Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 1 of 6 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. CONCORD MANAGEMENT AND CONSULTING, LLC, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Criminal No. 18-CR-32 (DLF) GOVERNMENT’S MOTION FOR LEAVE TO FILE AN EX PARTE, IN CAMERA, CLASSIFIED ADDENDUM TO THE GOVERNMENT’S OPPOSITION TO DEFENDANT’S MOTION TO DISCLOSE DISCOVERY PURSUANT TO PROTECTIVE ORDER The United States, by and through undersigned counsel, and pursuant to Federal Rule of Criminal Procedure (“Rule”) 16(d)(1), respectfully moves for leave to file an ex parte, in camera, classified addendum to its forthcoming opposition to the Defendant’s Motion for Approval to Disclose Discovery Pursuant to Protective Order (Dkt. 77). The classified addendum would supplement the Government’s publicly-filed opposition, providing only additional (but highly sensitive) details supporting the Government’s public arguments. Because this additional information is classified for reasons of national security, and because defense counsel is not otherwise entitled to the information, the Government seeks permission to submit the information ex parte, as contemplated by Rule 16(d)(1).1 Should the Court grant the instant motion, the Government would submit the ex parte, classified addendum through the Court The Government is seeking this permission in advance of its filing deadline in order to ensure that the classified information is protected from any unnecessary disclosure and in order to formally obtain the agreement of other government agencies to submit the information ex parte and in camera to the Court in this proceeding. 1 Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 2 of 6 Information Security Officer at the same time that it files its public opposition to the Defendant’s motion. ARGUMENT 1. Ex Parte Submission of Limited Facts Supporting the Government’s Arguments Regarding Discovery Protections is Appropriate under Rule 16(d)(1). Courts have broad discretion to manage discovery, including discretion to consider ex parte submissions in resolving discovery disputes. Specifically, Rule 16(d)(1) provides that: At any time the court may, for good cause, deny restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party’s statement under seal. (Emphasis added.) Even though ex parte submissions are generally disfavored, there are several reasons they may be appropriate in the context of discovery disputes. For example, courts have considered ex parte information regarding the risks to witness security that would result from not restricting discovery that might otherwise be provided in the normal course. See United States v. Napue, 834 F.2d 1311, 1320-23 (7th Cir. 1987) (approving district court’s consideration of ex parte information regarding the defendant’s alleged dangerousness, based on prior conduct not charged in the case, as it related to defendant’s request for pretrial discovery of identities of Government witnesses). Moreover, as the Federal Rules Advisory Committee has explained, consideration of ex parte submissions in the context of discovery may be especially appropriate where national security is implicated. See Fed. R. Crim. P. 16 advisory committee’s note (1966 amendment) (“In some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court. The problem arises in its most extreme form where matters of national security are involved.”). 2 Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 3 of 6 Here, the Government intends to present several arguments in open court in opposition to the Defendant’s pending motion and, in particular, to the Defendant’s desire to share discovery materials with co-defendant Yevgeniy Prigozhin, the Russian national who controls the Defendant but has not personally appeared. The Government previously presented arguments regarding the need to shield discovery from Prigozhin in advance of this Court’s issuance of the existing protective order, for reasons of national security. See Gov. Mot. For Prot. Order, Dkt. 24. At that time, the Government submitted supplemental information ex parte in support of its argument. See Gov. Ex Parte Submission, Dkt. 25 (sealed). The Court relied on the ex parte submission by the Government in issuing the current protective order. See June 29, 2018, Mem. Op. & Order, Dkt. 42. And, at a hearing on the discovery dispute, the Court noted that “the government has outlined in its public motion all of the bases for [its argument], and what was supplied to me ex parte are just the details that back up the assertions in terms of national security investigations, cooperating witnesses, et cetera. So it’s the particulars behind their argument that’s fully briefed.” June 27, 2018, Tr. 20, Dkt. 41. That same discovery issue—whether the Defendant should be permitted to share certain discovery with Prigozhin—is again before the Court in Defendant’s pending motion. And, as before, the Government seeks to provide certain facts regarding Prigozhin and other Russian nationals associated with him ex parte, for the limited purpose of supplementing arguments that will be fully briefed in the Government’s publicly filed motion. Thus, as before, and as the Court suggested in its comments regarding the earlier ex parte submission, the Defendant will suffer minimal, if any, prejudice from the ex parte nature of the classified submission, because the Defendant will have the opportunity to respond in substance to each of the Government’s arguments. 