Page 1- Memorandum Re: Protective Order

LISSA CASEY, OSB #086541

MICHAEL ARNOLD, OSB #011873

lissa@arnoldlawfirm.com

mike@arnoldlawfirm.com

Arnold Law

401 East 10th Ave. Ste 400

Eugene, OR 97401

Ph: 541-338-9111

Attorneys for Ammon Bundy

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

UNITED STATES OF AMERICA,

Plaintiff,

vs.

AMMON BUNDY et al,

 Defendants.

Case No.: 3:16-CR-00051

DEFENDANT AMMON BUNDY’S 

MEMORANDUM IN 

OPPOSITION TO TO SIGNED 

PROTECTIVE ORDER AND 

MOTION TO MODIFY

Certificate of Conferral and Positions of Attorneys

A draft copy of this Memorandum and the proposed protective order was 

emailed to counsel for the Government, and they object for reasons previously 

articulated to the Court. As per the status report, defendants will make their 

positions known at the status hearing.

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Relief Sought

Defendant AMMON BUNDY objects1to the protective order and requests 

that it be vacated, and in the alternative, moves to modify the protective order as 

proposed and filed herein. Ammon Bundy incorporates by reference his attorney’s 

declaration in support of this memorandum. 

In the Ninth Circuit and subject to certain exceptions, documents exchanged 

in discovery are presumptively public in nature. Moulay v. Ragingwire Enterprise 

Solutions, Inc., 2010 WL 4628076, * 3 (E.D.Cal. November 4, 2010) (citing San 

Jose Mercury News, Inc. v. U.S. District Court, 187 F.3d 1096, 1103 (9th 

Cir.1999) (“It is well-established that the fruits of pretrial discovery are, in the 

absence of a court order to the contrary, presumptively public”). 

Introduction

Given the highly charged political and social commentary that surround this 

case, it is especially important to note that all of the defendants are wholly 

dependent on this Court to ensure that the law - not hyperbole, exaggeration, or 

politics - rules the day. So far, the explanations and presumptions about what 

happened at the Malheur National Wildlife Refuge – including some explanations 

already made here in this Court – have been tainted by governmental bias. In fact, 

 

1 Co-defendant Jason Patrick, through his counsel, filed a response to the 

government’s motion (Document 249), and Mr. Bundy hereby incorporates those 

arguments by reference herein.

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the government has made no secret of its tactical plan to use and infiltrate 

traditional and social media to mischaracterize, discredit and marginalize “the 

militia” and to undermine a legitimate and lawful political protest, as demonstrated 

in publicly released emails and documents.

While law enforcement and prosecutors have openly mocked and derided 

Ammon Bundy and his “Citizens for Constitutional Freedom” colleagues, it is 

shocking how little awareness and appreciation the government has shown for their

having simultaneously invoked their rights under the protection of the First, 

Second and Fifth Amendments to the Constitution of the United States.

These failures are precisely why the defendants must depend upon this Court

as a fair and neutral tribunal – focused on the actual facts and the relevant lawIn 

essence, what is at stake here is the loss of an opportunity to express to Congress a 

protester’s dissatisfaction with the laws and policies of the United States and to 

utilize those same free speech rights to mount a vigorous defense investigation. 

Staged demonstrations—capable of attracting national or regional attention 

in the press and broadcast media—are, for better or worse, a major vehicle by 

which those who wish to express dissent can create a forum where their views may 

be brought to the attention of a mass audience, and in turn, to the attention of state 

and national legislatures. 

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Long gone are the times when a citizen could literally walk into the White 

House and talk to the President. For instance, Thomas Jefferson and subsequent 

presidents, along with their wives, would greet visitors in the East Room around 

lunchtime. People were not allowed in during the morning, when the president was 

sleeping, or while he was out of town. People were, however, allowed to have 

essentially unfettered access to the White House grounds. This serves as a stark 

contrast to the the police-state-like atmosphere of the White House today and the 

Burns and the Harney County Courthouse during the FBI occupation.

In contrast to the astute (albeit novel) protest at Malheur are the actions of

sorely misguided county officials and an unquestionably inept Oregon governor 

who deliberately orchestrated a highly charged and highly political overreaction by 

both the media and by state and federal law enforcement, and who referred to Mr. 

Bundy and his fellow protestors as “domestic extremists,” although no charges had 

been made, no indictment had been returned, no ejectment, eviction or removal 

proceedings filed in court for camping or squatting, and no arrest warrants had 

been issued – that is, of course, until after the shooting death of LaVoy Finicum by 

Oregon State Police and the FBI (which is now being investigated by the 

Department of Justice for possible cover-up, evidence tampering, and obstruction 

of justice.)

