355 F. Supp. 3d 1
D.C. Cir.2019Background
- Defendant Donzell Dixon was federally indicted for robbery, using/brandishing/carrying a firearm during the robbery, and unlawful possession of a firearm by a felon; police captured substantial body-worn camera (BWC) footage of the victim, civilian witnesses, and the search of Dixon's home.
- Government moved for a protective order limiting disclosure, use, dissemination, and post-litigation retention of BWC materials to protect victim and witness privacy and safety.
- Proposed order would restrict access to Dixon, his legal defense team, and court-authorized persons; require defense counsel to prevent Dixon/others from viewing footage with identifying victim/witness information; and limit non-case-related uses and retention.
- Dixon opposed, arguing footage of victims/witnesses alone does not establish good cause, that restrictions and redaction burdens prejudice his defense and his office's use of materials in other matters.
- Court evaluated Rule 16(d) good-cause standard, balancing witness/victim safety and privacy, potential prejudice to defendant, and public interest in disclosure.
- Court found the robbery was violent and personal (GrubHub delivery driver robbed at gunpoint using his phone number), Dixon has a criminal history including attempted robbery, and BWC likely contains personally identifying information — and thus granted the Government’s protective order, subject to possible later modification.
Issues
| Issue | Government's Argument | Dixon's Argument | Held |
|---|---|---|---|
| Whether a protective order is warranted under Fed. R. Crim. P. 16(d) for BWC footage | Protect victim/witness privacy and safety; BWC contains identifying info (faces, names, numbers, addresses); good cause shown | Video showing victim/witness identity alone does not justify special protection; order unduly restricts defense and imposes redaction burden | Granted: Court finds particularized safety/privacy interests and good cause for protective order |
| Scope of persons who may view BWC materials | Limit to defendant, defense counsel, defense team, court-authorized persons; counsel may redact and authorize limited viewing by defendant | Order prevents consulting other attorneys and sharing within FPD without court permission | Granted with flexibility: defense counsel may seek court permission to share; order permits counsel to authorize defendant viewing with redactions |
| Who should perform redactions and review | Defense counsel best positioned to identify relevant footage and redact sensitive portions to avoid government delay | Government should be required to perform redactions; burden on defense counsel is undue | Court: defense counsel may redact; burden on government to review hundreds of officer videos would cause delay, so counsel is appropriate reviewer |
| Public interest in access to BWC vs. privacy/safety | Public release mechanisms exist; protective order preserves access to records made part of the public trial record | Order impedes public interest in disclosure | Court: public interest does not overcome victim/witness safety/privacy; order excludes materials introduced at trial and does not block public-record disclosures |
Key Cases Cited
- United States v. Bulger, 283 F.R.D. 46 (D. Mass. 2012) (describing the particularity required to show good cause for protective orders)
- United States v. Cordova, 806 F.3d 1085 (D.C. Cir. 2015) (courts may consider witness safety and privacy when issuing protective orders)
- United States v. Johnson, 314 F. Supp. 3d 248 (D.D.C. 2018) (evaluating protective order for BWC footage and allocation of redaction burden)
- United States v. Smith, 985 F. Supp. 2d 506 (S.D.N.Y. 2013) (factors for weighing disclosure hazards, defendant prejudice, and public interest)
- Alderman v. United States, 394 U.S. 165 (1969) (courts may issue enforceable orders to prevent unwarranted disclosure of materials provided in discovery)
- United States v. Kingsbury, 325 F. Supp. 3d 158 (D.D.C. 2018) (issuing limited protective order for BWC material)
- Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003) (discussing cost-shifting and burdens in electronic discovery)