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STATE OF NORTH DAKOTA IN DISTRICT COURT COUNTY OF MORTON SOUTH CENTRAL JUDICIAL DISTRICT The State of North Dakota, Plaintiff, VS. SUGGESTED DAPL DISCOVERY PROTECTIVE ORDERS Kevin Decker, Joseph Haythorn, 30-2016-CR-938 Malia Hulleman, 30-2016-CR-935 Sara unping Eagle, Aaron Neyer, Kelli Maria Peterson, 3 Donald Strickland, Isaac Weston, Jordan Christopher Walker, Valerie Dawn Wolfnecklace, 30-2016-CR-941, Defendants. The State of North Dakota through Special Assistant Morton County State?s Attorney Ladd Erickson hereby requests the Court issue the following discovery protective Orders covering all Dakota Access Pipeline (DAPL) protest related criminal cases. Because of the extensive discovery demands in DAPL cases and voluminous upcoming DAPL related trials, the State respectfully requests the Court order expedited responses to the State?s suggestions herein. Under Rule 16(d)(1) the Court may issue ?Protective and Modifying Orders. At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief? Often on DAPL protest arrest days there were multiple aircraft ?ying over protest sites for many hours taking automated video and still pictures. Some protest events went on throughout an entire day. This created terabytes of information, especially for days that DAPL private aircraft with their own ?lm crews provided the State video and pictures in addition to government aircraft ?lming protest sites.

All of this is in addition to videos and pictures law enforcement may have taken on the ground. Arrests ranged from a few to over one hundred and forty, and as a matter of course, defense attorneys request all the videos and pictures from each DAPL protest arrest day. In some circumstances, the State is also being asked to provide all arrest day radio and aircraft traf?c recordings, drone footage if any exists, and other items that once one attorney requests, other attorneys seem to ask for the same things. 1. General DAPL protest discovery protective order. To get some order to this chaotic discovery situation, and to get to the point that trials can occur without being delayed by discovery issues, the State suggests the Court order: (1) The State must provide the defense all items and any reports of witnesses that the State intends to use in its case in chief or that the State knows is exculpatory. (2) If the defense requests an item beyond (1), and the State does not provide that item, the defense must timely ?le a motion to compel listing the reason the item is requested and how that item relates to a defense to an essential element of an offense. (3) The State shall keep an open ?le of all items sent to the state?s attorney?s of?ce, and the state?s attorney?s of?ce shall make reasonable efforts to obtain all video and pictures from DAPL protest arrest days. Except as to items encompassed under (1), the State need only allow the defense to review their open ?le upon request and appointment. If the defense wants copies of all items in the State?s open ?le, the defense must ?rst provide an external computer hard drive to the State and once the open ?le is mirrored to that hard drive the defense must pick up that hard drive from the state?s attomey?s of?ce. Explanation: is meant to cover the requirements of Rule 16 and Brady. Items of discovery under (1) will be mailed to the defense if they do not pick them up at the state?s attorney?s of?ce. has two purposes: First, under Rule 3.8(d) N.D.R.P.C., prosecutors are not supposed to decide what is or is not material. Instead, the rule requires a prosecutor to turn over all items requested, such as ?all video for an entire DAPL arrest day,? and the defense then decides materiality. However, Rule 3.8(d) also states: the prosecutor 1's relieved of this

re3ponsz'bilily by a protective order of the tribunal.? The circumstances surrounding DAPL cases dictate that the prosecutors conduct discovery by protective order as allowed by the Rule. Second, the State?s proposed protective order requirement that the defense ?le a motion to compel with particulars before trial will allow the Court to address discovery issues before trial day. Without a system such as this, trial morning conferences will waste trial time, or even get jurors excused for the day, as the parties build appellant records for discovery issues that might get appealed. is where the defense can get all the video and pictures the State has if they follow its directives. If the defense believes the State is lacking something in its ?le they can ?le a motion to compel under 2. Disclosure of defense videos and pictures During the in?chambers conference on December 19; 2016, there was discussion of a defense social media video that was intended to be played for the jury. Upon re?ection and further DAPL case experience, the State requests any video or pictures the defense would like presented at trial be timely disclosed to the State under the ?other appr0priate relief? in Rule Traditionally, the defense does not have to disclose items to the State until the defense deems the State has provided all the discovery it wants. In DAPL cases, the defense can endlessly request items - thus never turn over their videos before trial. It is unlikely that a criminal defense attorney will play video for a jury of their client committing a crime. Instead, many DAPL protest videos begin with the police reaction to a crime. For example, a protester might push passed a line of of?cers and sit in a road h0ping to be arrested. Then a video starts with the police making the arrest, leaving out the defendant?s conduct that caused the arrest. This will require the State to have rebuttal cases so the arresting

