The government and defense counsel have agreed on many procedures designed to enable
the government to turn over discovery expeditiously and without redactions while protecting
information that affects government interests involved in this case, as well as privacy interests of
victims and uncharged third parties. Defense counsel also agrees that discovery is only to be used
for the defense of the case. The parties also agree to limit review of discovery to authorized parties
(but disagree on who should be permitted to be designated an authorized party). Defense counsel
also agrees that for certain discovery designated as sensitive, defense counsel will maintain
discovery at their U.S. offices and agrees not to physically or electronically transport any such
materials outside the United States.
The government and Concord Management, however, have not been able to reach
agreement on two key provisions. First, due to the number of co-defendants who have chosen not
to appear in the United States and are beyond the reach of U.S. legal process, the government
seeks, in the first instance, not to allow any co-defendant charged in this criminal case to review
discovery until the co-defendant appears before this Court. (Proposed Order, ¶ 2). The proposed
protective order provides that if defense counsel, after reviewing discovery in this matter, believes
it necessary to seek to disclose or discuss any material with a co-defendant who has not appeared
before this Court, counsel must first seek permission from this Court and a modification of this
Order. (Proposed Order, ¶ 2).
Second, to avoid unnecessarily undermining ongoing law enforcement and national
security investigations, the proposed protective order outlines a mechanism to regulate disclosure
of particularly sensitive material to foreign nationals.
