08-22-2016 ECF 640 USA V CLIVEN BUNDY Et Al - RESPONSE To 620 Objections Re Motion Reconsider Order

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 1 of 22
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DANIEL G. BOGDEN
United States Attorney
District of Nevada
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
501 Las Vegas Blvd. South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
steven.myhre@usdoj.gov
nicholas.dickinson@usdoj.gov
nadia.ahmed@usdoj.gov
erin.creegan@usdoj.gov
Attorneys for the United States
UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,

Plaintiff,
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v.
CLIVEN D. BUNDY, et al,
Defendants.
2:16-CR-00046-GMN-PAL
GOVERNMENTS RESPONSE IN
OPPOSITION TO INTERVENORS
OBJECTIONS TO THE ORDER
GRANTING IN PART
GOVERNMENTS MOTION FOR A
PROTECTIVE ORDER AND
OBJECTIONS TO MAGISTRATE
JUDGES PROTECTIVE ORDER
(ECF Nos. 620, 621, 623, 629 and 631)
CERTIFICATION: This Response is timely filed.

The United States, by and through the undersigned, respectfully submits
its Response in Opposition to Intervenors Objections To The Order Granting In
Part Governments Motion For A Protective Order, And Objections To Magistrate
Judges Protective Order (ECF Nos. 620 and 621) and joinders by defendants
Peter T. Santilli, Ammon Bundy and Micah McGuire, ECF Nos. 623, 629 and 631,
respectively (hereinafter collectively referred to as Objections). For the reasons
explained below, the Order and Protective Order should be affirmed as correct in
law and in fact.
determinations and propound no contrary authority to undercut its legal
conclusions.
Intervenors proffer nothing to rebut the Orders fact
BACKGROUND
The government recognizes that the charges and allegations in this case are
well-known to the Court and, thus, need not be repeated here, except to note that
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Intervenors glibly and wrongly refer to this case as supposedly determining

the line between free speech [ ] and true threats. ECF No. 621 at 3 (internal
quotations omitted). That may be the case Intervenors want to see or imagine; or
it may be one the defendants want to spin. But that is not what is charged.
As the Superseding Indictment makes abundantly clear, this case is about
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assault and extortion using guns and violence. There is nothing about the
Superseding Indictment that implicates the First Amendment and there is
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nothing about the First Amendment, or Cliven Bundys beliefs, that legally, or
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otherwise, justifies the criminal activity charged in this case; that is, using
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firearms and other force and violence to assault, extort, and intimidate law
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enforcement officers executing their lawful duties. This case is about that and no
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more.
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The Order fulsomely and accurately recounts the procedural history of this
case leading to the entry of the Protective Order. The government adopts and
incorporates in full the Orders account in that regard for the purposes of this
Response. ECF No. 608, Sections I and II, at 2-6. The government further adopts
and incorporates herein in full, all of the facts, exhibits and arguments advanced
in its Motion for Protective Order (ECF No. 357) and its Response to Proposed
Intervenors Motion to Intervene. ECF No. 428.
By way of further background, the government proffers as follows. Rather
than delay the timing of discovery by undertaking the time-consuming effort of
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redacting images and identifying information from thousands of pages of

