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United States v. Kumar

United States District Court, E.D. North Carolina, Eastern Division

December 16, 2019

UNITED STATES OF AMERICA
v.
SANJAY KUMAR, Defendant.

          SUPPLEMENTAL PROTECTIVE ORDER

          James E. Gates, United States Magistrate Judge

         The court adopts the provisions set forth below, pursuant to Fed. R. Crim. P. 16(d)(1), to help ensure compliance with the Protective Order (D.E. 21) entered herein on 1 February 2017. By order entered contemporaneously herewith, the court is denying a motion by defendant (D.E. 424) for modification of the Protective Order. The Protective Order therefore remains in full force and effect, and defendant must comply with all its terms. The instant Order does not supplant, hut rather supplements, the Protective Order.

         Good cause exists for all the provisions herein. They reflect the configuration and capabilities of the jail facility at which defendant is presently housed ("present jail facility"), based on information obtained from the U.S. Marshals Service, and other current circumstances, including the professed intention of defendant to use materials (i.e., information in any form) produced by the government in discovery in this case ("government discovery") as he chooses, including disclosure to third parties, irrespective of court directives. Notably, many of the procedures provided for herein are already in place, and this Order serves to memorialize such procedures.

         IT IS ORDERED as follows:

         I.ACCESS OF DEFENDANT TO CASE-RELATED MATERIALS

         1. Access in Reviewing Room. Electronic copies of government discovery on a laptop, other electronic copies of government discovery, paper copies of government discovery, notes defendant has composed (i.e., written by hand or typed himself or dictated to another person who handwrote or typed them) relating to this case, and any other materials relating to this case ("case-related materials") may be kept at the present jail facility. The case-related materials shall be kept in a room separate and apart from defendant's cell ("reviewing room"). Defendant shall be given access to the reviewing room for the purpose of reviewing the case-related materials up to one and a half hours each day. Defendant shall not be permitted to remove any case-related materials from the reviewing room.

         2. Access During Meetings with Defendant's Counsel and Court Proceedings. Defendant may have access to case-related materials during meetings with defendant's counsel of record in this case ("defendant's counsel") at the present jail facility and during court proceedings in this ease. Prior to the end of any such meeting or court proceeding, defendant shall return to defendant's counsel all copies of case-related materials provided to him during the meeting or court proceeding. Meetings of defendant with defendant's counsel at the present jail facility may be held during typical business hours each day and may last up to six hours each day.

         3. Prohibition Against Other Access. Other than inside the reviewing room or during meetings with defendant's counsel or court proceedings, defendant shall not possess, and the present jail facility shall not give him access to, any materials unless it is clear the materials are not case-related (e.g., books, magazines, newspapers, materials produced by or for the present jail facility) or the materials have been designated as not case-related materials pursuant to this Order.

         4. Notes Composed by Defendant. Defendant may compose notes relating to this case to the extent permitted by the rules of the present jail facility. Notes composed by defendant shall be treated as case-related materials unless and until they are designated as not case-related pursuant to this Order. Defendant shall on a daily basis turn over notes he composes to the present jail facility for storage in the reviewing room. The present jail facility shall search defendant and/or his cell for notes he has composed if and when it deems doing so is appropriate, which may or may not be on a daily basis.

         5. Procedure for Determining Whether Materials are Not Case-Related. If defendant wishes to have materials designated as not case-related, the following procedures shall apply:

a. Defendant's counsel shall serve on the government's counsel a signed certification, made in good faith after reasonable inquiry, that the materials defendant seeks to have designated as not case-related materials are not case-related material. The certification shall describe the form of the materials (e.g., notes, video), the approximate length of it, and the general subject matter it addresses.
b. If the government wishes to challenge the disclosure of the materials, it shall serve on defendant's counsel an objection to the designation within 3 days after the certification is served on the government's counsel. The objection shall state whether or not the government seeks to review the materials subject to the certification.
c. If the government states in its objection that it does not seek to review the materials subject to the certification, it shall file under seal and ex parte within 7 days after service of its objection a memorandum stating the grounds for the objection. Defendant's counsel may file under seal and ex parte a response to the government's memorandum within 7 days after the government's memorandum is filed. The court will thereafter rule on the objection.
d. If the government states in its objection that it does seek review of the materials subject to the certification, defendant's counsel shall serve within 3 days after the objection is served a copy of the materials on a "taint team" designated by the government. The taint team shall be composed of one or more attorneys who shall not participate in the prosecution of this case after their receipt of a copy of the materials as to which an objection to disclosure is asserted. Members of the taint team shall not disclose the materials subject to an objection to any attorney or other person participating in the government's prosecution of this case. Review by ...

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