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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION

UNITED STATES OF AMERICA : Case No. 1:18-CR-0043

:

v. : Judge Timothy S. Black

:

YANJUN XU : AGREED PROTECTIVE ORDER

(a/k/a Xu Yanjun and Qu Hui) : REGARDING NON-CLASSIFIED

: DISCOVERY

WHEREAS, pursuant to Rule 16 of the Federal Rules of Criminal Procedure,

Maryland v. Brady, 373 U.S. 83 (1963) and its progeny, and 18 U.S.C. § 3500, the 

government will provide materials to the defendant in the course of the discovery process 

in this case (hereafter “Discovery Materials”), which may include, but are not limited to, 

copies of recordings made by witnesses, interviews, reports, photographs, writings, or other 

materials related to the underlying investigation of this case;

WHEREAS, the government represents that the Discovery Materials include 

sensitive information, the unrestricted dissemination of which could adversely affect law 

enforcement interests, national security interests, and the privacy interests of third parties 

and victims;

WHEREAS, the Discovery Materials may contain proprietary or trade secret 

information of third parties, or may contain information that is restricted from dissemination 

or export pursuant to the Arms Export Control Act (“AECA”), 22 U.S.C. § 2778, the 

International Traffic in Arms Regulations (“ITAR”), Title 22, Code of Federal Regulations, 

parts 120-130; the International Emergency Economic Powers Act (“IEEPA”), 50 U.S.C. 

§§ 1701-1707; and/or the Export Administration Regulations (“EAR”), 15 C.F.R. §§ 730-

774;
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WHEREAS, the parties agree that the government has a compelling interest in 

preventing some of the aforementioned Discovery Materials from being disclosed to anyone 

not a party to the court proceedings in this matter, as such material may include information 

relevant to ongoing national security investigations and prosecutions, and such materials 

may implicate the privacy interests of the defendant and third parties;

WHEREAS, 18 U.S.C. § 1835 requires the Court to enter such orders as are 

appropriate in order to preserve the confidentiality of trade secrets;

AND WHEREAS, the parties further agree that the Court has the power under Fed. 

R. Crim. P. 16(d)(1) and 26.2 to grant appropriate relief to the parties where required in the 

interests of justice;

IT IS ORDERED that:

1. Pursuant to Rule 16(d) of the Federal Rules of Criminal Procedure, the 

government shall segregate the Discovery Materials into three categories: (1) General 

Discovery Materials; (2) Sensitive Discovery Materials; and (3) Attorneys’ Eyes Only 

Materials. The category to which particular discovery materials belong shall be clearly 

identified by the government.

2. General Discovery Materials are defined as documents and other materials that 

are not otherwise designated as falling into the categories of Sensitive Discovery Materials 

or Attorney’s Eyes Only Materials. 

3. Sensitive Discovery Materials are defined as including investigative materials 

from other countries, materials specific to the identity and background of the defendant or 

Employee 1, to whom the Indictment refers, or other materials that the government deems 
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to require the access restrictions defined below based on their relationship to the proprietary 

information in the context of the investigation giving rise to this matter or both.

4. Attorneys’ Eyes Only Materials are defined as including Discovery 

Materials that came from or is the property of Victim A described in the Indictment, or 

other materials that the government deems to require the access restrictions defined below.

5. The government shall mark each page of each document and each item 

provided as Discovery Materials with a unique identifying prefix and number that identifies 

the category into which the material falls.

6. The “Defense Team” is defined as (i) the defendant; (ii) counsel of record 

for the defendant and their staff members (associates, paralegals, investigators, litigation 

support personnel, and legal assistants/secretarial staff) and (iii) experts, translators, 

interpreters, consultants and investigators retained to assist in the preparation of the 

defense. 

7. Except as provided in this Order, General Discovery Materials can be shared 

with all members of the Defense Team and may be left in the possession of the Defendant. 

General Discovery Materials shall not be further disseminated1by the Defense Team to any 

individuals, organizations or other entities outside the Defense Team, except as provided 

below:

a. Members of the Defense Team, but not the defendant, may show (but not 

provide copies of) any General Discovery Materials to witnesses or potential 

witnesses during the course of their investigation of this case.

