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

United States District Court, D. Columbia

November 3, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
ALL ASSETS HELD AT BANK JULIUS BAER & COMPANY, LTD., GUERNSEY BRANCH, ACCOUNT NUMBER 121128, IN THE NAME OF PAVLO LAZARENKO ET AL., Defendants In Rem

Page 17

          For UNITED STATES OF AMERICA, Plaintiff: Daniel Hocker Claman, Della Grace Sentilles, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, Washington, DC; Hector G. Bladuell, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Washington, DC; Teresa Carol Turner-Jones, U.S. DEPARTMENT OF JUSTICE, Criminal Division, AFMLS, Washington, DC.

         For ALL ASSETS HELD AT BANK JULIUS, Baer & Company Ltd Guernsey Branch, account number 121128, in the name of Pavlo Lazarenko, last valued at aproximately at $2 million United States dollars, Defendant: Bryant Everett Gardner, LEAD ATTORNEY, WINSTON & STRAWN LLP, Washington, DC; Doron Weinberg, Weinberg & Wilder, San Francisco, CA.

         For ALEXANDER LAZARENKO, Claimant: Doron Weinberg, Weinberg & Wilder, San Francisco, CA; Nina Wilder, San Francisco, CA.

         For PAVEL LAZARENKO, Claimant: Ian Michael Comisky, Matthew David Lee, LEAD ATTORNEYS, Dan Rhynhart, Jed M. Silversmith, PRO HAC VICE, BLANK ROME LLP, Philadelphia, PA; David B. Smith, SMITH & ZIMMERMAN, PLLC, Alexandria, VA; Doron Weinberg, Weinberg & Wilder, San Francisco, CA; Nina Wilder, San Francisco, CA.

         For ALEXEI DITIATKOVSKY, Claimant: Nancy Hollander, Vincent J. Ward, PRO HAC VICE, FREEDMAN BOYD HOLLANDER GOLDBERG URIAS & WARD, P.A., Albuquerque, NM; Nina J. Ginsberg, DIMURO GINSBERG, PC, Alexandria, VA.

         For EUROFED BANK LIMITED, Claimant: Jason A Levine, LEAD ATTORNEY, VINSON & ELKINS LLP, Washington, DC; Paul Michael Thompson, LEAD ATTORNEY, PRO HAC VICE, MCDERMOTT WILL & EMERY LLP, Washington, DC; Gordon A. Greenberg, MCDERMOTT WILL & EMERY, Los Angeles, CA; Matthew J. Jacobs, Vinson & Elkins LLP, Palo Alto, CA; Terry W. Ahearn, MCDERMOTT WILL & EMERY LLP, Menlo Park, CA.

         For LECIA LAZARENKO, EKATERINA LAZARENKO, Claimants: Doron Weinberg, Weinberg & Wilder, San Francisco, CA.

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         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 Motion to Modify the Protective Order. After a thorough review of the parties' briefs concerning Claimant's motion, the arguments of counsel at the hearings on the motion on September 8, 2015, and September 11, 2015, and the entire record herein,[1] the Court will grant in part and deny in part the motion.

         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 Claimant's motion 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 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.

         On May 29, 2015, the Court entered a protective order in this case which permits the parties to designate certain materials produced in discovery as confidential. See Prot. Order at 2. Claimant now seeks a modification of that protective order. See Mot. at 1. Claimant requests that certain additional materials, which are arguably not included within the scope of the order, be added to the order to protect them from disclosure to third parties. See id. The materials Claimant seeks to add to the protective order are defined in the offset paragraph on page 23 of Claimant's sealed motion. See id. at 23. To protect the confidentiality of those materials, the Court will refer to them as " Claimant's Requested Materials."

         LEGAL STANDARD

         Federal Rule of Civil Procedure Rule 26(c) permits the court to issue protective orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed.R.Civ.P. 26(c). Determining whether to modify a protective order is a matter of discretion for the trial court. See Alexander v. FBI, 186 F.R.D. 99, 100 (D.D.C. 1998); E.E.O.C. v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1047, 331 U.S.App.D.C. 101 (D.C. Cir. 1998). A protective order may be modified upon a showing of good cause. See Alexander, 186 F.R.D. at 100; Independent Petrochemical Corp. v. Aetna Casualty & Surety Co., Civ. A. 83-3347, 1988 WL 23257, at *4 (D.D.C. Mar. 2, 1988) (" The granting and maintenance of a protective order under rule 26(c) of the federal rules of civil procedure . . . must be supported by

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'good cause.'" ) (citing Tavoulareas v. Washington Post Co.,737 F.2d 1170, 1173, 238 U.S.App.D.C. 23 (D.C. Cir. 1984)). " Protective orders are not permanent or immutable and may be modified to serve important efficiency or fairness goals." U.S. ex rel. Pogue v. Diabetes Treatment Ctrs. of Am., No. Civ.99-3298, 01-MS 50(MDL)(RCL), 2004 WL 2009414, at *2 (D.D.C. May 17, 2004). Indeed, " Rule 26(c) is highly flexible, having been designed to accommodate all relevant interests as they arise." United States v. Microsoft Corp.,165 F.3d 952, 959, 334 U.S.App.D.C. 165 (D.C. Cir. 1999); Hines v. Wilkinson,163 F.R.D. 262, 266 (S.D. Ohio 1995) (" [T]he Rule's incorporation of the concept of 'good cause' implies that a flexible approach to protective orders may be taken, depending upon the nature of the interests sought to be protected and the interests that a protective order ...


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