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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA UNITED STATES OF AMERICA, Plaintiff. ) ) ) ) ) ) ) ) )

CASE NO. CR-08-041-L

LARRY DOUGLAS FRIESEN, Defendant.

DEFENDANT LARRY DOUGLAS FRIESENS REPLY TO ATFS OPPOSITION TO DEFENDANTS MOTION TO LIFT OR OTHERWISE MODIFY THE COURTS DISCOVERY PROTECTIVE ORDER COMES NOW Defendant Larry Douglas Friesen (Friesen), by and through attorney Jacob L. Rowe (Rowe) and presents his Reply to ATFs Opposition to Defendants Motion to Lift or Otherwise Modify The Courts Discovery Protective Order (Objection). PERTINENT FACTUAL INFORMATION 1. On January 27, 2012 this Court entered an Order requiring the appearance of all counsel of record in this matter and those in CIV-10-140-C (the civil case) to inquire as to the potential disclosure of certain materials provided by the United States Attorneys Office (USAO) to Defendant. 2. On February 1, 2012 Rowe filed on Friesens behalf his Motion and Supporting Brief Requesting order to Lift or Otherwise Modify Discovery Protective Order For Limited Purpose (Defendants Motion).
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3.

On February 2, 2012 those required appeared before this Court where inquiry was made as to the extent and nature of said disclosure. No

argument was heard on Defendants Motion as the USAO represented that it was without authority to make argument regarding discovery materials which were the property of the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE). 4. On that date, the Court encouraged Rowe to attempt to negotiate with the USAO and BATFE in an attempt to rectify the issues set forth in Defendants Motion. 5. On February 14, 2012 Rowe presented to the USAO a letter certain information surrendered by Friesen and Rowe be requesting provided for

use in CIV-10-140-C. See Letter dated February 14, 2012, attached as Exhibit 1. 6. Said request sought certain information be disclosed and that any and all taxpayer information included therein be redacted, excepting the information of the parties in the civil case. 7. On February 22, 2012 USAO Mark Yancey communicated to the undersigned via telephone that the USAO had forwarded Exhibit 1 to

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BATFE attorney James Vann and that the USAO no longer considered itself involved in the matter of the disclosure discovery materials in this matter.1 8. To date, Rowe has not received any communication from BATFE regarding its request for redacted versions of those documents surrendered to the USAO. 9. On February 15, 2012 the undersigned received from attorney Joe Wells (Wells), attorney for Charles Erb, Jr. (Erb) in the civil case, certain materials upon which Delbert Knopp, an expert witness listed by Wells in the civil case, had relied upon to formulate the expert opinions he intends to offer in trial in that matter. 10. Rowe noticed that these materials: (1) had been marked with Bates Stamp

numbers; (2) appeared to have been gathered from discovery materials from this case; and (3) contained confidential taxpayer information of Friesen, Erb, and other individuals unrelated to this action or case. 11. Rowe surrendered these documents to the USAO as the Protective Order Regarding Discovery (Dkt. 48) (Protective Order) indicates that, regardless of their source, any materials provided by the United States [during discovery] may be utilized by the defendant solely in connection
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the

civil

Counsels representation of said conversation with Mark Yancey is a paraphrasing of those representations made by Mr. Yancey and is not meant to be a direct quotation, rather a summation of said conversation.

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with the defense of this case and for no other purpose and in connection with no other proceeding.2 12. Given that Wells and Erb are not subject to the provisions of the Protective Order and have certified that all materials provided to them by Rowe were returned to the USAO, See Dkt. 166, it seems that the disclosure of the type of information sought by Friesen here is not prohibited by law. 13. Without modification of the Protective Order, Friesen is placed in the

undesirable position of prosecuting the civil case without any of the materials he once possesed, has been denied materials similar to those he urrendered, and is prohibited by law from utilizing in any way those materials acquired by Wells and Erb outside of this action. ANALYSIS Since the hearing held before this Court on February 2, 2012, Friesen has narrowly tailored his request for information protected by Protective Order. Friesen requests the Protective Order be lifted or modified such that he may utilize the following material in the civil case: (1) all investigative and inspection reports of Erb produced by BATFE, including any and all communications from Erb to BATFE and BATFE to Erb; (2) all birthing documents for STEN firearms
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This matter is the subject of Defendants pending Motion to Make More Definite and Certain the Order Entered on January 27, 2012 and Supporting Brief (Dkt. 168).

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produced by Erb purportedly bearing serial numbers E676 through E700 and E705; (3) any and all documents evidencing the initial transfer of the firearms listed above from Erb to another owner; and (4) any and all correspondence from BATFE to Erb and from Erb to BATFE. Friesen has further limited his request such that confidential taxpayer information belonging to any person other than himself or Erb be redacted to protect the privacy interests of those persons. Friesen argues that the above described modification is within this Courts authority and is a just and appropriate remedy. First, the Protective Order must modified to allow Friesen to prosecute the civil action. At present, Erb is in possession of and intends to utilize discovery materials which Friesen is prohibited from using. Second, requiring Friesen to re-acquire the information requested would be duplicitous and occupy valuable judicial resources that need not be wasted. Lastly, Friesen is entitled to the requested information, has proposed a method which protects any confidential taxpayer information, and it is in this Courts power to authorize such a disclosure. I. INEQUITIES IN THE ENFORCEMENT OF THE PROTECTIVE ORDER REGARDING DISCOVERY AS THEY RELATE TO THIS MATTER AND CIV-10-140-C. Modification of the Protective Order in this matter is required to allow Friesen to prosecute the civil case. As mentioned above, the Protective Order is

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quite strict. Friesen is prohibited from utilizing any materials disclosed by the United States during the discovery process for any purpose other than this criminal matter. Erb is currently in possession of certain Bates Stamped materials which, at one time, were in Friesens possession. Erb intends to utilize these documents in the civil case and disclosed them to Rowe. These materials are the purported basis of Erbs expert witnesses testimony. Given the strict nature of the Protective Order, Rowe and Friesen are unable to utilize any documents, the origin of which is discovery in this matter, and are required to surrender the same to the USAO. If the Protective Order in this matter is not modified, Friesen will be patently unable to provide any defense to the information presented by Erb in the civil case. In essence, he is prohibited from utilizing information rightly3 possessed by Erb. If Erb is lawfully in possession of the information disclosed to Rowe on February 15, 2012, it stands to reason that there exists a method to disclose the requested information which protects the confidential taxpayer contained within. Further, it stands to reason that Friesen may lawfully possess the same information, save the prohibitions of the Protective Order in this case.

Rowe presumes here that the information obtained by Erb and presented to him on February 15, 2012 and referenced in his Motion to Make More Definite and Certain the Order Entered on January 27, 2012 and Supporting Brief was acquired and possessed lawfully by Wells and or Erb even though the same contains what appears to be the confidential taxpayer information of Friesen, Erb, and other individuals unrelated to this case or CIV-10-140-C.

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Certainly, Friesen requests that this Court modify the Protective Order as requested above. However, Friesen also requests that the Protective Order in this case be modified such that he may lawfully utilize material acquired by other persons outside of this proceeding. Without such a modification, Friesen is

severely prejudiced for no other reason than he was the Defendant in this matter. Such will result in a trial by ambush in CIV-10-140-C, does not serve the original purpose of the Protective Order, and produces an unjust, inequitable result. II. RELIEF REQUESTED BY DEFENDANT. As mentioned above, Friesen has narrowly tailored his request to modify or otherwise lift the Protective Order in this matter to allow the use of appropriately redacted discovery information for use in the civil case. The relief sought by Friesen is within the authority of this Court, would save the parties in CIV-10-140C from engaging in duplicitous discovery, and would promote judicial economy. It is clear that this Court may modify a protective order it enters. See Fed. R. Crim. P. 16(d)(1) and Rohrbough v. Harris, 549 F.3d 1313, 1321 (10th Cir. 2008). This authority exists even after the resolution of the matter in which the order was entered. United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424 (10th Cir. 1990).