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Argument

Federal Rule of Criminal Procedure 16(d)(1) provides that “[a]t any time the 

court may, for good cause, deny, restrict, or defer discovery or inspection, or grant 

other appropriate relief.” Yet with regards to the present circumstances, the 

Government did not demonstrate good cause to issue a blanket protective order. 

Clearly, the Court has discretion in determining what constitutes “good 

cause” for purposes of granting a motion for protective order. United States v. 

Fort, 472 F.3d 1106, 1131 (9th Cir. 2007) (“Rule 16(d)(1)...grant[s] considerable 

discretion to the district court in drafting order” to protect witnesses, and “[a]ny 

debate about whether the district court's order has sufficiently protected witnesses 

is a debate about the drafting of a protective order under Rule 16(d)(1).) In 

exercising its discretion, the commentary for the Federal Rules provides that the 

Court should consider “the safety of witnesses and others, a particular danger of 

perjury or witness intimidation, the protection of information vital to the national 

security, and the protection of business enterprises from economic reprisals.” Even 

here, “[g]ood cause is [only] established on a showing that disclosure will work a 

clearly defined and serious injury ... The injury must be shown with specificity.” 

United States v. Wecht, 484 F.3d 194, 211 (3rd Cir. 2007) (citing Fed.R.Civ.P. 

26(c)). “Broad allegations of harm, unsubstantiated by specific examples or 

articulated reasoning, do not support a good cause showing.” Id. (quoting Pansy v. 

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Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir.1994) (citation and internal 

quotation marks omitted)).

Thus, even if harm would be sustained by the government if a protective 

order did not issue, that harm must be balanced against the public’s interest in the 

information, as well as any prejudice that would be suffered by the defendant 

should the protective order issue. See e.g. Wecht, 484 F. 3d at 211. (“The good 

cause determination must also balance the public's interest in the information 

against the injuries that disclosure would cause.”). This balances in the favor of 

disclosure.

In its motion, the government cites the “sensitive discovery” involved in this 

case, as well as the potential for witness intimidation. The Government further 

elaborates that the “sensitive discovery” includes law enforcement reports and 

interviews, analysis of evidence, and copies of seized physical evidence—all 

seemingly commonplace categories of discovery in a criminal case. 

The government also submitted an affidavit by Special Agent Katherine Armstrong 

in support of its motion. 

Almost all of the government’s arguments are based upon impermissible 

generalities. One of the only specific and articulated examples is Special Agent 

Armstrong’s reference to an alleged, but un-established instance where a woman 

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reports having been intimidated at a Safeway store in Burns, Oregon. Affidavit, 

p.3. She also cites a similarly un-established instance where the parents of a 

“Harney County law enforcement official” felt “harassed.” Even assuming that 

these examples are true, it stands to reason that in a free and crowded society,

sometimes people’s feelings may be hurt and they may feel harassed. Further, 

these events have nothing to do with the result of making discovery materials 

public, nor with any certainty to these defendants. Making people feel comfortable 

in a crowded and free society should not be this Court’s business when no actual 

and credible threats of violence have been proffered, particularly when weighed 

against the defense’s need for crowdsourcing as set forth in the Declaration of 

Counsel. What is the “clearly defined” and “serious” injury? None. 

Further, these kinds of examples are not supported by the “articulated 

reasoning” requirement as the kinds of instances that would be at issue. In the 

Ninth Circuit, to prevent access to unfiled discovery materials, “[a] party asserting 

good cause bears the burden, for each particular document it seeks to protect, of 

showing that specific prejudice or harm will result if no protective order is 

granted.” Foltz, 331 F.3d at 1130 (citation omitted) (emphasis added). Like other 

circuits, “[b]road allegations of harm” and “examples” that are not supported by 

“articulated reasoning, do not satisfy the Rule 26(c) test.” Beckman Ind., Inc. v. 

Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir.1992) (“In the instant case, the parties 

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stipulated to a blanket protective order. Reliance will be less with a blanket order, 

because it is by nature overinclusive.”) 

And, regarding the specifics identified, at a hearing before this court, once 

discovery was actually able to be quoted in open court instead of summarized 

by government witnesses, both of those instances were either debunked or shown 

to be mischaracterized by the government. With respect to the Safeway incident

(an accusation against Mr. Ritzheimer), counsel for Mr. Ritzheimer proffered that 

the complainant had receipts that demonstrated the impossibility of Mr. Ritzheimer 

to have been at the grocery store. A witness who claims to feel intimidated and 

incorrectly identifies the person who intimidated her to be one of the co-defendants 

in this case is not good cause for a blanket protective order with thousands of pages 

of discovery that have been provided to date. 

