United States District Court, D. Massachusetts
ORDER ON DEFENDANT'S MOTION TO MODIFY PROTECTIVE
H. Hennessy United States Magistrate Judge
has moved to modify the Protective Order entered in this case
(Docket #38). The United States has filed an opposition
(Docket #43) and Defendant filed a reply (Docket #47). After
filing his reply, Defendant moved for leave to file under
seal a statement pursuant to Fed.R.Crim.P. 16(d)(1). The
Court held a hearing, which included a sealed, ex parte
conference with Defense Counsel, on September 20, 2018. At
the hearing it granted the motion to file the Rule 16(d)(1)
statement under seal. For the reasons stated below, the
motion is GRANTED IN PART and DENIED IN PART.
indictment filed on January 18, 2018, Defendant John H.
Nardozzi was charged with Conspiracy to Defraud the United
States (Klein Conspiracy), and eight counts of Aiding in the
Filing of False Tax Returns. See Docket #3. On
February 27, 2018, the United States moved for a blanket
protective order under Federal Rule Criminal Procedure 16(d),
to protect documents and information, including
“personal identification information and financial
information” of or involving third parties, that the
United States expected to produce in discovery. See
Docket #19. Generally, the order barred Defendant from
disclosing documents, records or other files produced in
discovery to anyone other than potential fact and expert
witnesses. Id. Further, in connection with producing
documents to any potential witness, the Order required
Defense Counsel to explain the Protective Order to the
person, have the person sign a prepared “Agreement To
Be Bound By Order” form appended to the Protective
Order (“Compliance Agreement”) that the person
agrees to comply with the Protective Order, and finally that
Defense Counsel file under seal and ex parte all such signed
forms. Id. Defendant assented to the motion.
Id. The following day, the Court allowed the motion
and entered the Protective Order. See Docket #20 -
21. Since entry of the Protective Order, the United States
has produced over 193, 000 pages of documentation.
See Docket #43 at p. 3. Six months after entry of
the Protective Order, Defendant filed the instant motion
proposing six modifications to the Protective Order.
See Docket #38. They are as follows:
A. Modifications 1 and 2
Protective Order, Paragraph 3, requires that before Defense
Counsel discloses a document to a person, counsel explain the
terms of the Protective Order to the person, obtain his or
her agreement to comply with its terms and his or her
endorsement on the Compliance Agreement, which counsel shall
file ex parte and under seal; or, if the person
refuses to endorse the Compliance Agreement, file a notice
(ex parte and under seal) with the Court that the
Protective Order was explained to the person.
Modification 1: Defense Counsel do no more than provide a
person to whom disclosure is made with a copy of the
Protective Order and maintain a list of all persons to whom
disclosure has been made.
Modification 2: Delete the requirement that the person
endorse the Compliance Agreement which recites that the
requirements of Paragraph 3 have been met and the person
agrees to comply.
B. Modification 3
The Protective Order, Paragraph 2, in relevant part, applies
the same obligations Defense Counsel has with respect to a
person, to an expert witness, and further prohibits the
expert witness from making copies of materials produced.
Modification 3: Require counsel do no more than provide a
copy of the Protective Order to the expert witness, and
delete the prohibition on copying materials so long as all
such copied materials are returned to counsel at the
conclusion of the case.
C. Modification 4
Withdrawn by Defendant. See Docket #47 ...