3 Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 4 of 6 2. The Defendant is Not Otherwise Entitled to the Classified Information to Be Submitted to the Court. An ex parte submission of the information in this instance is also appropriate because defense counsel is not otherwise entitled to the information to be provided to the Court. Specifically, a certain portion of the classified information that the Government intends to submit—for the limited purpose of resolving the discovery dispute—is simply not relevant to the merits of the prosecution, and thus there would be no reason for its disclosure to defense counsel under Rule 16 or other authority. And, to the extent certain portions of the information to be submitted are relevant to the merits of the prosecution, the Government anticipates that such information would be withheld from discovery in this case under Section 4 of the Classified Information Procedure Act (“CIPA”), 18 U.S.C. App. 3 § 4, because it is not “helpful” to the defense. See United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989).2 In other words, defense counsel is not entitled to the classified information as a result of the charges in this case. And, as explained above, disclosure of the classified information to the defense is hardly necessary to permit the defense to argue in support of its discovery motion, including to argue that it ought to be allowed to share discovery materials with Prigozhin. Given that Rule 16(d)(1) permits the Court to receive information ex parte in that context, the circumstances in this instance weigh strongly in favor of permitting the ex parte submission. 3. The Potential Harm to National Security Outweighs Any Interest of the Defendant in the Information. Here, an ex parte submission is even more critical than it was with respect to the earlier litigation regarding the protective order, because the disclosure of the additional information to 2 Should discovery in this case continue, the Government anticipates seeking an order under Section 4 of CIPA to withhold certain classified information that is not “relevant and helpful” to the defense. 4 Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 5 of 6 be submitted regarding Prigozhin would create even greater risks to the national security. The undersigned have confirmed that the information to be submitted ex parte is classified within the United States Intelligence Community at the Top Secret // Sensitive Compartmented Information (“TS//SCI”) level, and disclosure of such information could cause exceptionally grave damage to the national security. This national security concern necessitates ex parte submission of the information, and, in the limited circumstances of the pending discovery dispute, an ex parte submission is certainly appropriate under Rule 16(d)(1). CONCLUSION For these reasons, the Government asks the Court to grant the instant motion and permit the Government to submit an ex parte, in camera, classified addendum to its forthcoming opposition to the Defendant’s pending motion, containing only additional facts in support of the Government’s public arguments. 5 Case 1:18-cr-00032-DLF Document 80 Filed 12/21/18 Page 6 of 6 Respectfully submitted, ROBERT S. MUELLER, III Special Counsel JESSIE K. LIU UNITED STATES ATTORNEY /s/ Jeannie S. Rhee L. Rush Atkinson U.S. Department of Justice Special Counsel’s Office 950 Pennsylvania Avenue, NW Washington, DC 20530 (202) 616-0800 /s/ Deborah Curtis Jonathan Kravis Kathryn Rakoczy U.S. Attorney’s Office, District of Columbia 555 4th Street, NW Washington, D.C. 20530 (202) 252-6920 JOHN C. DEMERS Assistant Attorney General /s/ Heather N. Alpino U.S. Department of Justice National Security Division 950 Pennsylvania Ave. NW Washington, D.C. 20530 (202) 514-2000 Dated: December 21, 2018 6 Case 1:18-cr-00032-DLF Document 80-1 Filed 12/21/18 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA v. CONCORD MANAGEMENT AND CONSULTING, LLC, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) Criminal No. 18-CR-32 (DLF) ORDER This matter comes before the Court upon the motion of the United States seeking leave to file an ex parte, in camera, classified addendum to the Government’s opposition to Defendant’s Motion to Disclose Discovery Pursuant to Protective Order. Pursuant to Federal Rule of Criminal Procedure 16(d)(1), and for good cause shown, the Government’s motion is GRANTED and it is hereby ORDERED that the Government may file an ex parte, in camera, classified addendum to its forthcoming opposition to Defendant’s motion, containing additional facts in support of the Government’s public arguments. Date HON. DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE