, Halloran generally asserts that he and the other Defendants "reasonably relied on the fact that there was no protective order," but he has not explained how this reliance has affected, or would affect, his review of the discovery or his trial preparation. (Aug. 30 Varghese Ltr. 2.) Nor has he explained how this supposed reliance was reasonable in light of the Government's aforementioned comments at the second conference in this case about seeking a protective order and that it preferred to negotiate the terms of that order with counsel for Defendants. (See Sept. 3 Anderson Ltr. 4.) Given this undisputed set of facts, Defendants have not established that they were surprised by the request for the protective order or were justified in believing that the non-existence of such an order was going to be permanent.
Furthermore, as explained above, the Government has substantiated the need and the timing of its request for a protective order. Therefore, to borrow the standard used in evaluating tardy applications for protective orders in civil cases, the Government has established that it has good cause for the timing of its request. See D.J.'s Diamond Imports, LLC v. Brown, No. 11-CV-2027, 2013 WL 1345082, at *3 n. 5 (D.Md. Apr. 1, 2013) (noting in context of Fed.R.Civ.P. 26 that a late application for a protective order may be "excused for good cause"); Consol. Rail Corp. v. Grand Trunk W. R.R. Co., No. 09-CV-10179, 2010 WL 2331039, at *1 (E.D. Mich. June 10, 2010) ("A party's failure to request a protective order prior to the time set for producing the discovery may be excused for good cause."). The Government declared its intention to seek a protective order several months ago, hoping it could agree on such an order through informal discussions with counsel for Defendants. When that effort failed, and when discovery in this Case began to appear in media reports, the Government made the instant Application for judicial intervention. Under these circumstances, the Court concludes that the Government did not "waive" its option of seeking a protective order, and that the timing of its request is justified by good cause.
c. Prejudice to Trial Preparation
Finally, Defendants argue that weighed against the Government's claims of good cause are "the logistics of complying with and enforcing the Government's request for a blanket protective order." (Aug. 28 Misir Ltr. 4.) In particular, Defendants argue that the Government's proposed blanket protective order would be "unduly burdensome," because it would require counsel to "review whom the discovery has been disclosed to, including co-counsel, law clerks, secretaries, contract workers, investigators, and transcription services," in order to obtain the signed acknowledgment that each is bound by the protective order. (Id.) On a related but separate note, Defendants argue that the proposed protective order violates their constitutional rights to defend themselves because the order "does not provide that information which is already in the public arena, or known to [Defendants] is excluded from the ambit of the order." (Id.) According to Defendants, such an order "places [Defendants] in the absurd position of not being able to speak publicly about [their] own business records in [their] criminal defense because they have been seized by the Government and then produced back to Defendants] as discovery and labeled `confidential.'" (Id.) Also, Defendants claim that the proposed protective order hinders their ability to prepare their defense because it would bar counsel from discussing the case with "learned members of the legal academic community and amicus counsel, and in being able to speak to members of the public similar to those who might serve in a jury," (Id.)
Defendants are, of course, correct that the Court should consider how burdensome a protective order would be on them, being particularly sensitive to the extent to which a protective order would hinder their efforts to defend themselves at trial. See Davis, 809 F.2d at 1210 (rejecting defendant's objection to protective order for failure to "demonstrate substantial prejudice"); Carriles, 654 F.Supp.2d at 566 (noting that "a court must consider whether the imposition of the protective order would prejudice the defendant"). See generally Press-Enter. I, 464 U.S. at 508, 104 S.Ct. 819 ("No right ranks higher than the right of the accused to a fair trial."). However, Defendants have not substantiated their allegations that a protective order here would be unduly burdensome.
First, the Government has agreed that any protective order here would not apply to "information in the public domain or independently obtained." (Sept. 3 Anderson Ltr. 5.) Second, Defendants' concern about having those who have assisted in the defense, and who will assist going forward, sign a memorandum certifying that they understand they are bound by the Protective Order is insufficient to reject a protective order. This type of procedure regularly has been used in criminal cases and explicitly approved by courts. See, e.g., Carriles, 654 F.Supp.2d at 570 (approving the memorandum process requested by the Government here and adding a provision that "[i]f necessary to avoid disclosing trial strategy, Defendant may make such submission ex parte. This procedure addresses the Government's interests in preventing unwarranted disclosure of protected materials while only minimally affecting Defendant's ability to prepare for trial."); Lindh, 198 F.Supp.2d at 743-44 ("[T]he procedures adopted herein, including the requirement of ex parte submissions [of memoranda of understanding] by the defendant, are designed to minimize any burdens on defendant's Sixth Amendment right to prepare and present a full defense at trial"). And, while Defendants complain that they will have to ascertain
3. Scope of the Protective Order
While the Court has determined that the Government has established good cause for entry of a protective order, the question remains whether the Court should enter the particular Protective Order sought by the Government. As noted, "[protective orders vary in range and type `from true blanket orders (everything is tentatively protected until otherwise ordered) to very narrow ones limiting access only to specific information after a specific finding of need.'" Bulger, 283 F.R.D. at 52 (quoting Poliquin v. Garden Way, Inc., 989 F.2d 527, 532 (1st Cir.1993)). Blanket or umbrella protective orders can be "useful and expeditious in large scale litigation," see Int'l Equity Inv., Inc. v. Opportunity Equity Partners Ltd., No. 05-CV-2745, 2010 WL 779314, at *4 (S.D.N.Y. Mar. 2, 2010), objections overruled, 2010 WL 1459178 (S.D.N.Y. Apr. 12, 2010), aff'd, 415 Fed.Appx. 286 (2d Cir.2011), but they can be overbroad and unnecessary, see Schiller v. City of New York, Nos. 04-CV-7921, 04-CV-7922, 2007 WL 136149, at *19 (S.D.N.Y. Jan. 19, 2007). See also Carriles, 654 F.Supp.2d at 565 (noting that "umbrella" protective orders may be used in cases involving "thousands of documents," but that such orders are "disfavored" (internal quotation marks omitted)). But, in determining what degree of protection is appropriate, courts should ensure that a protective order "is no broader than is necessary" to serve the intended purposes. Lindh, 198 F.Supp.2d at 742.
