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United States v. Lacey

United States District Court, D. Arizona

November 13, 2019

United States of America, Plaintiff,
v.
Michael Lacey - 001 James Larkin - 002 Scott Spear - 003 John Brunst - 004 Andrew Padilla - 006 Joye Vaught - 007, Defendant.

          ORDER

          HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE

         Pending before the Court is Defendant John Brunst's Motion to Compel Government Compliance with Court's Order for Specific Identification of Documents Subject to Protective Order.[1] (Doc. 740, “Motion.”) The Government responded, (Doc. 767), and Defendant replied, (Doc. 771). The Court issues the following Order:

         I. BACKGROUND

         This dispute arises out of two Court Orders relating to the public disclosure of sensitive documents and materials subject to the Jencks Act (“Jencks Act materials”).[2] (See Docs. 730, 731.) The Court summarizes the Orders and parties' relevant conduct before addressing the Motion.

         A. Protective Order

         On August 20, 2019, the Court ordered the Government disclose “any Jencks Act [materials][3] not previously disclosed.” (Doc. 730 at 1, “Protective Order.”) The Court further ordered Jencks Act materials may only be used “in connection with the defense of this case” and “for no other purpose, and in connection with no other proceedings, without further order of this Court.” (Id.) Copies of Jencks Act materials are not authorized. (Id. at 2.) Moreover, “Defendants . . . shall not disclose the [Jencks Act materials] or their contents” either “[d]irectly or indirectly to any person or entity other than persons employed to assist in the defense, persons who are interviewed as potential witnesses, counsel for potential witnesses, and other persons to whom the Court may authorize disclosure [(“authorized persons”)].” (Id. at 1-2.) Defendants must provide authorized persons with a copy of this Protective Order. (Id. at 2.)

         B. Protective Order's Interpretation

         On August 26, 2019, the Court interpreted the Protective Order upon Defendants' request. (Doc. 731, “Interpretation.”) The Interpretation explicitly states the Protective Order “applies ‘on a going-forward basis' to all Jencks Act materials, not just those disclosed on August 20, 2019.” (Id. at 1.) Moreover, the Protective Order's disclosure restrictions do not apply to the government. (Id. at 1.) Last, the Interpretation orders the Government to “provide a list [(“the List”)] of Jencks Act material[s] disclosed and that it considers to be part of [the Protective Order] by September 3, 2019.” (Id. at 2.) “The [List] should, ” the Court ordered, “include enough identifying information so [Defendants] can locate and separate the materials subject to [the Protective Order].”[4] (Id.)

         C. Government's Notice of Compliance

         On September 3, 2019, the Government filed a Notice of Compliance with Doc. 730 and Doc. 731 after providing Defendants the List of Jencks Act materials. (Doc. 733; see generally Doc. 740-1.) Specifically, the List contains two parts:

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.

(Id. at 3) (emphasis in original). The Government also stated it will provide additional Jencks Act materials as “victims and witnesses review and adopt their statements.” (Id.)

         D. September 13, 2019 Hearing

         On September 13, 2019, the Court stated it is “not willing to remove from [the Protective Order] anything other than to say publicly available information.” (Doc. 767-1 at 6.) The Court further told Defendants: “If there is something else that should be removed from the [Protective] [O]rder, then . . . you need to file something specific with that designation so [the Court] can make that determination.” (Id.) As they again argue in this Motion, Defendants argued at the hearing that the Government “should tell [Defendants] what needs to be protected.” (Id. at 8.) The Court responded: “They just did. You disagree with it.” (Id.) The Court further explained: “[I]f you want anything more specific than things that are public are not protected . . . all you need to do is send [the Court] a list with your motion saying this is what I ...


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