UNITED STATES OF AMERICA v. ALL FUNDS ON DEPOSIT AT
MEMORANDUM OPINION & ORDER re 1297 MOTION to Unseal Document 1268 Sealed Document, filed by PAVEL LAZARENKO filed by PAVEL LAZARENKO. Signed by Magistrate Judge G. Michael Harvey on 12/30/20. (MFB)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
No. 04-cv-798 (PLF/GMH)
ALL ASSETS HELD AT BANK JULIUS BAER )
& CO., LTD., GUERNSEY BRANCH,
ACCOUNT NUMBER 121128, IN THE NAME )
OF PAVLO LAZARENKO, et al.,
Defendants In Rem.
MEMORANDUM OPINION AND ORDER
In 2004, the United States filed this civil forfeiture case in rem against funds held in certain
bank accounts the government alleges are traceable to money laundering and extortion activities
of former Ukrainian Prime Minister Pavel Lazarenko. In July 2005, Mr. Lazarenko filed a claim
to certain of the Defendant funds, including funds held in an account at Bank Julius Baer in Guernsey (the “Bank Julius Baer Guernsey Account”), asserting that he is their beneficial owner. In
April 2020, Claimant Pavel Lazarenko submitted a motion for partial summary judgment as to the
Bank Julius Baer Guernsey Account, claiming that the government cannot trace those funds to the
criminal activity alleged in the operative complaint. In support of his motion, Mr. Lazarenko filed
excerpts from a 2016 deposition of non-party Peter Kiritchenko. Those excerpts (ECF Nos. 12681, 1268-2, 1268-3) were filed under seal pursuant to a protective order entered in this case. Presently pending before the Court is Mr. Lazarenko’s motion to unseal the excerpts of Mr. Kiritchenko’s deposition testimony, arguing that the information contained in the excerpts is already
in the public domain and that the public’s right of access to judicial proceedings weighs in favor
of their disclosure. Mr. Kiritchenko filed a two-page opposition as a pro se third party, asserting
that many of the facts in his testimony are not already in the public record and that their dissemination could lead to threats and other harm to him and his family. The government took no position
on the motion. Mr. Lazarenko’s motion to unseal is granted because, although not all of the information at issue is already publicly available, much of it is, and the strong presumption in favor of
public access to judicial proceedings counsels in favor of unsealing. 1
The history of this over-fifteen-year-old case is extensive. Indeed, the history relevant to
this motion reaches back as far as 1998, when Mr. Lazarenko was detained by Swiss authorities
on suspicion of laundering money while he was a government official in Ukraine. In 1999, Universal Trading & Investment Co. (“UTICO”) filed a civil case (asserting it was the assignee of
claims belonging to Ukraine) against Mr. Lazarenko and his associate, Mr. Kiritchenko, alleging
that they and others “were participants in ‘a criminal organization and enterprise designed to steal
large sums of money from the Government of Ukraine.’” UTICO v. Kiritchenko, No. C-99-3073,
2007 WL 2669841, at *1 (N.D. Cal. Sept. 7, 2007) (quoting the second amended complaint). In
May 2000, a grand jury in the United States District Court for the Northern District of California
indicted Mr. Lazarenko on multiple counts related to allegations of money laundering committed
while he was a government official in Ukraine; the first count of the indictment named Mr. Kiritchenko as a co-conspirator. Indictment, United States v. Lazarenko, No. 00-cr-284 (N.D. Cal.
May 18, 2000), ECF No. 1; see also Second Superseding Indictment, United States v. Lazarenko,
No. 00-cr-284 (N.D. Cal. July 19, 2001), ECF No. 143. One month later, a Swiss court convicted
The most relevant docket entries for this Memorandum Opinion and Order are (1) the Second Amended Protective
Order (ECF No. 1086); (2) Mr. Lazarenko’s motion for summary judgment on the Bank Julius Baer Guernsey Account
(ECF No. 1269); (3) the sealed transcript of excerpts of Mr. Kiritchenko’s videotaped deposition (ECF Nos. 1268-1
through 1268-3); (4) Mr. Lazarenko’s motion to unseal those excerpts (ECF No. 1297); (5) Mr. Kiritchenko’s opposition to the motion (ECF No. 1307); and (6) Mr. Lazarenko’s supplementary submissions (ECF Nos. 1390–1391).
Mr. Lazarenko in absentia of money laundering related to his abuse of public office in Ukraine for
personal gain. ECF No. 20 at 11.
In 2004, Mr. Lazarenko was convicted in the Northern District of California on fourteen
money laundering counts, eight of which were affirmed by the Ninth Circuit in 2009. United
States v. Lazarenko, 564 F.3d 1026, 1037–40, 1047 (9th Cir. 2009). At Mr. Lazarenko’s criminal
trial, Mr. Kiritchenko testified for five days as a cooperating witness for the government pursuant
to a plea deal. See United States v. Lazarenko, 624 F.3d 1247, 1250 n.3 (9th Cir. 2010) (“The
government filed an information against Kiritchenko. As part of a plea deal, he testified for the
government at Lazarenko’s trial.”). Mr. Kiritchenko testified about financial transactions allegedly made in connection with Mr. Lazarenko’s corruption, bribery and extortion schemes in
Ukraine, where Mr. Lazarenko demanded 50 percent of the profits from and 50 percent ownership
of companies (including Mr. Kiritchenko’s own company, Agrosnabsbyt) in exchange for letting
them do business in the region. See ECF No. 509-7 at 15–17.