investigative documents and Facebook postings, hundreds of digital photographs,
and hundreds of hours of videos records, the government moved for entry of a
proposed protective order to restrict dissemination of these materials beyond the
defense team. ECF No. 357. The goal of the proposed protective order was to
effect the timely, efficient and expeditious production of voluminous discovery
information while preventing dissemination of the information into the public
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domain where others could use images and witness identifiers for the nefarious
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purpose of intimidating, harassing, or influencing victims and witnesses,
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including investigating agents.
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In support of its motion, the government proffered 22 exhibits as examples
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of various Facebook postings by Bundy supporters as they attempted to out the
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identities of the law enforcement officers who participated in the April 2014
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impoundment and subject them to threats, harassment, intimidation and ridicule.
It also proffered other information to show how Bundy associates and supporters
have leveled threats at prosecutors and judges in this case and associated cases as
well as to others associated with the Bundy cattle impoundment operation.
A number of the defendants opposed the protective order without further
explanation or without proffering any alternative means of effecting discovery
while meeting the goal of protecting witness information. Third parties, the Las
Vegas Review Journal, Battle Born Media, and the Associated Press (collectively
the Intervenors), moved to intervene and interpose objections, contending that
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the Governments proposed protective order infringed upon the right of access to
public information. Over government objection, 1 Intervenors were permitted to
interpose their objections. ECF No. 570.
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United States Magistrate Judge Peggy Leen (hereinafter Magistrate
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Judge) entered an Interim Protective Order (ECF No. 392) during the pendency
of the motion for a permanent order so the government could commence the
production of investigative documents without redacting identifying information
and images. To date, the government has produced over 17,000 pages worth of
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The government objected to intervention on the basis of lack of third-party standing,
demonstrating that Intervenors could articulate no abrogation of, or injury to, any right of
public access to discovery information as no presumption of public access accrues as a
matter of law. ECF No. 428 at 4. While not disagreeing with that principle, the
Magistrate Judge nonetheless found intervention appropriate based on the high level of
public interest in this case and the need for transparency. ECF No. 569. While the
government respectfully disagrees that those considerations confer standing, it does not
address the issue further in its Response, as the Objections address only the merits of the
Order. Nevertheless, the government notes its objection here to preserve the issue of
Intervenors third-party standing in the event there are further appeals from the Order.
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documents, approximately 1.4 terabytes of data consisting of hundreds of hours of
audio and video recordings and at least 23 social media search warrant returns,
consisting of over 250,000 pages of digital documents.
On July 15, 2016, the Magistrate Judge entered an Order granting the
governments Motion for Protective Order. ECF No. 608. The Order recounts the
evidence reviewed by the Magistrate Judge and the Judges finding of fact,
including, among other things:
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The government met its burden of establishing good cause for a

protective order (Id. at 20)
The governments exhibits and other proffered information
sufficiently showed actual and potential threats, intimidation, and
harassment to victims and witnesses and law enforcement officers
(Id.)
Cumulatively, the proffered information established a credible risk
that public disclosure of broad discovery the government has agreed
to produce . . . may be used for the improper purpose of threatening,
intimidating, or influencing potential witnesses, or, at a minimum,
chilling their willingness to testify. (Id. at 20-21)
Having found good cause, the Magistrate Judge entered a separate

permanent Protective Order, governing the dissemination of discovery information
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under Fed. R. Crim. P. 16. ECF No. 609. The detailed 4-page Order, defines
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certain discovery information as confidential documents, which encompasses
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generally the materials produced by the government in discovery, including
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agency reports, witness statements, memoranda of interviews and any tangible
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objects. Id. at 1, paragraph 1. It excludes from the definition, information and
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documents found in the public domain. Id.
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The Protective Order further restricts the dissemination of confidential
information to: defendants, defendants counsel in this criminal case and the
District of Oregon case, persons assisting in the defense of the criminal case, and
persons who are interviewed or consulted during the course of the investigation
and preparation of this case. Id. at 2-3, para. 4.
confidential documents be filed under seal when a party seeks court review of the
documents. Id. The Order does not apply to documents received by the Court as
evidence. Id. at 3, para. 6.
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Intervenors filed their Objections to the Order and Protective Order,

claiming, among other things, that the Magistrate Judge erred in finding good
cause based on threats and by requiring that defendants file any confidential
documents under seal with the Court. ECF No. 621. The defendants moved to
join with the Intervenors but made no arguments separate and apart from those of
the Intervenors. Accordingly, unless indicated otherwise, this memorandum will
address the Intervenors and defendants collectively as the Intervenors.
As discussed below, Intervenors fail to demonstrate any error, let alone
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clear error, committed by the Magistrate Judge by entering the Protective Order.
LEGAL STANDARD
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And it requires that any
A.
Standard of Review Fact Determinations are Reviewed for Clear

