MEMORANDUM OPINION
JOHN
D. BATES UNITED STATES DISTRICT JUDGE.
Before
the Court is [5] the government's motion for a protective
order governing the disclosure and use of body-worn camera
footage in this case. For the reasons that follow, the
government's motion will be denied, and the parties will
be directed to confer and submit a proposed order that is
consistent with this Opinion.
BACKGROUND
Defendant
Jimmy Lee Johnson, Jr., was arrested in April 2018 and
charged with one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). See
Indictment [ECF No. 1]; Arrest Warrant [ECF No. 2]. Video
footage pertinent to Johnson's case, including footage of
his arrest, was captured on at least one body-worn camera
worn by an officer of the District of Columbia's
Metropolitan Police Department. See Government's Mot. for
Protective Order Governing Body Worn Camera Materials
(“Gov't's Mot.”) [ECF No. 5.] at
3.[1]
According to the government, the footage at issue here also
depicts “the arrest of another related
individual” and “numerous civilian witnesses
unrelated to this investigation.” Id. All
told, the footage spans nearly twelve hours. See Tr. of Mot.
Hr'g [ECF No. 12] at 16:21-25.
Several
weeks after Johnson's arrest, the government moved for a
protective order relating to the body-worn camera footage.
See Gov't's Mot. at 1; Proposed Protective
Order Governing Discovery of Body Worn Camera Materials
(“Proposed Order”) [ECF No. 5-1]. Under the
government's proposed order, all of the footage would be
immediately turned over to Johnson's counsel,
see Tr. of Mot. Hr'g at 6:6-16, but
counsel's ability to use it and to disclose it to third
parties would be restricted in various ways. For example,
Johnson's counsel could use the footage only in the
defense of Johnson's case-including any appeals or
postconviction proceedings[2]- and not in any other litigation.
See Proposed Order ¶ 1. Unless otherwise
authorized by the Court, the footage could be shown only to
Johnson and his “legal defense team”-that is, his
counsel of record, that attorney's immediate supervisor,
and any investigators, paralegals, or support staff members
working on his case. Id. ¶¶ 2-3. Moreover,
if Johnson's counsel were to show the footage to Johnson
or any other court-authorized person, she would have to
ensure that any footage containing certain categories of
sensitive information-pertaining largely to witnesses-was
redacted. See id. ¶ 5. The order would also
impose limitations on copying the footage, see id.
¶ 6, and would require defense counsel to return or
destroy all the footage produced if Johnson were ultimately
acquitted or if the case against him were dismissed, see
id. ¶ 9.
Johnson
opposes the motion on several grounds. See
Def.'s Opp'n at 5-10. Primarily, Johnson objects that
the proposed protective order would “shift[] an
enormous burden onto defense counsel” to identify and
redact sensitive witness information before showing the
footage to Johnson. Def.'s Opp'n at 9-10;
see Tr. of Mot. Hr'g at 12:21-14:2. In
Johnson's view, the government should be required to
review and redact the footage before turning it over to the
defense. See Tr. of Mot. Hr'g at 13:9-15.
Johnson also argues that his counsel should be allowed: (1)
to use the body-worn camera footage in connection with other
cases-particularly those involving the same police
officers-without first seeking the Court's permission,
see Def.'s Opp'n at 5-6; (2) to show the
footage to her colleagues in the Federal Public
Defender's Office, see Id. at 6; (3) to show the
footage to potential witnesses without first seeking the
Court's permission, see id. at 8; (4) to share
witness information with Johnson absent a particularized
justification for withholding that information, see
id. at 8-9; and (5) to retain the body-worn camera
footage in Johnson's case indefinitely, regardless of the
outcome of his case, see id. at 10. The Court held a
hearing on the government's motion on June 6, 2018, and
the motion is now ripe for decision.
DISCUSSION
Under
the Federal Rules of Criminal Procedure, a court “may,
for good cause, deny, restrict, or defer discovery or
inspection, or grant other appropriate relief” relating
to discovery by entering a protective order. Fed. R. Crim. P.
16(d)(1). “The burden of showing ‘good cause'
is on the party seeking the order, and ‘among the
considerations to be taken into account by the court will be
the safety of witnesses and others, a particular danger of
perjury or witness intimidation, and the protection of
information vital to national security.'”
United States v. Cordova, 806 F.3d 1085, 1090 (D.C.
