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United States v. Nardozzi

United States District Court, D. Massachusetts

September 24, 2018

UNITED STATES OF AMERICA
v.
JOHN H. NARDOZZI, Defendant

          ORDER ON DEFENDANT'S MOTION TO MODIFY PROTECTIVE ORDER

          David H. Hennessy United States Magistrate Judge

         Defendant 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.

         I. Background

         In an 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 ...

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