WASHINGTON –A federal judge signaled Thursday that she wanted to loosen the protective order keeping the attorneys for a Russian troll company accused of election meddling from sharing discovery with their client.
The fight over who has access to discovery has percolated for months in the case special counsel Robert Mueller brought against Concord Management, which was indicted in February 2017 along with other Russian organizations and individuals who allegedly facilitated the Russian social media trolling in the 2016 election.
At a hearing Thursday, U.S. District Judge Dabney Friedrich revisited the protective order she had previously imposed in the case, which barred Concord Management from sharing discovery with people not on its American legal team without the court’s approval.
Of particular concern to the government, in seeking the order last year, was the alleged national security risks with sharing the discovery with Concord Management’s executive Yevgeny Prigozhin, a Kremlin ally known as “Putin’s chef.” Prigozhin was also named a defendant in February’s indictment, but has not shown up himself in court to fight the charges.
Friedrich said Thursday that she wanted to “explore” with the government “whether the protective order could be narrowed.”
She grilled the prosecutors — led by Jonathan Kravis, an attorney in the DC U.S. Attorney’s office — on how many documents had been deemed sensitive and thus covered by the order. Of the 4 million documents, 3.2 million have been designated as sensitive. A total of 500 documents — including sensitive and non-sensitive materials — prosecutors had identified to the defense counsel as being key documents.
Friedrich said that she had expected that, over time, the government would have narrowed the amount of documents it considered sensitive.
Kravis explained that on a document-by-document level, or even by a category level, the content of the material itself may not necessarily be sensitive, and that it could be possible that a Concord employee would be allowed to view it under certain conditions.
However, he stressed that a major concern was turning over a whole mass of documents, such as everything that was returned from a search warrant, because doing so could reveal “investigative methods.”
“They could start to recreate the investigative steps that were taken,” Kravis said. That information, in the hands of a foreign adversary, could be “used to avoid detection in the future.”
Friedrich said that it had become “very difficult” in the “abstract” for her to balance the national security concerns of the government and the right of the defendant to prepare for trial.
“It’s very hard for me, in the abstract, without any better understanding of what these documents are, to weigh competing interests,” she said.
Friedrich had previously set up a system in which Concord’s attorneys could go through a firewall counsel — a Justice Department attorney not working on the case who could nonetheless assess national security risks in discovery production —to ask to share specific documents with employees of Concord.
Eric Dubelier, an attorney for Concord, said Thursday that a request several months ago to share 80 documents with his client had gone nowhere with the firewall counsel.
Judge Friedrich said that they were in a different stage now, now that she had dealt with the various unsuccessful attempts by Concord to get the whole case thrown out.
A major issue in the dispute is that if Prigozhin was allowed to come to the U.S. to view the discovery, he would likely be arrested. Upon questioning from Friedrich, Kravis said that it was his understanding, from Concord’s previous filings in the case, that there was another Concord associate — someone in its legal department — who was not under indictment and who could, in theory, travel to the U.S. to view certain discovery documents without fear of being arrested.
Dubelier said the idea of having his Russian clients travel to the U.S was a “nonstarter.” He referenced a proposal that he had filed under seal, but the details of that proposal are publicly not known.
The public portion of the hearing lasted about an hour. The judge then cleared out the courtroom to continue the hearing under seal.