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United States v. Calderon

United States District Court, D. Connecticut

December 1, 2017

UNITED STATES OF AMERICA
v.
PABLO CALDERON, Defendant.

          RULING RE: MOTION TO MODIFY THE PROTECTIVE ORDER (DOC. NO. 520) AND MOTIONS TO SEAL (DOC. NOS. 523 AND 546)

          Janet C. Hall United States District Judge.

         I. INTRODUCTION

         Pablo Calderon (“Calderon”) moves to modify the Protective Order (Doc. No. 83) issued by this court on February 16, 2016. The Protective Order limited Calderon's use of certain discovery materials to his defense in his criminal proceeding in this court and prohibited the use of those documents in any other proceeding. (Doc. No. 83).

         Calderon requests that the court amend the Protective Order to allow him to use select documents in a Freedom of Information Act (“FOIA”) case in federal court in Washington, D.C., which was pending and known to all parties and the court at the time the Protective Order was entered. See Protective Order at 2-3. For the reasons that follow, Calderon's Motion to Modify the Protective Order is denied.

         II. FACTUAL BACKGROUND

         During the exchange of discovery leading up to Pablo Calderon's criminal trial before this court, the government produced documents pursuant to a Protective Order, which limited Calderon's use of the documents to his defense in his criminal case. See Calderon's Mem. in Supp. of his Mot. to Modify the Protective Order (“Mem. in Supp.”) (Doc. No. 520-1) at 4. The documents the government produced under the Protective Order included materials obtained from voluntary record searches conducted by personnel of the United States Department of Agriculture (“USDA”) based on requests made by the defendants, as well as agent field notes and handwritten notes, correspondence, and other documents. See Gov't's Opp'n to Def. Calderon's Mot. to Modify the Protective Order (“Gov't's Opp'n”) (Doc. No. 545) at 2. In the absence of the Protective Order, the government would have made a formal legal request to the USDA, which would have then reviewed thousands of pages line-by-line to make redactions on the basis of relevance, confidentiality, or other privileges. See id. at 3. The government transmitted Calderon's request for documents to the USDA-and ultimately produced an unredacted set of those documents under the Protective Order-even though the government objected to Calderon's insistence that it had a Brady obligation to search for USDA records. See Gov't's Opp'n to Defs.' Discovery Mots. (Doc. No. 93) at 8-9 (arguing that the government was under no obligation to search for USDA materials not currently in its possession because the prosecution did not run a joint investigation with the USDA). Thus, the Protective Order enabled the government to turn over discovery to Calderon and his co-defendants expeditiously and without litigation as to the government's duty to produce, the discoverability of the materials, or their scope, and without redactions. See Mem. in Supp. at 4.

         Calderon seeks to modify the conditions of the Protective Order to allow him to use certain documents produced subject to its constraints in the FOIA litigation before Judge Tanya Chutkan in the District Court for the District of Columbia. The litigation before Judge Chutkan began in March 2014, when Calderon sued for access to documents he had requested from the Foreign Agricultural Service (“FAS”)-a component entity of the USDA-eight months earlier under FOIA. See id. at 6. The documents contain information about transactions in FAS's GSM-102 Export Guarantee Program (“GSM-102 Program”), which facilitates the financing of American agricultural exports by guaranteeing payments made by foreign financial institutions. See Id. Calderon requested all records related to claims for banks in Ukraine, Kazakhstan, and Russia, as well as documents relating to annual compliance reviews between FY 2002 and FY 2012 for guarantees covering banks in the Eurasia Region and Russia issued to program exports other than Calderon and his co-defendant, Brett Lillemoe. See id.

         The current dispute in the case before Judge Chutkan concerns Calderon's challenge to redactions the FAS made to documents it produced between October 2014 and January 2015, on the basis that certain information was confidential, see 5 U.S.C. § 552(b)(4), or personal, see 5 U.S.C. § 552(b)(6). See id. On February 21, 2017, the FOIA court issued a decision ruling in favor of Calderon with regard to records pertaining to countries that had not been in the program for several years and therefore did not present a risk of competitive harm to program participants. See id. at 8. In addition, Judge Chutkan denied both parties' arguments for summary judgment regarding information that Calderon argued was in the public domain. See id. Finally, the FOIA court rejected Calderon's argument that there could be no competitive harm to program participants due to the structured nature of the transactions. See id. Because Calderon based his argument only on his own declaration, the court found that he did not possess personal knowledge of the form of the transactions engaged in by businesses that objected to the release of records. See id. Calderon moves for a modification of the Protective Order to allow him to use documents obtained in discovery in his criminal case to support his arguments in the FOIA case. See id. at 5.

         III. DISCUSSION

         A. Legal Standard

         Federal Rule of Criminal Procedure 16(d)(1), “Protective and Modifying Orders, ” provides that “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1). In determining whether “good cause” exists to implement a protective order, courts look to whether the party seeking a protective order has shown that “disclosure will result in a clearly defined, specific and serious injury.” United States v. Smith, 985 F.Supp.2d 506, 523 (S.D.N.Y. 2013) (quoting In re Terrorist Attacks on September 11, 2011, 454 F.Supp.2d 220, 222 (S.D.N.Y. 2006)). “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.” Id.

         The Second Circuit has not interpreted the meaning of “good cause” in the context of modifying a protective order entered in a criminal case. See United States v. Kerik, 07 CR 1027 (LAP), 2014 WL 12710346 at *1, n.1 (S.D.N.Y. July 23, 2014) (noting that the Second Circuit has only addressed the standard for modifying protective orders entered in civil cases). Requests to modify protective orders entered in civil cases occur far more frequently. Thus, courts in other circuits, and at least one court in this circuit, have looked to standards developed in the context of civil protective orders for guidance on what constitutes “good cause” to modify a protective order entered in a criminal case. See, e.g., United States v. Morales, 807 F.3d 717, 723 (5th Cir. 2015) (borrowing from the standard for “good cause” under Fed. R. Civ. P 26(c) in the civil context to determine whether to modify a protective order entered in a criminal case); United States v. Wecht, 484 F.3d 194, 211 (3rd Cir. 2007) (same); Kerik, 2014 WL 12710346 at *1 (applying the Second Circuit's standard for the modification of protective orders entered in a civil lawsuit).

         The Second Circuit has held that, “[w]here there has been reasonable reliance by a party or deponent, a District Court should not modify a protective order under Rule 26(c) ‘absent a showing of improvidence in the grant of [the] order or some extraordinary circumstance or compelling need.'” S.E.C. v. TheStreet.com, 273 F.3d 222, 229 (2d Cir. 2001) (quoting Martindell v. Int'l Tel. & Tel. Corp., 594 F.2d 291, 296 (2d Cir. 1979). Whether the Martindell presumption against modifying protective orders applies “depends on the nature of the protective order and whether it invited reasonable reliance by a party or deponent.” In re Ethylene Propylene Diene Monomer (EPDM) Antitrust Litig., 255 F.R.D. 308, 318 (D. Conn. 2009). To determine whether a party has reasonably relied on the protective order, courts look to: “(1) the scope of the protective order; (2) the language of the order itself; (3) the level of inquiry the court undertook before granting the order; and (4) the nature of reliance on the order.” Id. Courts may also consider the “type of discovery materials the [party] seeks and the party's purpose in seeking a modification.” Id.

         B. Modification of ...


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