United States District Court, D. New Mexico
C. Anderson United States Attorney Allison Jaros Assistant
United States Attorney United States Attorney's Office
Albuquerque, New Mexico Attorneys for the Plaintiff
Mallory Margaret Gagan Office of the Federal Public Defender
Albuquerque, New Mexico Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the United States'
Opposed Motion for a Protective Order, filed April 4, 2018
(Doc. 19)(“Motion”). The primary issue is whether
the Court should enter a protective order requiring Defendant
Theisman Tsosie to return to Plaintiff United States of
America or destroy discovery containing medical records and
personal identifying information relating to children within
sixty days of this case's conclusion. The Court concludes
that it will enter a protective order that limits disclosure
of medical records and personal identifying information, but
it will not order Tsosie to return or destroy the discovery
materials. Accordingly, the Court denies in part and grants
in part the Motion.
to the Criminal Complaint, filed February 22, 2018 (Doc. 1),
Tsosie became upset with his girlfriend's six year old
son -- “John Doe” -- on the morning of February
21, 2018, because “Doe spent ‘coins' in a
zombie game on an Amazon Fire/Kindle device.” Criminal
Complaint ¶ 6, at 3. Doe's mother --
“M.M.” -- “heard a noise coming from the
bathroom and then John Doe crying.” Criminal Complaint
¶ 6, at 3. M.M. entered the bathroom, and saw Doe laying
on his side with blood around his mouth and nose.
See Criminal Complaint ¶ 6, at 3. Doe said that
Tsosie slapped him in the face and kicked him in the ribs.
See Criminal Complaint ¶ 6, at 3. M.M. took Doe
to Indian Health Services (“IHS”), and IHS
doctors sent Doe to the University of New Mexico Hospital.
See Criminal Complaint ¶ 6, at 3. Doe had
“patterned bruising, a linear bruise on the jaw, and a
skull fracture.” Criminal Complaint ¶ 4, at 1.
March 13, 2018, a Grand Jury returned an Indictment charging
Tsosie with “knowingly, intentionally, and recklessly,
and without justifiable cause, caus[ing] John Doe, an Indian
child under the age of 18, to be placed in a situation that
may have endangered the child's life and health and to be
cruelly tortured and cruelly punished, resulting in great
bodily harm, ” in violation of 18 U.S.C. § 1153
and N.M. Stat. Ann. § 30-6-1(D). Indictment at 1, filed
March 13, 2018 (Doc. 13). Tsosie was arraigned on March 19,
2018, see Clerk's Minute Sheet, filed March 19,
2018 (Doc. 15), and the Honorable Karen B. Molzen, United
States Magistrate Judge, entered a discovery order later that
day, see Order, filed March 19, 2018 (Doc. 16).
Motion, the United States seeks a Protective Order, pursuant
to rule 16(d)(1) of the Federal Rules of Criminal Procedure,
restricting certain evidence's use. See Motion
at 5-6. The first proposed term is that the medical records
of Doe and Doe's siblings, and video and audio recordings
with “personally identifying information” --
which the United States refers to as “confidential
material” -- cannot be disclosed to anyone other than
Tsosie, Tsosie's attorney, the attorney's employees,
witnesses and their counsel, potential witnesses and their
counsel, or experts or consultants assisting in this action.
Motion at 5-6. The second proposed term is that the
confidential material provided to Tsosie be used
“solely for the purposes of this action, ” but
that restriction would not limit either party from disclosing
material in this action or related proceedings, provided that
the personal information is redacted pursuant to rule 49.1 of
the Federal Rules of Criminal Procedure. See Motion
at 6. The third proposed term is that, within sixty days from
this action's conclusion, Tsosie returns the confidential
material to the United States or notifies the United States
that he has destroyed the confidential material. See
Motion at 7.
United States argues that a Protective Order is necessary to
protect the material's personal information while
avoiding the time-intensive process of redacting audio and
video files. See Motion ¶ 3, at 2. The United
States contends that the Crime Victims' Rights Act, 18
U.S.C. § 3771(a)(8), obligates the United States and the
Court to ensure that Doe's personal information
“does not remain in the hands of defense counsel beyond
what is necessary.” Motion ¶ 7, at 2-3 (citing
Anderson v. Blake, 469 F.3d 910, 914 (10th Cir.
