DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

Andrew M. Kohlmetz, OSB #955418

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

Tel: (503) 224-1104

Fax: (503) 224-9417

Email: andy@kshlawyers.com

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

JASON PATRICK,

Defendant

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Case No. 3:16-CR-00051-BR-09

RESPONSE TO GOVERNMENT’S 

MOTION FOR PROTECTIVE ORDER

COMES NOW The Defendant, Jason Patrick, by and through his attorney Andrew M. 

Kohlmetz, and hereby Responds to the Government’s Motion for a Protective Order (Docket 

record #245) in this Case.

Summary of Response

The defendant objects to the blanket protective order sought in this case on the following 

grounds:

1) The government’s Motion fails to establish good cause for the blanket Order 

requested.

2) There is a compelling public interest in disclosure in this case.

3) The terms of the proposed Order are vague, and overbroad, and

4) The terms of the proposed Order unduly Infringe upon and chill the defense function.

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 1 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

The defense does not object in principle to a more narrowly drafted Protective Order 

based on particularized showing(s) of good cause. Nor does the defense object in principle to the 

redaction of certain personal identification information from discovery materials to be provided 

to the defendant or others not part of the defense team. The defense remains available to confer 

with the government on the terms of any such proposed Order.

Expanded Response

1) The Government’s Motion Fails to Demonstrate Good Cause for the Blanket Order 

Requested.

Pursuant to Federal Rule of Criminal Procedure 16(d)(1) the government must set forth good 

cause before the court may enter a protective order or otherwise “deny, restrict, or defer 

discovery or inspection, or grant other appropriate relief.” While there are few Ninth Circuit 

cases dealing with the good cause standard in criminal cases, recent District Court opinions have 

cited favorably to the Third Circuit approach as outlined in United States v. Wecht, 484 F.3d 194 

(3d Cir. 2007). In Wecht, the Third Circuit drew its reasoning from prior cases analyzing Federal 

Rule of Civil Procedure 26(c). The rule in Wecht is stated succinctly as this:

Good cause is established on a showing that disclosure will work a clearly defined 

and serious injury to the party seeking disclosure. The injury must be shown with 

specificity. Broad allegations of harm, unsubstantiated by specific examples or 

articulated reasoning, do not support a good cause showing.

Wecht, 484 F.3d at 211, quoting Pansy v. Borough of Stroudsburg, 

23 F.3d 772, 786 (3rd Cir. 1994).

While no reported criminal case in the Ninth Circuit has explicitly adopted the reasoning of 

Wecht, The Ninth Circuit’s civil discovery case law tracks with that in the Third Circuit. See 

Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003). Under Foltz,

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 2 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

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...see also Beckman, 966 F.2d at 476 (“[B]road allegations of harm, unsubstantiated 

by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test.”) (quoting 

Cippoline v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3rd Cir. 1986)(internal quotation 

marks omitted)); Defor v. Schmid Prods. Co., 120 F.R.D. 648, 653 (D.Md. 1987)(requiring 

party requesting a protective order to provide “specific demonstrations of fact, supported 

where possible by affidavits and concrete examples, rather than broad , conclusory 

allegations of potential harm.”) Foltz, 331 F.3d at 1130-31.

Foltz, has been cited with approval in at least three unreported District Court decisions in 

the Ninth Circuit: United States v. Calderon, 2014 WL 1401941 (D.C.C.D.Cal.)(unpublished 

opinion 4/8/14), United States v. Arredondo, 2012 WL 1946955 (D.C.D.Arizona)(unpublished 

opinion 5/30/12), and United States v. Patkar, 2008 WL 233062 (D.C.D. Hawai’i)(unpublished 

opinion 1/28/08) The obvious implication of these analyses is that blanket protective orders are 

clearly inappropriate. The Government’s Motion seeks a blanket order preventing the free 

dissemination of all 95,000 plus pages of discovery based on the Affidavit of Katherine D. 

Armstrong. In her affidavit Ms. Armstrong concludes:

That if witness statements provided to the defense in discovery were to be 

publicly disseminated, then it would be highly likely that those witnesses 

would be subject to harassment, threats, and intimidation. 

(Affidavit at paragraph 5)

The problem is that Agent Armstrong’s conclusion does not flow from the facts upon which it is 

based. Nor does her conclusion support the blanket Protective Order requested by the 

government, as opposed to a more precise remedy: For example – redaction of the personal 

information of concern to the government upon a specific showing of good cause. Paragraph 5 of 

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 3 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

her affidavit lists alphabetically five discrete examples of what the government refers to as 

witness intimidation or harassment. All of these events occurred in the days leading up to and 

during the so-called occupation of the Malheur National Wildlife Refuge. 

