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United States v. Concord Management & Consulting LLC

United States District Court, District of Columbia

August 12, 2019



          Dabney L. Friedrich United States District Judge.

         Before the Court are Concord Management and Consulting LLC's Motion for Approval to Disclose Discovery Pursuant to Protective Order, Dkt. 77, and the government's Motion Regarding Protective Order, Dkt. 141-2. These motions follow several rounds of briefing on the appropriate scope of a protective order that balances the government's national security, law enforcement, and other interests against the defendant's interest in preparing a full defense for trial. For the reasons that follow, the Court will grant in part and deny in part both motions.

         I. BACKGROUND

         A. Factual and Procedural History

         On February 16, 2018, the grand jury returned an indictment charging Concord, a Russian company, and 15 individual and corporate codefendants with conspiring to defraud the United States by impairing the lawful functions of the Federal Election Commission, the Department of Justice, and the Department of State. Indictment ¶ 9, Dkt. 1. At the outset of this case, the government provided defense counsel with approximately 4 million documents and sought to restrict access to approximately 3.2 million of those documents to protect certain national security and law enforcement interests as well as the personal identifying information of uncharged third parties and other individuals. See, e.g., Concord's Mot. at 2; Mar. 7, 2019 Hr'g Tr. at 5, Dkt. 110; Gov't's Mot. for a Protective Order at 6-10, Dkt. 24. Since then, the government also has provided defense counsel with a “key documents collection” of approximately 500 documents to facilitate counsel's preparation for trial. Mar. 7, 2019 Hr'g Tr. at 7-8. It continues to withhold a small subset of discovery that is not at issue here. Id. at 9.

         Over the past several months, the parties have proposed various protective orders designed to balance the government's interest in protecting sensitive discovery with Concord's interest in preparing a full defense. Although the parties have made some progress toward a compromise, they remain unable to agree on a protective order that can remain in place through trial. Concord argues that the government has not satisfied its burden to restrict discovery, that its proposed restrictions are unnecessary to protect the government's interests, and that the restrictions are unduly burdensome. See, e.g., Concord's Resp. at 6-7, 9-16, 19, Dkt. 145-2. The government has asserted its good cause showing to restrict sensitive discovery in briefs, a sealed, ex parte supplement, and two ex parte, classified supplements. See Gov't's Mot. for a Protective Order; Gov't's Ex Parte Submission, Dkt. 25-2; Gov't's Submission Related to a Permanent Protective Order, Dkt. 40; Gov't's Am. Opp'n, Dkt. 99; Gov't's Notice of Ex Parte, In Camera, Classified Filing (Jan. 30, 2019), Dkt. 95; Gov't's Mot. Regarding Protective Order; Gov't's Notice of Ex Parte, In Camera, Classified Filing (June 5, 2019), Dkt. 138; Gov't's Reply, Dkt. 152-2; Gov't's Suppl., Dkt. 159.

         This dispute began in June 2018, when the government sought to restrict all sensitive discovery to the U.S. offices of Reed Smith, defense counsel's law firm. Gov't's Mot. for a Protective Order at 12-13; see also Id. Attach. 1 ¶¶ 13, 17, Dkt. 24-1. Consistent with the approach taken in United States v. Loera, No. 09-cr-466, at 3-6 (E.D.N.Y. Mar. 21, 2017), the government proposed that the Court appoint a “firewall counsel” to negotiate and litigate specific requests to disclose the sensitive discovery to others, including Concord officers and employees, Gov't's Mot. for a Protective Order at 3-4, 12-13. The government argued that a firewall counsel-a government attorney walled off from the prosecution team-could inform the Court of the government's national security and other interests without revealing defense discovery requests or defense strategy to the prosecution team. Id. The government also argued that codefendants, including Concord officer Yevgeniy Prigozhin, should not be permitted to access any discovery unless they appear before the Court to answer the charges in the indictment. Id. at 10-12. Initially, Concord disputed both the government's proposed procedure for negotiating and litigating specific discovery requests through firewall counsel and its proposed restriction on codefendants' access to discovery. Concord's Opp'n to the Special Counsel's Mot. at 3, 9-11, Dkt. 27.

         Following a June 15, 2018 hearing on the government's motion, the Court imposed an uncontested interim protective order to permit the government to begin its production of discovery under Federal Rule of Criminal Procedure 16. June 15, 2018 Hr'g Tr. at 27-29, Dkt. 41; Interim Protective Order, Dkt. 30. It also expressed reluctance at limiting Concord officers' and employees' access to nonsensitive discovery. June 15, 2018 Hr'g Tr. at 18-19. After highlighting several areas of common ground, the Court directed the parties to confer and propose a joint protective order that identified any remaining disputes. Id. at 30.

         In late June 2018, the parties jointly proposed a protective order that contained only three disputed provisions. See Parties' Contested Mot., Dkt. 37. First, the parties disputed whether Concord officers and employees should be permitted to view sensitive discovery absent approval of the Court, and whether codefendants who had failed to appear should ever be permitted to view sensitive discovery. Id. at 1. Second, the parties disputed whether individuals with access to sensitive discovery should be required to subject themselves to the jurisdiction of the Court by signing a memorandum of understanding. Id. at 2. Finally, the parties disputed whether viewers of sensitive discovery must be accompanied by either defense counsel or a Reed Smith employee. Id.

         On June 29, 2018, the Court granted the government's motion in part and entered a restrictive protective order with the understanding that the order could be revisited at a later date, after Concord's facial challenges to the indictment were resolved and a trial was imminent. Mem. Op. & Order at 5, Dkt. 42; see also Mar. 7, 2019 Hr'g Tr. at 4, Dkt. 121. This protective order, which remains in effect, does not categorically deny codefendants access to discovery. Mem. Op. & Order at 2-3. Nor does it incorporate the proposed jurisdictional provision into the accompanying memorandum of understanding. See Protective Order ¶ 12, Dkt. 42-1; id. Mem. of Understanding. But the protective order does require individuals other than defense counsel, including Concord officers and employees, to obtain court approval before accessing any sensitive discovery. Id. ¶ 11. It also requires U.S. defense counsel (which the protective order defines to include Reed Smith employees, other counsel, and any e-discovery vendor employed by Reed Smith, id. ¶ 1) to store and view sensitive discovery at Reed Smith's U.S. offices and to accompany other individuals who are approved to view sensitive discovery, id. ¶¶ 11, 15. Finally, the protective order adopts a firewall counsel process that enables Concord to make discovery requests to an independent government attorney and to litigate any discovery disputes without the knowledge of the prosecution team. Id. ¶ 13; see also Mem. Op. & Order at 4.

         Following the appointment of firewall counsel, Concord sought court approval to disclose select sensitive discovery to a number of individuals in Russia, including codefendant Prigozhin, and firewall counsel objected. Because the dispute did not appear to turn on any particular discovery request or to implicate defense strategy, the Court encouraged Concord to relitigate the scope of the protective order in open court with the prosecution team. See Mar. 7, 2019 Tr. at 4.

         Meanwhile, in late 2018, the government unsealed a criminal complaint in the Eastern District of Virginia that charged an accountant of the Internet Research Agency, a codefendant in this case, with conspiracy to defraud the United States by interfering with its political and electoral operations “from at least 2014 to the present.” Concord's Mot. Ex. A ¶ 14, Dkt. 77-1; see also Id. Ex. A ¶¶ 8, 13. Evidence related to this Eastern District of Virginia investigation has been produced as discovery in this case. See Gov't's Mot. Regarding Protective Order at 8.

         In December 2018, following the resolution of pretrial motions, Concord moved to disclose all sensitive discovery to Concord officers and employees in Russia. See Concord's Mot. at 1. In the course of briefing that motion, the government revealed that on October 30, 2018, a twitter user known as “@HackingRedstone” tweeted a link to a website that purported to contain the Special Counsel's discovery files. Gov't's Am. Opp'n at 8-12; see also Concord's Reply at 12-15, Dkt. 105-2; id. Ex. B, Dkt. 105-3. Because documents on the website contained documents provided in discovery as well as file folder names and structures that matched those used by the government and defense counsel to view discovery, the government alleges that an individual with access to nonsensitive discovery selectively released portions of the discovery, along with a number of irrelevant files, to discredit the Special Counsel's investigation. Gov't's Am. Opp'n at 10-11.XXXXX No matter how the twitter user accessed the nonsensitive discovery, there is no question that it was used improperly for purposes other than for the defense of this case. See, e.g., Mar. 7, 2019 Hr'g Tr. at 56, 59-60.

         On March 7, 2019, the Court held a partially sealed hearing at which both parties appeared receptive to a compromise that would permit certain preapproved Concord officers and employees to travel to the United States to view a substantial subset of the sensitive discovery at Reed Smith's U.S. offices. See, e.g., id. at 69-71, 74-76. But efforts to reach a compromise ultimately broke down, and the parties requested another hearing. See Gov't's Mot. for Status Hr'g, Dkt. 113-1; Concord's Resp. to Gov't's Mot. for Status Hr'g, Dkt. 116-2. At the conclusion of that hearing, the Court directed the government to propose a less restrictive protective order that would be less burdensome on the defense. See Apr. 10, 2019 Hr'g Tr. at 50-57, 60, Dkt. 128.

         On June 5, 2019, the government moved for a new protective order that would substantially narrow the number of sensitive documents that must be viewed in the United States. See Gov't's Mot. Regarding Protective Order; see also Proposed Revised Protective Order, Dkt. 141-3. In support, the government filed an ex parte, classified addendum and a supplemental filing related to the Eastern District of Virginia investigation. See Gov't's Notice of Ex Parte, In Camera, Classified Filing (June 5, 2019); Gov't's Suppl. In July, the Court held a sealed hearing, see July 17, 2019 Hr'g Tr., Dkt. 153, and an ex parte hearing to discuss classified and sensitive facts in the government's ex parte filings. This Memorandum Opinion and Order resolves both Concord's earlier Motion for Approval to Disclose Discovery Pursuant to Protective Order and the government's most recent Motion Regarding Protective Order.

         B. The Government's ...

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