The Court concludes that a blanket protective order along the lines proposed by the Government is appropriate here. As discussed above, the Government has demonstrated that there is good cause for a protective order because of its compelling interest in ongoing investigations into potentially serious criminal conduct that could be jeopardized by dissemination of the discovery. This interest does not involve a single criminal episode, nor does it derive from a single page, or even a handful of pages, from the discovery materials. Rather, the interest is in several investigations that cover different targets, different crimes, and different time periods. As such, it would be virtually impossible, let alone unduly burdensome, for the Government to conduct a page-by-page,
To be clear, in reaching this conclusion, the Court is in no way excusing the Government from meeting its burden in establishing good cause for the protective order. Nor has the Court failed to consider less restrictive alternatives, such as redaction, to balance the Parties' competing interests. But, "[i]t is ... consistent with the proper allocation of evidentiary burdens for the [C]ourt to construct a broad `umbrella' protective order upon a threshold showing by [the Government] of good cause." Cipollone, 785 F.2d at 1122; see also Pearson v. Miller, 211 F.3d 57, 73 (3d Cir.2000) ("[I]n appropriate circumstances, a district court is empowered to issue umbrella protective orders protecting classes of documents after a threshold showing by the party seeking protection."). This is particularly true in a case which involves substantial amounts of discovery. See Pansy, 23 F.3d at 787 n. 17 (stating that "because of the benefits of umbrella protective orders in cases involving large-scale discovery, the court may construct a broad umbrella protective order upon a threshold showing by the movant of good cause"); In re Terrorist Attacks on September 11, 2001, 454 F.Supp.2d at 223 ("Defendant-by-defendant good cause determinations for individual protective orders at this juncture in this case, much less document-by-document confidentiality determinations where no protective order has issued, would impose an enormous burden upon the Court and severely hinder its progress toward resolution of pretrial matters."); Armour of Am. v. United States, 73 Fed.Cl. 597, 599 (Fed.Cl.2006) ("Federal courts have widely utilized umbrella or blanket protective orders, particularly in complex cases or cases involving large-scale discovery, upon a threshold showing of good cause by the party seeking protection."). Here, the Government represents, and Defendants do not dispute, that it has provided and will provide a vast amount and array of discovery materials, including audio recordings, transcripts, computer files, business records, telephone records, and other materials. "Given the large-scale nature of the discovery involved in this case and the attendant monumental burden on the [Government involved in reviewing and making redaction decisions with respect to all these [materials], an umbrella protective order is appropriate." Luchko, 2007 WL 1651139, at *11. None of this means that Defendants will not be able to challenge the designation of certain documents, or otherwise request a modification of the Protective Order should circumstances change. And, needless to say, should the materials become part of judicial documents, or be introduced at a hearing or a trial, then the
For the reasons stated above, the Government's application for a protective order is granted, as modified herein.
The "Government's discovery obligations and Brady obligations are not coterminous." United States v. Meregildo, 920 F.Supp.2d 434, 443 (S.D.N.Y.2013). "Rule 16 protects against trial by surprise," while "Brady ensures that the Government will not secure an unfair advantage at trial." Id.; see also United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) ("Unlike Rule 16 ... Brady is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation and is not violated unless the Government's nondisclosure infringes upon a defendant's right to a fair trial." (internal quotation marks omitted)); Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir.1989) ("Rule 16 ... was intended to [e]nsure the efficient resolution of cases and, most importantly, minimize prejudicial surprise.").
Based on the Government's description of the discovery it has produced to date (and expects to produce), it appears that the bulk of the materials at issue are being produced solely pursuant to the Government's Rule 16 obligations. If that assumption proves to be false, the Court expects the Government to notify the Court.
These commentators accordingly have suggested limits to press conferences by prosecutors. See Barkow, 44 Ga. L.Rev. at 1010 ("Arguably, a press conference, as compared to a written press release, primarily provides a personal benefit to the appointed official because it associates that official with a prominent case in the media and to the public.... At the same time, the public's right to know is not meaningfully enhanced by pre-conviction press conferences."); Lipman, 47 Am.Crim. L.Rev. at 1533 (noting that prosecutors should be subject to strict scrutiny in their extrajudicial statements because of their "unique role ... in the justice system"). See generally Neb. Press Ass'n v. Stuart, 427 U.S. 539, 601 n. 27, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (Brennan, J., concurring) ("As officers of the court, court personnel and attorneys have a fiduciary responsibility not to engage in public debate that will redound to the detriment of the accused or that will obstruct the fair administration of justice.").
Relatedly, commentators also have voiced concerns about so-called "speaking indictments," which "sometimes" include "information that is unnecessary to establish the charge and that is possibly inflammatory, or, in the worst case intentionally included solely to notify the media ... of information about the defendant that the prosecutor would otherwise be restricted from disclosing." Barkow, 44 Ga. L.Rev. at 1004. Such indictments "are criticized by some who argue that prosecutors use them to evade no-comment rules by including highly prejudicial information in official court documents that are accessible by the press." Id. (citation and internal quotation marks omitted).