United States v. Rosa ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
JENNY LOUISE CUDD and ELIEL Case No. 1:21-cr-00068 (TNM)
ROSA,
Defendants.
MEMORANDUM OPINION
Defendant Jenny Cudd faces charges relating to her alleged participation in the January 6,
2021 riot at the U.S. Capitol. The Government has obtained (and continues to obtain)
voluminous amounts of information as a result of its broad investigation of the January 6 events,
including video footage, tips, and law-enforcement reports. To expedite its disclosure of
potentially discoverable materials to Cudd and other similarly situated defendants, the
Government moves for a protective order limiting the use, dissemination, and reproduction of
sensitive information. Cudd opposes the motion, contending (among other things) that it is
overbroad, improperly conceals information from the public, and otherwise prejudices her.
Because the Court finds that the Government has shown good cause for the protective order, it
will grant the Government’s motion.
I.
There are numerous criminal cases stemming from the January 6 events. The
Government asserts that “[t]he investigation and prosecution of the Capitol Attack will likely be
one of the largest in American history, both in terms of the number of defendants prosecuted and
the nature and volume of the evidence.” Gov’t Mot. for Protective Order (“Gov’t Mot.”) at 2,
ECF No. 34. 1 Over 300 individuals have already been charged, and the Government says that it
will likely prosecute at least 100 more. Id.
The volume of potentially discoverable information arising from the January 6 cases is
staggering. The Government has obtained
(a) more than 15,000 hours of surveillance and body-worn camera footage from
multiple law enforcement agencies; (b) approximately 1,600 electronic devices; (c)
the results of hundreds of searches of electronic communication providers; (d) over
210,000 tips; and (e) over 80,000 reports and 93,000 attachments related to law
enforcement interviews of suspects and witnesses and other investigative steps.
Id. at 3. The Government contends that these materials are likely to contain sensitive
information. Id. At least some of this sensitive information will be personal information of
defendants in this and other cases.
The proposed protective order is necessary, the Government argues, to “facilitate the
[G]overnment’s ability to provide voluminous discoverable materials expeditiously, while
adequately protecting the United States’ legitimate interests.” Id. at 5. It would cover
information in the Government’s possession that the Government has identified as “Sensitive” or
“Highly Sensitive.” Protective Order Governing Discovery (“Protective Order”) at 1, ECF No.
36-1. 2 Materials that might fall under these designations include:
a. Personal identity information as identified in Rule 49.1 of the Federal Rules of
Criminal Procedure, as well as telephone numbers, email addresses, driver’s
license numbers, and similar unique identifying information;
b. Information regarding the government’s confidential sources;
c. Information that may jeopardize witness security;
1 All page citations refer to the page numbers that the CM/ECF system generates.
2 The Court considers the revised proposed protective order, which the Government submitted
along with its reply, to be operative. The changes made appear to be only minor, and the
Government seems to have made them to accommodate Cudd. See Gov’t Reply in Supp. of Mot.
for Protective Order (“Gov’t Reply”) at 2, ECF No. 36.
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d. Contact information for, photographs of, and private conversations with
individuals that do not appear to be related to the criminal conduct in this
case;
e. Medical or mental health records;
f. Sources and methods law-enforcement officials have used, and will continue
to use, to investigate other criminal conduct related to the publicly filed
charges;
g. Surveillance camera footage from the U.S. Capitol Police’s extensive system
of cameras on U.S. Capitol grounds;
h. Repair estimates from the Architect of the Capitol;
i. Materials designated as “security information” pursuant 2 U.S.C. § 1979; and
j. Tax returns or tax information.
Id. at 1–2 (cleaned up).
Cudd opposes the proposed order. 3 See Def.’s Opp’n to Gov’t Req. for Protective Order
(“Def.’s Opp’n”), ECF No. 35. The Government’s motion is ripe for adjudication.
II.
Federal Rule of Criminal Procedure 16 “requires the Government to produce, upon the
defendant’s request, any documents and data that are material to preparing the defense.” United
States v. Dixon, 355 F. Supp. 3d 1, 3 (D.D.C. 2019) (citing Fed. R. Crim. P. 16(a)(1)(A)–(G)).