 

1 “Disseminate” means to provide, show, or describe to another either a particular piece 

of discovery or quotations, excerpts, or summaries derived therefrom.
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8. Sensitive Discovery Materials shall not be disseminated by anyone other 

than defense counsel of record, and said dissemination shall be subject to the following

restrictions:

a. Defense counsel of record shall not disseminate Sensitive Discovery 

Materials to any individuals, organizations, or other entities, other than to 

members of the Defense Team.

b. Sensitive Discovery Materials may be shown to the defendant, but such 

materials may not be left in the possession or custody of the defendant. In 

addition, the defendant is prohibited from maintaining in his possession any 

notes, summaries, or other materials derived from Sensitive Discovery 

Materials, regardless of who prepared the notes.

9. Attorneys’ Eyes Only Materials shall not be further disseminated by counsel 

of record to any individuals, organizations, or other entities, except as provided below: 

a. Counsel of record may disseminate any Attorneys’ Eyes Only Materials to 

their staff members (associates, paralegals, investigators, litigation support 

personnel, and legal assistants/secretarial staff) assigned to the Defense 

Team. Counsel of record may not disseminate any of such Attorneys’ Eyes 

Only Materials to the defendant, the experts, translators, interpreters, 

consultants and investigators assigned to the Defense team, and witnesses 

or potential witnesses except as provided in paragraph 13, below.

b. The members of the Defense Team who receive access to the Attorneys’ 

Eyes Only Materials (as described in subparagraph a) must be U.S. citizens.

In other words, Attorneys’ Eyes Only Materials may not be disseminated to 

any foreign nationals, even if such individuals are part of the Defense Team. 
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Failure to abide by the provision may result in violations of the AECA, 22 

U.S.C. § 2778, the ITAR, Title 22, Code of Federal Regulations, parts 120-

130; IEEPA, 50 U.S.C. §§ 1701-1707; and/or the EAR, 15 C.F.R. §§ 730-

774.

c. Where Attorneys’ Eyes Only Material consists of written documents or 

recorded oral statements or conversations in a language other than English, 

the government shall provide a written English translation of such 

documents, statements, or conversations to counsel of record 

simultaneously. 

10. Translations of any Discovery Materials, regardless of which party prepares 

or produces the translation, and regardless of the language from or to which the Discovery 

Material is translated, shall automatically inherit the category designation of the item from 

which it was translated. Accordingly, any translations shall be subject to the same 

restrictions on dissemination as the original document of which the translation is made. 

11. If the parties cannot agree on a designation of any of the Discovery 

Materials, the defendant, through counsel of record, may seek relief from the government’s 

designation (or a re-designation) as to a particular item of discovery by filing a motion with 

the Court. The government shall be given an opportunity to respond to the motion. Once 

the motion is filed, no further dissemination of the item(s) shall be made until after the 

Court rules on the motion and, if applicable, after the time for an interlocutory appeal under 

18 U.S.C. § 1835 has expired.

12. Pursuant to the procedures in 18 U.S.C. § 1835, the owner of any trade secret 

(and only the rightful and exclusive owner) may also contest the disclosure or designation 

of any item that contains information that is or purports to be trade secret information.
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13. Failure to mark any Discovery Materials as Sensitive Discovery Materials 

or Attorneys’ Eyes Only Materials is not an admission that the information contained 

therein is not, in fact, proprietary or trade secret information for purposes of trial.

14. Notice of proposed dissemination to government and defense experts or 

translators of any Discovery Materials in the Sensitive Discovery Materials and Attorneys’ 

Eyes Only Materials categories shall be provided to the Court ex parte and under seal. Each 

of the individuals to whom disclosure is made pursuant to the above provision shall be 

provided a copy of this Protective Order and will be advised that he or she shall not further 

disseminate the materials except by the express direction of counsel of record or co-counsel.

15. Each member of the Defense Team to whom disclosure is made pursuant to 

the terms of this Order shall be provided a copy of this Order and will be advised that he or 

she shall not further disseminate the materials, except as provided herein. No Discovery 

Materials shall be disseminated to any member of the Defense Team, as defined above, 

expert witness or translator retained by the Defense Team, or any duly authorized witness 

unless that person shall first have signed the Acknowledgment in the form attached hereto 

as Appendix A, agreeing to comply with the terms of this Order. The signed 

Acknowledgment shall be filed with the Court under seal. The substitution, departure, or 

removal for any reason from this case of counsel for the defendant, expert witness, 

translator, or anyone associated with the Defense Team shall not release that person from 

the provisions of this Order or the Acknowledgement executed in connection with this 

Order. Additionally, any Discovery Materials, including copies and notes, within the 

possession of a former member of the Defense Team shall be immediately returned to 

defense counsel of record.
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16. Defense counsel shall store all Discovery Materials, and any copies thereof, 

in a secure place, such that the Discovery Materials cannot be accessed by others not on the 

Defense Team.

