United States District Court, District of Columbia
MICHAEL HARVEY JUDGE.
case was referred to the undersigned for the management of
discovery.. Currently ripe is the United States' motion
for protective order relating to Claimant Pavel
Lazarenko's discovery requests concerning a failed 2002
plea agreement in Claimant's criminal case and the
government's mutual legal assistance treaty
("MLAT") requests to Guernsey and
Antigua. After reviewing the entire record,
Court will grant the motion.
factual background concerning this 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). This Court will not repeat that
lengthy history here. The facts that are pertinent to
adjudication of Plaintiffs motion are summarized below.
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 Liechtenstein. First Amended
Complaint [Dkt. 20] ¶¶ 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., ¶¶
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. ¶ 1.
Criminal Prosecution and Failed Plea Agreement
this action is a criminal prosecution in the Northern
District of California. Mot. at 5. In that prosecution,
Claimant was charged with the same unlawful conduct that
forms the basis of the instant forfeiture.
Id._______ The parties thereafter attempted to
negotiate a plea agreement. Mot. At 5. _______ One condition
of the plea was that Claimant would emigrate to a third
country. See Id. at 6-8. During the course of the
criminal proceedings, a Department of Justice attorney
submitted a declaration stating that plea negotiations
derailed after Claimant learned he would be unable to
emigrate to his preferred country. Mot. at 6; Declaration of
Bruce Ohr [Dkt. 577-5] ¶¶ 2-7. According to the
declaration, although the government proposed an alternative
country, Claimant refused to accept it. Declaration of Bruce
Ohr [Dkt. 577-5] ¶ 6. Claimant takes a different view,
alleging that the State Department actively interfered with
Claimant's resettlement and pressured his preferred
country to refuse him. See Opp. at 4.
bore fault for it, the record is clear that plea negotiations
eventually fell apart. Mot. at 6; Claimant's Supp.
Sentencing Mem. [Dkt. 577-3] at 2. The record contains a
draft plea agreement signed by Claimant on November 22, 2002,
but the document was not signed by his attorneys or the
government. 2002 Plea Agreement [Dkt. 654-4] at 23-24. No
plea agreement was ever accepted by the court and Claimant
never entered a plea of guilty. See Transcript of
Sentencing Hearing [Dkt. 654-4] at 134-35 (noting that the
criminal court never received any indication that Claimant
wanted to plead guilty and that no plea agreement was ever
reached). Claimant went to trial in 2009 and was convicted on
several of the charges brought against him.
relevant to the instant motion are the government's MLAT
requests to the countries of Guernsey and Antigua'. Mot.
at 8-10. After this Court issued an order restraining the
defendant assets, including assets held in those two
countries, the government requested via their MLATs with
Guernsey and Antigua that the authorities in those countries
restrain the relevant assets. Id.; see also May 20,
2004 Restraining Order [Dkt. 4] (original restraining order);
July 8, 2005 Restraining Order [Dkt. 23] (amended restraining
order issued after the government was given leave to file its
First Amended Complaint). Both the Guernsey and Antigua
authorities issued orders restraining the relevant funds.
Mot. at 8-10. In order to secure restraint of his assets
in Guernsey, the government was required to make its
applications - one under the original restraining order and a
second under the amended restraining order - under
Guernsey's Proceeds of Crime Act. Opp. at 18. According
to Claimant, that law only permits restraint based on foreign
criminal convictions. Id. It would not permit
restraint merely because a foreign government has charged
someone with a crime or suspects a person of having committed
a crime. Id. Claimant has generally asserted in this
lawsuit that the government misrepresented the nature and
scope of his criminal convictions in order to obtain the
Guernsey restraint under the Proceeds of Crime Act.
Id. at 23-25.
Claimant's Discovery Requests
September 19, 2014, Claimant served requests for production
of documents on the government. Mot. at 10. Claimant
requested, among other things, copies of all records obtained
via MLAT requests and copies of all incoming and outgoing
MLAT requests related to this case. Id. at 11.
Claimant's requests also sought communications between
the United States and any foreign governments about Claimant
and/or the subject matter of the First Amended Complaint.
Plaintiff responded to these requests, Claimant moved to
compel further responses. See Claimant's Motion
to Compel [Dkt. 336]. The Court held several hearings in May
2015 to discuss the disputes surrounding Claimant's
requests. See United States v. All Assets Held at Bank
Julius Baer & Co., Ltd., 309 F.R.D. 1, 6 (D.D.C.
2015). By the conclusion of the hearings, the government had
agreed to produce all documents received in response to MLAT
requests but maintained that it would not produce copies of
the requests themselves. Id. at 8. In its Memorandum
Opinion on Claimant's motion, the Court ordered the
parties to continue to meet and confer in an effort to
resolve the MLAT dispute and suggested that if Plaintiff was
unwilling to produce the requests, it might be able to
satisfy Claimant by stipulating to certain facts or
statements contained therein. Id. at 8-9. To
facilitate this discussion, the Court directed Plaintiff to
produce to Claimant a list of all the relevant MLAT requests.
Court also held that requiring the United States to search
for and produce all of its communications with foreign
government representatives about the subject matter of the
Amended Complaint and/or Claimant would be "very
time-consuming, extremely burdensome, and unlikely to lead to
the discovery of admissible, probative evidence."
Id. at 11. The Court also found that such
communications would be of little value to Claimant as they
would largely consist of logistical and other insubstantial
communications. Id. The expansive scope of
Claimant's requests were a "fishing expedition"
that the Court would not condone. Id. at 12. Over
Claimant's objections, Judge Friedman affirmed this
Court's ruling denying Claimant's motion to compel
with respect to these requests. See United States v. All
Assets Held at Bank Julius Baer & Co., Ltd., Civil
Action No. 04-0798 (PLF/GMH), 2016 WL 1064435, at *1 (D.D.C.
Mar. 17, 2016).
Continued (Unsuccessful) Efforts to Resolve Discovery
government produced the MLAT list but the parties did not
meet and confer further on the MLAT dispute. Mot. at 11. At
some point, Claimant learned that the government planned to
file a motion to strike his claims related to assets held in
Guernsey and Antigua, arguing that Claimant did not have
sufficient interest in or control over the assets and
therefore lacked standing to challenge their
forfeiture. Claimant sent Plaintiff a letter in
September 2015 requesting copies of certain MLAT requests,
including the requests sent to Guernsey and Antigua, so that
Claimant could attempt to find factual admissions from the
government in those documents establishing that Claimant has
sufficient interest in the assets to pursue his claims as to
those assets. Id. at 12-13; see Mot. Exhs.
at 40-42 (Exhibit C, Claimant's September 2015 letter).
In essence, Claimant believes that the documents contain
concessions that he owns or controls the defendant assets,
which in turn confers standing on him here. Mot. at 12-13.
Furthermore, Claimant believes that the MLAT requests contain
misinformation regarding his criminal conviction which, if
corrected, would undermine the validity of the restraints in
Guernsey and Antigua. Id. Later that month, the
government responded, stating that it would not produce the
requests but that it would meet and confer further on the
MLAT dispute. Id. at 13; Mot. Exhs. at 44-45
(Exhibit D, Plaintiffs September 2015 letter). The parties
did not confer beyond the exchange of these two letters. Mot.
January 6, 2016, Claimant served the government with a
further request for production, seeking records related to
Claimant's failed plea negotiations and communications
between the United States and foreign governments regarding
his potential resettlement to other countries. Id. .
at 16. Additionally, Claimant sent a letter to the Court on
January 7, 2016, requesting that the Court order Plaintiff to
produce the Guernsey and Antigua MLAT requests. See
Claimant's Jan. 7, 2016 Letter [Dkt. 545-3]. At a hearing
on January 7, 2016, Claimant notified the Court of his
request for documents related to his failed plea negotiations
and asked the Court to order Plaintiff to produce those
records. The Court ...