In subparagraph a) Agent Armstrong relays the account of a citizen who was approached 

by two individuals, now apparently identified as defendants herein, who yelled “You’re BLM, 

You’re BLM.” One of the individuals then allegedly stated that he know what car she drove and 

that she would be followed home. A vehicle similar to the one the two individuals were driving 

was seen outside her home at some unspecified later point in time. The following week the 

citizen reported that another vehicle followed her in an aggressive manner. Finally, the 

previously mentioned black pickup was noticed outsider her place of employment on Christmas 

Day. All of these activities preceded the “occupation of the Refuge. No specific threats of harm 

appear to have been made.

In subparagraph b) Agent Armstrong indicates that on December 13, 2015, a Harney

County Law Enforcement Officer received a disparaging email; that on December 16, 2015 this 

officer’s parents reported being followed after leaving a school play; and that on January 1, 

2016. One of the officer’s parents described being watched as he picked up his mail by two men 

in a pickup truck with Colorado plates. No specific threats of harm appear to have been made, 

and no ties to any defendant in this case are established. The last event occurred on January 1, 

2016, the day before the “occupation” of the Refuge began.

In subparagraph c) Agent Armstrong describes two incidents in late December and/or 

January 1 or 2, 2016 where the minor child of a nearby town’s police chief was allegedly 

followed home. Again there are no specific threats and no ties can be established to any 

defendant herein. 

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 4 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

In subparagraph d) Agent Armstrong describes one environmentalist having his life

threatened and another being accused of being an undercover FBI agent after going to the Refuge 

itself for ten days in mid to late January and holding press conferences after “occupiers” had held 

their own press conferences. A “very ugly” crowd is described. No ties to any defendant in this 

case are established.

Finally subparagraph e) refers to a plethora of threatening, intimidating and 

harassing statements regarding federal employees made by persons unspecified found at 

unspecified times on unspecified social media platforms.

From this small collection of incidents, none of which appear directly threatening, many 

of which are only tenuously connected to these defendants and which appear to have occurred 

primarily before and perhaps during the occupation but not since the occupation itself ended, the 

government seeks to restrict the defense dissemination of all discovery. It seems quite reasonable 

however that a far more limited protective order, if any at all, would suffice. Simple redaction of 

personal information or restriction of the dissemination of that personal information would 

achieve the same goals without unduly burdening the defense function.

2) There is a compelling Public Interest in Disclosure in this Case.

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

are presumptively public in nature. United States v. Calderon, 2014 WL 1401941 

(D.C.C.D.Cal.)(unpublished opinion 4/8/14) citing Moulay v. Ragingwire Enterprise Solutions, 

Inc., 2010 WL 4628076 (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”)).

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 5 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

The public nature of the instant case is apparent. Local, state and national press have covered the 

“occupation” since its inception. The public’s interest in the occupation overall and in the 

investigation of the occupiers is intense and ongoing. This interest is further stoked by public 

statements by federal and state officials regarding the investigation, along with the release by the 

government of reports and the results of investigations into issues directly related to the instant 

case. These public releases of information include much of the type of information that the 

government now seeks to control with the proposed protective order. The day of the filing of 

this motion, for example, the government publicly released the results of an investigation into the 

shooting death of Robert “LaVoy” Finicum, which included the information that the government 

was in the process of investigating one of the FBI special units involved in the death. This 

information has already been widely reported. See, e.g. Zaitz, Les, “FBI agents under 

investigation for possible misconduct in LaVoy Finicum shooting” The Oregonian, 8 Mar 2016, 

found at 

http://www.oregonlive.com/oregon-standoff/2016/03/oregon_standoff_fbi_agents_und.html.

The government had also already publicly released video of this shooting almost 

immediately after the incident. See House, Kelly, “FBI releases video footage of LaVoy 

Finicum shooting” The Oregonian, 28 January 2016, found at 

http://www.oregonlive.com/oregon-standoff/2016/01/fbi_to_release_video_footage_o.html. The 

government should not be allowed to pick and choose which discovery materials it deems 

appropriate for public release while at the same time seeking to restrict the defense’s ability to do 

the same. What is good for the goose is good for the gander.

