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BECAUSE DEFENSE COUNSEL DID NOT CONSENT TO THE ISSUANCE OF A PROTECTIVE ORDER REGARDING THE PEOPLE’S DISCOVERY OBLIGATIONS, THE JUDGE WAS REQUIRED TO HOLD A HEARING; MATTER REMITTED; ON REMITTAL THE PEOPLE SHOULD PROVIDE WRITTEN NOTICE OF THE REQUEST TO DEFENSE COUNSEL AND, TO FACILITATE ANY REQUEST FOR AN EXPEDITED REVIEW, DEFENSE COUNSEL SHOULD BE PROVIDED WITH A COPY OF THE PROTECTIVE ORDER (THIRD DEPT). ​

The Third Department, vacating the protective order and remitting the matter, determined the County Court failed to hold the hearing which is required where defense counsel did not consent to the issuance of a protective order. The Third Department offered guidance on how the further proceedings should be conducted, i.e., defense counsel should be given advanced written notice of the request for a protective order (a motion by order to show cause), and, to facilitate an expedited review, defense counsel should be provided with a copy of the protective order:

Pursuant to CPL 245.70 (3), “[u]pon request for a protective order, unless the defendant voluntarily consents to the people’s request for a protective order, the court shall conduct an appropriate hearing within three business days to determine whether good cause has been shown.” Here, it is undisputed that defense counsel did not consent to the People’s proposed protective order for the disputed materials…. . …

… [I]t is true that, under certain circumstances and in an appropriate case, CPL 245.70 (1) permits a court to conduct ex parte proceedings and accept in camera submissions. … “[T]he better practice, in most cases, would be for the People to provide the defendant with advanced written notice, by way of motion brought on by order to show cause, that certain information had not been disclosed and a protective order was being sought under CPL 245.70” … . Proceeding in this manner would “allow defense counsel to see the portions of the People’s written application that contained legal argument or other matter that would not reveal the information sought to be covered by the protective order” … , and ensure that defense counsel has a meaningful opportunity to participate in the hearing to the fullest extent practicable. …

… [R]ecognizing that CPL 245.70 (6) provides an opportunity for expedited review of a protective order by a Justice of the Appellate Division, “within two business days of the adverse or partially adverse ruling,” the party seeking such expedited review should be provided a copy of the subject order. While the papers submitted in support of the People’s application for a protective order and the hearing transcript may be appropriately sealed to preserve the confidentiality of sensitive information … , the same does not hold true for the protective order itself. That said, in drafting a protective order, the court should be mindful not to discuss the protected materials or include confidential information that would obviate the basis for granting the protective order or sealing the documents and materials considered. People v Murphy, 2025 NY Slip Op 02975, Third Dept 5-15-25

Practice Point: Where defense counsel does not consent to a protective order, the statute requires the judge to conduct a hearing. Failure to hold the hearing requires vacation of the protective order.

Practice Point: The better practice is to notify defense counsel of the request for a protective order by a motion brought by an order to show cause.

Practice Point: Defense counsel who seeks an expedited review should be provided with a copy of the protective order.

 

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