Error; Legal Conclusions are Reviewed De Novo.
A judge may designate a magistrate judge to hear and determine any
pretrial matter pending before the court . . . . 28 U.S.C. 636(b)(1)(A) (omitting

exceptions not relevant here). A judge of the court may reconsider any pretrial
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matter . . . where it has been clearly shown that the magistrate judges order is
clearly erroneous or contrary to law.
pretrial matter, the district court reviews factual determinations under the clear
error standard, while it reviews legal determinations de novo to determine
whether they are contrary to law. Perry v. Schwarzenegeri, 268 F.R.D. 344, 348
(N.D. Cal. 2010).
Id; accord LR 1B 3-1. In reconsidering a
Under the highly deferential clear error standard, a district court should
affirm a magistrate judges factual determinations unless it is left with the
definite and firm conviction that a mistake has been committed. United States v.
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Overton, 573 F.3d 679, 688 (9th Cir. 2009) (citations omitted). Where there are
two permissible views of the evidence, the factfinders choice between them cannot
be clearly erroneous. United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003)
(emphasis added). The reviewing court may not simply substitute its judgment
for that of the magistrate judge. Ideal Electric v. Flowserve Corp., 230 F.R.D.
603, 606 (D. Nev. 2005) (citing Grimes v. City and County of San Francisco, 951
F.2d 236,241 (9th Cir. 1991).
B.
Legal Standard for Entry of a Protective Order Good Cause.
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With regard to the governments disclosure obligations in a criminal case, a
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court may at any time for good cause, deny, restrict, or defer discovery or
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inspection, or grant other appropriate relief. Fed. R. Crim. P. 16(d)(1) (emphasis
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added). As the moving party, the government bears the burden of establishing
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good cause. United States v. Smith, 985 F. Supp. 2d, 506, 522 (S.D.N.Y. 2013)
(quotations and citations omitted).
Good cause is a fact determination, requiring a showing that disclosure
will work a clearly defined and serious injury. United States v. Wecht, 484 F.3d
194, 210 (3rd Cir. 2007); Smith, 985 F. Supp. 2d at 522 (Good cause exists when a
party shows that disclosure will result in a clearly defined, specific and serious
injury.) (citations omitted).
information that could result in physical or economic injury is obviously a clearly
defined and serious injury. See Fed. R. Crim. P. 16, Advisory Committee notes to
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Disclosure of witness identity or identifying
the 1974 amendments (Although the rule does not attempt to indicate when a
protective order should be entered, it is obvious that one would be appropriate
where there is reason to believe that a witness would be subject to physical or
economic harm if his identity is revealed.); see also, e.g., United States v. Pelton,
578 F.2d 701, 706-07 (8th Cir. 1978) (court properly issued a protective order
preventing defendants access to tape recordings in light of governments concern
for the safety of cooperating sources whose identity was disclosed in the
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recordings); United States v. Fuentes, 988 F. Supp. 861, 866-67 (E.D. Pa. 1997)
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(permitting defense counsel to disclose witnesses true identities only to the extent
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necessary to investigate the witness in preparation for trial); United States v.
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Zelaya, 336 F. Appx 355, 357-58 (4th Cir. 2009) (upholding protective order
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permitting police officers from El Salvador to testify under pseudonyms, without
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disclosure of their true names to the defense, where government established
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genuine threat to the witnesses safety from the MS-13 criminal gang and defense
had sufficient information about the witnesses to conduct an effective cross-
examination).
A court enjoys considerable discretion when fashioning a protective order.
Alderman v. United States, 394 U.S. 165, 185 (1969) ([T]he 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.); see also United States v. Campa, 529 F.3d 980, 995 (11th Cir.
2008) (recognizing [t]he broad authority of the district court to regulate
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discovery in a criminal case); Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36
(1984) (noting that the trial court is in the best position to weigh the fairly
competing needs and interests of the parties affected by discovery. The unique
character of the discovery process requires that the trial court have substantial
latitude to fashion protective orders.).
There is no common law or First Amendment public right of access to
discovery information, let alone any presumption of a right to access.
See
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Rhinehart, 4678 U.S. at 33 ([R]estraints placed on discovered, but not yet
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admitted, information are not a restriction on a traditionally public source of
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information); Tacoma News, Inc. v. Cayce, 256 P.3d 1179, 1188 (Wash. 2010)
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([i]n general, courts have found no traditional right of access to pretrial discovery
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information or documents that are never introduced into the case); United States
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v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) ([T]he Constitution does not ...
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require the government to accord the press special access to information not
shared by members of the public generally) (citation omitted); United States v.
Kravetz, 706 F.3d 47, 54 (1st Cir. 2013) (With respect to experience, there is no
tradition of access to criminal discovery.); United States v. Dimasi, No. 09-Cr-
10166-MLW, 2011 WL 915349, at *3 (D. Mass. Mar. 16, 2011) (Although the
[press] has a qualified common law right to access to judicial documents, that
right does not extend to documents merely provided to defense counsel in
discovery.); United States v. Bulger, 283 F.R.D. 46, 60 (D. Mass. 2012) ([A] First
Amendment right or claim to inspect discovery materials has been largely
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foreclosed by the Supreme Courts decision in Seattle Times Co. v. Rhinehart. . . .)