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 6 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

The Supreme Court, in addressing whether or not a newspaper should be allowed to 

release information obtained through depositions, production requests and interrogatories in a 

civil case in which it was a party found that it was necessary to consider whether the "practice in 

question [furthers] an important or substantial governmental interest unrelated to the suppression 

of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is

necessary or essential to the protection of the particular governmental interest involved. Seattle 

Times Co. v. Rhinehart, 467 US 20, 32 (1984) (internal citations omitted).

The exceptional public interest in this case and in the investigation and prosecution of 

this case in particular given the recent allegations of FBI misconduct in the shooting death of one 

of the protesters militates for public access to much if not all of the discovery material, subject to 

particularized requests for protective orders. This is not the first complex case in this District to 

be plagued by disturbing allegations of law enforcement misconduct in the government’s 

investigation. In United States v. David Joseph Pedersen and Holly Ann Grigsby, Case no. 3:12-

CR-00431, Judge Haggerty felt compelled to write a 63 page Amended Supervisory Opinion to 

describe in part what he saw as systemic problems with the government’s investigation and 

provision of discovery and Brady evidence in this District. Not two months into this, perhaps the

most complex criminal case in this District, we are today informed of an inquiry into potential 

misconduct by FBI agents in the shooting of occupier Lavoy Finnicum and its aftermath. It is 

interesting, if not disturbing that the revelation of this potential misconduct did not come by way 

of a Brady type disclosure, but by a press release. This case calls for more public exposure. Not 

less.

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 7 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

3) The Terms of the Proposed Order are Vague, and Overbroad.

The government’s Motion seeks to prevent the dissemination of discovery to

1) The defendants in this case;

2) Persons employed by the attorney of record who are necessary to assist counsel of 

record in preparation for trial or other proceedings in this case: and

3) Persons who defense counsel deem necessary to further legitimate investigation and 

preparation of this case.

Who defines who is “necessary” to assist defense counsel? Are family, friends and associates of 

the defendants who wish to lend a helping hand “employed” by the attorney of record? How does 

one define “preparation” for trial? Who tells us who what a “legitimate” investigation entails? 

These words have only subjective meanings and it is clear the government’s intent is simply to 

prevent public dissemination of the entirety of the discovery rather than to craft a narrow 

protective order justified by a particularized showing of good cause. Mr. Patrick and I have been 

approached by numerous friends, family members, acquaintances and other interested parties 

who have demonstrated some level of interest in assisting the defense in this case. By what 

definition do I decide one or all of them is necessary to a legitimate defense need?

4) The Terms of the Protective Order Unduly Infringe Upon and Chill the Defense

Function

The Motion also seeks to make each and every defense attorney the gatekeeper of the 

government’s voluminous production by requesting that all persons to who receive copies of the 

discovery abide by the Protective Order and refrain from copying or further disseminating the 

discovery materials. How is defense counsel to enforce this Order? Beyond having to make an 

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 8 of 9
DEFENDANT’S RESPONSE TO MOTION FOR PROTECTIVE ORDER

Kohlmetz Steen & Hanrahan PC

741 SW Lincoln Street

Portland, OR 97201

(503) 224-1104

ad-hoc determination to who can or cannot receive copies of the discovery materials based upon 

the ill- defined language of the Motion, the Motion appears to lay a foundation for a later finding 

that the attorneys or their clients are somehow liable for a disclosure that later appears not to 

conform with the AUSA’s notion of who is person necessary to the defense function or what 

might be a legitimate defense investigative approach. The natural effect of this Order if granted 

would be to severely restrict the universe of persons to whom the defense might turn to in 

seeking assistance for their clients in this case. If I decide that one or all of the persons who have 

approached me or my client should have a copy of a pertinent portion of the discovery, have I 

opened myself or my client up to later contempt charges? As drafted, any reading of the Order, if 

not agreed with by the AUSA’s office is a potential violation of its terms.

Conclusion

For the reasons above, and any others apparent at the hearing on the Motion, the 

government’s Motion for a Protective Order should be denied without prejudice to file a request 

for a more limited protective order or orders after further conferral with the defense.

Respectfully submitted this 8th day of March, 2016.

________________________________ 

Andrew M. Kohlmetz, OSB 955418

Attorney for Defendant Patrick

 Andrew M. Kohlmetz

Case 3:16-cr-00051-BR Document 249 Filed 03/08/16 Page 9 of 9