2006); A.L.A. v. W.Valley City, 26 F.3d 989, 990
(10th Cir. 1994); Lankford v. City of Hobart, 27
F.3d 477, 479 (10th Cir. 1994)). The United States also
contends that courts regularly approve protective orders
requiring that confidential materials be returned or
destroyed following a lawsuit's conclusion. See
Motion ¶ 10, at 5 (citing United States v.
Garcia, No. 12-10089-02-JTM, 2016 WL 4398972, at *1 (D.
Kan. Aug. 18, 2016)(Marten, J.)(unpublished); United
States v. Aguilar, No. CR 09-3207, 2010 WL 2977708, at
*6 (D.N.M. June 28, 2010)(Browning, J.)(unpublished)).
opposes the Motion. See Defendant's Response in
Oppos[i]tion to the United States' Motion for a
Protective Order at 1, filed April 17, 2018 (Doc.
20)(“Response”). Tsosie contends that he has
agreed to the proposed protective order's proposed
provisions limiting the dissemination of personal
information. See Response ¶ 4, at 2. Tsosie
argues that the United States has not shown good cause to
require Tsosie to return or destroy the confidential material
after the case's conclusion. See Response ¶
5, at 2. Specifically, Tsosie argues that the United States
“fails to address how the dignity and privacy of anyone
is inadequately protected by the issuance of a protective
order that prohibits dissemination” of personal
information. Response ¶ 6, at 2. Tsosie contends that,
although the United States' proposed protective order
request is consistent with civil requirements for such orders
under the Health Insurance Portability and Accountability
Act, 45 C.F.R. § 164.512(d) (“HIPAA”), those
requirements do not apply to materials disclosed in criminal
matters. Response ¶ 7, at 2.
Tsosie argues that, given that Tsosie helped raise Doe and
that Doe's siblings are Tsosie's biological children,
“there is no reason to think that any of these
individuals is in danger, that their safety is threatened, or
that their privacy rights are impinged, if the defense were
to retain this information in the normal course of the
Federal Public Defender's file retention policies.”
Response ¶ 8, at 3. Tsosie asserts that the Federal
Public Defender's office stores its client's files in
a “secure file room” for five years before being
stored in a “secure, off-site location.” Response
¶ 9, at 3. Furthermore, Tsosie argues that the United
States has not stated why the Federal Public Defender's
file storage system risks accidentally disclosing
confidential information. See Response ¶ 12, at
asserts that United States v. Garcia, 2016 WL
4398972, and United States v. Aguilar, 2010 WL
2977708, do not support the United States' position,
because those cases deal with protecting witnesses'
safety in light of retaliation concerns. See
Response ¶¶ 9-10, at 3-5.
also asserts that the United States' proposed sixty-day
window to return the confidential materials is unclear,
because “it is very difficult to estimate when 60 days
past the expiration of time for collateral review has
passed.” Response ¶ 13, at 6-7.
United States replied. See United States' Reply
to Defendant's Response to the United States' Opposed
Motion for a Protective Order, filed May 1, 2018 (Doc.
23)(“Reply”). The United States argues that rule
16(d)(1) of the Federal Rules of Criminal Procedure's
good cause requirement means the same thing in both the civil
and criminal context, and that good cause exists when
“the harm which might result from unrestricted
disclosure outweighs the party's interest in access to
that disclosure.” Reply ¶ 1, at 1.
United States contends that the “privacy, security, and
dignity interests” outweigh Tsosie's interest in
holding onto the confidential material indefinitely. Reply
¶ 4, at 2.
United States restates its view that redacting personal
information would be “unduly and unnecessarily time
consuming, ” because Doe's and other minors'
personal information appears throughout the record, and the
audio and video statements are more than seven hours long in
total. Reply ¶ 8, at 3. The United States ...