of?cer can explain that the person was not arrested for just standing or sitting in a place. By viewing the video in advance the of?cers can explain that the video does not show the defendant?s conduct, just the police reaction to the conduct, and then the State will not have to call the of?cer(s) in rebuttal, have them watch the video, and explain to the jury what is missing from it. In addition to frequently starting with the police reactions to a crime, DAPL protester videos and pictures are made for a whole other purpose than the facts and evidence we ask jurors to base their decisions on. These videos are often edited to go ?viral,? or get ?likes.? YouTube has instructions on their site to assist in titling videos so they appear more frequently in searches, which increases views but the titles might not at all re?ect what is in the video and may need to be excluded from the jury. Additionally, DAPL social media videos have narrators repeating talking points about the protesters being peace?ll or prayerful and the police being abusive, despite the facts. The videos can cut from the scene to interviews of sympathetic pre?selected people that narrate propaganda. Videos might depict people lawfully protesting then cut to police arrests later and leave out what happened in between. Some DAPL protester videos are designed for fundraising, or to get actors weeping into cameras. Pretend journalists like Amy Goodman of Democracy Now or The Young Turks have published manipulated DAPL social media videos with faux narratives in an attempt to be recognized as a news source by those who are duped by fake news. We are in a facts and evidence format now a trial. We are not in the fact-less video game world that has separated many people from their money, caused people to ignore blizzard warnings on their way to protest camps to sleep in tents, and in?uenced President Obama and the

New York Times editorial board on the DAPL protests. The State needs the defense videos and pictures in advance of trial so we can approach the Court with objections to the propagandizing and irrelevance in DAPL protest videos. A mess will ensue otherwise if the State has to do all the objections while the jury and State are watching a defense video for the ?rst time. 3. Defense discovery depositions If the Court decides to issue discovery protective orders, the State respectfully requests those orders include a protective order related to defense depositions of State witnesses. Under Rule 15(a)(4) the Court can limit or bar defense depositions in criminal cases. The State is not requesting the Court bar all defense depositions in DAPL cases, at least at this point. The State is requesting a protective order requiring the defense get leave from the Court before taking a deposition of a State witness, and in their request for that leave, provide the Court particulars on why the deposition(s) are related to an essential element of a charged offense. The State?s concern with defense depositions relates to groups of civil lawyers associated with the DAPL protest movement. Throughout the DAPL protests, political activist lawyers have embedded themselves in protester ?direct actions.? These lawyers call themselves ?legal observers? and can be seen in countless protester videos wearing bright colored hats or shirts and filming the police reactions to protester actions. The motive for doing this is to bring federal court civil cases alleging rights violations after the protests end. Obtaining damages for individual protesters in federal court is not the goal. Instead, the federal laws these groups attempt suits under have attorney fee provisions, and through those provisions these groups fund themselves. Essentially, these groups just use protesters as plaintiff pawns to get at the attorney fee provisions in federal laws. It would be

instructive for the Court to review VE Environmental Lawyer Explains Standing Rock Legal Issues? on YouTube wherein the Court can hear much of the plan for itself. (Amnesty International and the ACLU are among the other groups that have sent ?legal observers? to DAPL protest actions.) In addition, attached the Court will ?nd job descriptions from a group calling itself ?The Water Protectors Legal Collective. Their job for a ?civil ground coordinator? is to try and build civil cases against the State or Morton County. Their job for ?criminal ground coordinator? has their lawyers working on motions and briefs presumably for pro se protest defendants, or to accompany defendants to meetings with their court appointed lawyers. Currently, this group is supporting a petition at the North Dakota Supreme Court for temporary licenses to practice law in North Dakota for a number of their attorneys, or attorneys they are funding. All this makes defense depositions in DAPL criminal cases quite suspect. Are they for an element of an offense charged, or to try and build civil cases for attorney fees? To keep order and focus, the State seeks this protective order on depositions to ensure our criminal justice system doesn?t get used for these groups? self-serving purposes. The DAPL protest case prosecutors and of?cers are too busy to sit through depositions real-purposed for federal civil cases, and the State?s suggested protective order simply ensures that won?t happen. Dated this 30?1 day of December, 2016. Md R. Ericksonv Special Assistant Morton County State?s Attorney PO. Box 1108 Washburn, ND 58577 Telephone: (701) 462-8541 [email protected] gov; [email protected] gov