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United States v. All Assets Held In Account Number 80020796

United States District Court, District of Columbia

January 3, 2019




         After years of litigation in this in rem action, the government and the only remaining claimant, Ibrahim Bagudu, are proceeding in discovery. Bagudu has asserted a claim to assets that were allegedly stolen from Nigeria and laundered through U.S. banks by Nigeria's former de facto president Sani Abacha and Bagudu's brother, Abubakar Bagudu (“Abubakar”). Ibrahim Bagudu now has provided notice that he intends to depose Daniel Claman, the government's supervisory trial counsel. Bagudu claims that Claman, who was the lead attorney responsible for the investigation of the Abacha matter prior to the filing of this case, has information essential to Bagudu's defenses to the forfeiture action. See Mem. of P. & A. in Opp'n to Pl.'s Mot. for Protective Order to Preclude Dep. of Pl.'s Trial Counsel Daniel H. Claman (“Cl.'s Opp'n”) [ECF No. 260] at 2-3. In response to the deposition notice, the government moves for a protective order to preclude the deposition of Claman. See Pl.'s Mot. for Protective Order to Preclude Dep. of Pl.'s Trial Counsel Daniel H. Claman (“Gov't's Mot.”) [ECF No. 258]. For the reasons that follow, the Court will grant the government's motion.


         As alleged and as described more fully in this Court's March 19, 2015, Memorandum Opinion, see United States v. All Assets, 83 F.Supp.3d 360, 364-366 (D.D.C. 2015), the defendant assets in this in rem proceeding were “involved in an international conspiracy to launder proceeds of corruption in Nigeria” that allegedly began in 1994 “during the military regime of General Sani Abacha, ” Compl. [ECF No. 1] ¶¶ 1, 25. Abacha died in 1998, id. ¶ 8, and in 1999 the United States received a Mutual Legal Assistance Treaty (“MLAT”) request from Nigeria seeking assistance with the investigation and recovery of the allegedly laundered funds, see Ex. 2 to Gov't's Mot. (“Touhy Letter”) [ECF No. 258-3] at 2. According to the government, the Department of Justice's (“DOJ”) Office of Internal Affairs (“OIA”) and the U.S. Attorney's Office in the Southern District of New York (“SDNY”) were responsible for responding to the MLAT request. See Pamela J. Hicks 30(b)(6) Dep., Ex. 1 to Cl.'s Opp'n (“Hicks 30(b)(6) Dep.”) [ECF No. 260-2] at 81:12-15. Another unit, the DOJ's Money Laundering and Asset Recovery Section (“AFMLS”), [1] “provided consultations on asset forfeiture and money laundering prosecutions and legal issues” in connection with the MLAT and served as a liaison between the U.S. Attorney's Office and its foreign counterparts. Id. at 74:11-16, 78:12-17; 81:16-19. Claman worked at AFMLS and assisted OIA in its investigation, including by meeting with foreign law enforcement officials who were also investigating the Abacha matter. Id. at 74:11-77:17, 79:5-18, 332:11-20.

         According to the U.S. government, its investigation into the Abacha funds “lost steam” between 2004 and 2007 as European countries were litigating the potential forfeiture of assets and criminal actions against Abacha's alleged accomplices. Id. at 412:3-413:14, 415:15-416:12.[2] In 2007, the investigation apparently picked up again, and AFMLS drafted an affidavit in support of a request for a seizure warrant. See Email from Daniel Claman to David O'Mahoney, Ex. 13 to Cl.'s Opp'n [ECF No. 262-13] at 3-25; Cl.'s Opp'n at 11-12. Shortly thereafter, in 2008, AFMLS drafted a forfeiture complaint. See Debra LaPrevotte Griffith Dep., Ex. 15 to Cl.'s Opp'n [260-16] at 399:6-15.

         Five years later, on November 18, 2013, the United States filed a verified complaint for civil forfeiture of the defendant assets. Purported claims to various assets were subsequently filed by third parties, nearly all of which ultimately were struck. See United States v. All Assets, 330 F.Supp.3d 150, 153-54 (D.D.C. 2018). The only remaining third-party claim in this litigation is Bagudu's asserted claim to certain defendant assets, which is based on an annuity he receives from investment portfolios in which the defendant assets are held. Id. at 154.

         The government and Bagudu are now conducting discovery. Bagudu provided notice to the government that he intends to depose Claman, the current Deputy Chief of the International Unit of AFMLS and the government's supervisory trial counsel in this case. Bagudu claims that Claman has unique, nonprivileged factual evidence that supports two of Bagudu's defenses.