With respect to the second incident of alleged witness harassment, the 

discovery paints a different picture than Special Agent Armstrong likely hoped to 

convey to the court. The discovery in this case actually shows that the “law 

enforcement official,” (Sheriff Dave Ward) wrote emails to the FBI that discuss 

threats his parents made to the co-defendants in this case, not the other way 

around. In fact, one of the co-defendants in this case was handing out fliers 

(exercising his right to free speech) and made a comment about “forcing the 

Sheriff to do his job.” The Sheriff’s parents commented back about the injury a 

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type of gun could cause to someone, and about what would happen if “one hair” on 

the Sheriff’s head was harmed. Since that information was disclosed in open court, 

defense counsel is unaware of any actual threats or intimidation that were made to 

the parents of the sheriff. The government’s hypothesis has been tested with the 

release of that information and is proof of the lack of need for a blanket order.

Special Agent Armstrong also points to statements by an environmentalist

who repeatedly traveled to the refuge every day for ten days. That 

environmentalist stated that his life was threatened, although Special Agent 

Armstrong does not say by whom—a co-defendant in this case or not. However, 

this environmentalist allegedly left the refuge after one of his colleagues was 

accused of being an undercover FBI agent. There seem to be two equally likely

possibilities that explain these allegations of harassment, which means that the 

government has not yet met its burden. One: The remarks by the government are 

purely speculative. Or, two: Super-sensitive, thin-skinned people may claim a 

“threat” or “intimidation” when it is just words that make them feel uncomfortable. 

In reality, neither of these scenarios have anything to do with threats of physical 

force. As Justice Potter Stewart defended,

A function of free speech under our system of government is to invite 

dispute. It may indeed best serve its high purpose when it induces a 

condition of unrest, creates dissatisfaction with conditions as they are, 

or even stirs people to anger. Speech is often provocative and 

challenging. It may strike at prejudices and preconceptions and have 

profound unsettling effects as it presses for acceptance of an idea. That 

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is why freedom of speech * * * is * * * protected against censorship or 

punishment, unless shown likely to produce a clear and present danger 

of a serious substantive evil that rises far above public inconvenience, 

annoyance, or unrest. * * * There is no room under our Constitution for 

a more restrictive view. 

Edwards v. S. Carolina, 372 U.S. 229, 237-38, 83 S. Ct. 680, 684 (1963). 

With respect to witness intimidation or harassment, our crowdsourcing 

efforts allowed us to discover that at least one crucial witness statement disclosed 

in discovery by the Government is claimed by that same witness to be inaccurate

or false. Ammon Bundy cannot disclose that witness statement right now, as this 

person fears retaliation by the government. That’s the problem and the reason why 

our society and our justice system favors the freedom to disclose and disseminate 

information: The government has already had the benefit of its communications –

part of the benefit of discovery is to ensure that such a benefit is fair and balanced

– and it is the public who can help do that more than anything. 

Consider that the only accusation of witness intimidation that Ammon’s 

legal team has uncovered so far has been on the part of the government through the 

FBI. Without crowdsourcing efforts, this inaccurate witness statement would

likely have stood, uncontroverted, as part of the government’s attempted 

characterization and false branding of these protestors as violent and threatening 

individuals. This taint is impermissible, and it will affect trial witnesses as well as 

potential jurors.The court can help dissipate such taint by refusing to keep in place 

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any overly broad restrictions on the free flow of essential information in the 

discovery materials. 

Special Agent Armstrong also points to social media postings, where the 

defendants allegedly make “threatening, intimidating, and harassing statements 

regarding federal agency employees.” Importantly, there are no charges for such 

conduct in this case. Thus, another way of framing Ms. Armstrong’s example is 

that these alleged posts are an instance of defendants exercising their free speech,

and the government completely fails to analyze the privileged nature of their 

statements. It also fails to analyze whether the statements are a correct statement 

of law made by certain defendants regarding their right to protect themselves from 

unlawful force by the government. For example, the law clearly provides that a 

person is entitled to defend himself from unlawful use of force in self-defense or in 

defense of others. “If-then” statements about what someone would do to defend 

themselves from unlawful use of force is not a threat – it is a true statement of law. 

Statements like this are made every day by individuals against other individuals 

and are entirely true statements of the law and privileged speech. Law 

enforcement has no special right above and beyond that of the person who 

reasonably believes to be the use or imminent use of “unlawful” physical force.” 