Cir. 2015) (citations and alterations omitted). Ordinarily,
“[b]road allegations of harm, unsubstantiated by
specific examples or articulated reasoning, do not support a
good cause showing.” United States v. Wecht,
484 F.3d 194, 211 (3d Cir. 2007) (citation omitted). But once
a showing of good cause has been made, the court has
relatively unconstrained discretion to fashion an appropriate
protective order. See United States v. O'Keefe,
No. 06-CR-0249, 2007 WL 1239204, at *2 (D.D.C. Apr. 27, 2007)
(describing the court's discretion as
“vast”); Cordova, 806 F.3d at 1090
(“[A] ‘trial court can and should, where
appropriate, place a defendant and his counsel under
enforceable orders against unwarranted disclosure of the
materials which they may be entitled to inspect.'”
(quoting Alderman v. United States, 394 U.S. 165,
185 (1969)).
Courts
use protective orders not only to resolve individual
discovery disputes, but also to “expedite the flow of
discovery” in cases involving a large amount of
sensitive information. Cipollone v. Liggett Group,
Inc., 785 F.2d 1108, 1123 (3d Cir. 1986); see United
States v. Bulger, 283 F.R.D. 46, 52 (D. Mass. 2012)
(“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.'” (citation omitted)). Although so-called
“umbrella” protective orders still require
“a threshold showing of good cause, ”
United States v. Luchko, No. 06-CR-319,
2006 WL 3060985, at *5 (E.D. Pa. Oct. 27, 2006), some courts
have found that such orders may be entered “without a
particularized showing to support the claim for
protection.” Bulger, 283 F.R.D. at 52
(citation omitted). But even those courts require a
particularized showing “wherever a claim under [the
umbrella] order is challenged.” Id.;
see Luchko, 2006 WL 3060985, at *5 (noting
that under a typical umbrella protective order, “after
delivery of the documents, the opposing party would have the
opportunity to indicate precisely which documents it believed
not to be confidential, and the party seeking to maintain the
seal would have the burden of proof with respect to those
documents” (citation omitted)).
I.
The Government's Proposed Protective Order Improperly
Shifts the Burden of Inspecting and Redacting Footage to
Defense Counsel
Johnson's
chief objection to the government's proposed protective
order is that it impermissibly shifts the burden of reviewing
and redacting the body-worn camera footage from government
counsel to defense counsel. Specifically, the
government's proposed protective order -which impliedly
contemplates the immediate production of unredacted body-worn
camera footage to the defense-would require Johnson's
counsel to ensure that neither he nor any other
court-authorized person views “any portion” of
the footage that “includes information regarding”
a witness's name, nickname, date of birth, social
security number, driver's license or other identification
number, address, phone number, email address, or certain
family, financial, or medical information. See Am.
Proposed Order ¶ 5. Johnson is correct that the
government has failed to show good cause for this proposed
method of producing the body-worn camera footage.
By
default, Federal Rule of Criminal Procedure 16 contemplates a
discovery process in which the government first reviews
discovery materials before turning them over to the defendant
for inspection. Discovery in a criminal case is triggered by
a defendant's request.[3] Moreover, the part of Rule 16 that
exempts certain other kinds of materials from discovery by
the defendant- including “internal government documents
made by an attorney for the government” in connection
with the case and “statements made by prospective
government witnesses” prior to trial-states that
“this rule does not authorize the discovery or
inspection of” such materials. Fed. R. Crim. P.
16(a)(2). Thus, the Rule contemplates that undiscoverable
materials will not be produced in the first place-not that
the government will turn over its entire case file for
defense counsel then to review and redact before she may make
use of it.
Of
course, the parties are free to modify this default
arrangement by agreement, assuming they can show good cause
for their stipulated modifications. See, e.g.,
Bulger, 283 F.R.D. at 48 (blanket Rule 16(d)
protective order entered into by consent); Luchko,
2006 WL 3060985, at *3 (noting that good cause is required
“even where parties consent to a stipulated protective
order” (citation omitted)). Where the defendant objects
to the government's proposed method of conducting
discovery, however, the burden of showing good cause lies
squarely on the government. See Cordova, 806 F.3d at
1090.
Here,
the government has not made that showing with respect to its
proposal that all unredacted body-worn camera footage be
turned over to defense counsel, who must then review and
redact the material before showing it to her client. For
example, the government's motion emphasizes that
body-worn camera footage generally tends to contain various
forms of sensitive information, including witness names,
addresses, contact information, and other family, financial,
and medical information. See Gov't's Mot. at
4-5. The government also represents that the specific ...