The rule also 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). Entering a
protective order falls under this provision. See id.“In determining whether good cause exists, courts have considered whether (1) disclosure
of the materials in question would pose a hazard to others; (2) the defendant would be prejudiced
by a protective order; and (3) the public’s interest in disclosure outweighs the possible harm.”
Dixon, 355 F. Supp. 3d at 4; see also United States v. Cordova, 806 F.3d 1085, 1090 (D.C. Cir.
2015) (“[A]mong the considerations to be taken into account by the court will be the safety of
3 Cudd’s co-defendant, Eliel Rosa, consents to the proposed order. See Gov’t Mot. at 6.
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witnesses and others, a particular danger of perjury or witness intimidation, and the protection of
information vital to national security.” (cleaned up)). “[O]nce a showing of good cause has been
made, the court has relatively unconstrained discretion to fashion an appropriate protective
order.” United States v. Johnson, 314 F. Supp. 3d 248, 251 (D.D.C. 2018).
Protective orders are used “not only to resolve individual discovery disputes, but also to
expedite the flow of discovery in cases involving a large amount of sensitive information.” Id. at
252 (cleaned up). They “are expressly designed to assure that a defendant’s right to a fair trial
[is] not overridden by the confidentiality and privacy interests of others.” United States v.
O’Keefe, No. 06-cr-0249-PLF, 2007 WL 1239204, at *2 (D.D.C. Apr. 27, 2007). So 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.”
Alderman v. United States, 394 U.S. 165, 185 (1969).
The Government has the burden to show good cause here, as it is the party seeking the
protective order. See Cordova, 806 F.3d at 1090. This showing must be “particularized” and
“specific.” Dixon, 355 F. Supp. 3d at 4 (cleaned up). “The nature of the showing of
particularity, however, depends upon the nature or type of protective order at issue.” United
States v. Bulger, 283 F.R.D. 46, 52 (D. Mass. 2012). That is why some courts have found that
broad “blanket” protective orders, which cover all materials produced by a party, “may be
entered ‘without a particularized showing to support the claim for protection.’” Johnson, 314 F.
Supp. 3d at 252 (quoting Bulger, 283 F.R.D. at 52).
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III.
A.
The Court first considers the Government’s assertion of good cause—in particular,
whether “disclosure of the materials in question would pose a hazard to others.” Dixon, 355 F.
Supp. 3d at 4. The Government crosses this threshold.
The Government contends, and Cudd does not appear to dispute, that the amount of
discovery here “is simply huge.” Gov’t Reply in Supp. of Mot. for Protective Order (“Gov’t
Reply”) at 2, ECF No. 36; cf. United States v. Smith, 985 F. Supp. 2d 506, 546 (S.D.N.Y. 2013)
(“[T]he Government represents, and Defendants do not dispute, that it has provided and will
provide a vast amount and array of discovery materials, including audio recordings, transcripts,
computer files, business records, telephone records, and other materials.”). Indeed, “[t]he
investigation already involves thousands of hours of video, over a thousand electronic devices,
thousands of reports, and the numbers continue to grow as more suspects are identified and
arrested.” Gov’t Reply at 2. The materials in the hands of the Government—including video
footage, electronic devices, tips, witness interviews, and law-enforcement reports, see Gov’t
Mot. at 3—are very likely to contain sensitive information. This could include personal
identifying information, data relating to persons unrelated to the alleged criminal conduct, and
medical and financial records. See Protective Order at 1–2.
A broad protective order is thus appropriate “[g]iven the large-scale nature of the
discovery involved in this case and the attendant monumental burden on the Government
involved in reviewing and making redaction decisions with respect to all these materials.” Smith,
985 F. Supp. 2d at 546 (cleaned up). Requiring the Government to perform this review prior to
disclosure would cause a substantial delay in discovery, which “is inconsistent with rules
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requiring efficient and expeditious discovery.” Dixon, 355 F. Supp. 3d at 8; see also LCrR
5.1(a) (requiring the Government to “make good-faith efforts to disclose” information that could
favor the accused “as soon as reasonably possible after its existence is known, so as to enable
the defense to make effective use of the disclosed information in the preparation of its case”
(emphasis added)).