(internal quotations and citations omitted); United States v. Smith, 985 F. Supp.
2d 506, 519 (S.D.N.Y. 2013) ([C]ourts generally view the documents or materials
shared between [the parties] as outside the judicial function and therefore not
presumptively accessible.) (citation omitted); Travelers Indem. Co. v. Excalibur
Reinsurance Corp. No. 11-cv-1209, 2013 WL 4012772, at *11 (D. Conn. 2013) (Put
simply, the public has no constitutional, statutory or common-law right of access
to unfiled discovery.)
While not irrelevant to a protective order, First Amendment concerns are
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subsumed by the good cause framework of Rule 16.
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Accordingly, a protective order based on good cause may properly restrict a
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defendants right to disseminate discovery publically beyond the bounds of the
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protective order. Smith, 985 F. Supp. 2d at 523.
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Bulger, 283 F.R.D. at 50.
ARGUMENT
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A.
Summary of Argument.
The Order is correct in fact and law and should be affirmed. The Order is
correct in fact because the Magistrate Judge carefully considered the proffered
evidence and information and reasonably found a risk of witness intimidation
i.e., good cause. Intervenors proffer nothing to refute this finding, let alone to
demonstrate clear error as they must.
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The Order is correct in law because good cause as determined here is

all that is required for the entry of a protective order.
There is no First
Amendment presumptive right of public access to unfiled criminal discovery.

Accordingly, the Protective Order may properly restrict public dissemination of
discovery information. There is no requirement for the parties to demonstrate a
particularized showing of good cause for each document filed under seal pursuant
to the protective order; therefore, the sealing requirement of the Protective Order
does not render the order improper.
B.
The Magistrate Judge Correctly Found Good Cause In Support of

the Protective Order and Intervenors Cannot Show Clear Error.
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The well-reasoned and detailed 23-page Order shows that the Magistrate
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Judge carefully considered and analyzed 22 exhibits and other information
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proffered by the government, the exhibits and information showing Bundy
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supporters ridiculing, harassing, intimidating, bullying and threatening victims
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and potential witnesses.
The Magistrate Judge found that this evidence
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demonstrated a risk that public disclosure of discovery would create a risk of
witness intimidation.
The Magistrate Judge had ample evidence from which to infer potential
witness intimidation. The proffered information shows Bundy supporters using
social media to disclose identifying information about the victims of the April 12
assault, information that included images of law enforcement officers, their
names, their cities and towns of residence and the like. Along with the identifying
information and images, Bundy supporters used words to instill fear, intimidate
and harass words like help identify them . . . expose these jackbooted thugs
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(ECF No. 357, Exhibit 2, Example 2); and, a lqnd (sic) owner will have to take out
an AR 10 (a .308 caliber semi-automatic military-style assault rifle) and put a
bullet in [redacted] head.
Id. at Example 13.
The supporters also solicited
information about victims and witnesses, passing images of law enforcement