After Mr. Lazarenko’s conviction, in which the jury found that he both conspired with and
extorted money from Mr. Kiritchenko, Mr. Kiritchenko sought monetary restitution from Mr. Lazarenko pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, and the
Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663. See Lazarenko, 624 F.3d at 1249–
50. In connection with his claim, Mr. Kiritchenko testified in a post-trial restitution proceeding
that Mr. Lazarenko extorted money from him. 2 United States v. Lazaranko, 555 F. Supp. 2d 1029,
1032 (N.D. Cal. 2008), rev’d, 624 F.3d 1247. As Mr. Kiritchenko’s restitution claim was proceeding, he testified about similar subjects—such as Mr. Lazarenko’s demanded 50/50 split of Mr.
The district court awarded Mr. Kiritchenko more than $19 million, but the Ninth Circuit reversed, denying Mr.
Kiritchenko restitution as he was a “both a victim and a participant” in the money laundering scheme. Lazarenko, 624
F.3d at 1250.
Kiritchenko’s businesses—in a deposition taken in the UTICO case, excerpts of which were filed
in connection with a motion for summary judgment in that action. Annex D to Plaintiff’s Motion
for Summary Judgment Against Defendants Brancross U.S. Holdings Inc., BRC Property Holdings LLC, Xanadu Property Holdings, and Petro Kiritchenko, UTICO, No. C-99-3073 (N.D. Cal.
July 6, 2007), ECF Nos. 1445–1449, 1451–1452.
Meanwhile, in May 2004—after Mr. Lazarenko’s indictment in the Northern District of
California but before his conviction in that case—the government filed this in rem civil forfeiture
action seeking to recover more than $230 million contained in several overseas accounts that it
asserts are traceable to a number of criminal schemes allegedly perpetrated by Mr. Lazarenko. 3
ECF No. 1. As relevant here, the government alleges that all of the funds in the Bank Julius Baer
Guernsey Account are traceable to Mr. Lazarenko’s personal account at Bank Julius Baer in Zurich, Switzerland, which were themselves deposits from an entity called Nakosta. ECF No. 1305
at 4–5. The government asserts that those Nakosta funds were transferred to Mr. Lazarenko as
part of the bribery and extortion schemes described by Mr. Kiritchenko in his deposition testimony.
Id. at 6–7.
In April 2020, Mr. Lazarenko filed a motion for partial summary judgment as to funds held
in the Bank Julius Baer Guernsey Account, claiming that the government cannot establish the
connection between the Nakosta funds and the criminal activity alleged in the operative complaint
in this case. ECF No. 1269 at 1–2. In support of that motion, Mr. Lazarenko filed excerpts from
a deposition of Mr. Kiritchenko taken in this case in September 2016. ECF Nos. 1268-1 through
1268-3 (excerpts from Mr. Kiritchenko’s deposition transcript filed under seal). Mr. Lazarenko
filed those excerpts under seal because Mr. Kiritchenko had designated the deposition transcript
The government filed an Amended Complaint in June 2005 noting that Mr. Lazarenko had been convicted in the
Northern District of California. ECF No. 20 at 11.
as “protected” pursuant to a protective order entered in this case. As relevant here, that order
provides that a party or non-party may so designate material when that party “reasonably believes”
the material (1) “not to be in the public domain” and (2) to contain material such as personally
identifiable information or information that is “otherwise confidential and/or sensitive.” ECF No.
1086 at 2, 11 (protective order); ECF No. 1258 (Mr. Lazarenko’s motion to file documents, including Mr. Kiritchenko’s deposition transcripts, under seal); ECF No. 1262 (order granting motion to file under seal). Mr. Lazarenko argues that Mr. Kiritchenko’s testimony helps prove that
the government cannot establish a connection between the alleged criminal schemes and the
Nakosta funds in the Bank Julius Baer Guernsey Account. ECF No. 1269 at 5–7. The government
argues the opposite is true, and refers to the same testimony, in conjunction with expert reports
and bank records, as proof that the funds in the Bank Julius Baer Guernsey Account are traceable
to Mr. Lazarenko’s criminal activity. ECF No. 1305 at 6–7 (government’s sealed opposition to
Mr. Lazarenko’s summary judgment motion as to the Bank Julius Baer Guernsey Account).
Mr. Lazarenko now seeks to unseal the excerpts from Mr. Kiritchenko’s deposition. ECF
1297. As noted, Mr. Lazarenko filed the excerpts under seal because Mr. Kiritchenko designated
them as “protected” under the operative protective order (ECF No. 1258), apparently believing
them not to be in the public domain and to contain confidential or sensitive information. Mr.
Lazarenko now contends that those excerpts were improperly designated because the identified
information is already in the public domain and the material thus does not meet the first requirement of the protective order. ECF No. 1279; ECF No. 1297. Specifically, he contends that the
subject matter of the excerpts was previously disclosed in Mr. Kiritchenko’s public testimony at
Mr. Lazarenko’s 2004 criminal trial and the 2007 proceeding in which Mr. Kiritchenko sought
restitution from Mr. Lazarenko; his deposition testimony in the UTICO case that was filed publicly
in connection with a motion for summary judgment in that action; and his statements to various
law enforcement authorities, such as Swiss prosecutors and the FBI, which have been publicly
filed in this action. ECF No. 1297 at 2–3; ECF No. 1279-1. Alternatively, Mr. Lazarenko argues
that the public’s right of access to judicial proceedings weighs in favor of disclosure. ECF No.
1297 at 5. Mr. Kiritchenko, proceeding as a pro se third party as to this dispute (although he has
previously been represented by an attorney in matters related to this case), opposes the motion to
unseal his testimony on the grounds that many facts contained within his deposition are not already
in the public domain and that the public release of the material may lead to threats against him and
his family. ECF No. 1307. The government has not taken a position on this motion.
The D.C. Circuit has recognized that the common law right of public access to judicial
proceedings and records “is fundamental to a democratic state.” Metlife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661, 665 (D.C. Cir. 2017) (quoting United States v. Hubbard, 650
F.2d 293, 315 n.79 (D.C. Cir. 1980)). Thus, there is a “strong presumption” in favor of such
access. Hubbard, 650 F.2d at 317.
“Public access to judicial records is not limitless, however.” In re McCormick & Co.,
Pepper Prods. Mktg. & Sales Pracs. Litig., 316 F. Supp. 3d 455, 463 (D.D.C. 2018). For example,
Rule 26(c) of the Federal Rules of Civil Procedure permits a court to “issue an order to protect a
party or person from annoyance, embarrassment, oppression, or undue burden or expense” by limiting disclosure of information or requiring it to be filed under seal. Fed. R. Civ. P. 26(c)(1).
Nevertheless, even where a protective order has issued, a district court “cannot abdicate its responsibility to oversee the discovery process and determine whether filings should be made available
to the public.” McConnell v. FEC, 251 F. Supp. 2d 919, 927 (D.D.C. 2003) (quoting Proctor &
Gamble Co. v. Bankers Tr. Co., 78 F.3d 219, 227 (6th Cir. 1996)). Thus, the mere fact that material
may be subject to a protective order limiting disclosure does not mean that it must remain shielded
from public disclosure. See, e.g., In re McCormick & Co., MDL Docket No. 2665, No. 15-mc1825, 2017 WL 2560911, at *1 (D.D.C. June 13, 2017); see also, e.g., Joy v. North, 692 F.2d 880,
893 (2d Cir. 1982) (noting that, notwithstanding the applicability of a protective order under Rule
26, “documents used by parties moving for, or opposing, summary judgment should not remain
under seal absent the most compelling reasons”). Rather, to determine whether a seal over judicial
records should be maintained, a court must “fully account for the various public and private interests at stake.” Metlife, 865 F.3d at 666. In the D.C. Circuit, that duty is dispatched by considering
the following six factors derived from its decision in Hubbard:
(1) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property or privacy interests
asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced during the judicial proceedings.
EEOC v. Nat’l Children’s Ctr., Inc. 98 F.3d 1406, 1409 (D.C. Cir. 1996) (citing Hubbard, 650
F.2d at 317–22). The burden is on the party seeking to restrict disclosure “to come forward with
specific reasons why the record, or any part thereof, should remain under seal.” Johnson v. Greater
Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1278 (D.C. Cir. 1991); see also Aristotle Int'l, Inc. v. NGP
Software, Inc., 714 F. Supp. 2d 1, 16 (D.D.C. 2010).
Mr. Lazarenko first contends that the excerpts of Mr. Kiritchenko’s deposition at issue
should be unsealed because the information included in them is not, in fact, susceptible to protection under the protective order in this case, having been disseminated in the public domain through
live testimony in Mr. Lazarenko’s federal criminal case, deposition testimony filed on the public
docket in the UTICO case, and statements to law enforcement filed on the public docket in this
case and elsewhere. He further argues that, even if the material at issue were not already in the
public domain, application of the Hubbard factors indicates that the deposition excerpts should be
unsealed. As discussed below, although Mr. Lazarenko has not sufficiently shown that all of the
information included in the excerpts at issue is already publicly available, he has established that
the strong interest in the public availability of judicial documents counsels in favor of unsealing.
Pursuant to the operative protective order in this case, “[i]f any [p]arty wishes to have certain information that was designated protected to be unprotected . . . , the [p]arties and/or relevant
non-party or non-parties will confer and try to reach agreement. If [they] . . . cannot reach agreement, either . . . may apply to the Court to resolve the matter in accordance with the Local Rules.”