Courts maintain “considerable discretion” under Federal Rule of Criminal Procedure
16(d) “to regulate discovery, and protective orders are a useful tool for expediting the flow of
pretrial discovery materials.” Dixon, 355 F. Supp. 3d at 8 (cleaned up). The proposed order is
necessary to facilitate speedy disclosure here. That—and not some attempt at “a public
information blackout,” Def.’s Opp’n at 1—drives the Government’s proposed order. Cudd
remains free to object to the designation of certain documents as sensitive or to seek
modification of the proposed protective order at any time. See Protective Order at 5; cf. Smith,
985 F. Supp. 2d at 546 (“None of this means that Defendants will not be able to challenge the
designation of certain documents, or otherwise request a modification of the Protective Order
should circumstances change.”).
Cudd appears to raise two challenges to the Government’s asserted need for a protective
order.
First, she contends that the Government’s proffered basis for the protective order is too
broad and not tied to the specific circumstances of her case. See, e.g., Def.’s Opp’n at 6–7, 9.
Cudd asserts that, although there might be some confidential information in the Government’s
possession, it “is using this remote evidence as a basis to black out all evidence related to” her.
Id. at 7; see also id. at 9–10. Not so. As the Government points out, “Cudd’s objections
mischaracterize the proposed order as rendering certain categories of evidence as subject to
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protection.” Gov’t Reply at 4. But the order includes only “an illustrative list of items that could
be subject to a sensitivity designation” and “does not designate any particular category of items
as Sensitive or Highly Sensitive.” Id. (emphasis added).
The proposed protective order is also limited in important ways. It states that the
Government “agrees to make every effort to provide discovery in a manner that will allow for
most discovery to be produced without such designations.” Protective Order at 2 (emphasis
added). The Government represents, for example, that it produced preliminary discovery to
Cudd, “all without any sensitivity designation.” Gov’t Reply at 4 n.2. And the order provides
that the Government “will agree to redaction” as an alternative when it “will resolve the basis for
which a sensitivity designation was applied.” Protective Order at 4. The Government has
therefore not proposed an impermissibly broad or unspecific order, as Cudd argues.
Second, Cudd suggests that the information covered under the protective order is mostly
not sensitive because the January 6 events have been highly publicized. See Def.’s Opp’n at 7.
How well the Capitol riot has been publicized is beside the point. That does not make the items
that the protective order might cover—including “[p]ersonal identity information” or information
about “individuals that do not appear to be related to the criminal conduct in this case,”
Protective Order at 1—any less worthy of protection.
More, that some information about the events is publicly available does not mean that
other, more specific information could not be subject to protection. For example, that video
footage of the January 6 events is publicly available does not diminish the need for
confidentiality of the footage from the U.S. Capitol Police’s (“USCP”) “sophisticated closed
circuit video (CCV)” network of security cameras used to monitor the Capitol Grounds. Decl. of
Thomas A. DiBiase (“DiBiase Decl.”) ⁋ 2, ECF No. 34-1. Even if some information about the
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U.S. Capitol’s layout is available online, USCP’s footage provides far more detailed information,
which could raise security concerns if copied and publicized. See id. ⁋ 14 (explaining that
“providing unfettered access to hours of extremely sensitive information . . . will result in the
layout, vulnerabilities and security weaknesses of the U.S. Capitol being collected, exposed and
passed on to those who might wish to attack the Capitol again”).
B.
Cudd also argues that the proposed protective order prejudices her in several ways. The
Court disagrees.
First, Cudd broadly contends that the Government’s proposed order “is an unhinged
governmental attempt at interfering with the attorney-client relationship.” Def.’s Opp’n at 3.
But she does not specify how this is so.
The proposed protective order does limit Cudd’s ability to have unfettered access to some
discovery. It restricts the dissemination, reproduction, and storage of sensitive materials—even
between defense counsel and Cudd. See, e.g., Protective Order at 3 (“Defense counsel may not
provide a copy of Highly Sensitive materials to Defendant or permit Defendant to view such
materials unsupervised by defense counsel or an attorney, investigator, paralegal, or support staff
person employed by defense counsel.”); see also id. at 2–4 (listing other restrictions). But these
limits on the use of sensitive information are appropriate here, given the privacy and security
concerns at stake. Accord Dixon, 355 F. Supp. 3d at 7 (rejecting defendant’s argument “that he
has an unfettered right to [sensitive material] in perpetuity and for any purpose” and finding that
“[t]here is nothing per se improper with limiting the material defense counsel can provide to his
client”).
