How Law Firms Are Protecting Sensitive Information in Russia Cases
The protective orders in Russia cases included additional restrictions to help safeguard information.
August 24, 2018 at 02:18 PM
5 minute read
The special counsel investigation of Russia's interference in the 2016 presidential election has kicked up millions of pages of documents, much of it so sensitive that prosecutors don't want to see it flying around the web.
In criminal cases, protective orders—one measure to restrict the dissemination of information beyond the lawyers who are directly involved—are fairly common. The protective orders in more-sensitive cases—like the Russia-related prosecutions, led by Special Counsel Robert Mueller III—have included extra measures to keep information secure.
Mueller's team sparred for weeks with lawyers from Reed Smith representing the Russian outfit Concord Management and Consulting, one entity charged in a wide-ranging alleged plot to influence the 2016 presidential election.
Prosecutors had argued that one man in particular—Yevgeniy Viktorovich Prigozhin, a defendant and one of Concord's officers—should be barred from viewing sensitive materials. Prigozhin has not appeared in U.S. court to face charges, and no defense lawyer has entered an appearance on his behalf.
“The court is not persuaded that Prigozhin should be categorically barred from reviewing sensitive discovery in this case solely because of his status as an unavailable codefendant,” U.S. District Judge Dabney Friedrich in Washington wrote in a ruling in June. Still, Friedrich said, the government, pointing to national security concerns, had “demonstrated good cause for restricting sensitive discovery.”
So far, Reed Smith lawyers are the only defense counsel to make appearances in either of the two Mueller cases in which Russia individuals and companies were charged. The protective order in the Concord Management contains at least one element that is not typical in run-of-the-mill criminal cases.
“Sensitive materials shall be maintained in a locked room at Reed Smith's offices within the United States, when they are not in the actual possession of defense counsel,” according to the terms of the order.
Further, information that prosecutors give to Reed Smith cannot be “disclosed, transported or transmitted outside the United States,” according to the order. The order also said “sensitive material shall not be viewed or stored on any device that is connected to or accessible from the Internet.”
While rare, that security demand was hardly extraordinary.
Williams & Connolly, for example, received a safe from the U.S. State Department to store a thumb drives with the emails of former Secretary of State Hillary Clinton. In an August 2015 letter to Congress, Williams & Connolly partner David Kendall, a longtime lawyer for the Clintons, gave assurances that the thumb drive was safe in his and his firm's hands.
“I and my law partner, Katherine M. Turner, who represent former Secretary Clinton, are the only two individuals who were authorized to access the safe,” Kendall wrote. “We both hold Top Secret security clearances issued by the Department of State.”
In the pending Russia-related prosecution of Maria Butina in Washington, the protective order said defense lawyers must create a “wall” inside the “defense's electronic storage facilities that will be designed to prevent those who are not members of the defense from accessing the materials.”
The protection order also called for the “encryption of any removable media access devices,” such as thumb drives, that contain discovery materials.
Butina, represented by Robert Driscoll of McGlinchey Stafford LLP, is charged with conspiracy and failing to declare herself as an agent of the Russian government. Prosecutors on Thursday raised concerns with a Washington judge that Butina's defense attorneys were violating court rules that restrict communication with outside parties, including news reporters, while the case was pending.
In a letter to Driscoll, prosecutors cited several news stories in which Driscoll was quoted, including a Politico story in which he accused the government of making “false claims” and using “innuendo” to taint Butina.
Last month, U.S. District Judge Tanya Chutkan, presiding over the case against Butina, cautioned the defense lawyers against the scope of public statements.
“Do you think it's in your client's interest to heave her case tried in the press?” Chutkan asked Driscoll. Chutkan added: “I certainly don't want to impose a gag order as other judges have in other cases in this court, but I will entertain a motion or a request to do so if I think that your statements cross the line and violate our local rules.”
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