ECF No. 1086 at 9. Counsel for Mr. Lazarenko has represented that they conferred with counsel
for Mr. Kiritchenko to see if he would agree to “de-designate” the materials at issue and prepared
a chart comparing the deposition testimony filed under seal in connection with the motion for
partial summary judgment as to the Bank Julius Baer Guernsey Account with statements in the
public domain that Mr. Lazarenko argues reveal the same information. ECF No. 1297 at 3, 6–7;
ECF No. 1308. Counsel for Mr. Kiritchenko reportedly balked, asserting, according to Mr. Lazarenko, that, while the subjects addressed in the deposition testimony at issue were in the public
domain, “the answer[s] to the[ ] specific questions [asked in the deposition] were not.” ECF No.
1297 at 4. Negotiations having reached an impasse, Mr. Lazarenko first filed a letter brief bringing
the dispute to the Court’s attention (ECF No. 1279) and then, upon an order from the Court (ECF
No. 1281), filed a motion seeking unsealing of the deposition excerpts (ECF No. 1297).
The bulk of the deposition testimony under seal concerns one of the schemes at the heart
of Mr. Lazarenko’s criminal trial by which—as described in the Ninth Circuit’s decision affirmingin-part and reversing-in-part his convictions—he “required businesses to pay him fifty percent of
their profits in exchange for his influence to make the businesses successful.” Lazarenko, 564
F.3d at 1030. More specifically, according to the Ninth Circuit, Mr. Lazarenko informed Mr.
Kiritchenko at a meeting in 1992 that Mr. Lazarenko “worked with everyone ‘50-50,’ which [Mr.]
Kiritchenko interpreted as meaning that [Mr.] Lazarenko would control fifty percent of the business and take fifty percent of the profits.” Id.
The deposition testimony at issue here provides certain assertions about which companies
had such arrangements with Mr. Lazarenko and how the scheme was allegedly arranged and accomplished. For example, Mr. Kiritchenko testified at his deposition in this case about the 1992
meeting at a bank in Warsaw when Mr. Lazarenko allegedly related the 50/50 arrangement he had
with other businesses. ECF No. 1268-3 at 3. Mr. Kiritchenko further testified that third parties
would deposit money into his own accounts—such as an account held in the name of Orphin—for
Mr. Lazarenko and Mr. Kiritchenko would then transfer those funds to certain Swiss bank accounts
controlled by Mr. Lazarenko. ECF No. 1268-1 at 2; ECF No. 1268-2 at 3. Among those third
parties was Nakosta, which was controlled by two individuals known as Kokh and Krukayev (or
Kurkhaev). ECF No. 1268-1 at 2; ECF No. 1268-2 at 2. Mr. Kiritchenko also testified at his
deposition in this case that a farming business called Naukovy (or Naukovyi), which was directed
by an individual known as Agrofonov, had a 60/40 rather than 50/50 arrangement with Mr. Lazarenko and that the transfer of funds from Naukovy to Mr. Lazarenko involved an entity known as
Van der Ploeg. ECF No. 1268-2 at 2; ECF No. 1268-3 at 2, 6. Mr. Kiritchenko was asked about
many companies other than Nakosta and Naukovy, as well, some of which he recognized as having
deposited money in his accounts to be transferred to Mr. Lazarenko, others about which he protested ignorance. ECF No. 1268 at 2–3. However, he testified that he was unaware of the specific
agreements behind the transfer of funds that any of those businesses—including Nakosta and Naukovy—had with Mr. Lazarenko. ECF No. 1268-2 at 3; ECF No. 1268-3 at 3.
In a series of submissions to the Court, Mr. Lazarenko has attempted to show that the information included in the deposition excerpts at issue is available in the public domain, such as in
publicly-available testimony and exhibits from Mr. Lazarenko’s criminal trial (including Mr. Kiritchenko’s restitution proceeding) and from the UTICO action, some of which have also been
filed on the public docket in connection with various motions in this case. ECF Nos. 1297, 1308,
1390, 1391. He has adequately shown that much of the information in Mr. Kiritchenko’s deposition excerpts—and perhaps the information most material to the motion for summary judgment as
to the Bank Julius Baer Guernsey Account—is publicly available. For example, Mr. Lazarenko
points to Mr. Kiritchenko’s testimony at the criminal trial discussing the 1992 meeting in Warsaw
at which Mr. Lazarenko revealed the 50/50 arrangement and the participation of Nakosta in providing money to Mr. Kiritchenko for Mr. Lazarenko’s benefit. ECF No. 1390-3 at 8, 10–11 (attaching
excerpts of the trial transcript from Mr. Lazarenko’s criminal trial); see also ECF No. 1257-5 at
33–39 (same). He further points to exhibits from that same trial that show the names of bank
accounts controlled by Mr. Kiritchenko and/or Mr. Lazarenko that were involved in the third-party
payments and the names of the third-party companies that deposited funds in those accounts. See,
e.g., ECF No. 509-18 at 21–26; ECF No. 509-19 at 96–102; ECF No. 509-20 at 1–10, 30–42.