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Notably, Cudd and her “legal defense team”—defined broadly to include “defense
counsel . . . and any attorneys, investigators, paralegals, support staff, and expert witnesses who
are advising or assisting defense counsel in connection with this case,” Protective Order at 2—
have access (although restricted access, in some instances) to all information that is subject to the
order to use in formulating a defense, cf. Cordova, 806 F.3d at 1090–91 (explaining that a
protective order did not prejudice defendants, in part, because “defense counsel had full and
unfettered access to the Jencks materials at all relevant times, and the protective order did not
otherwise limit their ability to discuss the materials with [the defendants] or to obtain their input”
notwithstanding that defendants’ “individual use and access were subject to conditions”). “And
most important, [Cudd] may seek a modification of the order at any time,” Dixon, 355 F. Supp.
3d at 6–7, or object to the Government’s designation of materials as sensitive, see Protective
Order at 5.
Second, Cudd suggests that the proposed protective order infringes on her Sixth
Amendment rights. See Def.’s Opp’n at 2. She cites the importance of a public trial and public
suppression hearings and argues that the Government “is not entitled to keep their investigative
and public surveillance techniques secretive.” Id. at 3–4; see also id. at 8.
For starters, Cudd’s references to the standard for closing public hearings are irrelevant
here. See, e.g., id. at 8, 10. There is no suggestion by the Government that any hearings or any
trial in her case will be closed to the public. The Court would be highly skeptical of such a
request, in any event. More, the proposed protective order states that it “shall not limit either
party in the use of the materials in judicial proceedings in this case.” Protective Order at 3;
Gov’t Reply at 5. The order does state that the parties and ultimately, this Court, will determine
the procedures for using sensitive information in hearings or at trial. See Protective Order at 3.
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But that does not mean that Cudd will be prevented from disclosing in open court materials
produced in discovery, which is all that the proposed order covers.
If Cudd’s concern is rather about the limitations on her ability to try this case in the court
of public opinion pretrial through dissemination of selected evidence, the Court is unmoved. The
Court’s priority is to ensure fair criminal trials to the Government, Cudd, and other defendants
related to the January 6 incident, not cater to parties’ interests in selective disclosures to the
media. The Court is mindful that pretrial publicity of discovery in this case may injure other
defendants, witnesses, and third parties whose personal information was collected in the
Government’s investigation.
Third, Cudd claims she is prejudiced because the proposed protective order gives the
Government “monopolized control over designation of materials as ‘Sensitive’ or ‘Highly
Sensitive.’” Def.’s Opp’n at 4. True, the proposed order states that the Government will initially
identify sensitive materials. See Protective Order at 1–2. But crucially, the order also provides
that Cudd can object to such designations or seek modification of the order at any time from the
Court. See id. at 5. It is thus the Court, not the Government, that retains final say over whether
materials require a sensitivity designation. And the order makes clear that “the burden of
demonstrating the need for a protective order remains with the [G]overnment at all times.” Id.
(emphasis added).
Relatedly, Cudd asserts that the proposed order is “plainly insulting” and gives the
Government “an unfair positional advantage.” Def.’s Opp’n at 6. As an example, she states that
she cannot use USCP footage in her pleadings “unless the [G]overnment has already used such
footage in [its] pleadings.” Id. at 5.
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Cudd again misunderstands the proposed protective order. It contains no requirement
that she can only use what the Government has used. The order does require both the
Government and the defense to file Sensitive or Highly Sensitive materials under seal; but it also
provides that this is only the default procedure “[a]bsent prior agreement by the parties or
permission from the Court.” Protective Order at 3. Cudd thus remains free to agree with the
Government on how to file documents containing sensitive information or to request permission
from the Court to file such documents on the public docket. See id. She can, of course, contest
the sensitivity designation too or seek modification of the order. See id. at 5. The Government’s
reply also clarifies that it “has no objection to the defense using still shots from footage in
pleadings, just as the [G]overnment has done.”4 Gov’t Reply at 5.