State v. Oliphant, 347 Or. 175, 197, 218 P.3d 1281, 1293-94 (2009); State v. 

Wright, 310 Or. 430, 435, 799 P.2d 642, 644 (1990) (“If a peace officer uses 

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excessive force in making an arrest, the arrestee has a right to use physical force in 

self-defense against the excessive force being used by the officer.). 

Social media postings, incorrect witness identifications, threats by a sheriff’s 

parents to the protestors, and the statement of one person saying that they felt

threatened after holding press conferences at the refuge every day for ten days, 

does not demonstrate good cause for the government to obtain a blanket protective 

order. 

Assuming, without conceding, that there was a credible threat to a witness, 

then a narrowly tailored protective order that covers one isolated report might be 

appropriate. A blanket protective order is not. And, upon this challenge, the law 

requires that the government now make a particularized showing – for specific 

discovery documents – before such documents can be included in a protective 

order. Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131 (9th Cir. 

2003) (“the district court must require [the party desiring protection] to make an 

actual showing of good cause for their continuing protection [of the documents].)

In the alternative, please see the attached proposed protective order that 

would meet the government’s interests, presuming it can show good cause for it to 

apply to certain parts of discovery. Defendant Ammon Bundy suggests the 

following process for designating discovery as confidential and subject to a 

protective order: 

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1. First, the government must file a motion for protective order and 

demonstrate good cause to keep that information confidential from the 

public. 

2. The government must produce the discovery, marked as confidential, to 

the defense, along with that motion to seal. 

3. The defense will agree not to disclose to the public any information 

produced with that motion. 

4. Within 5 days, however, the government must file its motion with the 

court. 

5. If the court determines that there is good cause for that isolated portion of 

discovery to be confidential, then it will be subject to a protective order. 

Defendant Ammon Bundy objects to all things secret, from secret courts to 

secret discovery to secret police reports. He firmly maintains his belief that an 

open court and public accountability are the only ways to ensure that he receives a 

fair trial, as is his right under the United States Constitution.

This case, more so than any case in recent memory, in this district, or across 

the country, demonstrates the importance of making judicial documents public. 

For instance, in this case, many witnesses are afraid to come forward, even though 

they have critical information that could help the case. Ammon’s legal team has 

actively solicited leads for weeks. Those efforts have paid off. By actively 

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seeking assistance of the public, leads can be closed in mere minutes that would 

otherwise take days to close with an investigator. Only because Mr. Bundy’s 

attorneys have gained the public trust and actively sought information, is Mr. 

Bundy finally learning the truth about what happened in this case, as opposed to 

the conclusions that the government hopes the public will draw from its selective 

release of information. 

Public interest in this case will continue. The truth must come out. A 

protective order that seeks to “protect witnesses” will only allow the government to 

convict the protestors in the court of public opinion, as their attorneys stand by, 

chilled and unable to seek the truth on their behalf through crowdsourcing select 

parts of discovery. 

This is not a case about concrete events to which only a select few are party.. 

This is a case of public interest because many people safely visited the refuge 

during this protest, as it was a safe gathering, open to the public andto agents of the 

government. It is true thatThere was one statement of intimidation made: “We ask 

that people stay away from the refuge for their safety.” The defense concedes that 

this statement may have affected government officers and prevented them from 

feeling safe in accessing the refuge. Had this statement been made by the 

protestors, it would be the central piece of evidence against them,ut it wasn’t. It 

was made by the government to set a narrative of fear rather than free speech and 

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protest. Sheriff Ward made that statement on January 4, 2016, and in doing so was 

purportedly the first person to attempt to publicly discourage anyone from visiting 

or working at the refuge. 

The public’s impressions and opinions, and the information that they 

possess, are critical to defending these protestors. Gagging the attorneys and 

protestors with an overly broad protective order does not seek justice—it only 

allows the government to use court filings to continue the false narrative that these 

protestors were and are dangerous, while removing an important defense 

investigative tool. 

Mr. Bundy deserves a fair and speedy trial. This protective order prevents 

him from obtaining either. He needs the public’s help to get to the truth, which 

is exactly what it appears the government is intending to prevent. If the 

government can show good cause for very specific documents which need to be 

protected, then the parties can confer and seek the court’s assistance if there is a 

disagreement through a particularized motion by the Government. A blanket 

protective order is inappropriate in this case and infringes on the ability of both Mr. 

Bundy and his attorneys to seeking justice and find the truth.

DATED this 5th day of April, 2016.

/s/ Michael Arnold

Michael Arnold, OSB #011873

mike@arnoldlawfirm.com

Lissa Casey, OSB #086541

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lissa@arnoldlawfirm.com

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