officers instantly through cyberspace to thousands (if not hundreds of thousands)
of social media subscribers, asking subscribers to find out where the officers lived,
to obtain their telephone numbers, to call them, and to make their presence
known.
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Context is also important. All of the proffered examples occurred either
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during or after a BLM impoundment operation where hundreds of Bundy
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supporters used force and armed violence to assault law enforcement officers. As
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the Superseding Indictment makes clear, Bundy and his conspirators used social
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media to gather hundreds to confront the officers, to harass business owners, to
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publish defamatory information about anyone who supported the BLM and to
damage their businesses and reputations in the community.
The Order shows that the Magistrate Judge considered all of this and
determined: actual and potential threats, intimidation, and harassment to
victims, witnesses, and law enforcement officers (ECF No. 608 at 20); and a
credible risk that public disclosure of [ ] discovery . . . may . . . at a minimum, chill
[ ] [a victims or witnesss] willingness to testify. Id. Those facts alone justify a
finding of good cause under existing law. See, e.g. Smith, 985 F. Supp. 2d at 524
(restricting dissemination of discovery to protect against damage to character and
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reputation of uncharged third parties) and cases cited therein.

Intervenors advance nothing to show clear error in any of this; they merely
second-guess the Magistrate Judges inferences drawn from the evidence.
For
example, they claim that none of the proffered information amounts to a true
threat under the objective, reasonable person standard articulated by the
Supreme Court. ECF No. 621 at 9-13. Whatever the merits of that argument
and the government contends there is none it does not show that the Magistrate
Judge clearly erred.
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The Magistrate Judge is not required to find a true threat; the judge is
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required only to find good cause. Here, the Magistrate Judge drew the very
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reasonable inference that based on the demonstrated behavior of Bundy
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supporters in the past, there is a credible risk that public disclosure of discovery
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information will likely in the future result in the public ridicule of victims and the
intimidation of witnesses. ECF No. 608 at 20-21.
Intervenors claim the evidence supposedly shows predictive or exhortative
statements that are the product of frustration (id at 12), protected by the First
Amendment. Whatever the merits of that claim, it does not make the Magistrate
Judges inferences wrong, let alone clearly wrong. Intervenors do nothing more
than second-guess the Magistrate Judges inferences.
F.R.D. at 606 (the reviewing court may not simply substitute its judgment for
that of the deciding court.)
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See Ideal Electric, 230
Moreover, even if the speech at issue was protected speech under the First
Amendment which it is not that does nothing to foreclose the Magistrate
Judges finding of a credible risk of witness intimidation. The First Amendment
does not make a victim or witness immune to intimidation or perceived threats.
One would have to suspend common sense to believe that words like putting a
gun to [your] head would not intimidate a victim in this case, especially words
directed to the victim of a violent armed assault, words published by Bundy
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supporters, supporters who have vowed to confront the victim law enforcement
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officers again. Nor can one reasonably argue that referring to law enforcement
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officers as jackbooted thugs, jerks, goons, a**holes, cattle thieves, and the