Fourth, Cudd also argues that the Government is attempting “to shift the burden of [its]
responsibility of redacting sensitive information belonging to [its] witnesses onto defense
counsel” even though the Government could “find a civil servant, to whom [it] already pay[s] a
hefty salary, to redact information.” Def.’s Opp’n at 7–8.
Cudd misses the point. The purpose of the proposed protective order is to set up an initial
system to provide for the speedy disclosure of discoverable material. “[T]he Government
intends to make voluminous materials available in all pending cases arising out of the” January 6
events, including Cudd’s. Gov’t Reply at 3. “[I]n a case which involves substantial amounts of
discovery,” such as this one, “it is consistent with the proper allocation of evidentiary burdens
4 Cudd also mentions the Government’s “unprecedented endeavor to hide” body-worn camera
(“BWC”) footage. Def.’s Opp’n at 5. But as she seems to admit, see id. at 4–5, the proposed
protective order explicitly states that a “vast amount of” BWC footage “will not” come under the
order unless it contains information that the order otherwise describes as sensitive, Protective
Order at 1 n.1.
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for the Court to construct a broad . . . protective order upon a threshold showing by the
Government of good cause.” Smith, 985 F. Supp. 2d at 546 (cleaned up) (collecting cases).
It is the Government that would be unnecessarily burdened if the proposed protective
order were not entered. As already explained, the Government would face a “monumental
burden” in reviewing the vast amount of discovery it possesses before disclosing it to January 6
defendants. Id. (cleaned up). Applying its “considerable discretion to regulate discovery,” the
Court finds the proposed protective order necessary to facilitate “efficient and expeditious
discovery” here. Dixon, 355 F. Supp. 3d at 8 (cleaned up). This order also advances the public’s
interest in a speedy trial. Cf. 18 U.S.C. § 3161(h)(7)(A). The Court reiterates that Cudd retains
the ability to request modification of the proposed order or contest the sensitivity designation of
specific materials at any time. See Protective Order at 5.
C.
Finally, the Court determines that any public interest in the materials covered under the
protective order will not be harmed. Cf. Dixon, 355 F. Supp. 3d at 9. Issuing a protective order
is necessary to facilitate speedy disclosure to the defense while safeguarding sensitive
information. The order here is limited in important ways—most notably, by allowing Cudd to
seek its modification at any time. See Protective Order at 5.
Cudd makes several sweeping arguments about the public’s interest in public trials and
judicial proceedings. See, e.g., Def.’s Opp’n at 1–2. But recall that the proposed order provides
that it “shall not limit either party in the use of the materials in judicial proceedings.” Protective
Order at 3. And the order excludes materials that “[a]re, or later become, part of the public court
record, including materials that have been received in evidence in this or other public trials or
hearings.” Id. at 5; cf. Dixon, 355 F. Supp. 3d at 9 (finding that the public interest was not
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harmed in part because “[t]he proposed order also excludes any materials that are received as
evidence in trial, or that are otherwise made part of the public record”).
At bottom, the proposed order is an appropriate vehicle to allow for speedy discovery
while protecting the security and privacy interests of all interested parties. It merely ensures that
this information will not be publicized without due consideration of the relevant privacy interests
beforehand. The proposed order here has been issued in many other January 6 cases in this
District—often by consent. See, e.g., Order, United States v. Pert, No. 21-cr-00139-TNM
(D.D.C. Apr. 8, 2021), ECF No. 22; Order, United States v. Fellows, No. 21-cr-00083-TNM
(D.D.C. Mar. 29, 2021), ECF No. 18. This case is no exception. The Court finds that the
Government’s proposed order should likewise govern here.
IV.
For all of these reasons, the Court will grant the Government’s Motion for a Protective
Order. A separate order accompanies this memorandum.
2021.04.21
15:06:13 -04'00'
Dated: April 21, 2021 TREVOR N. McFADDEN, U.S.D.J.
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