As it now stands, there are two categories of unclassified items that are anticipated to be produced to Mr. Libby that should be protected from public disclosure. First, discovery materials will include grand jury transcripts which implicate traditional grand jury secrecy concerns, including the need to protect the reputations of witnesses and the “innocent accused,” that is, persons who may have been investigated but not charged with a crime. Moreover, because the investigation is continuing, and because the investigation will involve proceedings before a different grand jurythan the grand jury which returned the indictment, traditional concerns that underlie Fed. R. Crim. 6(e) very much apply.

Of course, some documents to be produced to Mr. Libby do not present any of the above concerns. The government respectfully suggests that it would be appropriate to mark documents falling into two categories, (a) grand jury transcripts, and (b) documents that may implicate personal privacy concerns, with the notation, DISTRIBUTION OF THIS DOCUMENT IS LIMITED AS PROVIDED BY THE TERMS OF THE PROTECTIVE ORDER.” Under this arrangement, the defendant will be free to disclose (or not disclose) any documents not marked as being subject to the protective order, as he chooses. If Mr. Libby or his counsel later identify marked documents which they think should not be governed by the protective order, the parties may remove the restriction by agreement, or if no agreement can be reached, the defense counsel may seek relief from the Court.