However, the evidence on which Mr. Lazarenko has focused the Court’s attention does not
always include the level of detail included in the deposition excerpts. For example, Mr. Kiritchenko testified at his deposition in this case that Naukovy was involved with the Van der Ploeg
payments—specifically, he testified that the money he passed from Van der Ploeg to Mr. Lazarenko “came from Naukovyi” because “they were buying cows from Van Der Ploeg.” ECF No.
1268-2 at 2. The trial exhibits Mr. Lazarenko cites as evidence that such information is already in
the public domain do not mention Naukovy, but reflect deposits only from Van der Ploeg. ECF
No. 509-18 at 21–26; ECF No. 509-20 at 1–9. The Court’s own research has found that the relationship between livestock, Van der Ploeg, and Naukovy was included in testimony at Mr. Lazarenko’s criminal trial because it is restated in the Ninth Circuit’s decision affirming-in-part and
vacating-in-part his convictions. Lazarenko, 564 F.3d at 1030–31. But that is not work the Court
should have to do on its own. It is Mr. Lazarenko’s motion before the Court and his burden to
show he is entitled to the relief he seeks. In any case, the Court has been unable to verify that other
information in Mr. Kiritchenko’s deposition testimony is in the public domain. For example, he
testified that Mr. Lazarenko had a 60/40 arrangement with Mr. Agrofonov of Naukovy. ECF No.
1268-3 at 6. Mr. Lazarenko points to nothing in the public record that indicates such an arrangement and the Court’s research has located none. 4
In short, although Mr. Lazarenko has established that much of the information included in
Mr. Kiritchenko’s protected deposition excerpts is publicly available, he has failed to establish that
all of it is.
Presumption of Public Access to Judicial Records
Notwithstanding whether all of the facts included in the excerpts from Mr. Kiritchenko’s
2016 deposition testimony can be found in the public domain, the testimony should be unsealed
because, in accordance with the Hubbard six-factor balancing test, the significant interest in
It is quite possible that such information is publicly available. However, it is not the Court’s task to search for it; it
is the movant’s responsibility to provide it.
allowing public access to judicial proceedings outweighs any potential privacy interests or prejudicial concerns of the objecting party. See Hubbard, 650 F.2d at 317.
Need for Public Access
The first Hubbard factor assesses the need for public access to the documents at issue. This
factor derives from the long-standing belief that public access to judicial records “serves the important function[ ] of ensuring the integrity of judicial proceedings.” Hubbard, 650 F.2d at 314–
“There is a stronger presumption of transparency in some judicial proceedings than in others.” Friedman v. Sebelius, 672 F. Supp. 2d 54, 58 (D.D.C. 2009). That presumption is particularly strong in this case because [t]he appropriateness of making court files accessible is accentuated in cases where the government is a party.” Nat’l Children’s Ctr., 98 F.3d at 1409 (quoting
FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987)). “[I]n such circumstances,
the public’s right to know what the executive branch is about coalesces with the concomitant right
of the citizenry to appraise the judicial branch.” Standard Fin. Mgmt., 830 F.2d at 410; see also
Hyatt v. Lee, 251 F. Supp. 3d 181, 184 (D.D.C. 2017) (“The interest of the public and press in
access to civil proceedings is at its apex when the government is a party to the litigation. Indeed,
the public has a strong interest in monitoring not only functions of the courts but also the positions
that its elected officials and government agencies take in litigation.” (quoting Doe v. Pub. Citizen,
749 F.3d 246, 271 (4th Cir. 2014))). Here, of course, the government is a party to the litigation,
which, in itself weighs in favor of disclosure. Moreover, there is a particularly “strong presumption of openness” for proceedings related to criminal matters. Friedman, 672 F. Supp. 2d at 58.
To be sure, this is not technically a criminal case.
It is, however, an in rem forfeiture action
founded on allegations of illegal activity by Mr. Lazarenko brought by attorneys from the Asset
Forfeiture and Money Laundering Section of the Criminal Division of the U.S. Department of
Justice, as well as attorneys from the Criminal Division of the U.S. Attorney’s Office for the District of Columbia. Courts have recognized that such proceedings are, “in fact if not form, at least
‘quasi-criminal’ in nature.” United States v. $191,910.00 in U.S. Currency, 16 F.3d 1051, 1063
(9th Cir. 1994), superseded by statute on other grounds, Civil Asset Forfeiture Reform Act of
2000, Pub. L No. 106-185, 114 Stat. 202 (2000), as recognized in United States v. $80,180.00 in
U.S. Currency, 303 F.3d 1182 (9th Cir. 2002); cf. United States v. $15,270,885.69 on Deposit in
Acct. No. 8900261137, No. 99 Civ. 10255, 2000 WL 1234593, at *1 n.2 (S.D.N.Y. Aug. 31, 2000)
(finding that allegations of criminal activity by the holder of funds weighed in favor of unsealing
a civil forfeiture action). Furthermore, the nature of Mr. Lazarenko’s alleged criminal activities
as a former Ukrainian public official and the hundreds of millions of dollars allegedly laundered
through financial institutions in the United States suggest that this is a matter of some significant
public concern, which also weighs in favor of disclosure. See In re Fort Totten Metrorail Cases,
960 F. Supp. 2d 2, 7 (D.D.C. 2013) (explaining that disclosure of documents relating to the deadly
accident on public transportation—a “matter of significant public concern”— would cause an “incremental gain in public understanding of an immensely important historical occurrence.” (quoting
Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 602 (1978))).
