United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE.
Pavel Lazarenko has filed a motion to compel Plaintiff, the
United States (the “government”) to provide more
specific responses to nine of his requests for admission
(“RFAs”). For the reasons that follow, the motion
is denied as untimely, but the government is nevertheless
ordered to supplement and correct its responses to the RFAs
an in rem action seeking, pursuant to 18 U.S.C.
§§ 981(a)(1)(A) & (C), forfeiture of funds held
by a number of foreign financial institutions that the
government alleges can be traced to a variety of criminal
acts committed by Claimant Pavel Lazarenko, the former Prime
Minister of Ukraine, or his associates between 1992 and 1998.
The factual background of the litigation can be found
elsewhere. See, e.g., United States v. All
Assets Held at Bank Julius Baer & Co., 307 F.R.D.
249, 250-51 (D.D.C. 2014); United States v. All Assets
Held at Bank Julius Baer & Co., 959
F.Supp.2d 81, 84-94 (D.D.C. 2013); United States v. All
Assets Held at Bank Julius Baer & Co., 772 F.Supp.2d
205, 207-08 (D.D.C. 2011); United States v. All Assets
Held at Bank Julius Baer & Co., 571 F.Supp.2d 1, 3-6
(D.D.C. 2008). As relevant here, and as noted above, Claimant
Lazarenko objects to the government's reponses to nine of
his RFAs. Each of those nine requests concerns one in
rem defendant-funds held at Vilniaus Bankas in Lithuania
(known as the “Lithuanian account”). That account
holds approximately $29 million in the name of Eurofed Bank,
an Antiguan offshore bank in which Claimant Lazarenko
purchased an interest. He was Eurofed's largest
depositor, holding customer accounts in his own name and in
the name of six corporate entities that he controlled.
Eurofed established correspondent accounts at various banks
to hold its customer funds. The Lithuanian account is one of
those correspondent accounts.
asks the government to “[a]dmit that the funds at the
Lithuanian account are not traceable to the Transfer and
Concealment ‘scheme.'” ECF No. 1063-5 at 65.
RFAs 197 through 200 ask the government to admit that certain
“payments” or “proceeds” “are
not traceable to the Lithuanian account.” Id. at
66. RFAs 201 through 204 ask the government to “[a]dmit
that the funds in the Lithuanian account are not traceable
to” specific “schemes.” Id. at
67. In its October 6, 2016 responses, the government
responded to each of those RFAs identically. Specifically, it
incorporated its general objections as well as an objection
that the requests are vague because
“‘traceable' has different meanings, and
different methodologies produce different results, ”
and that “to compute whether something is
‘traceable' under every available methodology would
be unduly burdensome in terms of time and expense.”
Id. at 55. Subject to those objections, the
government stated that “after a reasonable inquiry it
lacks sufficient information to admit or deny.”
Id. at 66. The government continued:
As Mr. Petron [the government's accounting tracing
expert] stated in his expert report, he did not
complete his tracing analysis for the Lithuanian
account to avoid potential double counting. As Petron
explained, given additional time and resources, he could
perform a more detailed analysis of the Lithuanian account.
Additionally, a money laundering analysis might well conclude
that those transfers are part of the transfer and concealment
Id. at 66.
Petron's April 21, 2016 expert report asserts that the
Lithuanian account is a Eurofed correspondent account-that
is, an account that holds the funds of multiple Eurofed
1063-2 at 24.
Deposits into this account are numerous, and for those
deposits that are directly traceable to other examined
accounts, I have marked them on the . . . account statements.
However, these marked deposits are also credited to a Eurofed
depositor as the beneficiary of a particular transaction,
which is already included in the examined accounts.
Therefore, I have not performed a WA on the marked deposits
within this correspondent account because they may already
have been included in the WA of the accounts of Eurofed
depositors. . . . Given enough information and time, it would
be possible to reconcile the transactions involving these
accounts. As discovery continues, if I receive enough
information to perform a further analysis of the proceeds
deposited into the account, then I may update this report
Id. at 24-25.
discovery as to Claimiant Lazarenko closed on January 16,
2017. ECF No. 840; ECF No. 1063 at 6; ECF No. 1065 at 2. With
the appearance of Claimants Alexander, Ekaterina, and Lecia
Lazarenko (Pavel Lazarenko's children), expert
depositions were put off until after fact discovery as to the
so-called “A/E/L Claimants” was completed. ECF
No. 966 at 2; ECF No. 976 at 1. Expert discovery was stayed
on October 6, 2017, before Claimant Lazarenko had deposed Mr.
Petron. ECF No. 1034; ECF No. 1044 at 101, 108. In any case,
for various reasons, including a stay of the action imposed
to allow the parties to consummate a settlement based on a
term sheet executed in August 2018 (ECF No. 1105 at 1; ECF
No. 1106), further discovery proceeded in fits and starts
(see, e.g., ECF No. 1064 at 66; ECF No. 1085). On
February 6, 2019, the Court lifted the stay of the action and
the stay of expert discovery, requiring the parties to
complete all expert discovery by May 31, 2019. ECF No. 1121.
Meanwhile, on December 6, 2017, while the stay of expert
discovery was in place (but before the stay of the case in
contemplation of settlement), Claimant Lazarenko filed the
motion currently before the Court. ECF No. 1063. With the
most recent stay having been lifted last month and mediation
not having resulted in a settlement, the undersigned turns to
resolving Claimant Lazarenko's motion to compel.
parties first argue over the timeliness of the motion. As
noted, fact discovery as to Claimant Lazarenko ended on
January 17, 2017. Almost eleven months later-and fifteen
months after the RFA responses at issue were served on
Claimant Lazarenko-he filed this motion. His primary argument
that the motion should not be found untimely is that the
government would suffer no prejudice from the relief
requested because discovery as to other claimants and as to
the experts is still open. Id. at 9-10; ECF No. 1075
at 2. He argues that courts generally deny motions to compel
as untimely only where they are filed after a dispositive