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United States v. Johnson

United States District Court, District of Columbia

July 18, 2018




         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.


         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.


         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 ...

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