United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
L. FRIEDMAN United States District Judge
November 3, 2015, Magistrate Judge G. Michael Harvey issued a
Memorandum Opinion and Order granting in part and denying in
part the United States' motion to compel Claimant Pavel
Lazarenko to produce certain financial documents, including
tax records, in connection with this in rem
proceeding. See United States v. All Assets Held at Bank
Julius Baer & Co., Ltd., 142 F.Supp.3d 37 (D.D.C.
2015) (“All Assets VII”). Claimant
Lazarenko filed Objections to Magistrate Judge Harvey's
Memorandum Opinion and Order on November 24, 2015.
See Dkt. 504. Upon consideration of the parties'
papers, the relevant legal authorities, and the entire record
in this case, the Court concludes that Magistrate Judge
Harvey's decision was not clearly erroneous or contrary
to law, and accordingly affirms the decision.
FACTUAL AND PROCEDURAL BACKGROUND
a civil in rem action in which the United Sates
seeks forfeiture of over $250 million dollars scattered
throughout bank accounts located in Antigua, Barbuda,
Guernsey, Liechtenstein, Lithuania, and Switzerland.
See Am. Compl. ¶ 1. This Court's prior
opinions summarize the procedural history of this case,
starting with the criminal prosecution of Lazarenko, and
continuing through this civil forfeiture proceeding.
See, e.g., United States v. All Assets
Held at Bank Julius Baer & Co., Ltd., 571 F.Supp.2d
1, 3-6 (D.D.C. 2008); United States v. All
Assets Held at Bank Julius Baer & Co., Ltd., 959
F.Supp.2d 81, 84-94 (D.D.C. 2013) (“All Assets
V”); United States v. All Assets Held at Bank
Julius Baer & Co., Ltd., 307 F.R.D. 249, 250-51
(D.D.C. 2014). In brief, Lazarenko is “a prominent
Ukrainian politician who, with the aid of various associates,
was ‘able to acquire hundreds of millions of United
States dollars through a variety of acts of fraud, extortion,
bribery, misappropriation and/or embezzlement' committed
during the 1990s.” All Assets V, 959 F.Supp.2d
at 85 (quoting Am. Compl. ¶¶ 1, 10).
relevant to Lazarenko's present objections, the United
States during discovery submitted requests for production of
financial and tax records relating to Lazarenko's
asserted interest in the in rem assets.
Mot. at 7. At issue here are request Nos. 28 and 29,
which read as follows:
28. Produce all documents and communications relating to
personal income tax returns, business tax returns, and
Reports of Foreign Bank and Financial Accounts (FBARs) filed
with or submitted to the United States Government or any
State of the United States of America by or on your behalf or
any legal entity in which you claim an interest for the years
1992 to date.
29. Produce all documents and communications submitted to the
Government of the United States of America, any State of the
United States of America or any other foreign or domestic
government office concerning your income or assets, including
but not limited to any financial disclosure documents, tax
returns, or other statements of income you have submitted to
any government between January 1, 1992 and the present.
Mot. at 7.
responded by generally objecting to “any and all
Document Requests to the extent that they are overly broad,
seek information that is irrelevant, will be inadmissible at
trial, are unduly burdensome, or are not reasonably
calculated to lead to the discovery of admissible
evidence.” Opp. at 2. He also made the specific
objections that his tax records were privileged under the
confidentiality provisions of 26 U.S.C. § 6103, and that
he did not possess any foreign bank account records.
Id. The parties could not resolve the discovery
dispute and the United States moved to compel. Lazarenko
opposed the motion, arguing that the requested tax and
financial records are not discoverable because: (1) he does
not have tax and other financial records from 1992 to 1999;
and (2) such records from 2000 to the present are not
relevant. Opp. at 3.
Judge Harvey found that Lazarenko's tax and other
financial records from 1992 to 1999 records are relevant to
both forfeitability and Lazarenko's standing, and thus
discoverable. All Assets VII, 142 F.Supp.3d at
42-43. He concluded that those records are relevant to
forfeitability because they might establish: “(1)
whether Claimant's income during the period matches the
quantum of assets he claims here; (2) whether Claimant can
prove that his income sources were legitimate; and (3)
whether Claimant failed to file tax returns at all, a fact
which may support forfeiture of the defendant assets.”
Id. (internal citations omitted). Magistrate Judge
Harvey also found that Lazarenko's records from 2000 to
the present day are relevant only to Lazarenko's
standing. Id. at 44. While there may already be
evidence in the record demonstrating Lazarenko's
“interest” in the in rem assets in this
case, Magistrate Judge Harvey explained that “the broad
scope of discovery embodied in Rule 26” of the Federal
Rules of Civil Procedure permits the government “to
take further discovery on this issue to contest
[Lazarenko's] evidence” concerning his interest.
Id. Accordingly, Magistrate Judge Harvey
granted Lazarenko's motion in part and denied it in part.
Lazarenko subsequently filed the Objections currently before
STANDARD OF REVIEW
may seek review of a magistrate judge's decision in a
discovery dispute by filing an objection pursuant to Rule 72
of the Federal Rules of Civil Procedure. A magistrate
judge's determination in a non-dispositive matter such as
a discovery dispute is entitled to “great deference,
” and the Court will set it aside only if it is
“clearly erroneous or contrary to law.” Fed. R.
Civ. P 72(a); see also Loc. Civ. R. 72.2(c);
Beale v. District of Columbia, 545 F.Supp.2d 8, 13
(D.D.C. 2008). The district court reviews objections to the
magistrate judge's factual findings or discretionary
decisions for clear error. American Center for Civil
Justice v. Ambush, 794 F.Supp.2d 123, 129 (D.D.C. 2011).
Under this standard, the Court will affirm the magistrate
judge's factual findings or discretionary decisions
unless the court “is left with the definite and firm
conviction that a mistake has been committed.”
Neuder v. Batelle Pacific Northwest Nat.
Laboratory, 194 F.R.D. 289, 292 (D.D.C. 2000) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 365
(1948)). By contrast, the “contrary to law”
standard requires the Court to review the magistrate
judge's legal conclusions de novo. American
Center for Civil Justice v. Ambush, 794 F.Supp.2d at
Court concludes that Magistrate Judge Harvey correctly
articulated the applicable legal principles and that his
decision was not clearly erroneous. As an initial matter,
Lazarenko does not object to Magistrate Judge Harvey's
decisions that (1) none of Lazarenko's tax and financial
records were privileged, and (2) those records from 1992 to
1999 are relevant to the issues of forfeitability and
standing, and thus discoverable. Nor does he object to