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The Tenth Circuit appears to have adopted the reasoning of the Seventh Circuit in regard to the modification of a protective order regarding discovery. It indicated that: [W]here an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only after repetition of anothers discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification. Once substantial prejudice is demonstrated, however, the district court has broad discretion in judging whether that injury outweighs the benefits of any possible modification of the protective order. United Nuclear, 905 F.2d at 1428, quoting Wilk v.American Medical Assn., 635 F.2d 1295, 1299 (7th Cir. 1980). Certainly, a party may not seek information in a separate matter that is otherwise unobtainable through the modification of a protective in another matter, but matters of discoverability and admissibility are matters to be determined in the case in which the materials are to be used. United Nuclear, 905 F.2d at 1428-29. A. Friesen is entitled to the requested materials.

Here, it is clear that the information sought by Friesen may be acquired through other means. BATFE acknowledges as much when it states that [t]he proper way for defendant to access this information is to issue a subpoena following Touhy regulations or file a FOIA request. Objection (Dkt. 172), p. 7. In fact, BATFE acknowledges that Wells has obtained certain information,
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presumably those materials given to Rowe on February 15, 2012, by way of a Touhy request, which was both surrendered by the USAO to Friesen in this matter and which contains confidential taxpayer information of Friesen, Erb, and other unrelated parties. In fact, included in those materials provided to Rowe on February 15, 2012 was a photocopy of a data CD referencing information obtained from a firearms dealer named Birmingham Pistol.4 Rowe has been informed by Friesen that a similarly labeled data CD was disclosed to him within weeks of the USAOs plea offer which he ultimately accepted. Friesen indicates that, at that time, he

employed the services of an information technology consultant to review the disk. The consultant indicated that the materials contained on the data CD had been substantially altered from previous versions and would be inadmissible in trial due to issues related to authenticity. The existence of this data CD supports Friesens request to lift or otherwise modify this the Protective Order. The materials provided to Rowe on February 15, 2012 by Wells were purported to be material upon which his listed expert witnesses based the opinions they intend to testify to in CIV-10-140-C. If this disk contains the same information as the one disclosed to Friesen prior to the USAOs plea offer, Friesen will not be able to formulate a meaningful deposition or cross
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This is counsels best recollection of the name of the establishment labeled on the photocopy of the data CD referenced. Rowe was not provided a copy of that data CD and cannot attest to its contents or whether hardcopies of the materials it contained were included in the materials he acquired on February 15, 2012.

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examination of the witnesses who have relied upon that information. Moreover, Friesen will be prohibited from acquiring valuable information related to potential Daubert motions. BATFE argues that Friesen would be prohibited from acquiring the information he surrendered to the USAO as the disclosure of such information is prohibited by 26 U.S.C.A. Sec. 6103 and contains privileged taxpayer information. Friesen contends this argument is disingenuous. It appears that the information provided to Rowe on February 15, 2012 by Wells was lawfully acquired from BATFE pursuant to a subpoena following the Touhy regulations.5 This

information is of a substantially similar character to that requested by Friesen. The information given to Rowe by Wells on February 15, 2012 contained investigative materials produced by BATFE, firearms transfer documents, various communications made by BATFE, and what appeared to be confidential taxpayer information. Additionally, these documents contained the confidential taxpayer information of Friesen. Although he would have if asked, Friesen did not consent to the release of any of his confidential taxpayer information. BATFE requests this Court compel Friesen to notify all persons whose confidential taxpayer information

Rowe is uncertain as to the exact origin of the documents provided to him on February 15, 2012 and recalls that Wells informed him via telephone that the same were acquired from the USAO. Rowe made that same representation to the Court in his Motion to Make More Definite and Certain (Dkt. 168). However, BATFEs Objection tends to indicate that Wells received those materials directly from BATFE. Regardless of the source of this information, it is clear that the same is accessible by Erb / Wells and would be accessible by Friesen / Rowe, but for this Courts Protective Order.