Finally, “because the law presumes that the public is entitled to access the contents of judicial proceedings,” it is the party arguing against disclosure that has the burden to “demonstrate
the absence of a need for public access.” United States v. ISS Marine Servs., Inc., 905 F. Supp. 2d
121,140–41 (D.D.C. 2012). Mr. Kiritchenko has utterly failed to do so here. Indeed, his opposition does not even address the presumption of public access, but instead states that on “a number
of occasions” he and his family “have been threatened and suffered other harm” as a consequence
of “testimony [he] ha[s] given.” ECF No. 1307. While such a claim may be taken into consideration when assessing the strength of the privacy interest involved, it does not show an absence of
the need for public access to these judicial records. For these reasons, this factor weighs heavily
in favor of disclosure.
Extent of Prior Public Access
The second Hubbard factor concerns the extent of prior public access to the documents at
issue. The fact that a document has been previously accessible to the public “weigh[s] in favor of
subsequent access.” Hubbard, 650 F.2d at 318 (explaining that though previous access cannot
control the decision “concerning whether, when, and under what conditions the public should have
access,” this factor of previous access is relevant in deciding whether more liberal access should
be granted); see also Friedman, 672 F. Supp. 2d at 59 (reasoning “that it is less harmful to release
a document that was once public than to release one that has never been made publicly accessible”).
The public has not previously had access to these specific deposition excerpts. However,
as discussed above, a considerable amount of the information included in those excerpts is in the
public domain. See supra Section III.A. This factor thus weighs in favor of disclosure of that
information. See In re Application of N.Y. Times Co. for Access to Certain Sealed Ct. Recs., 585
F. Supp. 2d 83, 93 (D.D.C. 2008) (ordering the disclosure of documents where “much of the critical information is already in the public forum,” and the opposing party “introduced or re-introduced some of the details regarding the search warrants into the public forum himself”). As to the
information for which Mr. Lazarenko has failed to establish prior public access, this factor is
merely neutral. See, e.g., Am. Pro. Agency, Inc. v. NASW Assurance Servs., Inc., 121 F. Supp. 3d
21, 24 (D.D.C. 2013) (“The second Hubbard factor is ‘neutral’ where there has been no previous
Identity of the Party Objecting to Disclosure
The third Hubbard factor considers whether a party objects to the disclosure and the identity of the objecting party. 650 F.2d at 319. In Hubbard, the D.C. Circuit held that a third party
whose property and privacy rights were at issue was the proper party to object. 650 F.2d at 319.
Mr. Lazarenko concedes that Mr. Kiritchenko is the proper party to object. ECF No. 1297 at 6.
This factor weighs in favor of keeping Mr. Kiritchenko’s deposition excerpts sealed.
Strength of Privacy or Property Interests
The fourth Hubbard factor examines the objecting party’s privacy and/or property interests
in the documents at issue. 650 F.2d at 320 (explaining the strong privacy interest in documents
seized from a private area of a church). The D.C. Circuit in Hubbard illustrated situations where
the unsealing of documents would implicate cognizable interests because they contained material
protected by attorney-client privilege, discussed tax returns, or included information about an individual’s sex life, or other intimate details. 650 F.2d at 323–24. Valid privacy and property
interests are not limited to personal details, but may also include confidential business information
that should be kept private for competitive business reasons. See Tavoulareas v. Wash. Post Co.,
111 F.R.D. 653, 655–56 (D.D.C. 1986) (maintaining seal of private business information where a
third party sufficiently demonstrated that the release of the information would harm its business).
The documents at issue here do not implicate any of those particularized privacy or property interests. The deposition excerpts do not contain any intimate personal details. While there
are intimations of illegality included in the testimony, “allegations of . . . wrongdoing . . . do not
implicate privacy interests,” DRC, Inc. v. Republic of Honduras, No. 10-cv-0003 (PLF/AK), 2011
WL 13257869, at *6 (D.D.C. Aug. 22, 2011), nor is unsubstantiated worry about damage to one’s
reputation sufficiently substantial to weigh against public disclosure, see, e.g., Zapp v. Zhenli Ye
Gon, 746 F. Supp. 2d 145, 149–50 (D.D.C. 2010) (finding an unsupported and cursory argument
that public disclosure of certain documents would damage an individual’s reputation “d[id] not
weight in favor of sealing” those documents). The excerpts at issue do contain information regarding Mr. Lazarenko’s business relationships, as well as Mr. Kiritchenko’s role in Mr. Lazarenko’s business dealings. ECF No. 1268-1 through 1268-3. However, Mr. Kiritchenko has not
suggested that any of his ongoing business relationships would be harmed by disclosure of the
currently sealed information. Cf. Tavoulareas, 111 F.R.D. at 656.
Instead, Mr. Kiritchenko opposes the public release of his testimony on the grounds that
he and his family have been “threatened and suffered other harm” on previous occasions “as a
result of testimony [he] ha[s] given.” ECF No. 1307 at 2. Mr, Lazarenko reports that Mr. Kiritchenko has asserted that such concerns are based on Mr. Kiritchenko’s fear of harassment from
certain individuals in Ukraine as a result of the release of his testimony. ECF No. 1297 at 7. Courts
have recognized in other contexts that the fear that threats or harassment will result from the disclosure of information can “raise[ ] a measurable privacy concern that must be weighed against
the public’s interest in disclosure.” Wood v. F.B.I., 432 F.3d 78, 88 (2d Cir. 2005) (Freedom of
Information Act (“FOIA”) case)); see also Forest Serv. Emps. for Env’t Ethics v. U.S. Forest Serv.,
524 F.3d 1021, 1026 (9th Cir. 2008) (concluding that “the avoidance of harassment is a cognizable
privacy interest” under a FOIA exemption).
However, vague, conclusory assertions of potential threats, without any evidence supporting a specific fear based on the release of the documents at issue, like Mr. Kiritchenko’s concerns
here, are not sufficient to weigh in favor of nondisclosure. See Grynberg v. BP P.L.C., 205 F.
Supp. 3d 1, 4 (D.D.C. 2016) (“Such ‘vague assertions’ . . . do not convince the Court that the
disputed documents should be sealed.”); see also, e.g., United States v. Antar, 38 F.3d 1348, 1363
(3d Cir. 1994) (unsealing jury voir dire transcripts after trial because there was no evidence that
“jurors were being harassed or that a threat of undue harassment was impending,” and the “concern with harassment was hypothetical”); Stein v. CIA, 454 F. Supp. 3d 1, 33 (D.D.C. 2020) (holding, in a FOIA case, that the government’s unsupported and conclusory assertion that release of
information could subject an individual “to unwanted attention or harassment” was insufficient to
protect that information from disclosure); In re Up N. Plastics, Inc., 940 F. Supp. 229, 234 (D.
Minn. 1996) (finding an unsupported, “speculative” fear that releasing a search warrant affidavit
might expose cooperating witnesses to harassment or intimidation insufficient to merit “the extraordinary measure of sealing the court’s records”). Importantly, this is not a situation in which
unsealing the material at issue would expose the role of a previously-undisclosed cooperating government witness in a criminal trial. Rather, Mr. Kiritchenko’s role and testimony in Mr. Lazarenko’s criminal trial has been in the public domain for over fifteen years. Indeed, Mr. Kiritchenko
himself based his claim for restitution largely on matters discussed in that testimony, some of
which are also included in the deposition excerpts he seeks to shield here. See, e.g., Lazarenko,
555 F. Supp. 2d at 1032–33. What the public record apparently lacks is a handful of details in the
deposition excerpts that—as best the Court can determine—were not included in his prior testimony or other publicly-available statements. But Mr. Kiritchenko does not explain how placing
those additional details in the public record will make him more a target of threats and harassment
than he alleges he already is. Therefore, the Court here finds that Mr. Kiritchenko’s privacy and
property interests in the continued sealing of the deposition testimony at issue here are weak. This
factor weighs in favor of unsealing the deposition transcript.
Possibility of Prejudice to Those Opposing Disclosure
The fifth Hubbard factor concerns the possibility of prejudice to the individual or entity
opposing disclosure. “The possibility of prejudice refers to ‘whether disclosure of the documents
will lead to prejudice in future litigation to the party seeking the seal.’” United States ex rel.
