Fortenberry, a former congressman, was charged in this district with scheming to falsify and conceal material facts and making false statements in connection with alleged illegal campaign contributions. During discovery, the Government sought a protective order because the broader investigation included information about potential wrongdoing by uncharged individuals and personal information about potential witnesses. Fortenberry objected only to the provision preventing counsel from providing him copies of sensitive or cooperator materials, arguing that because he lived in Nebraska and counsel was based in the Washington, D.C. area, he needed to review those materials on his own. The Government submitted sealed exhibits showing examples of the confidential investigatory materials it sought to protect.
Issue
Whether the Government showed good cause under Federal Rule of Criminal Procedure 16(d) for a protective order prohibiting defense counsel from providing Fortenberry copies of sensitive or cooperator materials or allowing him to possess them.
Rule
Under Federal Rule of Criminal Procedure 16(d), a court may issue a protective order for good cause. In assessing good cause, the court considers whether disclosure of the materials would pose a hazard to others, whether the defendant would be prejudiced by the protective order, and whether the public's interest in disclosure outweighs the possible harm. Once good cause is shown, the court has broad discretion to fashion an appropriate protective order, but the Government must justify the request with a particularized and specific showing appropriate to the type of order sought.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
In a federal fraud prosecution in Chicago, the government seeks a protective order barring defense counsel from giving Omar Ruiz copies of interview reports that identify cooperating witnesses and discuss alleged misconduct by several uncharged employees of Lakefront Parcel Logistics. The government submits sealed samples showing names, personal contact details, and accusations against those uncharged employees; counsel may review the reports with Omar by video screenshare.
How should the court most likely rule on the challenged restriction?
Explanation. Under Rule 16(d), the court asks whether disclosure poses a hazard to others, whether the defendant would be prejudiced, and whether the public interest outweighs the harm. Here, sealed samples identifying witnesses and uncharged subjects are a specific, particularized showing of concrete privacy and reputational interests. Because counsel can review the materials with Omar remotely, the order does not materially prejudice him. The majority opinion approved this type of possession restriction on sensitive or cooperator materials when supported by a specific showing and when review through counsel remained available. (Derived from United States v. Fortenberry (n.d.).)