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like, across the internet is not tantamount to public ridicule.
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The supposed First Amendment analysis advanced by Intervenors does
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nothing magically to makes these words less intimidating, less impactful, or less
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chilling in this context. In fact, their analysis ignores the impact on victims and
witnesses altogether.
Intervenors quibble with the nature of the evidence, claiming that it is
stale. They offer no authority showing that information becomes stale at some
particular date. Moreover, while it is true that many of the proffered Facebook
postings are more than two years old, it is equally true that there have been no
intervening events to suggest that Bundys supporters are less likely to repeat this
conduct as trial approaches.
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Bundy supporters claim they are part of a Movement and have vowed to
confront government agents and officers to keep them from overreaching and
acting unconstitutionally. They have proclaimed that the federal government
has no right to own the public lands, promising to chase the BLM off public
lands. None of these claims has been renounced by Bundy or any of Bundys
supporters. Nor is there any indication that Bundy and his supporters consider
the so-called Movement stopped with the filing of the Superseding Indictment in
this case.
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As shown in the examples in the governments Motion for Protective Order,
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the same threatening and harassing language employed during and immediately
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following the April 2014 events picked up again directly after the Superseding
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Indictment became public in March 2016. ECF No. 357, Exhibit 2, Examples 2
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and 13. And in June 2016, William Keebler, a self-proclaimed militia member
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who participated in the Bundys April 2014 efforts to interfere with the BLM
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impoundment, was arrested and charged in the District of Utah after attempting
to bomb a federal facility belonging to the BLM. See United States v. William
Keebler, 2:16-cr-323-DS (D. Utah).
against him, Keebler recruited others for his militia organization to participate in
a Bundy Ranch-like event against the federal government and, in May, 2016,
spoke with his fellow militia-members about going on the offensive.
353-DBP (EFC No. 1, p. 2)
According to the criminal complaint filed
2:16-mj-
The trial of Bundy and his co-conspirators symbolizes to his supporters the
ultimate overreach by a federal government that, according to them, has no
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authority over public lands or Bundy and his co-conspiractors. Accordingly, there
is nothing supposedly stale about the proffered evidence given the context of this
case and Intervenors make no showing that Bundys supporters do not otherwise
intend to follow past practices by interfering with, intimidating, and ridiculing
federal law enforcement officers and other potential testifying witnesses in the
future.
Lastly on this point, the Magistrate Judge specifically addressed the age of
the social media posts used as examples, stating:
Many of the 22 examples proved by the government are over two
years old, but some are more recent. Cumulatively, the 22
examples are sufficient to establish a credible risk that public
disclosure of broad discovery . . . may be used for the improper
purpose of threatening, intimidating, or influencing potential
witnesses . . . .
ECF No. 608 at 20-21. Thus, the Magistrate Judge specifically considered the age
of some of the examples and concluded that cumulatively the government met its
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burden.
Magistrate Judges conclusions.
C.
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Intervenors can show no clear error; they simply disagree with the
The Order is Correct in Law Because it is Based on a Proper