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was disclosed to Wells. It should be noted that Friesen cannot do so as he is no longer in possession of any information related to those persons. Further, if this Court were inclined to make such an order, Friesen would request that this Court order the same notification be given to Friesen by those who disclosed his confidential taxpayer information to Wells and or Erb. B. BATFE has not demonstrated that it would be prejudiced by the disclosure of the requested information. BATFE has made no showing that it will be prejudiced by the modification of the Protective Order requested by Friesen. BATFEs Objection appears to be based upon its contention that the material may not be disclosed and contains confidential information. Again, information similar to that requested by Friesen has previously been provided to Wells and or Erb, indicating that it is possible to acquire the same lawfully. C. Friesens requested modification of the Protective Order protects confidential taxpayer information. The relief sought by Friesen provides for the protection of confidential taxpayer information. He requests that the Protective Order be modified such that the above-described materials are returned to him for use in the civil case and that the confidential taxpayer information of all persons not a party to the civil case be redacted. It is not Friesens intent to contact any person who has owned an Erb

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manufactured firearm, nor is it his intention to attempt to acquire any other Erb manufactured firearm. If this Court grants Friesens request, the privacy interests of persons whose information contained within BATFEs records will in no way be compromised. III. BATFES ALLEGATIONS OF UNRETURNED ITEMS. BATFE indicates on page seven (7) of its objection that it appears as if all information has not been returned to the United States Attorneys Office and that several disks of information have not been returned. Further, BATFE

indicates that there are stamps on the back of documents showing that the [discovery] documents were scanned and that no disks with scanned documents have been given to the USAO. Defendant brought all discovery material in his possession to this Court on February 2, 2012, including a number of computer disks containing digital copies of discovery materials. At the conclusion of the hearing on that date, Defendant immediately surrendered all documents and all computer disks containing documents covered by the Protective Order to the Office of the United States Attorney for the Western District of Oklahoma. At that time, Defendant had deleted all such materials stored or saved on digital media in his office.

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IV.

CONCLUSION. Friesen respectfully requests this Court lift and or modify the Protective

Order such that (1) all investigative and inspection reports of Erb produced by BATFE, including any and all communications from Erb to BATFE and BATFE to Erb; (2) all birthing documents for STEN firearms produced by Erb purportedly bearing serial numbers E676 through E700 and E705; (3) any and all documents evidencing the initial transfer of the firearms listed above from Erb to another owner; and (4) any and all correspondence from BATFE to Erb and from Erb to BATFE be returned to him with any and all confidential taxpayer information of persons other than Friesen and Erb redacted for use in CIV-10-140-C. Friesen also requests he be allowed to utilize materials covered by the Protective Order acquired by other persons outside of this matter. The relief he seeks is within the authority of this Court, would remedy a patently unjust situation, and would preserve the resources of the USAO, BATFE, and this Court. Submitted on this 2nd day of March, 2012.

/S/ JACOB L. ROWE Jacob L. Rowe, OBA #21797 Jacob L. Rowe, P.C. 1309 N. Shartel Avenue Oklahoma City, OK 73103 Telephone (405)-239-2722 Facsimile (405)-235-2453 ATTORNEY FOR DEFENDANT
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CERTIFICATE OF SERVICE I hereby certify that on March 2, 2012, I electronically transmitted the attached document to the Clerk of the Court using the ECF System for filing and transmittal of a Notice of Electronic ECF registrants: Mr. Edward J. Kumeiga, Assistant United States Attorney, Mr. Mark Yancey, Assistant U.S. Attorney, Mack Martin, and Kendall Sykes. I further certify that on this date, I transmitted the attached document to Joe Wells, attorney for Charles Erb in CV-10-140-C, via email (joewells@swbell.net).

/S/ JACOB L. ROWE Jacob L. Rowe

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