Durham v. Prospect Waterproofing, Inc., 818 F. Supp. 2d 64, 68 (D.D.C. 2011) (quoting Friedman, 672 F.Supp.2d at 60). For this factor to weigh in favor of continued sealing, the party opposing disclosure “must have identified how the . . . disclosure” of the relevant material
“causes . . . legal prejudice.” Zapp, 746 F. Supp. 2d at 150. Here, Mr. Kiritchenko does not explain how disclosure would prejudice him in future litigation—indeed, he does not address the
prospect of prejudice, at all. In case after case in this Circuit, courts have found that an individual
who fails to identify and support a claim of litigation prejudice, like Mr. Kiritchenko here, does
not meet the burden under this factor. See, e.g., Gilliard v. McWilliams, No. 16-cv-2007, 2019
WL 3304707, at *5 (D.D.C. July 23, 2019) (finding that the fifth factor “d[id] not weigh in favor
of sealing” where the plaintiff failed to “provide any reasons why [ ] disclosure would lead to
prejudice in any future litigation”); Hamiduva v. Obama, No. 08-cv-1221, 2015 WL 5176085, at
*3 (D.D.C. Sept. 3, 2015) (finding the fifth factor “neutral” where the party seeking sealing “d[id]
not allege that the disclosure of the documents would have any effect on future litigation.”); Guttenberg v. Emery, 26 F. Supp. 3d 88, 95–96 (D.D.C. 2014) (rejecting the plaintiffs’ “speculative
and generalized argument” that disclosure of litigation documents could cause prejudice by allowing other litigants to rely on the defendants’ allegations in the case was insufficient to counsel in
favor of sealing where the plaintiffs “d[id] not explain how or for what purpose future litigants
would do so, or even provide any examples.”); DRC, 2011 WL 13257869, at *7 (“DRC asserts in
conclusory language that continued open access to false and defamatory statements would subject
it to prejudice. DRC has not argued that it will be subject to litigation prejudice, only general
damage to its ability to do business. . . . Accordingly, the fifth factor weighs in favor of public
access.”); Zapp, 746 F. Supp. 2d at 150 (“[Because] Zapp does not claim that the Documents’
continued disclosure cause[s] him legal prejudice, the Court finds that this factor does not weigh
in favor of sealing the Documents.”). As in those cases, Mr. Kiritchenko has not established that
the possibility of future litigation prejudice weighs against disclosure of the deposition excerpts.
Purposes for which Documents were Introduced during Proceeding
The sixth Hubbard factor examines the purposes for which the documents were introduced
during the proceeding. Generally, there is a strong presumption of public access to documents that
a litigant submits with the intention that the court will rely on them. For example, in Metlife, Inc.
v. Financial Stability Oversight Council, the D.C. Circuit ruled that the briefs and appendices were
judicial records subject to the public right of access because they were filed before the district
court’s decision and “were intended to influence it.” 865 F.3d 661, 668 (D.C. Cir. 2017) (further
reasoning that “[w]ithout access to the sealed materials, it is impossible to know which parts of
those materials persuaded the court and which failed to do so (and why)”); see also, e.g., Joy, 692
F.2d at 893 (noting that, notwithstanding the applicability of a protective order, “documents used
by the parties moving for, or opposing, summary judgment should not remain under seal absent
the most compelling reasons”); Hyatt v. Lee, 251 F. Supp. 3d 181, 186 (D.D.C. 2017) (finding that
the sixth factor weighed in favor of disclosure of, among other things, “the motions of the parties[ ]
and the records and expert reports relied upon by the parties and presented to the Court in support
of their motions for summary judgment”); Herron v. Fannie Mae, No. 10-cv-943, 2016 WL
10677615, at *4 (D.D.C. June 20, 2016) (finding that because the parties’ summary judgment
papers pertained “to the parties’ direct claims and defenses” at issue in the action, “[t]ransparency
and access to th[e] documents [was] central to the integrity of the[ ] proceedings”); Zapp, 746 F.
Supp. 2d at 151 (finding that where the plaintiff filed exhibits in conjunction with his summary
judgment “intend[ing] for the [c]ourt to rely on these filings in adjudicating his dispute,” this factor
weighed in favor of disclosure).
Here, Mr. Lazarenko filed Mr. Kiritchenko’s deposition excerpts in support of his motion
summary judgment on the Bank Julius Baer Guernsey Account. ECF No. 1268-1 through 12683. In fact, Mr. Lazarenko cites the excerpts to emphasize that Mr. Kiritchenko did not have personal knowledge of the reason that funds were deposited in various accounts for Mr. Lazarenko’s
benefit, arguing that the testimony therefore cannot help the government to shoulder its burden to
prove that the funds in the Bank Julius Baer Guernsey Account are traceable to the criminal activity
alleged in this action. ECF No. 1269 at 6–7. The government’s opposition to Mr. Lazarenko’s
motion for summary judgment also cites the deposition excerpts, in conjunction with expert reports
and bank records, to argue that the funds in the Bank Julius Baer Guernsey Account were part of
the alleged 50/50 bribery and extortion scheme. ECF No. 1305 at 6–7. The deposition excerpts
at issue are thus significant pieces of evidence relating to the forfeitability of the funds at issue,
which is the ultimate question. As such, this factor weighs in favor of unsealing the documents at
In sum, the Hubbard factors weigh in favor of unsealing the excerpts of Mr. Kiritchenko’s
2016 deposition testimony. The only factor that weighs in favor of maintaining the seal over these
records is the fact that the proper party objects to unsealing. That, alone, is insufficient to override
the strong presumption of public access to judicial records.
For the foregoing reasons, it is hereby
ORDERED that Claimant Lazarenko’s motion to unseal excerpts of Mr. Kiritchenko’s
2016 deposition transcript (ECF No. 1297) is GRANTED. The Clerk of Court is respectfully
directed to unseal the documents found at ECF Nos. 1268-1, 1268-2, and 1268-3.
Digitally signed by G.
Date: December 30, 2020
G. MICHAEL HARVEY
UNITED STATES MAGISTRATE JUDGE
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