United States v. All Assets Held At Bank Julius Baer & Co.

169 F. Supp. 3d 54, 2015 U.S. Dist. LEXIS 181192, 2015 WL 12516723
District Court, District of Columbia·Decided August 27, 2015·No. Civil Action No. 04-798 (PLF/GMH)·Published·Cited by 5 cases

Opinion

MEMORANDUM OPINION

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

On March 26, 2015, this case was referred to the undersigned for purposes of management of discovery and resolution of any discovery-related disputes. Currently ripe for resolution by the undersigned is Claimant Pavel Lazarenko’s Second Motion to Compel. After a thorough review of the parties’ briefs concerning Claimant’s motion, of the arguments of counsel at hearing on the motion on August 11, 2015, and of the entire record herein, the Court will deny the motion.1

BACKGROUND

The factual background concerning this eleven-year-old in rem asset forfeiture action has been described in multiple opinions by Judge Friedman. See, e.g., United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 772 F.Supp.2d 191, 194 (D.D.C.2011).2 This Court will not repeat that lengthy history here. The facts that are pertinent to adjudication of the motion to compel are summarized below.

In its First Amended Complaint, the United States seeks the forfeiture of more than $250 million deposited in over twenty bank accounts located in Guernsey, Antigua and Barbuda, Switzerland, Lithuania, and Lichtenstein. First Amended Complaint [Dkt. 20] at ¶¶ 1, 5. The government alleges that the money in those accounts is traceable to a “variety of acts of fraud, extortion, bribery, misappropriation, and/or embezzlement” committed by Claimant, the former Prime Minister of the Ukraine, or by his associates, between 1992 and 1998. Id. at ¶¶6, 8, 10. The United States asserts its right to the funds pursuant to federal statutes that provide for the forfeiture to the government of funds traceable, or otherwise related to or involved in, criminal activity that occurred at least in part in the United States. Id. at ¶1.

[56]*56Based on some of the same conduct identified in the Amended Complaint, Claimant was indicted in the Northern District of California in 2001 for, inter alia, money laundering, wire fraud, honest services fraud, and transportation of stolen property. Id. at ¶ 17. In preparation for its criminal prosecution against Claimant, the United States obtained an IRS “Summary of Investigation,” also known as a “Special Agent’s Report” (“SAR”). Mot. at 1. The SAR was prepared by the IRS Criminal Investigation Division. Id. The SAR summarized facts, including witness interviews, related to money-laundering claims against Claimant. Opp. at 1-2. The SAR also analyzed those facts, providing recommendations as to which charges should be brought in light of the evidence. Id. at 2. The instant motion concerns Claimant’s request for production of the SAR. Mot. at 1.

LEGAL STANDARDS

A. Scope of Discovery

It has long been recognized that, “[ujnder the broad sweep of Rule 26(b)(1) of the Federal Rules of Civil Procedure, a party ‘may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved.’ ” Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1348-49 (D.C.Cir.1984) (quoting Fed. R. Civ. P. 26(b)(1)). “The broad presumption of Rule 26 in favor of discovery, however, is bounded by the limitations that ‘come into existence when the inquiry touches upon the irrelevant or encroaches upon the recognized domains of privilege.’ ” Pederson v. Preston, 250 F.R.D. 61, 64 (D.D.C.2008) (quoting Ass’n for Women in Sci. v. Califano, 566 F.2d 339, 343 (D.C.Cir.1977)).

B. Motions to Compel

Rule 37 of the Federal Rules of Civil Procedure provide that “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure of discovery.” Fed. R. Civ. P. 37(a)(1). A party seeking discovery may move for an order “compelling an answer, designation, production or inspection” from a party who fails to comply with Rules 33 (interrogatories) or 34 (documents requests). Id.(a)(3)(A). “The party moving to compel discovery has the burden of proving that the opposing party’s answers were incomplete.” Equal Rights Ctr. v. Post Props., Inc., 246 F.R.D. 29, 32 (D.D.C. 2007) (internal citations omitted). However, a party asserting a privilege or work-product protection bears the burden to establish that the privilege applies. United States v. ISS Marine Servs., Inc., 905 F.Supp.2d 121, 134 (D.D.C.2012).

DISCUSSION

In his motion, Claimant argued that the SAR is relevant, and therefore discoverable, because it summarizes facts used to support the charges made against him in the prior criminal prosecution. Mot. at 4. The government responded, claiming that discovery of the SAR is prohibited under Federal Rule of Criminal Procedure 16(a)(2), the work-product doctrine, the deliberative process privilege, and Jencks and Brady. Opp. at 3-9. The government further asserted that the SAR contains confidential grand jury materials which cannot be disclosed. Id. at 2 n.2. To support its assertion of the deliberative process privilege, the government submitted the affidavit of Richard Pietrofeso, an attorney with IRS Chief Counsel for Criminal Tax. Id. at 8.

Claimant replied, arguing that the government failed to properly assert the deliberative process privilege because Mr. Pietrofeso was not authorized to assert the privilege as to the SAR. Reply at 3. Claim[57]*57ant observed that Mr. Pietrofeso does not work for the IRS Chief Counsel for Procedure and Administration, which is the only branch of the IRS permitted to assert the deliberative process privilege. Id. at 3-4. Further, Claimant contended that the vast majority of the SAR is not related to the recommendations of the Special Agent but instead consists of factual information like witness interviews. Id. at 6-7. Claimant also argued that the work-product doctrine was inapplicable because the SAR was not prepared in anticipation of litigation. Id. at 8-9. Finally, Claimant argued that any grand jury materials in the SAR should be redacted, but that the remainder of the SAR should be produced. Id. at 9.

The government requested leave to file a sur-reply to Claimant’s reply. Sur-reply at 1. In its sur-reply, the government sought to introduce the affidavit of Richard Goldman, Deputy Associate Chief Counsel of Procedure and Administration within the IRS Office of Chief Counsel. Id. at 1-2. The government claimed that the supplemental affidavit cured any deficiencies in the assertion of the deliberative process privilege resulting from Mr. Piet-rofeso’s lack of authority. See id.

As a preliminary matter, the Court disposed of several of these arguments at the August 11, 2015 hearing.

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United States v. All Assets Held At Bank Julius Baer & Co., 169 F. Supp. 3d 54, 2015 U.S. Dist. LEXIS 181192, 2015 WL 12516723 (D.D.C. 2015).

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