Finding of Good Cause.
The Magistrate Judge correctly applied the law. The Order states, and
Intervenors do not contest, that there is no common law or First Amendment
presumptive right to access discovery information in a criminal case. Put another
way, a Protective Order entered on good cause forecloses any third-party claims of
public access to discovery information.
Thus, the Magistrate Judge properly
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applied the good cause standard when entering the Protective Order restricting
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the public disclosure of discovery information in this case.
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Intervenors claim the Magistrate Judge erred by requiring that confidential
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documents be filed under seal. According to them, a party may file a document
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under seal only after making a particularized showing of good cause as to each
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document. ECF No. 621 at 13-14. Their claim lacks any basis in law and, as a
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practical matter, is unworkable.
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The protective order restricts defendants from publically disseminating
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discovery information defined as confidential. It further requires that a party
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file confidential documents under seal when seeking the courts review, obviating
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the need for a separate sealing order under the local rules of the court. ECF No.
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609 at 3, paragraph 7. The sealing requirement of the Protective Order does not
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apply to discovery documents received into evidence at a court proceeding. Id.,

paragraph 6.
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It would, indeed, be an odd protective order that, on the one hand, prevents
a defendant from disseminating discovery information to others outside the
defense team. But, on the other hand, allows that same defendant to file the very
same discovery information openly on the public docket where it is accessible to
everyone. Not only does that make the rest of the Protective Order meaningless, it
defeats the very purpose behind it i.e., to protect witnesses and victims from
intimidation, public ridicule, and harassment.
Yet, that is what Intervenors suggest here. By removing the sealing
requirement as set out in the Protective Order and requiring an upfront showing
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of good cause before filing discovery information under seal, a defendant may file
confidential documents openly on the public docket without violating the
Protective Order.
There is no requirement in the law for such an upfront showing of good
cause (see Seattle Times, 467 U.S. at 33) and Intervenors cite to none.
They
appear to rely obliquely on Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122,
1135 (9th Cir. 2003) for their novel approach -- but Foltz provides them with no
support.
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The Ninth Circuit in Foltz a civil case addressing protective orders issued
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under Fed. R. Civ. P. 26 held that once documents subject to a protective order
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are filed under seal, they lose their status of being raw fruits of discovery and no
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longer enjoy protective status. Id. at 1136. The Foltz court found that in the case
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of motion for summary judgment a case dispositive motion in a civil case the
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district court was required to find compelling reasons for keeping the documents
under seal. Id.
Foltz, and its undergirding principles, are inapt here for several reasons.
First, no case dispositive motion relying upon sealed documents or discovery
information has been filed in this case.
Protective Order applies to events that have not happened, and may not ever
happen, their argument is purely speculative. Rank speculation about the future
does not make the Order contrary to law.
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To the extent Intervenors claim the
More to the point, however, it is unlikely that this case, or any other
criminal case, will ever be decided on paper. There is no corollary to a summary
judgment motion in a criminal case. Unlike a civil case where the Court may
decide for one party or the other based on the papers filed with the Court, a
criminal case cannot be decided (disposed of) except by a jury verdict based on
evidence admitted in an open court proceeding, or by a guilty plea taken in open
court. Neither of those events portends the sealing of discovery materials or the
sealing of any court proceedings. Indeed, the Protective Order does not apply to
court proceedings or to documents admitted into evidence at those proceedings.
19
While there may be rare instances where a criminal case may be dismissed
20
based on motions filed with the Court, those motions would rarely, if ever, be
21
decided without a public court proceeding where the Court would take evidence
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publically.
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confidential documents that are admitted as evidence in a court proceeding.
Again, the Protective Order here specifically does not apply to
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19
Second, to the extent Foltz applies at all, it applies only to keeping
documents under seal, not filing documents under seal. Importantly, the Foltz
court did not abrogate the protective order entered in that case. Foltz, 331 F.3d at
1134 (restraints placed on discovered, but not yet admitted, information are not a
restriction on a traditionally public source of information.) (citation omitted). The
Foltz court, therefore, had no quarrel with allowing discovery information to be
filed under seal as part of a protective order; it only required the district court to
find compelling reasons for keeping the information sealed. Id. at 1136 ([O]nce
the sealed discovery documents are made part of a dispositive motion [e.g. a
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summary judgment motion ruled upon by the court] . . . they no longer enjoy
protected status without some overriding interests in favor of keeping the
discovery document under seal.) (citations and internal quotations omitted)
(emphasis added).
Here, the Protective Order allows the parties to modify the Protective Order
by stipulation or motion. Thus, any defendant seeking to lift the seal on any
confidential document on the basis that it may not be kept under seal, may file a
motion to do so and, obviously, the Court on its own motion may do so.
19
Lastly, courts have ruled that with regard to criminal discovery
20
information, First Amendment considerations are subsumed by and merged with
21
the good cause requirement of Rule 16. Bulger, 283 F.R.D. at 50; Smith, 985 F.
22
Supp. 2d at 523. Thus, in the context of this case, any First Amendment concerns
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about confidential documents filed with the Court have been addressed by the
Magistrate Judges finding of good cause for the Protective Order.