17. The Discovery Materials in this case are now and will forever remain the 

property of the United States Government. Upon written request of the Government, all 

Discovery Materials not previously destroyed shall be returned to the Government or shall 

be returned or disposed of as otherwise instructed by the Government. Absent any such 

request, all Discovery Materials shall be destroyed promptly at the conclusion of the case.

18. All Discovery Materials are to be provided to counsel of record for the 

defendant, and used by the defendant and the Defense Team solely for the purpose of 

allowing the defendant to prepare his defense. The defendant and Defense Team shall not 

make, or participate in the making of, any extrajudicial disclosure of Discovery Materials 

for dissemination by means of public communication, unless such materials are (or become) 

public record, including but not limited to, trial transcripts, documents that have been 

received in evidence at other trials, or documents that are otherwise properly placed in the 

public domain. 

19. The government is responsible for correctly identifying into which of the 

above categories it believes the Discovery Materials fall. The government is also 

responsible for properly marking the Discovery Materials in a clear manner to identify the 

category in which the Discovery Materials were placed by the government. The defendant 

and the Defense Team may rely on the government’s designated or re-designated category 

identifications of the Discovery unless and until modified by the Court’s order. Moreover, 

the Defense Team has no obligation to determine the category into which the Discovery 

Materials belong or may belong. However, defense counsel of record shall, in good faith, 
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inform the government of any Discovery Materials which the government has entirely 

failed to mark, and the Defense Team shall refrain from dissemination of said discovery 

until the government has identified the item’s category and marked the item as such.

20. Notwithstanding any other provision of this or any other Protective Order 

that may be entered by the Court, the disclosure or discovery of materials that may be 

submitted to the Court in connection with any litigation related to the Foreign Intelligence 

Surveillance Act (FISA) (50 U.S.C. §§ 1801-1885), including but not limited to any FISA 

applications, orders, or related materials, shall be governed by FISA.

21. This Order does not apply to any classified materials related to this case. 

Any papers filed by the government pursuant to CIPA, containing classified information, 

shall be filed under seal and ex parte with the Court through the Classified Information 

Security Officer or a designee of the Court’s choosing who possesses the necessary security 

clearance and shall be governed by the provisions of CIPA. Counsel for the defendant shall 

be notified of any CIPA filing and the general nature of such filing. Any classified materials 

that the Court determines under CIPA may be released to the defendant and/or his counsel 

as discovery will then be subject to this Order. The government shall place such discovery 

in the appropriate category in accordance with the criteria set forth above, so mark it, and 

timely provide it to the defendant and/or his counsel as appropriate. 

22. Nothing in this Order shall preclude the government or the defendant from 

seeking a further Protective Order pursuant to Rule 16(d) as to particular items of Discovery 

Materials. This Order is entered without prejudice to either party’s right to seek a revision 

of the Order by appropriate motion to the Court.

SO ORDERED:
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 November 14, 2018 

DATE HONORABLE TIMOTHY S. BLACK

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

SO STIPULATED:

DATED: Nov. 14, 2018 /s/ Ralph W. Kohnen 

RALPH W. KOHNEN

JEANNE M. CORS

ROBERT K. McBRIDE

Counsel for Defendant

DATED: Nov. 14, 2018 s/ Timothy S. Mangan

TIMOTHY S. MANGAN

EMILY N. GLATFELTER

Assistant United States Attorneys
Appendix A

ACKNOWLEDGMENT 

The undersigned hereby acknowledges that he (she) has read the Protective Order entered in 

the United States District Court for the Southern District of Ohio in the case captioned United States 

v. Yanjun Xu, Criminal No. 1:18-cr-043, understands its terms, and agrees to be bound by each of 

those terms. Specifically, and without limitation, the undersigned agrees not to use or disclose any 

documents or information made available to him or her other than in strict compliance with the Order. 

The undersigned acknowledges that his or her duties under the Order shall survive the termination 

of this case and are permanently binding, and that failure to comply with the terms of the Order may 

result in the imposition of sanctions by the Court.

DATED: BY: 

(type or print name)

SIGNED: