United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE
before the Court is Defendant Domingo Francisco
Aguirre-Diaz's Objections to Orders of the United States
Magistrate Judge Imposing Protective Order (Dkt. # 124).
Plaintiff filed a motion for protective order (Dkt. # 93) and
the motion was referred to a magistrate judge for a ruling.
Dkt. # 95. The magistrate judge granted plaintiff's
motion and entered a protective order (Dkt. # 123), and
defendant Domingo Francisco Aguirre-Diaz objects to the
magistrate judge's ruling. Dkt. # 124.
August 8, 2018, a grand jury returned a 36 count indictment
against 10 defendants alleging various crimes associated with
the operation of a drug trafficking organization.
Aguirre-Diaz was charged with a single count of participating
in a conspiracy to launder the proceeds of illegal drug
trafficking. Dkt. # 2, at 2-3. The indictment alleges that
the drug trafficking organization engaged in the distribution
of methamphetamine beginning in approximately April 2018, and
the scope of the conspiracy involved at least 500 grams of a
mixture or substance containing a detectable amount of
methamphetamine. Id. at 6. Defendant was arrested
and made his initial appearance on August 15, 2018, and a
magistrate judge released defendant subject to certain
conditions pending trial. Dkt. ## 41, 82. Plaintiff appealed
the magistrate judge's decision and the undersigned
determined that defendant should be detained pending trial.
Dkt. # 104.
for several of the defendants began to request discovery
materials from plaintiff, and plaintiff intended to produce a
broad range of discovery materials to defense counsel. Dkt. #
93, at 2. These materials included witness statements, grand
jury transcripts, recordings of phone calls, and law
enforcement reports. Id. at 3. However, plaintiff
believed that it was necessary for discovery to be produced
subject to a protective order, because the discovery
materials could be used to impede an ongoing investigation
and to identify confidential informants. Id. at 4.
Plaintiff sought a protective order requiring that defendants
a. not disseminate the transcripts and other investigative
materials provided pursuant to discovery for any purpose
other than to those individuals identified in subparagraph c;
b. return the transcripts and other investigative materials
provided pursuant to discovery to the United States
Attorney's Office as soon as reasonably possible after
the conclusion of the trial or any subsequent appeal in this
c. not show the transcripts and other investigative materials
provided pursuant to discovery to anyone with the exception
of the Defendant, Defendant's attorney of record in this
case and those persons employed by the attorney who are
necessary to assist counsel of record in preparation for
trial in this case; and
d. not reproduce the documents, transcripts and other
investigative materials for dissemination to any persons or
parties other than those persons employed by the attorney who
are necessary to assist counsel of record in preparation for
trial in this case, including the Defendant, and shall
maintain complete custody and control over them, including
Id. at 4-5. Carter, Passement, Arrellano, and
Herrera filed responses in support of the motion for
protective order, but Peregrina-Paez and Aguirre-Diaz
objected to the motion. Dkt. ## 103, 105, 106, 109, 117. The
motion for protective order was referred to a magistrate
judge, and the magistrate judge set the motion for hearing.
The magistrate judge permitted plaintiff to make an in
camera submission in support of the motion for
protective order. Dkt. # 120.
magistrate judge granted plaintiff's motion for
protective order without holding a hearing. Dkt. # 122. He
noted that a criminal defendant has no constitutional right
to pretrial discovery, and the government was voluntarily
providing discovery to avoid unnecessary delay at trial.
Id. at 3. The magistrate judge cited Fed. R. Crim.
P. 16(d), which provides that a court “may, for good
cause, deny, restrict, or defer discovery or inspection, or
grant other appropriate relief, ” and he observed that
“good cause” ordinarily requires a particularized
and specific showing of harm. Id. However, this case
involves thousands of documents and it would not be practical
to require plaintiff to make such a specific showing of harm.
Id. He provided the following summary of
plaintiff's argument concerning the need for a protective
The government contends that discovery in this case will be
voluminous, and will include: Grand Jury and Title III
wiretap transcripts, “third-party privacy-protected
information too difficult or time consuming to redact,
” and material from confidential informants - some of
whom are in custody, while others are not. Allowing
defendants to take certain documents back to the cell-block,
for example, would pose a danger to cooperating witnesses and
informants. Thus, safety of witnesses is a primary concern.
Furthermore, the Government states, the investigation of this
international drug trafficking conspiracy is on-going and
some of the co-defendants remain at-large. Thus, putting
certain documents and transcripts in the hands of defendants
and others would endanger an on-going investigation.
Id. at 4. The magistrate judge agreed that these
were legitimate concerns in this case and found that a
protective order should be issued. He advised the parties
that any defendant who objected to the protective order
should confer with plaintiff's counsel before seeking
redress from the Court, and “[o]nly after such effort
has proved fruitless, may defendant petition the Court
seeking specific modifications of the [p]rotective
[o]rder.” Id. at 5.
objects to the magistrate judge's order (Dkt. # 122)
granting plaintiff's motion for a protective order.
However, defendant's counsel has not certified in writing
that he conferred with plaintiff's counsel in an attempt
to resolve his objections to the protective order, and the
magistrate judge made this a necessary condition before any
party could petition the Court for a modification of the
protective order. This is also a requirement of the local
criminal rules. LCrR 16.1 states that the Court shall not
hear any discovery motion in a criminal case “unless
counsel for the moving party certifies in writing to the
Court that the attorneys for the parties have conferred in
good faith and have been unable to resolve the
dispute.” Defendant's counsel has made no such
record and his objection to the protective order could be
though defense counsel did not comply with the magistrate
judge's order (Dkt. # 122) or LCrR 16.1, the Court will
briefly consider his objections to the protective order. The
magistrate judge's ruling on a pretrial discovery matter
is not dispositive of the case and is entitled to deferential
review. Federal magistrate judges may hear and determine any
pretrial matter that is not dispositive of the case and must
enter a “written order setting forth the disposition of
the matter.” 28 U.S.C. § 636(b)(1); Phillips
v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006). An
order of the magistrate judge on a pretrial matter that is
not dispositive shall be set aside or modified only if the
order is found to be clearly erroneous or contrary to law. 28
U.S.C. § 636(b)(1)(A). Under this standard, the district
court should affirm the magistrate judge's order
“unless it ‘on the entire ...