CONCLUSION
3
4
Wherefore, for the foregoing reasons, the government respectfully requests
that the Court overrule the Objections and enter an Order, affirming the Order
and the Protective Order.
DATED this 22nd day of August, 2016.
Respectfully,
DANIEL G. BOGDEN
United States Attorney
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//s//
______________________________
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
Assistant United States Attorneys
NADIA J. AHMED
ERIN M. CREEGAN
Special Assistant United States Attorneys
Attorneys for the United States
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CERTIFICATE OF SERVICE
1
2
I certify that I am an employee of the United States Attorneys Office. A
copy of the foregoing GOVERNMENTS RESPONSE IN OPPOSITION TO
INTERVENORS OBJECTIONS TO THE ORDER GRANTING IN PART
GOVERNMENTS
OBJECTIONS TO MAGISTRATE JUDGES PROTECTIVE ORDER was
served upon counsel of record, via Electronic Case Filing (ECF).
MOTION
FOR
PROTECTIVE
ORDER
DATED this 22nd day of August, 2016.
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/s/ Steven W. Myhre

______________________________
STEVEN W. MYHRE
Assistant United State Attorney
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AND

08-22-2016 ECF 640 USA V CLIVEN BUNDY Et Al - RESPONSE To 620 Objections Re Motion Reconsider Order

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Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 1 of 22

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

CERTIFICATION: This Response is timely filed.

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 2 of 22

respectively (hereinafter collectively referred to as Objections). For the reasons

law and in fact.

determinations and propound no contrary authority to undercut its legal

Intervenors proffer nothing to rebut the Orders fact

Intervenors glibly and wrongly refer to this case as supposedly determining

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 3 of 22

Intervenors Motion to Intervene. ECF No. 428.

By way of further background, the government proffers as follows. Rather

than delay the timing of discovery by undertaking the time-consuming effort of

redacting images and identifying information from thousands of pages of

purpose of intimidating, harassing, or influencing victims and witnesses,

including investigating agents.

In support of its motion, the government proffered 22 exhibits as examples

of various Facebook postings by Bundy supporters as they attempted to out the

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 4 of 22

impoundment and subject them to threats, harassment, intimidation and ridicule.

well as to others associated with the Bundy cattle impoundment operation.

A number of the defendants opposed the protective order without further

explanation or without proffering any alternative means of effecting discovery

the Intervenors), moved to intervene and interpose objections, contending that

United States Magistrate Judge Peggy Leen (hereinafter Magistrate

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 5 of 22

documents, approximately 1.4 terabytes of data consisting of hundreds of hours of

consisting of over 250,000 pages of digital documents.

including, among other things:

The government met its burden of establishing good cause for a

Having found good cause, the Magistrate Judge entered a separate

certain discovery information as confidential documents, which encompasses

generally the materials produced by the government in discovery, including

agency reports, witness statements, memoranda of interviews and any tangible

objects. Id. at 1, paragraph 1. It excludes from the definition, information and

documents found in the public domain. Id.

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 6 of 22

The Protective Order further restricts the dissemination of confidential

and preparation of this case. Id. at 2-3, para. 4.

evidence. Id. at 3, para. 6.

Intervenors filed their Objections to the Order and Protective Order,

And it requires that any

Standard of Review Fact Determinations are Reviewed for Clear

pretrial matter pending before the court . . . . 28 U.S.C. 636(b)(1)(A) (omitting

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 7 of 22

clearly erroneous or contrary to law.

error standard, while it reviews legal determinations de novo to determine

(N.D. Cal. 2010).

Id; accord LR 1B 3-1. In reconsidering a

affirm a magistrate judges factual determinations unless it is left with the

Legal Standard for Entry of a Protective Order Good Cause.

With regard to the governments disclosure obligations in a criminal case, a

inspection, or grant other appropriate relief. Fed. R. Crim. P. 16(d)(1) (emphasis

Case 2:16-cr-00046-GMN-PAL Document 640 Filed 08/22/16 Page 8 of 22

(quotations and citations omitted).

Good cause is a fact determination, requiring a showing that disclosure

injury.) (citations omitted).

information that could result in physical or economic injury is obviously a clearly

Disclosure of witness identity or identifying

necessary to investigate the witness in preparation for trial); United States v.

permitting police officers from El Salvador to testify under pseudonyms, without

disclosure of their true names to the defense, where government established