United States District Court, D. Connecticut
RULING RE: MOTION TO MODIFY THE PROTECTIVE ORDER
(DOC. NO. 520) AND MOTIONS TO SEAL (DOC. NOS. 523 AND
C. Hall United States District Judge.
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).
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
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.
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
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.
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
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
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 of ...