         First, Bagudu asserts that the United States is bound to a settlement agreement between Abubakar, the Federal Republic of Nigeria, and the Bailiwick of Jersey, which Bagudu claims precludes this forfeiture proceeding. In 2003, Abubakar was arrested in Texas for extradition to the Bailiwick of Jersey for his involvement in the Abacha matter. See Compl. ¶ 77. Abubakar subsequently agreed to a settlement with Nigeria and Jersey by which he would return more than $163 million of the allegedly laundered assets to Nigeria in exchange for Jersey's withdrawal of the extradition request and Ababukar's return to Nigeria. Id. The U.S. government then released Abubakar from detention on bond at the request of the United Kingdom on behalf of Jersey.[3]Gov't's Mot. at 5. Although Bagudu admits that the U.S. government is not a signatory to the 2003 settlement agreement, he asserts that it nevertheless is bound to the agreement because either it acted as the agent of Nigeria by attempting to recover the funds on behalf of Nigeria or it facilitated the agreement by dismissing the extradition proceeding against Abubakar. See Cl. Ibrahim Bagudu's Resps. & Objs. to the United States' 2d Set of Interrogs., Ex. 1 to Gov't's Mot. (“Cl.'s Resps. to Interrogs.”) [ECF No. 258-2] at 14, 28-30.

         Second, Bagudu asserts that the government delayed bringing this in rem proceeding until 2013 for tactical reasons, resulting in prejudice to his claim. See Cl.'s Opp'n at 3. Specifically, Bagudu claims that the U.S. government has known about the underlying criminal conduct alleged in the complaint since November 1999 and had identified funds traceable to the claimed defendant property in 2002. Cl.'s Resps. to Interrogs. at 7-8. Because the government intentionally did not bring this action until 2013, Bagudu asserts, relevant documents and witnesses are no longer available and his due process rights under the Fifth Amendment have been violated. Id. at 7, 11- 14.

         Bagudu claims that, as lead AFMLS investigator, Claman has information that is essential to both of his defenses. Specifically, Bagudu seeks testimony from Claman relating to (1) Claman's role in the U.S. government's investigation of the Abacha matter; (2) his participation in meetings with foreign officials concerning the Abacha matter; (3) Claman's knowledge of the 2003 extradition proceeding against Abubakar; (4) the government's involvement in the 2003 settlement agreement between Abubakar, Jersey, and Nigeria; (5) steps the U.S. government took to investigate the Abacha matter from 1999 to 2008, including all information the government obtained during this period; and (6) the reasons why the government did not commence this action until 2013. Cl.'s Opp'n at 13-14; Touhy Letter at 5-6. Bagudu also seeks testimony regarding Claman's document retention practices, as well as other topics relating to Claman's or the government's knowledge of the Abacha matter. See Cl.'s Opp'n at 14; Touhy Letter at 6.

         In response, the government has moved for a protective order to preclude the deposition of Claman. The government argues that the Court should prohibit Bagudu from deposing Claman because much of the information can be obtained by other means, is privileged or irrelevant, or is not crucial to Bagudu's defenses. Gov't's Mot. at 18. In opposition, Bagudu argues that he is not seeking to depose Claman about the government's trial strategy or any privileged matters. Cl.'s Opp'n at 2. Rather, he claims that he seeks only factual information pertaining to the government's investigation of the Abacha matter that is unavailable by other means. Id. at 18. The government's motion is now fully briefed and ripe for consideration.


         Federal Rule of Civil Procedure 26(b) permits a party to “obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, ” in light of “whether the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1). However, although the rules governing the permissible scope of discovery are liberal, they are not boundless. Rule 26(c) provides that a “court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” due to a discovery request. This rule “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). However, the district court “must limit the . . . extent of discovery” if it determines that the proposed discovery (1) “is unreasonably cumulative or duplicative, ” or “can be obtained from some other source that is more convenient, less burdensome, or less expensive”; (2) could have been obtained by the party earlier in the action; or (3) is outside the permissible scope. Fed.R.Civ.P. 26(b)(2)(C). Generally, the party seeking a protective order to preclude a deposition bears the burden of showing that the protective order is warranted, “and that burden of proof is particularly great when the party seeks to prevent a deposition entirely rather than merely modify it.” Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 263 F.R.D. 1, 8 (D.D.C. 2009) (citing Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762, 766 (D.C. Cir. 1965)).

         However, “[w]hen a party seeks to depose opposing counsel, the normally permissive discovery rules become substantially less so.” Coleman v. District of Columbia, 284 F.R.D. 16, 18 (D.D.C. 2012). Although depositions of opposing trial counsel are not expressly prohibited by the Federal Rules of Civil Procedure, they are generally disfavored. Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 380 (D.D.C. 2011). “When attorney depositions are sought, courts should also consider ‘all of the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship.'” Id. at 382 (quoting In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 70 (2d. Cir. 2003)). Such considerations include “the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted.” In re Friedman, 350 F.3d at 70.


         I. Burden of Proof

         As a preliminary matter, the parties contest which party has the burden of proving that the deposition should, or should not, proceed. The government argues that depositions of opposing trial counsel are presumptively disallowed and may only be taken if the party seeking the deposition satisfies the test set forth by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). See Gov't's Mot. at 7-8; Reply Br. in Supp. of Gov't's Mot. (“Gov't's Reply”) [ECF No. 264] at 2-4. Under Shelton, the party seeking to depose opposing trial counsel must show ‚Äúthat (1) no other means exist to obtain the information than to depose ...

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