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Flatow v. Islamic Republic of Iran

August 13, 2001

STEPHEN M. FLATOW, PLAINTIFF,
v.
THE ISLAMIC REPUBLIC OF IRAN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth United States District Judge

MEMORANDUM AND ORDER

Now before the Court is the Department of the Treasury's motion for a protective order. On June 5, 2001, the Court ordered the plaintiff to show cause why the protective order should not be granted. See Flatow v. The Islamic Republic of Iran, 201 F.R.D. 5 (D.D.C. 2001). The plaintiff submitted a brief pursuant to that Order, and the Treasury Department responded to that brief. After a full consideration of the parties' memoranda, the applicable law, and for the following reasons, the Court GRANTS the Treasury Department's motion.

I. BACKGROUND

In an effort to satisfy a several hundred million dollar judgment against the defendants, the plaintiff sought from the Treasury Department information pertaining to the defendants' assets. To this end, the plaintiff issued a subpoena on June 5, 1998. Since then, the Treasury Department has searched its records and produced certain information. With respect to future searching and production however, the Treasury Department seeks a protective order to relieve it of "any further obligation to produce documents under the plaintiff's June 5, 1998 subpoena, as modified by the Court." See Brief for Department of Treasury, June 26, 2001, at 4. The Department argues that such production would be unduly burdensome. The Court now considers this issue.

II. ANALYSIS

A. Standard of Review

A court may issue a protective order to protect an individual from discovery if the discovery "subjects [the individual] to [an] undue burden." Fed. R. Civ. P. 45(c)(3). In identifying an "undue burden", a court is to look at several factors, such as

"[the] relevance [of the materials sought], the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed." Alexander v. FBI, 186 F.R.D. 21, 34 (D.D.C. 1998) (citing United States v. International Bus. Machines, Corp., 83 F.R.D. 97, 104 (S.D.N.Y. 1979)). See also Linder v. Calero-Portocarrero, 180 F.R.D. 168, 173 (D.D.C. 1998).

When the burdensomeness of a subpoena is at issue, the onus is on the party alleging the burden to prove that the subpoena violates Rule 45. See Northrop Corp. v. McDonnell Douglas Corp., 751 F.3d 395, 403 (D.C. Cir. 1984).

B. The Instant Protective Orders

In the case at hand, the Treasury Department seeks protective orders for four different Treasury divisions: (1) the Office of Foreign Asset Control ("OFAC") and OFAC Chief Counsel's Office, (2) the Office of the Comptroller of the Currency, (3) the United States Customs Service, and (4) various Departmental Offices having information on the Lend Lease programs. The Court finds protective orders to be merited in each instance.

Before explaining why protective orders are merited in each case, the Court notes that today's decision is predicated heavily on the plaintiff's utter failure to present a meaningful challenge to Treasury's motion. Treasury's motion for a protective order was made on February 1, 2001, and supported by over 30 pages of detailed explanation concerning the nature of the information sought and the burdens of producing such information. As of this date, over six months later, the plaintiff has only filed 3 pages on the issue, and those pages were only filed after the Court ordered the plaintiff to show cause why the protective orders should not be entered. In short, the Court considers the Treasury Department's motion virtually uncontested. However, should the plaintiff, subsequent to this Memorandum and Order, come forward with detailed arguments why protective orders should not be in place, the Court, in the exercise of its broad discretion, see Northrop Corp., 751 F.3d at 403, will consider such arguments.

1. OFAC and OFAC Chief Counsel's Office

Under the June 5, 1998 subpoena, as modified by this Court on June 5, 2001, only two categories of information within OFAC and OFAC Chief Counsel's Office would be responsive to the subpoena: (1) documents that pertain to Iranian property that is outside the jurisdiction of the Untied States and not in the possession or control of persons subject to the jurisdiction of the United States, and (2) documents that pertain to Iranian property that falls within the narrow exceptions to the President's regulatory authority under IEEPA, 50 ...


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